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Navratan Singh Vs. Chandidan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. No. 1448 of 1983
Judge
Reported inAIR1985Raj219; 1985(1)WLN26
ActsRajasthan Panchayat Act, 1953 - Sections 89; Rajasthan Panchayat and Nyaya Up-Samiti Election Rules, 1960 - Rules 78 and 79
AppellantNavratan Singh
RespondentChandidan and ors.
Appellant Advocate M.M. Sanghvi, Adv.
Respondent Advocate M. Mridul, Adv.
DispositionPetition dismissed
Cases ReferredRathnam Pillai v. Sellappa Reddiar
Excerpt:
rajasthan panchayat & nyaya panchayat upsamiti election rules, 1960 - rule 78--election petition--presentation of--election petition be presented in court of munsif and not to munsif in person.;the election petition can be presented to the court of munsif and that the presentation need not be made to the munsif in person. if interpreted otherwise then the very object of providing the remedy to challenge the election by way of election petition, would be defeated.;writ dismissed - - it was held that if the respondent's copy is found to be an incorrect one, it amounts to non-compliance of section 81(3), which is sufficient to entail a dismissal of the election petition at his behest under section 96. 10. in the present case, it is noteworthy that there does not exist a parallel..........the security amount as envisaged by rule 79 of the rajasthan panchayat & nyaya up-samiti election rules, 1960 (for short 'the rules') to the munsif, pipar city, who directed that the amount of rs. 50/- may be deposited. accordingly, the respondent no. 1 deposited this amount. however, the respondent no. 1 presented the election petition to shri vasudeo dewal, criminal clerk, who was working as a reader. the respondent no. 1 inter alia challenged the election on the ground that the election petition was not validly presented as it can only be presented to the munsif and not to the reader. the presentation was, therefore, invalid. it was only on february 18, 1982, shri mohammed ayyub khan took over the charge of munsif & judicial magistrate. bilara. the objection relating to the.....
Judgment:
ORDER

M.C. Jain, J.

1. The petitioner by this writ petition seeks to quash the order dated April 16, 1983 (Annex. 1) passed by the learned Munsif & Judicial Magistrate, First Class, Bilara, whereby the objection of the petitioner as to the invalidity of the presentation of the election petition was overruled.

2. I may state the few relevant facts. Inconnection with the re-constitution of the Gram Panchayat, Bbrunda of the Panchayat Samiti, Bilara, the elections were held on December 14, 1981. The petitioner Navratan Singh and the respondent No. 1 Chandidan contested the election for the office of Sarpanch. The petitioner was declared elected. The respondent No. 1 questioned the election of the petitioner by presenting the election petition on January 13, 1982. The election petition was presented to the Reader of the Court of the Munsif Magistrate, Bilara. Shri Baldeopuri Goswami, Munsif & Judicial Magistrate, Bilara on account of his transfer had handed over the charge on January 11, 1982 and an order was passed by the District Judge and authorising Shri Madhosingh, Munsif Magistrate, Pipar city to look after the work and dispose of urgent matters of the court of Munsif Magistrate. Bilara in addition to his duties. On January 13, 1982, the respondent No. 1 submitted an application in the prescribed form for depositing the security amount as envisaged by Rule 79 of the Rajasthan Panchayat & Nyaya Up-Samiti Election Rules, 1960 (for short 'the Rules') to the Munsif, Pipar city, who directed that the amount of Rs. 50/- may be deposited. Accordingly, the respondent No. 1 deposited this amount. However, the respondent No. 1 presented the election petition to Shri Vasudeo Dewal, Criminal Clerk, who was working as a Reader. The respondent No. 1 inter alia challenged the election on the ground that the election petition was not validly presented as it can only be presented to the Munsif and not to the Reader. The presentation was, therefore, invalid. It was only on February 18, 1982, Shri Mohammed Ayyub Khan took over the charge of Munsif & Judicial Magistrate. Bilara. The objection relating to the invalid presentation of the election petition was heard by the learned Munsif & Judicial Magistrate, Bilara and the same was overruled by the learned Munsif by his impugned order.

3. The question that arises for consideration is as to whether the presentation of the election petition to the official of the court of Munsif Judicial Magistrate, Bilara, who was acting as Reader, is a valid presentation. The relevant portion of Rule 78 of the Rules reads as under : --

'78. Manner of challenging an election or co-option under Rules.-- The election or co-option of any person as the Panch of a Panchayat or the election of any person as the Sarpanch or Up-sarpanch of a Panchayat or as the member or Chairman of a Nyaya panchayat may be called in question by presenting a petition to the Munsif, or, where there is no Munsif to the Civil Judge, within whose jurisdiction the place of Head-quarters of the Panchayat or the Nyaya Panchayat, as the case may be, is situated, within thirty days from the date on which the result of such election or co-option is declared, on any one or more of the following grounds -

(a) to (f) .....

It would appear from the above provision that the petition has to be presented to the Munsif. On behalf of the petitioner Mr. M. M. Singhvi, his learned counsel urged that in view of the above provision, the petition has to be presented to the Munsif and not to any other person. No one else can entertain and if the election petition is presented to some official of the Court of Munsif, it would be non-observance of the statutory rule, which is mandatory in character. Non-observance of the statutory rule, according to Mr. Singhvi would be fatal to the election petition. The words 'to the Munsif can only mean that the petition has to be presented to the Munsif in person and these words cannot be interpreted to mean that the petition can be presented to the court of Munsif. It is only where there is no Munsif, the election petition can be presented to the Civil Judge. The omission of the words 'the court' is significant, also the framers of the rules could have provided that the election petition can be presented to the court of Munsif. If the expression 'the Court of Munsif would have been used by the framers, the Reader of the court could have entertained the election petition but in the absence of the words 'the court of Munsif the election petition can only be presented to the Munsif or the Civil Judge in person as the case may be. Mr. Singhvi. emphasised that the election law is a special law and being a special law, the provisions have to be interpreted literally and strictly in their natural and plain sense and the provisions should not be given equitable or liberal construction and in case, liberal construction is put the democratic rights of the people would be adversely affected. According to Mr. Singhvi, the provisions relating to resolving of the election disputes lay down a complete Code and so, theprovisions have to be interpreted treating the provisions as special law relating to the matters of election disputes. Mr. Singhvi tried to support his contention by reference to some case law. It may, however, be stated that so far as Rule 78 of the Rules is concerned, there is no direct authority on the point.

4. First of all, Mr. Singhvi, learned counsel for the petitioner referred to a decision of this Court in Keshav Dev. v. Radhey Shyam, ILR (1963) 13 Raj 1101. This authority simply lays down that the Munsif or Civil Judge hearing the election petition under Rule 78 of the Rules, is a persona designata and being persona designata, it has been held that the District Judge has no jurisdiction to transfer an election petition from one Munsif to another Munsif or from Munsif to Civil Judge.

5. He further made a reference to the decision of the Division Bench of this Court in Rewachand v. Anandsingh Kechhawaha, 1964 Raj LW 529 : (AIR 1965 Raj 58). This was an election matter filed under the Representation of the People Act and came up for consideration of the Rules 247-E and 247-H of the High Court Rules. It was held that the said rules are mandatory in character and non-compliance of the rules would result into dismissal of appeal. In this case, reliance was placed on a decision of the Supreme Court in Rattan Anmol Singh v. Ch. Atma Ram, AIR 1954 SC 510 and after extracting the portion, it was observed that the necessary paper-book should not only have accompanied the memorandum of appeal, but further the said book should have been certified by the advocate of the party preparing the copy as to the correctness of the translation and typing of the paper-book at the time when memorandum of appeal was filed. It was further observed that not only this has not been done, but no such valid certificate appears until this date on the paper-book. Because of the Rules, it was held that the appeal is invalidated.

6. The next authority, which has been relied upon by Mr. Singhvi is State of U. P. v. Singhara Singh, AIR 1964 SC 358. It was observed in this case -

'When a Statute confers a power on certain judicial officers, that power can obviously be exercised only by those officers. No other officer can exercise that power, for it has not been given to him.'

7. In that case, it was held that power under Section 164 is conferred on Magistrate of higher classes and confession cannot be recorded by the Magistrate of the lower classes.

8. Reliance has further been placed by Mr. Singhvi on Ashok Shankar Gholap v. Krishnarao H. Deshmukh, AIR 1980 Bom 224. This was also a case under the Representation of the People Act. There was non-compliance of the provisions of Section 81(3). In that case, the election petition was filed on the last day of limitation for filing an election petition without requisite number of copies. The Clerk of the Advocate merely kept the copies of the election petition in the Board Department. It was held that there was non-compliance of Section 81(3). The matter relating to the presentation, came to be disposed of in view of the specific provisions contained in Section 86.

9. In J. P. Goyal v. Raj Narain, (1984) 3 SCC 339 (340) : (AIR 1984 SC 956) again, it was observed that the procedural requirements must be mandatorily complied with and it was also the matter under the Representation of the people Act. In that case, the attested true copies were mixed up with incorrect copies of petition. The election petitioner filed a number of copies, some of which may be correct and some may be incorrect. It was his duty to see that the copy served on the respondent is a correct one. It was held that if the respondent's copy is found to be an incorrect one, it amounts to non-compliance of Section 81(3), which is sufficient to entail a dismissal of the election petition at his behest under Section 96.

10. In the present case, it is noteworthy that there does not exist a parallel provision like the provision of Section 86 contained under the Representation of the People Act. So far as, the Representation of the People Act is concerned, the authorities or the decisions, cannot be of much help in view of the special provisions contained in Section 86 of the Act. If Sections 81, 82 and 117 of the Representation of the People Act are not complied with, then the petition cannot be proceeded with under the Representation of the People Act.

11. Mr. Mridul, learned counsel for the respondent No. 1 has referred to some decisions of the Supreme Court. In Hukumdev Narain Yadav v. Lalit Narain Mishra. AIR1974 SC 480, in para 23 of the report, it has been observed as under : --

'If no discretion was conferred in respect of any of these matters, none can be exercised under any general law or on any principles of equity. If for non-compliance with the provisions of Sections 82 and 117, which are mandatory, the election petition has to be dismissed under Section 86(1) the presentation of election petition within the period prescribed in Section 81 would be equally mandatory, the non-compliance with which visits the penalty of the petition being dismissed.'

12. In K. Venkateswara Rao v; Bekkam Narasimha Reddi, AIR 1969 SC 872 again, it has been observed in para 18 of the report as under : --

'No right is however given to the High Court to entertain an election petition, which does not comply with the provisions of Section 81 Section 82 or Section 117.'

13. It was observed in that case that the limitation Act cannot be applied to the proceedings like an election petition inasmuch as the Representation of the People Act is a complete and self-contained Code which does not admit of the introduction of the principles or the provisions of law contained in the limitation Act.

14. Thus, so far as the authorities based on the Representation of the People Act are concerned, in my opinion, they cannot be pressed into service in order to interpret the provisions of Rule 78 of the Rules.

15. Mr. Mridul, learned counsel for the respondent No. 1 has relied on the two decisions of this Court, wherein the question of presentation of the election petition before the official of the Court was considered.

16. The first case is Bansilal v. ManoharLal, 1959 Raj LW 515. The Division Bench of this Court while considering the provisions of Sections 19(1) and 19(2) of the Rajasthan Town Municipalities Act observed as under : --

'Let us look at what Section 19(1) provides in this matter. That lays down that any ten voters or any candidate who stood for election may apply to the Judge having jurisdiction over the district within which the election has been held for the determination of the validity of the election. The election petition has to bemade therefore to the Judge having jurisdiction over the district. This, in our opinion, is nothing more than laying down that the election petition shall be filed in the Court of the District Judge having jurisdiction in the area in which the election is held. We are not prepared to hold that these words in Section 19(1) of the Municipalities Act mean that the election petition must be presented to the Judge himself. It is enough in our opinion if it is presented to the officer who normally accepts petitions relating to his court. We are, therefore, of opinion that there was no irregularity whatsoever in the presentation of the petition in this case to the Munsarim of the Judge having jurisdiction over the district within which the election was held.'

The Division Bench held that the presentation of the election petition to officer of the Court of the District Judge, who normally accepts the petitions is enough and this contention was negatived that the election petition must he presented to the Judge himself. This decision was followed in Madan Gopal Gupta v. Dr. Leelaram, AIR 1972 Raj 177.

17. It may be stated that Rule 78 of the Rules deals with the manner of challenging an election and it is provided that an election may be called in question by representing the petition 'to the Munsif' and the period provided for the presentation of the petition is 30 days from the date on which the result of such election is declared. Rule 78 makes a provision with regard to presentation and a provision with regard to limitation. Rule 79 makes a provision for a person, who can present the election petition and Sub-rule (2) of Rule 79 of the Rules further lays down that no petition shall be deemed to have been presented under these rules unless the petitioner deposits a sum of Rs. 50/- along with the petition by way of security for the costs of the opposite party. It would appear that Sub-rule (2) of Rule 79 is a negative deeming provision. For presentation of the election petition, if Sub-rule (2) is not complied with, it would mean as if the election petition is not presented at all. No such negative or penal provision has been enacted in any rule, in connection with the non-observance of Rule 78 of the Rules. I need not dilate on the question as to what matters provided in Rule 78 are of mandatory character.

18. With regard to the provision ofpresentation of the election petition, the matter has to be considered from this point as to whether the authority framing the rules intended to deny the petitioners, who want to challenge the election, the remedy of presenting the petition it the same is not presented to the Munsif in person. When an election is open to challenge and when the manner is provided to challenge the same then it should be taken that the framers have provided an effective, not an illusory remedy, which can be taken away for no fault on the part of the petitioner. Within the period of limitation, a petition can be presented and if, on the last date of limitation for any reason the presiding officer is not there in the court then it would not be possible for the petitioner to present the petition to the Munsif in person and if he presents the petition to the official who normally entertains such papers, that would be rendered invalid. In my opinion, such cannot be the intendment of the rule and intention of the framers of the rule. The framers of the rule, simply appear to have provided that the petition should be presented to the court within limitation else it would mean that though the remedy is provided but the same may be rendered futile or meaningless for no fault on the part of the petitioner. In a situation like the one considered above, in my opinion, the provision of Rule 78 should be interpreted in the manner that the election petition can be presented to the court of Munsif and that, the presentation need not be made to the Munsif in person. If interpreted otherwise then the very object of providing the remedy to challenge the election by way of election petition, would be defeated as the election petitioner would be required to keep a continuous watch for 30 days as to whether the presiding officer would remain present in court or not, so that the petition can be presented on the date when the presiding officer is not on leave.

19. 1 may refer here to a decision of the Division Bench of the Madras High Court in Rathnam Pillai v. Sellappa Reddiar, ILR (1963) Mad 1094. In that case, a question arose with regard to the presentation of the election petition under the Madras Panchayat Act. Rule 1(3) provided that the District Munsif or other officers mentioned therein shall exercise jurisdiction as persona designata and not in the personal capacity. Under Rule 2, the election petition could be presented within 15 daysfrom the date of the declaration of the result of the election. There was no specific provision to whom the election petition can be presented. Explanation of Rule 2 provided that if the office of the election court is closed on the last date of the fifteen days aforesaid, the petition may be presented to the election Court on the next following day on which such court opens. It was observed as under : --

'An election commissioner under the rules, if not functioning as a Civil Court, but only as a persona designata, only means that he is performing his judicial acts as such. That does not, however, mean that the District Munsif should not have the assistance of his subordinates for the performance of ministerial acts. Those ministerial acts like the receiving of the petition, making out copies, issuing of process, can be done by the subordinates of the District Munsif. The explanation to Rule 2 impliedly recognises this.'

On the question, whether it should be presented to the District Munsif in person or to his subordinates in his office, it was held that -

'the presentation of the petition to the head-clerk -- the accredited Officer for the purpose of receiving plaints -- was a proper presentation.'

20. In the light of what I have considered above, in my opinion, it would be in accord with the intention of the framers of the rules that Rule 78 may be interpreted in the manner by which the petition may be presented to the Court of Munsif.

21. I need not examine the contention based on Rule 83 as to what the expression 'hearing' means and whether the provision of Order IV, Rule 1 of the Civil Procedure Code would apply or not.

22. In the light of what I have discussed above, the order of Munsif does not call for any interference and the preliminary objection regarding invalidity of the presentation has been rightly overruled.

23. In the above view of the matter, the writ petition has no force, so, it is hereby dismissed.


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