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IN THE HIGH COURT OF ALLAHABAD
RAJAN ROY, RAJNISH KUMAR, DINESH KUMAR SINGH, JJ.
Sumitra Devi - Appellant
Versus
Special Judge/Addl Distt & Sess. Judge E.C Act Hardoi Ors - Respondent
Misc. Single No. 9920 of 2018
Decided On : 12-06-2020
Constitution of India – Article 243-O(b) – U.P. Panchayat Raj Rules, 1947 – Rule 24 – U.P. Panchayat Raj (Settlement of Disputes) Rules, 1994 – Rules 3, 4 – U.P. Panchayat Raj Act, 1947 – Section 12-C(1) and (3) – Election Petition – Whether presentation of an election petition by the election petitioner personally is a mandatory requirement in view of Sub-section 3 of Section 12 C(1) of the Act, 1947 and Rule 3(1) of the Rules, 1994 and whether it's noncompliance is fatal or it would merely be an improper presentation, a curable defect – Whether the decision of the Single Judge Bench of this Court in the case of Viresh Kumar Tiwari (supra) lays down the law correctly with regard to the question framed at serial no. 1 or it is the division Bench judgment in the case Lal Bahadur Singh (supra) and the subsequent Single Bench judgment in the case of Urmila (supra) which lay down the law correctly – Held, Court must point out that Rule 24(2) of the Rules, 1947 when it used the words ‘by any 10 or more electors’ were slightly different than the language contained in Section 12-C (3) as in the latter provision word ‘elector’ has been used – Court approve of it in part as far as it holds that election petition is to be filed by the candidate in person and not by his agent, but in our discussion relating to question no. 1 court have made it clear that filing of such a petition by the agent of the candidate/election petitioner i.e. his Advocate or clerk, in his presence before prescribed authority, would amount to sufficient compliance of Section 12 C(3), therefore, subject to this modification, the said decision is approved – Court find that it does not lay down any proposition of law on the question no. 1 which has been considered by us – As already observed, it turns on its own facts – Its correctness is not required to be considered by us – Order Accordingly (Paras 77, 79, 80)
Facts of The Case:
Counsel for the petitioner argued to persuade the Court that filing of an election petition under Section 12-C of the Act, 1947 is to be done by the candidate/election petitioner himself and not by any other person, if the petition is by the candidate. Any defect in this regard, according to him, was fatal and not curable.
Findings of the court:
Court must point out that Rule 24(2) of the Rules, 1947 when it used the words ‘by any 10 or more electors’ were slightly different than the language contained in Section 12-C (3) as in the latter provision word ‘elector’ has been used – Court approve of it in part as far as it holds that election petition is to be filed by the candidate in person and not by his agent, but in our discussion relating to question no. 1 court have made it clear that filing of such a petition by the agent of the candidate/election petitioner i.e. his Advocate or clerk, in his presence before prescribed authority, would amount to sufficient compliance of Section 12 C(3), therefore, subject to this modification, the said decision is approved – Court find that it does not lay down any proposition of law on the question no. 1 which has been considered by us – As already observed, it turns on its own facts – Its correctness is not required to be considered by us.
Result: Order Accordingly
JUDGMENT :
RAJAN ROY, J.
1. Heard.
2. An interesting issue regarding the manner of presentation of an election petitions under Section 12-C(1) and (3) of the U.P. Panchayat Raj Act, 1947 (hereinafter referred to as ‘the Act, 1947’) has been referred by a Single Judge Bench for our consideration. The Single Judge Bench has referred the matter to us as it noticed conflicting opinions of various Benches of this Court on the issue involved and also as it is an issue which arises quite often before the Courts in proceedings arising from of an election petition under the Act, 1947, hence the need to settle it conclusively. The question referred to us vide order dated 13.8.2019 of the writ court, as rephrased by us vide our order dated 22.11.2019, are quoted below :-
2. Whether the decision of the Single Judge Bench of this Court in the case of Viresh Kumar Tiwari (supra) lays down the law correctly with regard to the question framed at serial no. 1 or it is the division Bench judgment in the case Lal Bahadur Singh (supra) and the subsequent Single Bench judgment in the case of Urmila (supra) which lay down the law correctly ?”
3. As we are not required to decide any factual issue involved in the Writ Petition and especially as the questions referred to us are not dependent on any peculiar facts of the case but are of a general nature, we do not find it necessary to mention the facts leading to the filing of the Writ Petition in question. Suffice it to say that according to the petitioner the election petition in question had not been presented by the candidate, it was presented by his Advocate, as is recorded in the ordersheet by the Prescribed Authority, therefore, the mandate of section 12-C(3) of the Act 1947 had not been complied which was mandatory, hence the petition was liable to be dismissed, but neither the Prescribed Authority nor the revisional authority have appreciated this aspect of the matter appropriately and in accordance with law.
4. Learned Counsel for the petitioner argued to persuade the Court that filing of an election petition under Section 12-C of the Act, 1947 is to be done by the candidate/election petitioner himself and not by any other person, if the petition is by the candidate. Any defect in this regard, according to him, was fatal and not curable.
5. On the other hand Shri Anurag Shukla appearing for the contesting opposite party took up a contrary stand. He tried to convince us that the petition could be filed by the agent of a candidate/ election petitioner such as his Advocate or his clerk and in this regard the provisions of C.P.C would apply in view of the provision contained in Rule 4 (1) of the U.P. Panchayat Raj (Settlement of Disputes) Rules, 1994 (hereinafter referred as 'Rules 1994'). Even if it was required to be filed by the candidate/election petitioner personally, the defect was a curable one and not fatal as there were no penal consequences prescribed in the Act 1947 or the Rules 1994 for non-compliance of Section 12-C(3). Shri S.P. Singh, learned CSC took us through various provisions of this Act and his stand was the same as that of the petitioner.
6. Question no. 1 is in two parts. We would like to first of all consider the first part of Question No. 1, as to whether an application questioning the election of a person as Pradhan or as a Member of Gram Panchayat referable to Section 12-C(1) is required to be mandatorily presented by a candidate personally or it can be presented by his agent or Advocate, as the case may be, as well.
7. The State Legislature has promulgated the U.P. Panchayat Raj Act, 1947. As per its preamble, it is an Act to establish and develop local self-government
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