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2011 Supreme(MP) 277
IN THE HIGH COURT OF MADHYA PRADESH (GWALIOR BENCH)
S.K. Gangele and Brij Kishore Dube, JJ.
Sanjay
Vs.
Shri Lal and Ors.
Writ Appeal No. 186 of 2011
Decided On: 06.04.2011
For Appellant/Petitioner/Plaintiff: R.B.S. Tomer, Adv.
For Respondents/Defendant:N.S. Kirar, Adv. for Respondent Nos. 1 to 5 and Vivek Khedkar, Government Adv. for Respondent Nos. 6 and 7
Headnote:Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 (M.P.) -- Rr.3 and 8 -- election petition presented by counsel -- counsel not authorised by election petitioner -- served copy of election petition not attested and signed by election petitioner -- while, all aforesaid provisions mandatory -- election petition should have been dismissed on these technicalities -- appeal allowed.
In the present case, there is no signature of respondent No.1, who filed the election petition, on the copy of the election petition, which was served on the appellant. Hence, there is non-compliance of the mandatory provision of rule 3 of the Rules of 1995. In such circumstances, the election petition is liable to be rejected.
In such circumstances, the learned Single Judge has committed an error of law in holding that on technicalities the election petition of respondent No.1 could not be dismissed. AIR 1964 SC 1027 followed. 1998(2) JLJ 183, 1998(2) Vidhi Bhasvar 261, 2002(2) Vidhi Bhasvar 157, 2008(III) MPWN 92 and ILR (2010) MP 129 confirmed. (2005)12 SCC 187, (2005)2 SCC 188, AIR 2008 SC 1577 and (2011)2 SCC 654 distinguished. [Paras 16 & 17
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S.K. Gangele, J.
1. Appellant has filed this appeal against the order dated 22.03.2011 passed by learned Single Judge of this Court in Writ Petition No. 6205/2010.
2. Respondent No. 1 filed an election petition questioning the election of Appellant to the post of Sarpanch of Gram Panchayat, Garhi, Tehsil Vijaypur, district Sheopur. An election petition was presented on 19.02.2010 by the Counsel of Respondent No. 1 before the Specified Officer, Respondent No. 7. After receiving a notice, the Appellant raised preliminary objection in regard to maintainability of the election petition. He pleaded that the election petition was not presented before the Specified Officer by Respondent No. 1 himself and the counsel was not authorized by Respondent No. 1 to submit the election petition. The Appellant further contended that the copy, which was sent to the Appellant by Respondent No. 1, has not been certified as 'true copy' and the Respondent No. 1 did not sign the copy as required under Rule 3 of the M.P. Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995, hereinafter referred to as the 'Rules of 1995', hence, the election petition is liable to be dismissed.
3. Respondent No. 1 in his reply submitted that the provisions of Rule 3 of the Rules of 1995 are not mandatory in nature and if there is any violation thereof the election petition is not at all liable to be dismissed.
4. The Specified Officer vide order dated 26th July 2010 has held that the objections of the Appellant in regard to maintainability of the election petition shall be considered at the time of final hearing. Against the aforesaid order the Appellant filed a petition before this Court. The learned Single Judge of this Court vide impugned order has held that the objections in regard to maintainability of the election petition of the Appellant are technical in nature and on the aforesaid ground the election petition could not be dismissed. The learned Single Judge further observed that it is the duty of the Appellant to contest the election petition on merits and dismissed the petition.
5. Learned Counsel for the Appellant has contended that the provisions of Rule 3 of the Rules of 1995 are mandatory in nature and if there is noncompliance of Rule 3, the election petition is liable to be dismissed in accordance with the provisions of Rule 8 of the Rules of 1995. In support of his contentions the learned Counsel relied on the following judgments:
(1) Suman Santosh Kumar Patel v. Bhanwati Maqhesh Pratap Patel and Anr. 1999 (I) MPLJ 88;
(2) Tara v. Dabla alias Lalita and Ors. : 2002 (3) MPLJ 591;
(3) Sarla Tripathi (Smt.) v. Smt. Kaushilya Devi and Ors. 2004 (2) JLJ 263;
(4) Urmila Devi v. Returning Officer (Panchayat) and Ors.: 2008 (4) MPHT 410;
(5) G.V. Sreerama Reddy and Anr. v. Returning Officer and Ors.: (2009) 8 SCC 736; and (6) Baijulal Verma v. Additional Collector, Chhindwara and Ors. I.L.R. (2010) MP 129.
6. Contrary to this, the learned Counsel for Respondents No. 1 to 5, has contended that the provisions of Rule 3 of the Rules of 1995 are not mandatory in nature and if there is any violation of Rule 3, then the election petition could not be dismissed at the initial stage. In support of his contentions learned Counsel relied on the following judgments of the Hon'ble Supreme Court:
(1) Patel Dipakbhai Chimanbhai (2005) 12 SCC 187;
(2) Umesh Challiyil v. K.P. Rajendran,: AIR 2008 SC 1577;
(3) Kedar Shashikant Deshpande and Ors. v. Bhor Municipal Council, and Ors.: (2011) 2 SCC 654; and
(4) Chandrakant Uttam Chodankar v. Dayanand Rayu Mandrakar and Ors.: (2005) 2 SCC 188;
7. The admitted facts of the case are that the election petition was presented by the counsel of Respondent No. 1 before the Specified Officer on 19.02.2010. It is clear from the order sheet dated 19.02.2010, the Respondent No. 1 did not file the copy of the Vakalatnama, in which it has been mentioned that the counsel was authorized to file election petit
