Jagmohan Chauhan vs State Of Chhattisgarh
2021 Latest Caselaw 2201 Chatt

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                                                                          AFR
             HIGH COURT OF CHHATTISGARH AT BILASPUR
                          W.P.(C) No. 127 of 2021

      Jagmohan Chauhan, S/o. Pirtee Ram Chauhan, Aged About 25 Years,
      R/o. Village- Ganekera, Development Block- Basna, Police Station And
      Tahsil- Basana, District- Mahasamund, Chhattisgarh .
                                                               ---- Petitioner
                                    Versus
   1. State Of Chhattisgarh, Through Secretary, Panchayat And Welfare
      Department, Mahanadi Bhawan, Mantralaya, New Raipur, Atal Nagar,
      District- Raipur, Chhattisgarh
   2. The Collector, Mahasamund, District- Mahasamund, Chhattisgarh
   3. Sub Divisional Officer (Revenue) And Prescribed Authority Saraipali,
      District- Mahasamund, Chhattisgarh
   4. Office Of Tahsildar Saraipali, Tahsil- Saraipali, District- Mahasamund,
      Chhattisgarh
   5. Anusuiya Chauhan, W/o. Kirti Chauhan, Aged About 31 Years, R/o.
      Village- Nawagaon, Development, Block- Basana, P.S. And Tahsil-
      Basana, District- Mahasamund, Chhattisgarh
   6. Mahabir Chauhan, S/o. Shri Chamaar Singh Chauhan, Aged About 39
      Years, R/o. Village- Ganekera, Development Block- Basna, Police
      Station And Tahsil- Basana, District- Mahasamund, Chhattisgarh
   7. Parasahu Ram Chauhan, S/o. Shaido Chauhan, Aged About 33 Years,
      R/o. Village- Ganekera, Development Block- Basna, Police Station And
      Tahsil- Basana, District- Mahasamund, Chhattisgarh
   8. Prakash Kumar Mishra, Presiding Officer In The Election, High Class
      Teacher, Govt. Higher Secondary School, Ghatakchhar, Tahsil- Saraipali,
      District- Mahasamund, Chhattisgarh
   9. Office Of The Returning Officer / Election Officer (Panchayat)
      Mahasamund, Block And Tahsil Mahasamund, District- Mahasamund,
      Chhattisgarh
                                                           ---- Respondents

For Petitioner : Mr. Siddharth Dubey, Advocate For State/Respondents : Mr. Sudeep Agrawal, Dy. A.G.

For Respondent No.5 : Mr. Kishore Narayan, Advocate For Respondent No.8. : Mr. Raghavendra Pradhan, Advocate

Hon'ble Shri Justice Goutam Bhaduri Order On Board 07.09.2021

Heard

1. Challenge in this petition is to the order dated 29.10.2020 whereby

the election petition preferred under Section 122 of the

Chhattisgarh Panchayat Raj Adhiniyam, 1993 (hereinafter referred

to as "the Adhiniyam, 1993") has been rejected accepting the

ground raised by way of preliminary objection.

2. It is submitted that against the selection of the Sarpanch of

respondent No.5, the petitioner who was also contesting candidate

filed an election petition under Section 122 of the Adhiniyam, 1993.

During such proceeding before the S.D.O., who is competent

authority, an objection was preferred by Annexure P-4 that the

election petition is not maintainable on different grounds.

Predominant ground was projected that the copy of election petition

which was supplied the endorsement with the word "attested and

true copy" was not scribed which is required under Rule 3(2) of the

Chhattisgarh Panchayats (Election Petitions, Corrupt Practices &

Disqualification For Membership) Rules, 1995 (hereinafter referred

to as "the Rules, 1995"). The learned S.D.O. after hearing the

parties accepted the preliminary objection dismissed the entire

petition filed under Section 122 of the Adhiniyam, 1993 by holding

that the copy of the petition which was supplied by the petitioner to

the opposite party was not endorsed with word attested to be

certified copy, which is mandatory under the Rules.

3. Learned counsel for the petitioner would refer to the election

petition which is placed on record as Annexure P-3 and submits

that the copy of petition itself was bearing the signature of the

petitioner. Therefore, even if the word "it is attested true copy" of

the original petition has not been scribed, it will not make any

difference and the law laid down in 2006 (3) M.P.L.J. is answer to

the dispute. Therefore, the order of the S.D.O. be set aside and the

case be remanded back for hearing before the S.D.O.

4. Per contra, learned counsel for the respondents would submit that

under Sub-Rule 2 of Rule 3 of the Rules, 1995 the requirement to

make an endorsement that it is "attested true copy" is mandatory.

Therefore, the order impugned is well merited. It is further

submitted that even on the merit since there is a huge difference in

between the count margin no useful purpose would be served to

remand the case back to the S.D.O.

5. I have heard learned counsel for the parties and perused the order

of the S.D.O.

6. The order of dismissal of election petition shows that pursuant to

the objection raised by the respondent No.5 along with different

grounds, while the order was passed the S.D.O. confined its order

to the issue that the copy of election petition which was supplied to

the respondents were not endorsed with "attested to be true copy".

The order speaks of Section 22 Rule 17 of the Adhiniyam, 1993,

which is not in the statute book. Therefore, the tenor of the order is

only on the fact that the petition was dismissed for non-compliance

of Rule 3(2) of the Rules, 1995. Rule 3 of the Rules, 1995 for the

sake of brevity is reproduced herein :

"3. Presentation of election petition. - (1) An election petition shall be presented to the specified officer during the office hours by the person making the petition, or by a person authorised in writing in this behalf by the person making the petition. (2) Every election petition shall be accompanied by as many copies thereof as there are respondents

mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition."

7. The similar issue came up for hearing before the High Court of

Madhya Pradesh in case of Ravindra Singh v. Sub-Divisional

Officer-Cum-Prescribed Authority, Datia & Others reported in

2006 (3) M.P.L.J. wherein the Court at Para 8, 9 & 10 held as

under :

"8. As far as attestation of the true copies sent along with the notice to respondent No. 1 is concerned, Rule 3 sub-rule (2) of the Rules of 1995 contemplates that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. In the present case, the material available on record indicates that the copies sent to the respondents bore the signature of the petitioner, however the words "attested as true copies" were not mentioned above his signatures and it was on this count that non-compliance with Rule 3(2) has been found to be established and the election petition dismissed. The question of incorporating the words "true copy" or "attested true copy" while filing an election petition under the Representation of the People Act was considered by the Five Judge Bench of Supreme Court in the year 1965 in the case of Dr. Anup Singh (supra). In Para 6 of the aforesaid judgment, Supreme Court has referred to Section 81(3) of the Representation of the People Act and the provisions reproduced therein indicate that the said provision is pari materia with Rule 3(2) of the Rules of 1995. The provision of Section 81(3) of the Representation of the People Act also contemplates that every copy shall be attested by the person under his own signatures to be true copy of the petition.

9. Thereafter in Para 7 exactly similar situation as is existing in the present case is considered and it is observed by the Supreme Court in the aforesaid order as under:

"(7). An exactly similar matter came to be considered by this Court in Subba Rao v. Member, Election Tribunal, AIR 1964 SC 1027. In that case also the copies were signed by the petitioner but there was no attestation in the sense that the words "true copy" were omitted above the signature of the petitioner. This Court held that as the signature in original was there in the copy, the presence of such original signature in the copy was sufficient to indicate that the copy was attested as a true copy, even though the words "true copy" were not written above the signature in the copies. This Court further held that there was substantial compliance with Section 81(3) of the Act and the petition could not be dismissed under Section 90(3). That case applies with full force to the facts of the present case, and it must therefore, be held that there was substantial compliance with Section 81(3) and the petitions could not therefore be dismissed under Section 90(3)." (Emphasis supplied).

10. From the aforesaid it is clear that if the copies sent to the respondents bear the signature of the petitioner mere omission to write the words "true copy" or "attested true copy" will not make any difference. This question is again considered by a Bench of this Court in the case of Rameshwar Dayal Arale (supra). In Para 8 of the aforesaid judgment the effect of not making the endorsement, i.e., "attested true copy" was considered and after relying upon an earlier judgment of the Supreme Court in the case of M. Kamalam (supra), it has been held by this Court that if the copies of the election petition for service on the respondent is signed by the election petitioner, then the requirement of

mentioning the words "true copy" is wholly imaginary and unwarranted. Keeping in view the law laid down by the Supreme Court so also by this Court in the aforesaid case it has to be held that on the ground of non- compliance of Rule 3(2), the election petition could not be dismissed and it has to be held that the requirement of Sub-rule (2) of Rule 3 of Rules of 1995 have been complied with and therefore, dismissal of the election petition on this ground was unwarranted.

8. Reading of the aforesaid Para would clearly demonstrate that

writing the true copy or attested true copy or even if there is

omission made, it will not make any difference or would be fatal.

Perusal of the copy of the petition which is placed would show that

copy of election petition was bearing signature of the petitioner,

therefore, simply because of the reason that words as attested to

be true copy was not scribed will not make any difference and

dismissal only on this count cannot be sustained.

9. Applying the aforesaid dictum in the present case, the order of the

S.D.O. dated 29.10.2020 cannot be sustained and it is accordingly

set aside. The case is remanded back to the Court of S.D.O.

Saraipali, District Mahasamund, to decide the election petition

afresh on the merit after giving an opportunity of hearing to the

parties. The S.D.O. shall conclude the hearing of the petition within

a period of four months from the date of receipt of a copy of this

order.

10. In view of the above, the petition is allowed. No order asto costs.

Sd/-

Aks                                                        (Goutam Bhaduri)
                                                                Judge