Madhya Pradesh High Court
Arvind Tyagi vs O.P.S. Bhadoriya on 25 January, 2023
Author: Deepak Kumar Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
ON THE 25th OF JANUARY, 2023
ELECTION PETITION No.02 OF 2022
BETWEEN:-
ARVIND TYAGI, SON OF PRAHLAD SINGH,
AGED-39 YEARS, OCCUPATION- FARMER,
RESIDENT OF GRAM GAHELI, VILLAGE
GAHELI, TEHSIL MEHAGAON, BHIND
(MADHYA PRADESH)
.....PETITIONER
(SHRI SANKALP SHARMA- LEARNED COUNSEL FOR THE
ELECTION PETITIONER)
AND
O.P.S. BHADORIYA, SON OF LATE SHRI
HARGOVIND SINGH BHADORIYA, AGED 51
YEAYEARS, OCCUPATION- FARMER,
RESIRESIDENT OF VILLAGE AKLONI,
DISTDISTRICT BHIND (MADHYA PRADESH)
.....RESPONDENT
(SHRI KUSHAGRA RAGHUVANSHI & SHRI SOURAV SINGH
TOMAR- LEARNED COUNSEL FOR THE RESPONDENT)
..........................................................................................
2
Reserved on : 23/01/2023
Passed on : 25th January of 2023
This election petition having been heard and reserved for order
coming on for pronouncement the day, the Court passed the following:
ORDER
Heard the learned counsel for rival parties on IA No.5253 of 2022, an
application for dismissing the election petition under Section 86 of the
Representation of the People Act, 1951 [in short 'the Act of 1951'] for non-
compliance of Section 81(3) of the Act of 1951 as well as on IA No. 5254 of
2022, an application for dismissing the election petition under Section 86 of
the Act of 1951 for non-compliance of Section 81(1) of the Act of 1951, filed
on behalf of respondent.
(2) On behalf of respondent, while arguing on IA No. 5253 of 2022, it is
contended by Shri Raghuvanshi that the election petitioner has not followed
the mandatory provisions as contemplated under Section 81(3) of the Act of
1951. It is further contended that the respondent contested the election on the
post of MLA from the Constituency of 12, Mehagaon Legislative Assembly,
Distict Bhind and he was declared as winning candidate on 12-11-2020 after
declaration of result of election on 10-11-2020. It is further contended that
election petitioner has supplied Photostat copy of election petition along with
other documents and compact disk (CD) at the time of filing of election
petition, which is not in consonance with provisions of Section 81(3) of the
Act of 1951 as the same do not bear attestation of the election petitioner.
Therefore, the election petition under Section 86 of the Act of 1951 so filed
by the election petitioner is liable to the dismissed for non-compliance of
provisions as contained in Sections 81(3) of the Act of 1951.
In support of contention, learned counsel for the respondent has placed
reliance on the decision of Hon'ble Apex Court in the matter of Sharif-ud-
din Vs. Abdul Gani Lone (1980) 1 SCC 403 wherein the Hon'ble Apex
Court has observed that the requirement of Section 81(3) of the Act of 1951
that copies of election petition shall be attested by petitioner as true copies
under his own signature is mandatory, and failure to comply with
requirement renders the petition liable to be dismissed. The Hon'ble Apex
Court further in the matter of U.S.Sasidharan Vs. K. Karunakaran (1989)
4 SCC 482 has observed that if Section 81(3) of the Act is not complied with,
the Court is bound to dismiss the entire election petition on the ground of
non-supply of true copy. The Hon'ble Apex Court further in the matter of
Rajendra Singh vs. Smt. Usha Rani & Others (1984) 3 SCC 339, has
observed that in absence of proof that the respondent received the correct
copy, the benefit of doubt cannot be given to the petitioner and the petition is
liable to be dismissed in limine.
(3) On behalf of election petitioner, by filing reply to aforesaid IA, it is
contended by Shri Sankalp Sharma that no objection was ever raised by the
Registry of this Court while filing the election petition and this Court issued
notice to respondent on 23-06-2022 and thereafter, fresh notice was issued on
22-08-2022.It is further contended that when the election petition was
presented on 30-05-2022 at the Main Seat Jabalpur, the election petitioner
was present and he was duly identified by Shri R.K.Chaturvedi, Advocate at
04:30 pm. The Registrar (Judicial) has made an endorsement in this regard
mentioning the fact that it is properly drawn up, within time and properly
stamped and it is also accompanied by requisite number of spare copies, list
of documents, registered address, P.F and receipt of security deposit of
Rs.2,000/-. It is further contended that if the election petition along with
documents were not in accordance with norms and requirements of the Act of
1951, the Registrar (Judicial) should not have affixed the aforesaid
endorsement. Copy of election petition received by the respondent clearly
shows the same as that of original and CD attached to it as that of original.
Aforesaid IA has been filed by the respondent just to lingering on the matter.
(4) On perusal of record, it appears that the election petition was filed by
the election petitioner on 30-05-2022 before the Main Seat at Jabalpur under
Sections 80, 80-A, 81, 100(d)(iv) and 101 of the Act of 1951 calling in
question the election of the respondent as a Member of Legislative Assembly,
2020 from the Constituency of 12 Mehagaon Legislative Assembly, District
Bhind on the ground of malpractice done by the respondent in contesting the
election. As per Administrative Order dated 14-06-2022, Hon'ble the Chief
Justice assigned the matter to Gwalior Bench of this High Court in
accordance with law and thereafter, the record of election petition was
received by the Registry on 17-06-2022. In compliance of Court order dated
23-06-2022, notice was issued to respondent on 30-06-2022 on furnishing PF
along with copy of election petition by election petitioner on 30-06-2022 and
as per the Office Note dated 07-07-2022, the notice issued to respondent
could not be served and the same was still awaited, therefore, again fresh
notice was issued to respondent on 29-08-2022 on furnishing PF along with
copy of election petition in compliance of Court order dated 22-08-2022 and
as per the Office Note dated 02-09-2022, the notice was served upon the
respondent. On 12-10-2022, Shri Saurabh Singh Tomar, Advocate appeared
on behalf of the respondent and sought time to argue the matter and
thereafter, by filing aforesaid IA, on 14-11-2022 Shri Dharmendra Singh
Raghuvanshi, Advocate appeared for the respondent and sought time to file
reply in the matter.
On perusal of record, it is apparent that the respondent has received
each and every document along with CD affixed with lection petition as that
of original filed by the election petitioner. On going through the entire
election petition along with copies annexed with it, so also endorsement of
the Registrar (Judicial) mentioning the fact that it is properly drawn up within
time and properly stamped and it is accompanied by requisite number of
spare copies, list of documents, registered address, PF and receipt of security
deposit of Rs.2,000/-, it is abundantly clear that the election petitioner has
already complied with mandatory provisions as contemplated under Section
81(3) of the Act of 1951. No case is made out to dismiss the election petition
under Section 86 of the Act of 1951 as there being no contravention of
Section 81(3) of the Act of 1951. Accordingly, IA No. 5253 of 2022 stands
rejected.
(5) On behalf of respondent, while arguing on IA No. 5254 of 2022, it is
contended by Shri Raghuvanshi that as per provisions of Section 81 of the
Act of 1951, the election petition has to be filed within 45 days from the date
of election. Although the aforesaid time period was expired on 24-12-2020
but the election petition has been presented by the election petitioner on 30-
05-2022 which is beyond the prescribed period of limitation. Therefore, the
election petition is liable to be dismissed under Section 86 of the Act of 1951
for non-compliance of provisions contained under Section 81(1) of the Act of
1951. It is further contended that previously an election petition bearing
No.05 of 2020 was filed by the petitioner claiming himself to be an agent of
one Mr. Hemant Katare and the same has been dismissed by coordinate
Bench of this Court [ Hon'ble Shri Justice G.S.Ahluwalia] vide order dated
3rd February, 2022 for non-compliance of provisions contained under Section
82 of the Act of 1951. Therefore, once an election petition filed by candidate
has been dismissed, the election petition filed by his agent is not maintainable
being barred by principle of res judicata. It is further contended that as far as
the judgment of Hon'ble Apex Court in the matter of Re: Cognizance for
Extension of Limitation with Miscellaneous Application No.29 of 2022
passed in Miscellaneous Application No. 665 of 2021 in Suo Motu Writ
Petition (C) No.3 of 2020 cited by election petitioner is concerned, as per
Clause 5(1) of the said judgment the period of limitation expires between 15-
03-2020 to 28-02-2022 but in the present matter, the prescribed period of
limitation is between 15-03-2020 to 28-02-2022 and therefore, the limitation
as prescribed under Section 81(1) of the Act of 1951 in special case would
start w.e.f. 01-03-2022 and the same stood expired on 14-04-2022, whereas
the election petition was presented by the election petitioner on 30-05-2022
at 04:30 pm as per the record. Therefore, the present election petition has not
been filed within the stipulated period of 45 days. So far as period of 90 days
is concerned, this interpretation is not applicable in the present matter.
Therefore, election petition filed by the election petitioner is liable to be
dismissed as the same is barred by limitation.
(6) In reply to the aforesaid IA, it is argued on behalf of election petitioner
that the Hon'ble Apex Court in the aforesaid Miscellaneous Application has
specifically observed that in case where limitation would have expired during
the period between 15-03-2020 till 28-02-2022, notwithstanding the actual
balance period of limitation remaining, all persons shall have a limitation
period of 90 days from 01-03-2022. In the event the actual balance period of
limitation remaining, with effect from 01-03-2022 is greater than 90 days,
that longer period shall apply. In the present matter, the election petition has
been filed within time i.e. on 30-05-2022. It is further contended that when
parties in subsequent suit/ proceedings are different from suit/proceedings,
there is no applicability of rule of res judicata and therefore, present election
petition is maintainable in the eyes of law.
(7) In view of law laid down by Hon'ble Apex Court in the aforesaid
Miscellaneous Application as well as on perusal of record, it is apparent that
the election petition has been filed by the election petitioner within time. No
case is made out for allowing IA No.5254 of 2022 filed by the respondent for
dismissal of election petition under Section 86 of the Act of 1951 for non-
compliance of Section 81(1) of the Act of 1951. Accordingly, IA 5254 of
2022 stands rejected.
(8) List on 01st February, 2023 for hearing on the question of framing of
issues in the matter.
(DEEPAK KUMAR AGARWAL)
JUDGE
MKB
MAHEND
Digitally signed by MAHENDRA BARIK
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH
GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH
GWALIOR, postalCode=474001, st=Madhya Pradesh,
2.5.4.20=8c6d4d6122d7ee987e457a3bec5922cacbc050c998981
397a35d9758a2b55074,
RA BARIK
pseudonym=61167CBF346371FDA4919D07819090142FCCA056
,
serialNumber=AB90F893988F10D718DA01F8065D87F25DDC9B
6C8C3FF0E5E280DD36D476F6BA, cn=MAHENDRA BARIK
Date: 2023.01.25 17:40:14 +05'30'
