Madhya Pradesh High Court
Parasram vs Vishnu Prasad on 26 October, 2023
Author: Vivek Rusia
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 26th OF OCTOBER, 2023
WRIT PETITION No. 23735 of 2022
BETWEEN:-
PARASRAM S/O PREMSHANKAR PUROHIT, AGE: 35 YEARS, OCCUPATION:
AGRICULTURE, R/O PIPLON, TEHSIL AND DISTRICT NEEMUCH (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI RISHIRAJ TRIVEDI - ADVOCATE.)
AND
VISHNU PRASAD S/O SHIVNARAYAN PUROHIT, AGE: 40 YEARS,
1. OCCUPATION: RETIRED, ADDRESS: PIPLON, TEHSIL AND DISTRICT
NEEMUCH (MADHYA PRADESH)
MANGAL S/O NANALAL PATIDAR, AGE: 34 YEARS, OCCUPATION:
2. AGRICULTURIST, ADDRESS: PIPLON, TEHSIL AND DISTRICT NEEMUCH.
(MADHYA PRADESH)
DHANNALAL S/O NARAYANJI GAYARI, AGE: 38 YEARS, OCCUPATION:
3. AGRICULTURIST, ADDRESS: PIPLON, TEHSIL AND DISTRICT NEEMUCH.
(MADHYA PRADESH)
DINESH S/O SHIVNARAYAN SHARMA (NAGDA), AGE: 53 YEARS,
4. OCCUPATION: AGRICULTURIST, ADDRESS: PIPLON, TEHSIL AND DISTRICT
NEEMUCH. (MADHYA PRADESH)
DILIP S/O BHERULAL PUROHIT, AGE: 35 YEARS, OCCUPATION:
5. AGRICULTURIST, ADDRESS: RAJPURIYA, TEHSIL AND DISTRICT NEEMUCH.
(MADHYA PRADESH)
SDO CUM SPECIFIED OFFICER, SUB DIVISION NEEMUCH. (MADHYA
6.
PRADESH)
.....RESPONDENTS
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHAWE
Signing time: 10/27/2023
5:29:47 PM
(RESPONDENT NO.1 BY SHRI SANJAY KUMAR SHARMA - ADVOCATE.
RESPONDENT NO.6 - STATE OF M.P. BY SHRI TARUN KUSHWAH - ADVOCATE.)
Heard and reserved on: 12.10.2023.
Order passed on: 26.10.2023.
This petition coming on for admission this day, the court passed the following:
ORDER
Petitioner has filed the present petition under Article 226 of the Constitution
of India challenging the order dated 10.10.2022 (Annexure P/7) passed by the Sub
Divisional Officer-Cum-Specified Officer, Sub Division Neemuch, District
Neemuch (M.P.) whereby an application filed by writ petitioner - Parasram S/o
Premshankar Purohit under Rule 8 of Madhya Pradesh Panchayat (Election
Petitions, Corrupt Practices & Disqualification for Membership) Rules, 1995
(herein after referred as the Election Rules) seeking dismissal of the election
petition due to non-compliance of Rules 3 and 7 of the Rules, has been rejected.
2. Writ petitioner and respondents No.1 to 5 contested a Panchayat Election for
the post of Sarpanch of Gram Panchayat, Piplon and Rajpuriya, District Neemuch
(M.P.) held in the month of June 2022. The result was declared on 15.07.2022 in
which the writ petitioner was declared and notified as Sarpanch. Respondent No.1
(Vishnu Prasad S/o Shivnarayan Sharma) filed an election petition dated
19.07.2022 (Annexure P/1) before Specified Officer-cum-Sub Divisional Officer,
Sub Division Neemuch, District Neemuch (respondent No.6) challenging election
of the petitioner (Parasram S/o Premshankar Purohit) and sought cancellation of
his election on the ground of corrupt practice.
3. The election petition was entertained, and registered, notices were issued to
the writ petitioner and other respondents. The writ petitioner appeared and filed an
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHAWE
Signing time: 10/27/2023
5:29:47 PM
application dated 22.08.2022 (Annexure P/3) under Rule 8 of the Rules alleging
that there is non-compliance of mandatory provisions of Rules 3 & 7 of the
election Rules. It is submitted that respondent No.1 - election petitioner has
deposited only Rs.250/- as security amount, whereas under Rule 7 of the Rules, it
is mandatory to deposit an amount of Rs.500/- as security. Therefore, the election
petition is liable to be dismissed under Rule 8 of the Election Rules.
4. The aforesaid application was opposed by the election petitioner and vide
order dated 10.10.2022 (Annexure P/7), the Specified Officer has dismissed the
application by giving an opportunity to the election petitioner to cure the defect.
Hence, the present petition is before this Court.
5. Shri Rishiraj Trivedi, learned counsel for the elected Sarpanch submitted
that there is a mandatory requirement about the compliance of the provisions of
Rule 7 of the Election Rules to deposit an amount of Rs.500/- as security at the
time of presentation of the election petition and due to non-compliance the
Election Petition is liable to be dismissed at any stage of the trial. Therefore, it was
the duty of the Specified Officer to examine the compliance of Rule 7 of the Rules
before admitting the election petition and issuing notice to the respondents. Rule 8
of the Election Rules is a mandatory provision in which if there is a non-
compliance of Rule 7, then the election petition must be dismissed.
6. Shri Rishi Raj Trivedi, learned counsel for the petitioner has placed reliance
on a judgment of this Court at Jabalpur in Writ Petition No.11764 of 2010
(Divisiya W/o Naresh Paraste v. Shanta W/o Narayan Singh Pusham & others
reported in 2011 (2) M.P.L.J. 701, wherein it was held that the Prescribed
Authority if after hearing the court/ Tribunal finds non-compliance of Rules 3, 4 or
7, it has no choice but to dismiss the petition.
7. It is further submitted by the learned counsel that that objection in respect of
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHAWE
Signing time: 10/27/2023
5:29:47 PM
applicability of Rule 8 of the Rules i.e. defect of non-compliance of Rules can be
taken up by the Election Tribunal at any stage and it is not incumbent upon the
Election Tribunal to do so only at the threshold, reliance is placed on a decision of
this Court in Writ Petition No.1337 of 2007, Baijulal Verma v. Additional
Collector, Chhindwara & others reported in 2009 (4) M.P.L.J. 548.
8. It is further submitted by the learned counsel that a Division Bench of this
Court at Jabalpur in the case of Sarla Tripathi v. Kaushilya Devi and others
reported in 2001 MPLJ Online 1 has held that the payment of the security deposit
to be made along with filing of election petition itself and making of deposit
subsequently cannot cure the defect as the provisions of Rule 7 are mandatory.
Hence, an election petition is not maintainable.
9. Learned counsel for respondent No.1 has placed reliance on the judgment
passed by the Court in the case of Lalli Patel v. State of Madhya Pradesh &
others reported in (2018) 17 S.C.C. 486 wherein the Apex Court has held that
dismissal of election petition due non-compliance of Rule 7 has been set aside, but
in the aforesaid case, the issue was not about non-deposit of security amount, but
same was deposited before the Satisfied Officer, not by way of challan in the State
Treasury. Therefore, the Apex Court has held that the requirement of Rule 7 is
about "deposit of security" and not "payment of security" in cash before the
Specified Officer hence what is relevant and mandatory is the deposit of security in
the name of Specified Officer and the mode or manner of deposit is irrelevant,
hence the Election Petition was saved. Therefore, this judgment will not help
respondent No.1, because in the present case, there is a deposit of only Rs. 250,
and the rule prescribes the amount of security i.e. Rs.500/-.
10. Learned counsel for respondent No.1 has also relied on a judgment of this
Court in the case of Akbar Kha S/o Mohammad Kha v. Prithviraj S/o Mangilal
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHAWE
Signing time: 10/27/2023
5:29:47 PM
Patidar & others reported in 2017 (4) M.P.L.J. 575, on the point that once
election petition is admitted under Rule 8 and later on the same has cannot be
dismissed due to non-compliance of Rules 3, 4 and 7 of the Rules. Compliance of
Rules 3, 4, and 7 is to be seen before admission of the election petition. Learned
counsel has also placed reliance on the judgment in the case of Bhure Khan v.
Juhur & others reported in 1997 (2) Vidhi Bhaskar 51.
11. Learned counsel for respondent No.1 has placed reliance on the decision of
this Court in the case of Kailash Narayan v. Namdar and others reported in 1996
J.L.J. 391, wherein deficiency of deposit of security amount has been condoned
and the election petition has been held maintainable. Learned counsel further
placed reliance in the case of Dr. S.W.V. Predricks v. Krishna Soparam Kamble
& others reported in AIR 1967 Bombay 324 as well as on a decision dated
10.10.2023 of this Court at Jabalpur in the case of Sumat Kumar Jain v. Shri
Ramesh Jain v. The State of Madhya Pradesh & others, Miscellaneous
Petition No.740 of 2023.
I have heard the learned counsel for the parties and perused the record.
12. In this election petition, there is an admitted defect of non-deposit of Rs. 500
as a security deposit which is a requirement of Rule 7, and the petitioner only
deposited an amount of Rs.250/-, for which there is no valid explanation by the the
Election Petitioner. When the rule specifically provides a deposit of Rs.500/- then
there cannot be any justification for a deposit of less amount of security. The
election petitioner was very much aware of compliance with Rule 7 of the Election
Rules, which mandates 'deposit' as well as 'Rs.500/-'. No court or Tribunal can
reduce the said amount. So such a defect is incurable. It is not a case of the
election petitioner that the security amount has been deposited and the defect has
been completed before limitation.
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHAWE
Signing time: 10/27/2023
5:29:47 PM
13. So far as the issue of compliance with Rule 7 of the Election Rules is
concerned, a deposit of Rs.500/- toward security is mandatory at the time of
presentation of the election petition, by whatever mode.
14. Admittedly, in the election petition out of Rs.500/- towards security, only an
amount of Rs.250/- was deposited, hence, the election petition is liable to be
dismissed and even within limitation, filing of the election petition, if the said
defect was not cured, therefore, learned Specified Officer erred in law by giving an
opportunity to respondent No.1 - election petitioner to cure the defect.
15. This Court in the case of Udaysingh v. Himmat Singh reported as 1999 (1)
M.P.L.J. 200 held that the provisions of Rules 7 and 8 are mandatory. Where
security amount was not deposited along with the election petition, such a petition
is liable to be dismissed; as well as in case of Amar Singh v. Sub Divisional
Officer reported as 1997 (2) M.P.L.J. 192, this Court has held that where deposit
of security amount was not made along with election petition and the S.D.O. took
cognizance of it, directed recount of votes and passed order for setting aside
election of the returned candidate, the order is bad. The election petition suffered
from a fatal defect. The learned Sub Divisional Officer / Prescribed authority did
not appreciate the provisions of Rules 7 and 8 of the election rules, hence
impugned order is unsustainable in law and deserves to be set aside.
16. Therefore, Writ Petition No.23735 of 2022 is allowed and the election
petition is dismissed.
(VIVEK RUSIA)
rcp JUDGE
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHAWE
Signing time: 10/27/2023
5:29:47 PM
