Kamlabai vs Rajendra Singh
2023 Latest Caselaw 17794 MP

                                    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. 26668 of 2022

                           BETWEEN:-
                           KAMLABAI W/O MOTILAL, AGE: 54 YEARS, OCCUPATION: AGRICULTURIST,
                           ADDRESS: VILLAGE BHANWRASA, SUB DIVISION NEEMUCH, POST PALSODA,
                           TEHSIL JEERAN, DISTRICT NEEMUCH (MADHYA PRADESH)

                                                                                  .....PETITIONER
                           (BY SHIR RISHIRAJ TRIVEDI - ADVOCATE.)
                           AND
                              RAJENDRA SINGH S/O GOVIND SINGH, AGE: 38 YEARS, OCCUPATION: NOT
                           1. MENTIONED, ADDRESS: VILLAGE BHANWRASA, SUB DIVISION NEEMUCH,
                              POST PALSODA, TEHSIL JEERAN, DISTRICT NEEMUCH (MADHYA PRADESH)
                              HEENABAI W/O LOKESH KUMAR MOGIYA, AGE: 42 YEARS, ADDRESS:
                           2. VILLAGE KACHOLI, POST HARKIYAKHAL, TEHSIL JEERAN, DISTRICT
                              NEEMUCH (MADHYA PRADESH)
                              GEETABAI W/O RATANLAL BHIL, AGE: 67 YEARS, ADDRESS: VILLAGE
                           3. BHANWRASA, SUB DIVISION NEEMUCH, POST PALSODA, TEHSIL JEERAN,
                              DISTRICT NEEMUCH (MADHYA PRADESH)
                                SDO CUM SPECIFIED OFFICER, SUB DIVISION NEEMUCH, DISTRICT
                           4.
                                NEEMUCH (MADHYA PRADESH)

                                                                                .....RESPONDENTS
                           (RESPONDENT NO.1 BY SHRI PRADYUMNA KIBE- ADVOCATE.
                           RESPONDENT NO.4 - STATE OF M.P. BY SHRI TARUN KUSHWAHA - ADVOCATE.)



Signature Not Verified
Signed by: RAMESH
CHANDRA PITHAWE
Signing time: 10/26/2023
6:39:53 PM
                                               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 order dated 20.10.2022 (Annexure P/5) passed in Case No.36/B-121/2022-23 by the Sub Divisional Officer-Cum-Specified Officer, Sub Division Neemuch, District Neemuch (M.P.) whereby an application filed by the writ petitioner under Rule 8 of Madhya Pradesh Panchayat (Election Petitions, Corrupt Practices & Disqualification for Membership) Rules, 1995 (herein after referred as the 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 3 contested a Panchayat Election for the post of Sarpanch from Ward No.2 of Village Panchayat, Bhanwrasa, Tehsil Jeeran, District Neemuch (M.P.) held on 25.06.2022. The result was declared on 14.07.2022 in which this writ petitioner was declared elected as Sarpanch. Respondent No.1 (Rajendra Singh S/o Govind Singh) filed an election petition before the Specified Officer-cum-Sub Divisional Officer, Sub Division Neemuch, District Neemuch (respondent No.4) on 17.08.2022 (Annexure P/1) challenging election of the petitioner (Kamlabai W/o Motilal) and sought cancellation of her election on the ground of corrupt practice. Vide order dated 17.08.2022 (Annexure P/2) the election petition was registered and notices were issued to the writ petitioner and other respondents. On 30.08.2022 and 07.09.2022 the parties appeared before the Specified Officer through counsel.

3. The petitioner filed an application dated 07.09.2022 (Annexure P/3) under Rule 8 of the Rules alleging that there is non-compliance of mandatory provisions

Signature Not Verified Signed by: RAMESH CHANDRA PITHAWE Signing time: 10/26/2023 6:39:53 PM of Rules 3 & 7 of the Rules and sought dismissal of the election petition on the ground that election petition was neither presented by petitioner nor his counsel, therefore, there is a violation of Rule 3 of the Rules; and hence, election petition is liable to be dismissed under Rule 8 of the Rules.

4. The aforesaid application was opposed by the election petitioner - respondent No.1 by submitting that he engaged Shri Mahesh Patidar as an advocate to file and contest the Election Petition . He has filed his Vakalatnama, if the signatures of the petitioner are not there in the order sheet, therefore, it cannot be presumed that he was not present at the time of presentation of the election petition. Vide order dated 20.10.2022 (Annexure P/5), the Specified Officer has dismissed the application that the election petition is duly signed and verified by election petitioner and security amount of Rs.500/- has been deposited vide Receipt No.35 on 08.08.2022 ,therefore, application under Rule 8 of the Rules is not maintainable. Hence, the present petition is before this Court.

5. Shri Rishiraj Trivedi, learned counsel for the writ petitioner submits that it is clear from order sheet dated 17.08.2022 that neither the petitioner nor his counsel was present at the time of presentation of the election petition hence there is non- compliance of Rule 3 of the Rules, hence, by virtue of Rule 8 of the Rules, the election petition is liable to be dismissed.

6. Shri Pradyumna Kibe, learned counsel appearing for respondent No.1 - election petitioner submits that the election petitioner was very much present at the time of presentation of the election petition, although he was not called upon to sign the order sheet by the Specified Officer. There was no other mode for filing an election petition hence it should be believed that the Election Petitioner was present before the learned Sub Divisional Officer. The Vakalatnama of an advocate has also been filed by the election petitioner. Even otherwise, it is purely

Signature Not Verified Signed by: RAMESH CHANDRA PITHAWE Signing time: 10/26/2023 6:39:53 PM a question of fact that is to be examined by leading oral evidence.

7. Learned counsel for both parties has placed reliance on various judgments passed by this Court as well as Apex Court on the point of dismissal of the election petition under Rule 8 of the Rules due to non-complience of provisions of rules 3,4and 7, of the Rules .

8. In support of his contention, Shri Rishi Raj Trivedi, learned counsel for the petitioner has placed reliance on a judgment passed by a Division Bench of this Court in case of Rani Agrawal v. Ajay Kumar Pathak reported as AIR 2017 Madhya Pradesh 130.

9. Learned counsel has also 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 petitioner finds non compliance of Rules 3, 4 or 7, it has no choice but to dismiss the petition.

10. On the law point that objection in respect of 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 Authority to do so only at the threshold, reliance was 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.

11. Learned counsel for respondent No.1 has placed reliance on an order dated 27.10.2015 passed by a Coordinate Bench of this Court at Jabalpur in case of Smt. Kalpana Singh v. The State of Madhya Pradesh & others, Writ Petition No.16641 of 2015.

12. Learned counsel for respondent No.1 has also relied on a judgment of this

Signature Not Verified Signed by: RAMESH CHANDRA PITHAWE Signing time: 10/26/2023 6:39:53 PM Court in case of Akbar Kha S/o Mohammad Kha v. Prathviraj S/o Mangilal 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 election petition.

13. It is correct that Rule 8 of the Rules mandates that if provision of Rule 3, or Rule 4, or Rule 7 of the Rules has not been complied with, the election petition shall be dismissed by the Specified Officer. As per proviso, the election petition shall be dismissed under this rule, without giving the petitioner (returned candidate) an opportunity of being heard. Therefore, at the time of presentation of the election petition, it is the duty of the Specified Officer to examine the compliance of provisions of Rule 3, 4 and 7 of the Rules, and thereafter, admit the same and also issue notice to the opposite party under Rule 9 of the Rules.

14. In the present case, at the time of presentation of the election petition, the Specified Officer has examined the election petition and directed for issuance of notice. Therefore, it is presumed that the Specified Officer has satisfied himself about the compliance of these three Rules; and thereafter, directed for issuance of notice.

15. The order sheet shows that the election petition was presented by the petitioner through his counsel. Therefore, it cannot be presumed that the petitioner was not present there, because neither signatures of counsel nor the petitioner were there in the order sheet. The order sheet is written by the Specified Officer as well signed; and it was in the hands of the Specified Officer, if he has not called upon the petitioner or his counsel to sign the order sheet, the petitioner cannot be held responsible for this non-compliance. Therefore, presumption is liable to be drawn that the petitioner was present there at the time of presentation of the election

Signature Not Verified Signed by: RAMESH CHANDRA PITHAWE Signing time: 10/26/2023 6:39:53 PM petition. Therefore, the Court recorded its satisfaction about the compliance; and thereafter, issued notices. Now, once notice has been issued under Rule 9 of the Rules, therefore, the election petition is liable to be decided on merit, unless it is withdrawn under Rule 13 or abated under Rule 14 of the Rules.

16. Hence, Writ Petition No.26668 of 2022 is accordingly dismissed.

(VIVEK RUSIA) JUDGE

rcp

Signature Not Verified Signed by: RAMESH CHANDRA PITHAWE Signing time: 10/26/2023 6:39:53 PM