Santra Devi W/O Nawal vs Laxmi Bai Meena D/O Dan Singh Meena
2022 Latest Caselaw 3175 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

               S.B. Civil Writ Petition No. 5471/2022
Santra Devi W/o Nawal, Aged About 47 Years, Resident Of Kesri
Post Pakhar Ist, Tehsil Mandawar, District - Dausa (Rajasthan).
At Present Sarpanch Gram Panchayat Pakhar 21, District
Dausa(Raj.)
                                                                ----Petitioner
                                   Versus
1.      Laxmi Bai Meena D/o Dan Singh Meena, Aged About 25
        Years, Resident Of Pakhar Ist, Tehsil Mandawar, District-
        Dausa (Rajasthan)
                                                                 Respondent

2. District Election Officer (Panchayat), District Collector, Dausa (Raj.)

3. Returning Officer Pakhar 21, Panchayat Samiti Mahuwa, Tehsil Mandawar, District Dausa Through District Election Officer Panchayat And District Collector, Dausa (Raj.)

----Performa Respondents

For Petitioner(s) : Mr. Umesh Vyas For Respondent(s) :

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL Order

20/04/2022

This writ petition under Article 227 of the Constitution of

India has been filed assailing the legality and validity of the order

dated 10.01.2022 passed by the learned Senior Civil Judge,

Mahwa, District Dausa in Election Petition No.1/2020 whereby, an

application filed by the petitioner/defendant under Order 7 Rule 11

read with Section 151 CPC, has been dismissed.

The facts in brief are that election of the petitioner as

Sarpanch, Gram Panchayat Pakhar-21, Panchayat Samiti Mahwa,

Tehsil Mundawar, District Dausa was challenged by the respondent

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No.1 by way of an election petition under Section 43 of the

Rajasthan Panchayati Raj Act, 1994 (for brevity "the Act of 1994")

read with Rule 80 of the Rajasthan Panchayati Raj (Election)

Rules, 1994 (hereinafter referred to as "the Rules of 1994")

framed thereunder. During the course of trial, the petitioner filed

an application under Order 7 Rule 11 read with Section 151 CPC

raising an objection as to maintainability of the election petition on

the premise that it was presented before the Senior Munsarim,

District and Sessions Court, Dausa instead of before the learned

District Judge, Dausa as envisaged under Section 43 of the Act of

1994 read with Rule 80 of the Rules of 1994. The application has

been dismissed by the learned trial Court vide its order dated

10.01.2022, impugned herein.

Learned counsel for the petitioner submitted that as per

Order 13 Rule 2 of the General Rules (Civil and Criminal), 2018, a

Senior Munsarim can receive plaints or other papers under the

Code, i.e., Civil Procedure Code only and not on election petition

which, as per provisions of the Act of 1994 and the Rules of 1994

can only be presented before the District Judge. He further

submitted that even the provisions of General Clauses Act, 1897

shall not come to rescue of the election petition present before the

Senior Munsarim instead of District Judge himself in view of the

statutory provisions contained under the Act of 1994. He,

therefore, prayed that the order impugned dated 10.01.2022.

Heard. Considered.

The issue involved herein is no more res integra. A

Coordinate Bench of this Court has, in case of Panna Ram

versus Ramu Ram: 2020 (1) WLC (Raj.) 551, proceeded to

hold as under:-

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"14. After hearing learned counsel for the parties as well as perusing the record of the case alongwith the provisions applicable, this Court is of the opinion that the procedural laws shall be broadly applicable wherever the specific or special law is silent. A condition of procedure which is not being dealt with by the special law, shall have to be operated with the help of the statutory procedural law as prescribed.

15.This Court finds that though the presenting authority for the election petition is a District Judge but that is to over come the Section 15 of Civil Procedure Code, which requires every plaint and presentation to be made before the lowest competent court. Since the special duty was cast upon a Judge in the election matter, therefore, it was deemed appropriate by the legislator that such sensitive work shall be discharged only by an officer as senior as District Judge, and therefore, the legislative intention of Section 43 of the Act of 1994 was that the District Judge shall be the forum where the election tribunal would be conducting itself.

16. This Court also finds that Section 3(17) and Section 15 of the General Clauses Act have no bearing upon the facts of the present case as the meaning or the definition of District Judge is not under challenge by either of the parties and it is an accepted position that the District Judge shall be judge of principal civil court of original jurisdiction and does not require any further deliberation by this Court as it is not disputed by the respondents that the equivalent courts were holding the election tribunal. The issue under

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adjudication is whether the presentation was done by the election petitioner within the period of 30 days as prescribed.

17. It is an accepted fact that the election had taken place on 28.01.2015 whereas the election petition was presented before the Munsarim on 28.02.2015. The bone of contention in the present case is whether the presentation before the Munsarim would entitle the election petitioner to satisfy the claim of filing the election petition within the stipulated time period of 30 days before the District Judge.

18.This Court is also of the opinion that Rule 32 envisages that a Munsarim or Reader of a civil court as appointed, shall receive plaints, which shall be presented to him and prepared are port accordingly describing the details of presentation. The Rules of 1986, clearly prescribed the duty of Munsarim or Reader, who accepted the presentation of the plaint as entered upon alongwith all the necessary requirements. Rule 432 of the Rules of 1986, clearly debars the Munsarim from taking up any judicial duty or any duty, which is directly to be performed by the Judge himself and in this case, it is not the judicial duty which is being delegated to the Munsarim, but only the presentation which as per the Rule 32 of the Rules of 1986 has to to be taken by the Munsarim of the concerned court is being fulfilled. It shall be a failure of the system, if a Judge in person is required to discharge the duty of taking presentation and it is an accepted norm in practice and procedure that the office of the concerned Judge whether at whatever level it may be, is

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entitled to accept the presentation and do all the needful administrative procedural work, so as to enable the concerned judge to make the judicial adjudication.

19.There is no doubt that the judicial adjudication can be done by the judge himself but apart from that any other administrative work pertaining to the judicial adjudication has to be discharged in consonance with Rule 32 of the Rules of 1986 in State of Rajasthan and analogous rules in other courts. The very meaning of appointing Munsarim or Reader in the learned courts is that they shall assist the court in performing all the administrative duties for conducting the court and also for completing the other exercise, which is administrative in nature and which shall absolutely exclude the judicial adjudication but include presentation of claims.

20. In light of the aforesaid observations, the order passed by the learned court below is justified and does not call for any interference by this Court, hence, the present petition is dismissed. Stay petition No.4869/2019 also stands dismissed accordingly."

In case of Madan Gopal Gupta versus Dr. Leelaram &

Ors.: AIR 1972 Rajasthan 177, this Court, while dealing with

the provisions of the Rajasthan Municipalities Act, 1959, held as

under:-

"6. The question which arises for consideration is: Whether the election petition presented before the Munsarim of the District Judge, Ajmer, was not presented to the District Judge, Ajmer?

7. Let us examine the Rajasthan High Court cases on the point in dispute before me.

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In an appeal against the judgment of a learned single Judge of this Court Wanchoo, C. J. delivering the judgment in a special appeal in Bansilal's case 1959 Raj LW 515 made the following observations:--

"Learned counsel for Manoharlal has again raised the same point before us. His contention is that the election petition was not properly presented inasmuch as it was presented to the Munsarim of the District Judge and not personally to the District Judge himself. Reliance in this connection was placed on Brijmohan Dixit v. Gobardhan (AIR 1955 All

126). It is enough to say that we agree with the learned Single Judge that Brijmohan's case was decided on its peculiar facts because of the language of Order 47, Rules 1 and 2, C.P.C. Let us look at what Section 19 (1) provides in this matter. That lays down that any ten voters or any candidate who stood for election may apply to the Judges having jurisdiction over the district within which the election has been held for the determination of the validity of the election. The election petition has to be made therefore to the Judge having jurisdiction in the area in which the election is held. We are not prepared to hold that these words in Section 19 (1) of the Municipalities Act mean that the election petition must be presented to the Judge himself. It is enough in our opinion if it is presented to the officer who normally accepts petitions relating to his court. We are, therefore, of opinion that there was no irregularity whatsoever in the presentation of the petition in this case to the Munsarim of the

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Judge having jurisdiction over the district within which the election was held."

8. Section 19 (1) of the Rajasthan Town Municipalities Act, 1951 (Act No. XXIII of 1951) read as follows:--

"Section 19. Determination of validity of elections; enquiry by Judge; procedure.-

(1) At any time within ten days after the date of the declaration of the result of an election, any candidate who stood for election, or any ten persons qualified to vote at that election, may apply together with a deposit of fifty rupees as security for costs to the Judge having jurisdiction over the district within which the election has been or should have been held for the determination of the validity of the election."

9. While Section 40 of the Act provides for the presentation of the petition to the District Judge sitting at the place where the Municipal Office is situated, Section 19 (1) of the Rajasthan Town Municipalities Act, 1951, provides for applying to the Judge having jurisdiction over the District within which the election has been held. Is there any substantial difference between presenting an election petition and applying for determination of the validity of election? The word "apply" is a word of very wide import. The meaning which is nearest in the context is "to address or direct (words) to "(See The Oxford English Dictionary, Volume I, page 407, Item 26). In Black's Law Dictionary, Fourth Edition "apply" means "To make a formal request or petition, usually in writing, to a

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court, officer, board, or company, for the granting of some fa-vour, or of some rule or order which is within his or their power or discretion." The word "present" in Section 40 would mean, "to bring or lay before a court, magistrate, or person in authority, for consideration or trial; to make presentment of. To make a formal statement of; to submit (a fact, or a request, complaint, etc.)" (See The Oxford English Dictionary, Volume VIII, page 1303, Item 8). I am unable to see any substantial distinction between applying to the District Judge for setting aside an election or presenting a petition to the District Judge for the same purpose. In this view of the matter the case of Bansilal, 1959 Raj LW 515 fully covers the point at issue. In fact in Bansilal's case the petition was also presented to the Munsarim of the District Judge and that presentation was held to be valid on the ground that normally presentations to the District Judge were made to the Munsarim. Bajranglal's case, 1966 Raj LW 614 decided by learned single Judge turned on Rule 78 of the Rajasthan Panchayat and Nyay Panchayat Election Rules, 1960. The learned Judge's attention probably was not invited to the Division Bench ruling in Bansilal's case, 1959 Raj LW 515. In any event Bajranglal's case is distinguishable because on the day when the election petition was presented the Munsif was on leave.

10. Excepting to the extent that the Act makes any specific provision inconsistent with the Code of Civil Procedure the procedure to be adopted for the trial of election petition

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shall be the same as is in regard to the trial of suits. Section 41 (3) provides that the procedure provided in the Code of Civil Procedure, 1908, in regard to the trial of suits shall so far as it is not inconsistent with the Act or any rule and so far as it can be made applicable be followed in the hearing of election petitions. In other words, unless expressly provided by the Act or the rules or from the nature of the dispute the procedure in regard to the trial of suits laid down in the Code of Civil Procedure shall be applicable to election petitions under the Act, The crucial word in this provision is "trial".

It came to be interpreted by their Lordships of the Supreme Court in Harish Chandra Bajpai v. Triloki Singh, AIR 1957 SC 444. It was an election matter. In para 16 their Lordships observed,--

"While the word 'trial' standing by it self is susceptible of both the narrow and the wider senses indicated above, the question is, what meaning attaches to it in Section 90 (2), and to decide that, we must have regard to the context and the setting of the enactment. Now, the provisions of the Act leave us in no doubt as to in what sense the word is used in Section 90 (2). It occurs in Chapter III which is headed 'Trial of election petitions'. Section 86 (4) provides that if during the course of the trial any member of a Tribunal is unable to perform his functions, the Election Commission is to appoint another member, arid thereupon the trial is to be continued. This provision must apply to retirement or relinquishment by a member, even before the

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hearing commences, and the expression 'during the course of the trial' must therefore include the stages prior to the hearing .. .. ..

.. .. .. ..

Section 92 enacts that the Tribunal shall have powers in respect of various matters which are vested in a court under the Civil Procedure Code when trying a suit, and among the matters set out therein are discovery and inspection, enforcing attendance of witnesses and compelling the production of documents, which clearly do not form part of the hearing but precede it. In our opinion, the provisions of Chapter III read as a whole, clearly show that 'trial' is used as meaning the entire proceedings before the Tribunal from the time when the petition is transferred to it under Section 86 until the pronouncement of the award."

11. The Act makes no provision for the framing of the issues, for discovery and inspection, etc. Therefore, the word "trial" has to be taken in its extended meaning, namely, the entire proceedings from the moment of the presentation of the petition till judgment. In this view of the matter I see no reason to exclude the applicability of Order IV, Rule 1, C.P.C. when it provides that the plaint could be presented to the Court or such officer as it appoints in this behalf. Learned counsel for the respondent says that Section 40 excludes it by the use of the word "present". I am unable to agree. The marginal note to the section says who shall hear the petition and it is therefore primarily intended for determining the forum.

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12. The result is that the view taken by the learned Civil Judge is erroneous, his order dated 9-3-71 is set aside and he will now proceed and try the election petition as provided by law. There will be no order as to costs in this appeal.

Order Accordingly."

A Coordinate Bench of this Court vide order dated 26.04.17

has, in case of Srimati versus Hemlata & Ors.:S.B. Civil Writ

Petition No. 3969/2017, held as under:

"7. Order 4 Rule 1 CPC provides that every suit shall be instituted by presenting a plaint in duplicate to the court or such officer as it appoints in this behalf. An election petition under Section 43 of the Act of 1994 is all but a suit tried by the District Judge under a specific statute. Rule 32 of the General Rules (Civil) 1986 provides that a Munsarim or Reader of a Civil Court appointed to receive plaints - as an election petition indeed is for all practical purposes, shall examine each plaint presented to him and shall report thereon on aspects of the jurisdiction of the court, the cause of action and whether it is within the limitation. I am of the considered view that in terms both of Order 4 Rule 1 CPC and Rule 32 of the General Rules (Civil) 1986 the presentation of the election petition by the EP before the Munsarim of the District Judge Bharatpur was wholly legal and valid - presented at it admittedly was within 30 days of the declaration of the result of the election on the post of Sarpanch. There is no force in the contention of counsel for the petitioner RC that General Rules (Civil) 1986 does not attract to an election petition under the Act of, 1994 for the alleged reason of an election petition not being in the nature of a suit. The impugned order is a well considered one, founded on specific statutory provisions and suffers neither from any perversity, patent illegality, misdirection in law or

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error of jurisdiction to warrant interference by this court under Article and 227 of the Constitution of India."

8. Consequently, there is no force in the petition. It is dismissed."

In case of Navratan Singh versus Chandidan & Ors.,

MANU/RH/00034/1985, this Court has held as under:-

"18. With regard to the provision of presentation of the election petition, the matter has to be considered from this point as to whether the authority framing the rules intended to deny the petitioners, who want to challenge the election, the remedy of presenting the petition it the same is not presented to the Munsif in person. When an election is open to challenge and when the manner is provided to challenge the same then it should be taken that the framers have provided an effective, not an illusory remedy, which can be taken away for no fault on the part of the petitioner. Within the period of limitation, a petition can be presented and if, on the last date of limitation for any reason the presiding officer is not there in the court then it would not be possible for the petitioner to present the petition to the Munsif in person and if he presents the petition to the official who normally entertains such papers, that would be rendered invalid. In my opinion, such cannot be the intendment of the rule and intention of the framers of the rule. The framers of the rule, simply appear to have provided that the petition should be presented to the court within limitation else it would mean that though the remedy is provided but the same may be rendered futile or meaningless for no fault on the part of the petitioner. In a situation like the one considered above, in my opinion, the provision of Rule 78 should be interpreted in the manner that the election petition can be presented to the court of Munsif and that, the presentation need not be made to the Munsif in person. If interpreted otherwise then the very object of providing the

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remedy to challenge the election by way of election petition, would be defeated as the election petitioner would be required to keep a continuous watch for 30 days as to whether the presiding officer would remain present in court or not, so that the petition can be presented on the date when the presiding officer is not on leave.

19. 1 may refer here to a decision of the Division Bench of the Madras High Court in Rathnam Pillai v. Sellappa Reddiar ILR (1963) Mad 1094. In that case, a question arose with regard to the presentation of the election petition under the Madras Panchayat Act. Rule 1(3) provided that the District Munsif or other officers mentioned therein shall exercise jurisdiction as persona designata and not in the personal capacity. Under Rule 2, the election petition could be presented within 15 days from the date of the declaration of the result of the election. There was no specific provision to whom the election petition can be presented. Explanation of Rule 2 provided that if the office of the election court is closed on the last date of the fifteen days aforesaid, the petition may be presented to the election Court on the next following day on which such court opens. It was observed as under : -

"An election commissioner under the rules, if not functioning as a Civil Court, but only as a persona designata, only means that he is performing his judicial acts as such. That does not, however, mean that the District Munsif should not have the assistance of his subordinates for the performance of ministerial acts. Those ministerial acts like the receiving of the petition, making out copies, issuing of process, can be done by the subordinates of the District Munsif. The explanation to Rule 2 impliedly recognises this."

On the question, whether it should be presented to the District Munsif in person or to his subordinates in his office, it was held that -

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"the presentation of the petition to the head-clerk

-- the accredited Officer for the purpose of receiving plaints -- was a proper presentation."

22. In the light of what I have discussed above, the order of Munsif does not call for any interference and the preliminary objection regarding invalidity of the presentation has been rightly overruled.

23. In the above view of the matter, the writ petition has no force, so, it is hereby dismissed."

Learned counsel for the petitioner is unable to persuade this

Court to take a different view than the view taken by this Court in

the aforesaid judgments.

In view thereof, there is no merit in the writ petition which is

dismissed accordingly. However, looking to the fact that aforesaid

election petition is pending consideration for last about one and

half years, learned trial Court is directed to decide it expeditiously

preferably within a period of six months from the date of receipt of

certified copy of this order.

The Registrar (Judl.) is directed to communicate the

concerned.

(MAHENDAR KUMAR GOYAL),J

Manish/80

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