Hon'ble Pankaj Mithal,J This First Appeal has been filed under Rule 49 of the U.P. Kshettra Panchayat and Zila Pancyayat (Election of Pramukhs and Up-Pramukhs and Settlement of Disputes) Rules, 1994 against the judgment and order dated 27.7.2011 passed by the Additional District and Sessions Judge Court No. 1, Mau dismissing the election petition no. 8 of 2010 (Devendra Kumar Yadav Vs. Sanjay Patel and others) with cost on the ground that it was not presented in person by the petitioner as required under Rule 35 (2) of the aforesaid Rules.
The election to the post of Pramukh of Kshettra Panchyat Badraon, District Mau was held on 22.10.2010. The contest in the election was between the appellant Devendra Kumar Yadav and the respondent No. 3 Sanjay Patel only. The electoral college comprised of 78 Kshettra Panchayats members. Both the candidates polled equal votes but by lottery respondent no. 3 Sanjay Patel was declared elected.
Appellant Devendra Kumar Yadav questioned the above election vide election petition no. 8 of 2010 which was filed on 23.12.2010. In the written statement a specific objection was raised that the election petition was not presented in accordance with Rule 35 (2) of the Rules. It was presented by an advocate and as such was not legally maintainable.
The court below by the impugned order dated 27.7.2011 held that the petition was not presented by the appellant himself and as such was not validly presented as contemplated by Rule 35 (2) of the Rules. It was accordingly dismissed.
I have heard Sri K.N. Tripathi, Senior Advocate assisted by Sri Mukesh Prasad, learned counsel for the appellant and Sri Sri Anil Kumar Singh, learned counsel appearing for respondent no. 3. Respondents no. 1 and 2 are formal parties and are represented by the learned Standing counsel.
Assailing the impugned judgment and order Sri Tripathi has made three submissions; first, the appellant was personally present when the petition was presented and the issue as to whether the petition was presented by him in person or not is a mixed question of fact and law which could not have been decided without allowing the parties to adduce evidence; secondly, the court is not correct in dismissing the petition in view of the decision of the Supreme Court in the case of G.V. Sreerama Reddy and another Vs. Returning Officer and others AIR 2010 SC 133 as the said decision is in respect of the Representation of the People Act, 1951 whereunder consequences for improper presentation of the petition have been provided which are absent in the present Rules; lastly, the appellant was also present in the court on the next date fixed ie. 12.1.2011, which was within the period of limitation of 30 days provided for presenting the petition and his presence before the court within time prescribed for presentation of the petition would mean that the appellant has presented the petition in person.
In reply, Sri Anil Kumar Singh, learned counsel for the respondent no. 3 contended that the question regarding presentation of the petition is purely a legal question based upon facts. The provisions of the Rules are in the form of special enactment which have to be read strictly with no liberal construction. In view of the mandate of Rule 35 (2) of the Rules as the appellant was not present either before the Sadar Munsarim or the Judge concerned at the time of filing of the petition, no illegality has been committed by the court in dismissing the petition as not properly presented. He further submitted that the affidavit filed by the appellant alleging his presence at the time of presentation of the petition is an after thought which was filed after the conclusion of the hearing and is inadmissible.
In the light of the aforesaid facts and the circumstances and the submissions advanced by the learned counsel for the parties the only question which arises for consideration is as follows:-
i) Whether the election petition as presented was in accordance with law and not liable to be dismissed?
Before venturing to answer the above question it would be appropriate to spell out broadly the scheme of the aforesaid Rules in reference to the election of Pramukhs of Kshettra Panchayats under the U.P.Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961.
Kshettra Panchayats in the State have been established under Section 5 of the U.P. Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961(hereinafter for short 'Act') and are deemed to be body corporates. Their composition is provided under Section 6 of the Act which includes the Pramukh who shall be its Chairperson. The election of the Pramukh has been provided under Section 7 of the Act and he is to be elected by the elected members of the Kshettra Panchayats.
Article 243-O (b) of the Constitution of India provides that no election of any Panchayat shall be called in question except by an election petition presented in such a manner as is provided for by or under any law made by the legislature of the State. The U.P. State legislature by the aforesaid Act provides for the elections to the member-ship and the office bearers of Kshettra Panchayats and Zila Panchayats. Section 264-B of the Act provides that the manner and conduct of the election of the members and the office bearers of the Zila Panchayats and Kshettra Panchayats as well as that of redressal of their disputes would be as provided under the Rules.
In exercise of the powers under Section 237 read with 264-B of the Act, U.P. Kshettra Panchayat and Zila Panchayat (Election of Pramukhs and Up Pramukhs and Settlement of Election Disputes) Rules, 1994 ( hereinafter for short 'Rules' ) have been framed and enforced. The aforesaid Rules are in the form of special enactment providing for a complete procedure for the election and the manner of resolution of the election disputes. The Rules are self contained Code in itself.
Rule 35 of the aforesaid Rules provides for the manner of disputing the election. It provides that the election of a Pramukh can be questioned by an election petition by presenting it to the Judge within 30 days of the declaration of the result. It further provides that such an election petition shall be presented in person.
For the sake of convenience Rule 35 of the Rules is quoted as below:-
"35. Time and Manner of presenting petitions.- (1) An election petition calling in question the election of a Pramukh or Up Pramukh may be presenting to the Judge at any time within thirty days from the date of declaration of the result under Rule 14 or Rule 29, as the case may be;
(2) It shall be presented in person by the petitions or if there are more than one petitioner, by any one or more of them."
Rule 40 of the aforesaid Rules provide for applicability of the procedure prescribed under CPC in the hearing of the election petitions, in so far as, it is not inconsistent with the Act or the Rules.
The powers exercisable by the Judge are given in Rule 42/43 of the Rules. Rule 42 provides that if the election petition is found to be frivolous, the Judge may direct for the forfeiture of security or any part thereof . He is empowered to dismiss the election petition, if on inquiry, he finds that the election was valid whereas in case he is of the opinion that the election of any person is invalid, he is empowered to declare a casual vacancy or to declare elected another candidate who has been duly elected.
In the light of the foregoing provisions, the first aspect which requires consideration is whether the election petition was actually presented by the appellant in person or would be deemed to be validly presented in accordance with Rule 35 (2) of the Rules.
A careful reading of Rule 35 reveals that the election petition has to be presented in person and the presentation has to be before the Judge. Judge has not been defined in the Rules but under Section 2(24) of the Act a Judge means the District Judge including any other subordinate civil Judicial Officer named or designated by the District Judge in this behalf. In view of plain language of Rule 35 (2) of the Rules read with the definition of the Judge contained in Section 2 (24) of the Act, the presentation of the election petition has to be before a Judge and not before a Munsarim who is only a ministerial staff in the office of the Judge. The proper course therefore is to present an election petition before the Judge in person. On such presentation, the Judge is required to call for the office report ie., of Munsarim. On the submission of report, the election petition has to be placed again before the Judge for appropriate judicial orders.
A perusal of the original record establishes that the election petition of the appellant was not presented before the Judge in the first instance but it was presented before the Sadar Munsarim on 23.12.2010. The Sadar Munsarim had made the following report on the back of the first page of the election petition:-
izLrqr djus dk fnukad 23-12-10 izLrqr drkZ & Jh lnkuUn jk; ,M0 ^^Jheku~] izLrqr pquko ;kfpdk bl U;k;ky; ds {ks=kf/kdkj ,oa vof/k ds varxZr gSA iznRr U;k; 'kqYd eqc0 200-00 :i;k i;kZIr gS rYckuk fn;k x;k gSA izfrHkwfr dh /kujkf'k eqc0 500-00 :i;s Vsªtjh esa tek djds pkyku nkf[ky gSA udy fu.kZ; nkf[ky gSA eqlUuk fn;k x;k gSA izi= 8 ds vuq:i =Sekldh ebZ fuokZpu fooj.k dk ftyk U;k;ky; tuin em ds dk;kZy; ls vkgwr djus gsrq nkf[ky izLrqr gSA fjiksZV lsok esa izsf"kr gSA g0 vifBr lnj eaqlfje 23-12-2010** Thereafter, the election petition was placed before the Judge concerned who had passed the following order on 23.12.2010:-
Neither the report of the Sadar Munsarim nor the order of the Judge dated 23.12.2010 records the presence of the appellant while presenting the petition rather the Sadar Munsarim records the name of Sri Sadanand, Advocate as the presenter of the petition. The order of the Judge also records that the election petition was presented through counsel of the appellant Sri Sadanand. This apparently indicates that the appellant had not presented the petition in person. There is nothing in the report or the the aforesaid order to indicate that he was even present when the election petition was actually presented or that it was presented in his presence.
Sri Tripathi contends that the fact that the election petition was verified in court campus on 23.12.2010 and the affidavit in its support was also sworn by the appellant on the same date in the court premises is indicative that the appellant was actually present and the election petition was presented by his advocate in his immediate presence. He has relied upon AIR 1969 (1) SCC 408 Shiv Sadan Singh Vs. Mohan Lal Gautam wherein the Lordships of the Supreme Court while dealing with election petition under the Representation of the People Act, 1951 observed as under:-
" The High Court has found as a fact that the election petition was presented to the registry by an Advocate's clerk in the immediate presence of the petitioner. Thereafter, in substance though not in form, it was presented by the petitioner himself. Hence the requirement of the law was fully satisfied."
The verification of the election petition and the swearing of the affidavit by the petitioner on 23.12.2010 do indicate that the petitioner was present in the court campus on the relevant date but it does not necessarily means that he was also present when the election petition was presented by his counsel.
The report of the Sadar Munsarim does not indicate that the election petition was presented by the Advocate of the appellant in his immediate presence. This is also not proved by the order of the Judge passed on the date of presentation of the election petition. It is not the case of the appellant that the order of the Judge is factually incorrect or contains only half truth and he has failed to note his presence. No such allegation has been made against the Sadar Munsarim or his report.
The appellant never resisted the report of the Sadar Munsarim and has not even applied for recall/correction of the order of the Judge dated 23.12.2010. No clarification in the same was also sought so as to get his presence recorded while presenting the election petition.
It was only on 13.7.2011 when initial hearing of the election petition was complete that the appellant filed an affidavit contending that at the time of filing the election petition he was present before the clerk along with his Advocate. He was also present in the court when the judge had passed the order. It may be noted that in the election petition issues were framed on 25.5.2011 and hearing was completed on 6.7.2011 whereupon it was fixed for orders on 14.7.2011. It was a day before the aforesaid date ie., on 13.7.2011, the above affidavit was filed by the appellant alleging his presence before the court and the Sadar Munsarim at the time of the presentation of the election petition along with his counsel. The aforesaid affidavit is silent and does not state that the report of the Sadar Musarim and the order of the Judge passed on 13.7.2011 are incorrect, incomplete or contains half truth.
It is a solemn duty of the parties litigating to bring to the notice of the court the factual incorrectness in the order passed by the court or that occurring in the court proceedings. The party affected has a right to get such incorrectness rectified at the earliest opportunity. In case the party fails to do so it would be deemed as if it had waived his aforesaid right impliedly. If the appellant felt that the report of the Munsarim or the order of the court is incorrect or incomplete he had the right to get it corrected and every court has an inherent right to make corrections of such factual mistakes. The appellant had not protested either against the report or the order of the court and as such by his conduct had waived his right in this regard meaning thereby that he had accepted the correctness of the report and the order both. This is nothing but waiver of right to protest.
The Privy Council in Durga Prasad Singh Vs. Tata Iron & Steel Company Limited AIR 1918 PC 125 laid down that a party is presented from relying upon true facts on account of his conduct. The principle of waiver of protest by conduct has been applied by the Supreme Court in the cases of eviction pursuant to notice terminating tenancy. In Parwati Bai Vs. Radhika JT 2003 (5) SC 34 their Lordships of the Supreme Court held that where the defendant fails to raise any specific objection as to the invalidity of the notice under Section 106 Transfer of Property Act at the earliest, it would be deemed to have been waived.
In view of the aforesaid, this Court is left with no option but to go by the official reporting and the order of the Judge. Both the above documents show that the election petition was not presented by the appellant in person and that it was not even presented by his Advocate in his immediate presence. Thus, there is no occasion to interfere with the finding of the court below recorded in this regard.
The question of the presentation of the petition by the appellant in person in view of the report of the Sadar Munsarim and the order of the court dated 23.12.2010 becomes purely a legal issue which does not involve any factual controversy. No amount of oral evidence could override the documentary evidence that too which is in the form of official record. It could have been a mixed question of fact and law, had the appellant disputed the correctness of the report of the Sadar Munsarim or the order of the Judge or had he made an effort to get his presence noted or to get the report or the order corrected at the very initial stage.
The Rules provide as stated earlier for the presentation of the election petition in person challenging the election. The challenge to the election which is an outcome of a democratic process is a serious matter affecting the democratic rights of the people. It is for this reason, it has time and again been emphasised that the provisions prescribing the procedure for questioning the result of the democratic process must be strictly construed. The object of providing that the election petition must be presented in person is to ensure that the person presenting it is the same person and that he is very much in existence and further that the petition so presented by him is neither frivolous nor vexatious.
The use of the word 'shall' in Sub-rule (2) of rule 35 of the Rules connotes that presentation of the petition in person is mandatory. It is well accepted principle that if a rule provides for doing a particular thing in a particular fashion it has to be done in the manner provided and not in any other way. It thus, becomes imperative to present the election petition in person.
In Harcharan Singh Vs. S. Mohinder Singh and Ors., AIR 1968 SC 1500, the Supreme Court considering the application of doctrine of substantial justice and equity etc. in election law, came to the conclusion as under:-
"The statutory requirements of election law must be strictly observed. An election dispute is a statutory proceeding unknown to the common law; it is not an action at law or in equity....... The primary purpose of the diverse provisions of the election law which may appear to be technical is to safeguard the purity of the election process, and the Court will not ordinarily minimize their operation."
Similarly in Jyoti Basue and Ors. Vs. Debi Ghosal & Ors., AIR 1982 SC 983; the Apex Court held as under:
"A right to elect, a fundamental though it is to democracy is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore subject to statutory limitation. An election petition is not an action at common Law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applied. It is a special jurisdiction and a special jurisdiction has always to be exercised in accordance with the statute creating it."
Rule 35 (2) of the Rules is mandatory in nature as observed earlier. No deviation from the same is permissible, as it being a provision relating to challenge to the election, it has to be construed strictly. Non presentation of the election petition in person is not a mere irregularity. The Rules do not provide that the defect in presentation of the election petition can be cured subsequently and in case petition is not presented in person, the subsequent presence would cure the defect. A thing which is required to be done in a particular manner by the statutes is to be done in that very manner. If it is not done as prescribed, it would be defective and against the statutory provision. The said defect in the absence of any provision allowing it to be removed can not be cured. Thus, the presence of the appellant on the next date fixed in the election petition is of no consequence, even if, it happened to be within the limitation for filing the election petition.
This brings me to another aspect as to the impact of non non-presentation of the election petition in person by the appellant.
It is settled that right to elect, be elected or to dispute an election, though fundamental to democracy is neither a fundamental right nor a common law right but is purely a simple statutory right and as such has to be governed strictly as per the statute or the rules applicable. Therefore, the provisions of the Act and the Rules as exists have to be construed to find out the effect of non-compliance of Rule 35 (2) of the Rules.
The wholesome reading of the aforesaid Rules reveal that though an election petition questioning the election of Pramukh is required to be presented in person but they do not provide for any penal consequences. The Judge before whom election petition is presented is authorized to dismiss it with cost at his discretion if the election is found to be valid and to declare the vacancy or to declare another candidate elected again with cost at its discretion, if the election is found to be invalid. He also has the power to forfeit the security or part of the security if the election petition is found to be frivolous.
Unlike Representation of Peoples Act, 1951 which by Section 86 of the said Act specifically empowers dismissal of election petition, if it is not presented in the mode and manner prescribed, the present Rules are silent and do not confer any such power upon the Judge. The Rules do not provide for the consequence of not complying with the mandate of Rule 35 (2) of the Rules.
In the above situation a question crops up, is it obligatory for the Judge to compel the parties to face trial, even if, the petition has not been presented in the prescribed manner ie., in person. It has already been said that the provision of Rule 35 (2) is mandatory in nature and no deviation from the same is permissible. The aforesaid Rule is plain, simple and clear and leads to no ambiguity. Therefore, it has to be construed literally, even if, it results in hardship and inconvenience. It is well acknowledged principle of interpretation that hardship or inconvenience can not alter the meaning of the language employed by the legislature, if such meaning is clear on the face of the statute.
If that be the position, and the mandate of Rule 35 (2) of the Rules is flouted then by necessary implication, it can gainfully be said that the Judge has inherent power to dismiss the election petition, which does not conform to the mandatory provisions without forcing the parties to face trial, otherwise it would make the provision meaningless and redundant. Therefore, while construing the provisions of Rule 35 (2) of the Rules in a literal sense, the purposive interpretation has also to be given to the said Rule. The purpose of enacting the aforesaid Rule is obviously to ensure the genuineness of the person presenting the election petition and further to ensure that he is alive so that frivolous and vexatious petition be avoided. Another important purpose behind it is to save the elected representative of the people from facing the ordeal of trial on a complaint or petition initiated by a non serious person. Thus, even if the Rules do not specifically provide for the consequences of not presenting the petition in person, it does not in any way takes away or puts a rider on the inherent power of the court to dismiss the petition as not maintainable.
The above reasoning and conclusion can be tested and illustrated with reference to the requirement of furnishing security of Rs. 500/- with the election petition. The aforesaid condition as contained in Rule 38 of the rules is also mandatory with no penal consequences. Now if the security is not furnished not even in the time allowed by the court then can it be said that as no consequence thereof is provided the court is powerless to dismiss the petition for non-furnishing of security. The answer would logically be in the negative. So is the case where the election petition is not presented in person.
The aforesaid power to dismiss the election petition as not maintainable is in addition to the power conferred upon the Judge under Rule 42/43 of the Rules. The power to dismiss the election petition on finding the election to be valid and to declare vacancy or to declare the other candidate duly elected is vested in the Judge after making such inquiry as he deems fit ie., ordinarily after the parties have gone to trial but the power to dismiss the petition as not maintainable is exercisable before trial at the preliminary stage itself. The purpose is not to allow trial of petitions which are ex-facie not maintainable and to dismiss them at the threshold.
In view of the above and the object behind the mandatory provision of Rule 35 (2) of the Rules to check that the election petition is not presented by an imposter but a genuine person who is alive and that it is not frivolous or vexatious, I am of the opinion that irrespective of the fact that the Rules are silent as to the consequence of not presenting the election petition in the manner prescribed, the court has power to dismiss it as not maintainable without compelling the parties to to through the cumbersome process of trial. In such a situation, the court below has not erred in applying the ratio of G.V. Sreerama Reddy (Supra) and in the dismissing the election petition as not maintainable on the ground it was not presented by the appellant in person or by his counsel in his presence.
To conclude the election petition filed on behalf of the appellant was not validly presented as contemplated by Rule 35 (2) of the Rules and was liable to be dismissed on that ground without undergoing the complete process of trial.
The appeal as such has no force and is dismissed. Costs upon the parties.
September 29, 2011.
SKS