Heard Sri Rahul Agarwal, learned counsel for the petitioner and Sri Ajai Vikram Yadav, learned counsel appearing for respondent no. 2.
By means of this writ petition, prayer has been made to issue a writ of certiorari quashing the order dated 16.12.2015 passed by the Additional District Judge/Special Judge (E.C. Act,) Mainpuri, in Election Petition No. 04 of 2012 (Smt. Manju Lata Vs. Smt. Bandana Devi and others) by which the petitioner's application no. 119Ga2, to recall the order dated 11.10.2013, by which the direction has been issued to proceed exparte, has been rejected.
While assailing the impugned order, Sri Agarwal, submits that the notice issued by the election tribunal was never served upon the petitioner and once an application has been filed with the assertion that the notice was never served upon the applicant, who was impleaded as defendant no. 6 in the election petition, it was incumbent upon the Tribunal to record a definite finding regarding service of notice.
Sri Yadav, who appears for the respondent no. 2, submits that in view of the provisions contained under Sub-Section (b) of Section 23 of the U.P. Municipalties Act, 1916 (hereinafter referred to as 'the Act') the service of notice was not necessary and the District Judge can decide the matter without there being any further evidence. He also submits that the application has been filed only with a view to delay the disposal of the election petition. In his submissions, it cannot be believed that after such a long period the applicant did not come to know about the pendency of the election petiton.
The facts giving rise to this case are that the election was held for the post of Chairman Nagar Panchayat Kushmara, Mainpuri in which the respondent no. 3 was declared successful. The respondent no. 2 has filed an election petition with the following reliefs :-
v- ;g fd foif{kuh dzekad &1 ¼cUnuk nsoh½ dh mez ukekadu i= izLrqr djus dh fnukad dks 30 o"kZ ls de gksus ds dkj.k og uxj iapk;r & dqlejk rglhy & Hkksxkao tuin & eSuiqjh ds v/;{k in dk pquko yMus ds fy, vk;ksX; ¼fMLDokfyQkbM½ gksus ds dkj.k mldk uxj iapk;r & dqlejk tuin eSuiqjh ds v/;{k in dk fuokZpu jn~n ?kksf"kr fd;k tkos vkSj ;kfpuh dks uxj iapk;r & dqlejk tuin & eSuiqjh ds v/;{k in ij fof/kor fuokZfpr ?kksf"kr fd;k tkos impleading all the candidates who have participated in the election including the petitioner.
After filing the aforesaid election petition, notices were issued to all the defendants. The order dated 15.9.2012 contains that vakalatnama has been filed on behalf of the defendants. The order dated 25.9.2012 contains that with respect to the defendant no. 1, notice was pasted and service of notice on the other defendants sufficient. Again it is noted that registered notice has yet not been returned back, Wait. Thereafter, the case was taken up on 3rd October, 2012 and an application was filed by the election petitioner to treat the service of notice sufficient on defendant no. 1. The court has passed the order for publication of the notice. Thereafter, the service of notice upon defendant no. 1 was found to be sufficient after publication of the notice and case has proceeded.
It is on 18.11.2015, the petitioner, who was impleaded as defendant no. 6, has come up with an application stating therein that he was not served with the notice.
Learned counsel for the petitioner, placing reliance upon the judgment of the Apex Court in Puwada Venkateswara Rao Vs. Chidamana Venkata Ramana, (1976) 2 SCC 409, submits that once the person has come up with the case that notice was not served upon him/her which was sent through registered post, without there being examination of the postman, it could not be recorded that the notice was served . It is submitted that presumption of service of notice is rebuttable and once servide of notice was rebutted, it was incumbent upon the tribunal to return the finding upon this by observing that the petitioner was really served with the notice.
Learned counsel for the petitioner, placing reliance upon the judgement of the Apex Court in Krishan Chander vs. Ram Lal (1973) 2 SCC 759, submits that in any election, where a candidate challenges the validity of the election of a successful candidate with the prayer that he be declared duly elected, all contesting candidates must be made parties to the petition.
Sub-Section 4 of Section 20 which governs the field also requires that the person whose election is questioned and, where the petitioner claims that any other candidate should be declared elected in the room of such person, every unsuccessful candiate who is not a petitioner in the petition shall be made a respondent to the petition.
The submission is that the impleadment of unsuccessful candidates are purposive for the reasons that other unsuccessful candidates may raise objection to the declaration of the result in favour of the election petitioner pointing out the discrepancy in his/her election. In the submission of learned counsel for the petitioner, in the present case, the respondent no. 2 has sought quashing of the election with the prayer that she be declared successful, therefore all the candidates ought to have been impleaded and served with notice.
On being confronted as to whether learned counsel for the respondent wants to file any counter affidavit in this regard. Sri Yadav, who appears for the respondent no. 2, submits that this writ petition may be decided on the facts stated therein. Therefore, with the consent of learned counsel for the parties, the writ petition is taken up for final disposal.
As has been mentioned hereinabove, the election petition was filed with the prayer that the election of Smt. Bandana Devi be declared null and void for the reasons that she was below 30 years of age and not qualified to contest the election. The consequential relief was to declare election petitioner elected.
In view of Sub-Section 4 of Section 20, all the unsuccessful candidates were necessary parties. The Apex Court in the case of Krishan Chander (supra) has also observed that in any election, where a candidate challenges the validity of the election of a successful candidate, and further asks that he be declared duly elected, all contesting candidates must be made parties to the petition.The reason for this provision is obvious, because other candidates who have contested have interest in the result of the election and they may even challenge the petitioner's prayer for his being declared duly elected.
In my opinion, once the requirement of impleadment of all unsuccessful candidates as defendants is the statutory requirement, the service of notice upon them is also mandatory.
Learned counsel for the petitioner, taking note of his application before the Tribunal submitted that the notice was never served upon the petitioner. The application was supported with an affidavit. Therefore,it was incumbent upon the Tribunal to consider the application of the petitioner and return the finding regarding service of notice in view of the law laid down by the Apex Court in Puwada Venkateswara Rao, wherein following observation has been made.
8. A question raised before us by learned Counsel for the respondent is whether the notice sent by the respondent-landlord could be held not to have been served at all simply because the postman, who had made the endorsement of refusal, had not been produced. The Andhra Pradesh High Court had relied upon Maghiji Kanji Patel v. Kundanmal Chamanlal, (5) to hold that the notice was not served. There, a writ of summons, sought to be served by registered post, had been returned with the endorsement "refused." The Bombay High Court held that the presumption of service had been repelled by the defendant's statement on oath that he had not refused it as it was never brought to him. la this State of evidence, it was held that, unless the postman was produced, the statement of the defendant on oath must prevail. An ex-parte decree, passed on the basis of such an alleged service was, therefore, set aside. On facts found, the view expressed could not be held to be incorrect.
9. In Nirmalabala Dehi v Provat Kumar Basu, (6) it was held by the Calcutta High Court, that a letter sent by registered post, with the endorsement "refused" on the cover, could be presumed to have been duly served upon the addressee without examining the postman who had tried to effect service. What was held there was that the mere fact that the letter had come back with the endorsement "refused" could not raise a presumption of failure to serve. On the other hand, the presumption under Section 114 of the Evidence Act would be that, in the ordinary course of business, it was received by the addressee and actually refused by him. This is also a correct statement of the law.
10. The two decisions are reconcilable. The Calcutta High Court applied a rebuttable presumption which had not been repelled by any evidence. In the Bombay case, the presumption had been held to have been rebutted by the evidence of the defendant on oath so that it meant that the plaintiff could not succeed without further evidence. The Andhra Pradesh High Court had applied the ratio decidendi of the Bombay case because the defendant-appellant before us had deposed that he had not received the notice. It may be that, on a closer examination of evidence on record, the Court could have reached the conclusion that the defendant had full knowledge of the notice and had actually refused it knowingly. It is not always necessary, in such cases, to produce the postman who tried to effect service. The denial of service by party may be found to be incorrect from its own admissions or conduct. We do not think it necessary to go into this question any further as we agree with the High Court on the first point argued before us.
Learned counsel for the respondent no. 2, taking shelter of Sub-Section (b) of Section 23 of the Act,which reads as under :-
"The District Judge shall not be required to record or have recorded the evidence in full, but shall make a memorandum of the evidence sufficient in its option for the prupose of decidng the case"
submitted that it was not incumbent upon the learned District Judge to record such finding.
From the perusal of Sub-Section (b) of Section 23 of the Act, it transpires that it is not incumbent upon the District Judge to record the evidence in full but shall make a memorandum of the evidence sufficient in its option for the purpose of deciding the case. Here in this case, so far as the petitiner's case is concerned that stage has yet not arrived as the petitioner's case is that he was never served with the notice and without any service of notice, he cannot question the election of the petitioner which is the consequential relief of setting aside the election of the returned candiates. Learned counsel for the petitioner submitted that it cannot be believed that for such a long time, the petitioner did not come to know about the pendency of the election petition, as a layman understanding it can be said that it is wrong to state that the petitioner was not served but in view of the rebuttal to the service of notice unless taking note of the submission of the petitioner some finding regarding service of notice is returned by the election tribunal, in my opinion, over, assumptions and presumptions of service of notice, the satisfaction of the statutory requirement will prevail which is lacking in this case as after rebuttal of service of notice by the petitioner the tribunal in the impugned order has nowhere recorded that the notice was served taking note of the rebuttal of the petitioner, therefore the argument of learned counsel for the respondent no. 2 is of no help.
I have gone through the order-sheet brought on record. The order-sheet is full of uncertainty and doubts. The order dated 15.9.2012 speaks that vakalatnama has been filed by the defendants and thereafter the order dated 25.9.2012 contains that the notice with respect to defendant no. 1 has been pasted and the notice upon the other defendants is sufficient. Once in the order dated 15.9.2012 it was recorded that vakalatnama has been filed on behalf of the defendants then how in the order dated 25.9.2012, it is recorded that the notice upon defendant no. 1 was pasted and thereafter satisfaction regarding service was recorded after publication of notice. The order dated 15.9.2012 does not speak as to how many defendants have appeared through vakalatnama and through which counsel.
As has been noticed that the petitioner has come up with the case that he was never served and affidavit to that extent was filed, it was obligatory on the part of the tribunal to decide the application of the petitioner by a reasoned speaking order taking note of the rebuttal and in not doing so, the tribunal has erred in passing the impugned order, which cannot be sustained in the eye of law.
In the result, the writ petition succeeds and is allowed. The impugned order dated 16.12.2015 passed by the Additional District Judge/Special Judge (E.C. Act,) Mainpuri, in Election Petition No. 04 of 2012 (Smt. Manju Lata Vs. Smt. Bandana Devi and others) is hereby quashed.
The Tribunal is directed to pass a reasoned speaking order regarding sufficiency of service of notice upon the petitioner taking note of the averments made by the petitioner regarding non-receipt of the notice in his application and affidavit. This exercise has to be done by the tribunal within a period of six weeks from the date of production of certified copy of the order of this Court and thereafter decide the election petition expeditiously. Regarding expeditious disposal, the earlier order of this Court, if any, shall be applicable.
Order Date :- 19.1.2016 Pratima