# Devendra Kumar Yadav v. District Election Officer/District Magistrate, Mau

- **Citation:** (2016) 3 ILRA 598
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016
- **Bench:** Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/devendra-kumar-yadav-v-district-election-officer-district-magistrate-mau-42131
- **Pages:** 12

## Headnote

This First Appeal under Rule 49 of the U.P. Kshettra Panchayat and Zila Panchayat (Election of
Pramukhs and Up-Pramukhs and Settlement of Disputes) Rules, 1994 has been preferred challenging
the judgment and order dated 27.07.2011 passed by the Additional District and Sessions Judge, Court
No. 1, Mau, whereby Election Petition No. 8 of 2010 was dismissed with cost on the ground that the
same was not presented in person as required under Rule 35(2) of the aforesaid Rules.

Procedure
The election petition was presented on 23.12.2010 questioning the election to the post of Pramukh. A
specific objection regarding improper presentation was raised in the written statement. Issues were
framed on 25.05.2011 and hearing was concluded on 06.07.2011. After conclusion of arguments, the
petitioner filed an affidavit on 13.07.2011 asserting his presence at the time of presentation. However,
the trial court dismissed the petition on 27.07.2011 holding it to be not maintainable due to noncompliance of Rule 35(2) of the Rules, leading to the present appeal.

Penal Sections

Rule 35(2) of the U.P. Kshettra Panchayat and Zila Panchayat (Election of Pramukhs and Up-Pramukhs
and Settlement of Disputes) Rules, 1994
Rule 38 of the Rules
Rule 42 and Rule 43 of the Rules
Section 5, Section 6 and Section 7
Section 237 and Section 264-B of the U.P. Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961
Article 243-O(b) of the Constitution of India
3 All. Devendra Kumar Yadav Vs District Election Officer / District Magistrate, Mau
599
Case Law

G.V. Sreerama Reddy and another Vs. Returning Officer and others, AIR 2010 SC 133
Shiv Sadan Singh Vs. Mohan Lal Gautam, AIR 1969 (1) SCC 408
Durga Prasad Singh Vs. Tata Iron & Steel Co. Ltd., AIR 1918 PC 125
Parwati Bai Vs. Radhika, JT 2003 (5) SC 34
Harcharan Singh Vs. S. Mohinder Singh and Ors., AIR 1968 SC 1500
Jyoti Basu and Ors. Vs. Debi Ghosal and Ors., AIR 1982 SC 983

Head Notes

Election petition challenging the election of Pramukh must be presented strictly in person before the
Judge as mandated under Rule 35(2) of the Rules of 1994. Presentation through counsel without
personal presence of the petitioner is not a curable irregularity. Election law being statutory in nature
requires strict adherence to procedural requirements. Even in absence of specified penal
consequences under the Rules, the Court retains inherent power to dismiss a petition which does not
comply with mandatory statutory provisions.

Facts

The election to the post of Pramukh, Kshettra Panchayat Badraon, District Mau was held on
22.10.2010.
The contest was between Devendra Kumar Yadav and Sanjay Patel.
Both candidates secured equal votes and respondent no. 3 was declared elected by draw of lots.
The election petition was filed on 23.12.2010.
The petition was presented before the Sadar Munsarim through an advocate.
The trial court dismissed the petition on the ground of improper presentation.

Contentions

Appell

## Text

598 INDIAN LAW REPORTS ALLAHABAD SERIES
respondent, but in so for as the present appeal of the Insurance Company is concerned, the
challenge to the award on the grounds raised, in our considered opinion, is liable to fail.

31. The appeal is devoid of merits and thus accordingly stands dismissed in limine.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.09.2011

BEFORE

THE HON'BLE PANKAJ MITHAL, J.

First Appeal No. - 270 Of 2011

Devendra Kumar Yadav ...Appellant
Versus
District Election Officer/District Magistrate, Mau ...Respondent

Counsel for the Petitioner/Appellant:
Shri K.N. Tripathi, Senior Advocate, assisted by Shri Mukesh Prasad

Counsel for the Respondent:
Shri Anil Kumar Singh

Proceedings

This First Appeal under Rule 49 of the U.P. Kshettra Panchayat and Zila Panchayat (Election of
Pramukhs and Up-Pramukhs and Settlement of Disputes) Rules, 1994 has been preferred challenging
the judgment and order dated 27.07.2011 passed by the Additional District and Sessions Judge, Court
No. 1, Mau, whereby Election Petition No. 8 of 2010 was dismissed with cost on the ground that the
same was not presented in person as required under Rule 35(2) of the aforesaid Rules.

Procedure
The election petition was presented on 23.12.2010 questioning the election to the post of Pramukh. A
specific objection regarding improper presentation was raised in the written statement. Issues were
framed on 25.05.2011 and hearing was concluded on 06.07.2011. After conclusion of arguments, the
petitioner filed an affidavit on 13.07.2011 asserting his presence at the time of presentation. However,
the trial court dismissed the petition on 27.07.2011 holding it to be not maintainable due to noncompliance of Rule 35(2) of the Rules, leading to the present appeal.

Penal Sections

Rule 35(2) of the U.P. Kshettra Panchayat and Zila Panchayat (Election of Pramukhs and Up-Pramukhs
and Settlement of Disputes) Rules, 1994
Rule 38 of the Rules
Rule 42 and Rule 43 of the Rules
Section 5, Section 6 and Section 7
Section 237 and Section 264-B of the U.P. Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961
Article 243-O(b) of the Constitution of India
3 All. Devendra Kumar Yadav Vs District Election Officer / District Magistrate, Mau
599
Case Law

G.V. Sreerama Reddy and another Vs. Returning Officer and others, AIR 2010 SC 133
Shiv Sadan Singh Vs. Mohan Lal Gautam, AIR 1969 (1) SCC 408
Durga Prasad Singh Vs. Tata Iron & Steel Co. Ltd., AIR 1918 PC 125
Parwati Bai Vs. Radhika, JT 2003 (5) SC 34
Harcharan Singh Vs. S. Mohinder Singh and Ors., AIR 1968 SC 1500
Jyoti Basu and Ors. Vs. Debi Ghosal and Ors., AIR 1982 SC 983

Head Notes

Election petition challenging the election of Pramukh must be presented strictly in person before the
Judge as mandated under Rule 35(2) of the Rules of 1994. Presentation through counsel without
personal presence of the petitioner is not a curable irregularity. Election law being statutory in nature
requires strict adherence to procedural requirements. Even in absence of specified penal
consequences under the Rules, the Court retains inherent power to dismiss a petition which does not
comply with mandatory statutory provisions.

Facts

The election to the post of Pramukh, Kshettra Panchayat Badraon, District Mau was held on
22.10.2010.
The contest was between Devendra Kumar Yadav and Sanjay Patel.
Both candidates secured equal votes and respondent no. 3 was declared elected by draw of lots.
The election petition was filed on 23.12.2010.
The petition was presented before the Sadar Munsarim through an advocate.
The trial court dismissed the petition on the ground of improper presentation.

Contentions

Appellant:

The appellant was present at the time of filing of the election petition.
The question of presentation involved a mixed question of fact and law requiring evidence.
The defect was curable within the period of limitation.
Reliance was placed on G.V. Sreerama Reddy and Shiv Sadan Singh cases.

Respondent:

Rule 35(2) is mandatory in nature.
The petition was not presented in person before the Judge.
The affidavit alleging presence was an afterthought.
Strict construction of election laws was required.

Analysis (presented pointwise)

Rule 35(2) mandates personal presentation before the Judge.
Presentation before ministerial staff does not satisfy statutory compliance.
Judicial record clearly establishes that the petition was presented through counsel.
The affidavit asserting personal presence was filed belatedly and does not discredit official court
records.
Election disputes are governed strictly by statutory provisions.
Lack of express penal consequence does not curtail inherent powers of the Court.
600 INDIAN LAW REPORTS ALLAHABAD SERIES
Personal presentation ensures genuineness and avoidance of frivolous litigation.
Defect of improper presentation is not curable by subsequent appearance.
The trial court rightly dismissed the petition at the threshold as not maintainable

Final Order

The election petition was not validly presented as required under Rule 35(2) of the Rules and was
rightly dismissed by the trial court. The present First Appeal lacks merit and is accordingly dismissed.
No order as to costs.

Conclusion
Upon an exhaustive consideration of the statutory framework, judicial precedents, and the official
court record, it is conclusively held that the mandatory requirement of Rule 35(2) of the U.P. Kshettra
Panchayat and Zila Panchayat (Election of Pramukhs and Up-Pramukhs and Settlement of Disputes)
Rules, 1994 regarding personal presentation of the election petition was not complied with. The
election petition was neither presented by the appellant in person nor in his immediate presence
before the Judge. The defect being fundamental and incurable, the trial court rightly exercised its
inherent jurisdiction in dismissing the election petition at the threshold. Consequently, the First Appeal
being devoid of merit, stands dismissed. No order as to costs.

(Delivered by Hon'ble Pankaj Mithal, J.)

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.
3 All. Devendra Kumar Yadav Vs District Election Officer / District Magistrate, Mau
601

6. 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.

7. 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.

8. 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?

9. 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.

10. 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.
602 INDIAN LAW REPORTS ALLAHABAD SERIES

11. 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.

12. 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.

13. 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.

14. 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."

15. 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.

16. 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.

17. 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.
3 All. Devendra Kumar Yadav Vs District Election Officer / District Magistrate, Mau
603

18. 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.

19. 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.

20. The Sadar Munsarim had made the following report on the back of the first page of
the election petition:-

प्रजतुत करने का कदनाूंक 23.12.10

प्रजतुत कताव श्ऱी सदानन्द राय एड०

"श्ऱीमान ,

प्रजतुत चुनार् याकचका इस न्यायािय के क्षेत्राकधकार एर्ूं अर्कध के अूंतगवत है। प्रदत्त न्याय शुल्क मुब० 200.00
रूपया पयावप्त है तल्बाना कदया गया है। प्रकतभूकत की धनराकश मुब० 500.00 रूपये रेजऱी में जमा करके चािान दाकखि है। नकि कनणवय
दाकखि है। मुसन्ना कदया गया है। प्रपत्र 8 के अनुरूप त्रैमासकी मई कनर्ावचन कर्र्रण का कजिा न्यायािय जनपद मठ के कायाविय से आह त करने
हेतु दाकखि प्रजतुत है। ररपोट सेर्ा में प्रेकर्त है।

ह0 अपकठत

सदर मुसररम

23.12.2010

Thereafter, the election petition was placed before the Judge concerned who had
passed the following order on 23.12.2010:-

23.12.2010

"आज यह चुनार् याकचका याच़ी देर्ेन्र यादर् के अकधर्ता श्ऱी सदानन्द राय, एड० द्वारा प्रजतुत ककया गया। मुूंसररम आख्या के
साथ पेश हुआ।

आदेश
604 INDIAN LAW REPORTS ALLAHABAD SERIES

दजव रकजजटर हो। कर्पक्ष़ी को कदनाूंक 12.1.11 कनयत कर सम्मन जाऱी हो।

ह० अपकठत

I/c कजिा जज"

21. 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.

22. 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."

23. 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.

24.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.

25. 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.
3 All. Devendra Kumar Yadav Vs District Election Officer / District Magistrate, Mau
605

26. 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.

27. 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.

28. 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.

29. 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.

30. 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.
606 INDIAN LAW REPORTS ALLAHABAD SERIES

31. 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.

32. 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.

33. 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."

34. 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
3 All. Devendra Kumar Yadav Vs District Election Officer / District Magistrate, Mau
607
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.

35. This brings me to another aspect as to the impact of non non-presentation of
the election petition in person by the appellant.

36. 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.

37. 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.

38. 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.

39. 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.

40. 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
608 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

41. 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.

42. 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.

43. 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.

44. 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.
3 All. Amolak Singh Vs Satendra Kumar Singh
609

45. The appeal as such has no force and is dismissed. Costs upon the parties.
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APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.02.2016

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAKESH SRIVASTAVA, J.

First Appeal No. - 785 OF 2004

Amolak Singh ...Appellant
Versus
Satendra Kumar Singh ...Respondent

Counsel for the Appellant:
Smt. Rama Goel

Counsel for the Respondent:
Shri Iqbal Ahmad

Proceedings

This First Appeal under Section 96 of the Code of Civil Procedure has been preferred by the defendant
assailing the judgment and decree dated 13.02.2004 and 26.02.2004 passed by the Additional District
Judge, Court No. 4, Moradabad, whereby Original Suit No. 43 of 2003 was decreed in favour of the
plaintiff granting permanent injunction restraining the defendant from interfering in the possession of
the disputed property. The appeal was heard by this Bench and final judgment was reserved and
delivered on 22.02.2016.

Procedure
The suit for permanent injunction was instituted by the plaintiff claiming possession over the disputed
property as a co-owner. The defendant contested the suit by filing a written statement and also
additional written statements after amendment of the plaint. The Trial Court framed three issues
relating to ownership and possession, cause of action, and entitlement to relief. After appreciation of
evidence and pleadings, the Trial Court decreed the suit. Aggrieved by the said decree, the defendant
preferred the present appeal under Section 96 CPC.

Penal Sections

Not Applicable - Civil dispute governed by the Code of Civil Procedure and Transfer of Property Act.

Case Law

Maung Shwe Goh v. Maung Inn, 1917 (1) Bom LR 179
Rupchand Balmukund Aharwala v. Jankibai Kanhyalal, AIR 1926 Bom 24
Rajangam Ayyar v. Rajangam Ayyarta, ILR (1922) Mad 373
Chhatra Kumari Devi v. Mohan Bikram Shah, AIR 1931 PC 196
Rambaran Prosad v. Ram Mohit Hazra, AIR 1967 SC 744
Jiwan Das v. Narain Das, AIR 1981 Delhi 291