# Sumitra Devi v. Special Judge/Addl. Distt. & Sess. Judge E.C. Act Hardoi & Ors

- **Citation:** (2020) 7 ILRA 75
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-06-12
- **Case number:** Misc. Single No. 9920 of 2018
- **Bench:** Ranjan Roy, Rajnish Kumar, Dinesh Kumar Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sumitra-devi-v-special-judge-addl-distt-sess-judge-e-c-act-hardoi-ors-45941
- **Pages:** 26

## Headnote

A. Civil Law - U.P. Panchayat Raj Act, 1947
- Section 12-C (3) - U.P. Panchayat Raj
(Settlement of Disputes) Rules, 1994 -
Rule 4(1) - Election Petition - Presentation -
As per Section 12-C (3) of the Act, 1947, an
election petition has to be given or filed by any
candidate at the election - It does not permit
presentation of the Election Petition by the
Advocate of the candidate or his clerk or any
other agent or representative - Since, such a
petition may lead to the vitiation of a democratic
process, any procedure provided by an election
statute must be read strictly. (Para 24 and 32)
Held -

## Text

_Characters 0–39,982 of 88,815. This is a partial read: ask again with offset=39982 for what follows._

7 All. Sumitra Devi Vs. Special Judge/Addl. Distt. & Sess. Judge E.C. Act Hardoi & Ors.
75

x. Special diet : Rs.10,000/-

xi. Attendant charges : Rs.
1,000/-

xii. Amount under pain, shock
and suffering : Rs.1,00,000/-

xiii.
Total
compensation:
Rs.7,02,000 + 25,000 + 75,000 + 10,000 +
1,000 + 1,00,000= 9,13,000/-.

11. As far as issue of rate of interest is
concerned, it should be 9% in view decision of
the Apex Court in Civil Appeal No.242/243 of
2020 (National Insurance Company Ltd. vs
Birender and others) decided on 13 January,
2020 which is the latest in point of time.

12. As far as issue of rate of interest is
concerned, I am in agreement with Sri Gour
that the interest should be reviewed and. The
interest should be 9% in view decision of the
Apex Court in Civil Appeal No.242/243 of
2020 (National Insurance Company Ltd. vs
Birender and others) decided on 13 January,
2020 which is the latest in point of time.

13. No other grounds are urged orally
when the matter was heard.

14. In view of the above, the appeal is
partly allowed. Judgment and decree passed by
the Tribunal shall stand modified to the
aforesaid extent. The amount be deposited by
the respondent-Insurance Company within a
period of 12 weeks from today with interest at
the rate of 9% from the date of filing of the
claim petition till the amount is deposited. The
amount already deposited be deducted from the
amount to be deposited.

15. The records and proceedings be send
back to Tribunal for disbursement
----------
(2020)07ILR A75
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.06.2020

BEFORE

THE HON'BLE RANJAN ROY, J.
THE HON'BLE RAJNISH KUMAR, J.
THE HON'BLE DINESH KUMAR SINGH-I, J.

Misc. Single No. 9920 of 2018

Sumitra Devi ...Petitioner
Versus
Special Judge/Addl. Distt. & Sess. Judge
E.C. Act Hardoi & Ors. ...Respondents

Counsel for the Petitioner:
Amitabh Misra, Harish Chandra

Counsel for the Respondents:
C.S.C., Anurag Shukla

A. Civil Law - U.P. Panchayat Raj Act, 1947
- Section 12-C (3) - U.P. Panchayat Raj
(Settlement of Disputes) Rules, 1994 -
Rule 4(1) - Election Petition - Presentation -
As per Section 12-C (3) of the Act, 1947, an
election petition has to be given or filed by any
candidate at the election - It does not permit
presentation of the Election Petition by the
Advocate of the candidate or his clerk or any
other agent or representative - Since, such a
petition may lead to the vitiation of a democratic
process, any procedure provided by an election
statute must be read strictly. (Para 24 and 32)
Held -
51. ... An Election Petition has, necessarily and
mandatorily,
to
be
presented
by
the
candidate/election petitioner himself, if it is in
his name, however, presentation of such a
petition by his Advocate or clerk before the
Prescribed Authority, in his presence, would be
sufficient compliance of Section 12-C(3) of the
Act, 1947.
B. Civil Law - U.P. Panchayat Raj Act, 1947
- Section 12-C (1) - 'May be' - Word 'may be'
76 INDIAN LAW REPORTS ALLAHABAD SERIES
used in the provision has nothing to do with its
directory or mandatory character - It is merely
indicative of the choice which a candidate at an
election has i.e. to file or not to file an
application under Section 12-C(1). (Para 21)
C.Civil Law - Civil Procedure Code, 1908 -
Section 12- Applicability - Presentation of
Election Petition - CPC cannot be applied to
negate this unambiguous legislative mandate in
the Act, 1947 - The provisions of the CPC would
not apply so far as presentation of an election
petition is concerned, as, the said field is
occupied by Section 12-C(3) of the Act, 1947
thereby excluding the provisions in this regard
as contained in the CPC for trial of suits. (Para
45 and 46)
D.
Civil
Law
-
U.P.
Panchayat
Raj
(Settlement of Disputes) Rules, 1994 -
Rule 4 U.P. Panchayat Raj Act, 1947 -
Section 12-C (1) - Appearance of Counsel -
'May be' - Word 'may be' used in the provision
has nothing to do with its directory or which it
had been made - The act of presentation of an
election petition and its hearing at the
preliminary stage are two different acts - The
intent of Section 12-C(3) of the Act, 1947 is that
the act of presenting the election petition before
the Prescribed Authority should be by the
candidate and no one else. The fact that the
counsel is also present at that time and he may
argue the case is an entirely different matter.
(Para 47)
E.Civil Law - U.P. Panchayat Raj Act, 1947
- Section 12-C (3) - 'May be' - Word 'may be'
used in the provision has nothing to do with its
directory or Interpretation of Statute - When
the Statute prescribes a mode of doing a thing
in particular manner, it should be done
accordingly, and not otherwise - Absence of any
provision in the Act, 1947 or the Rules made
thereunder analogous to Section 86 of the Act,
1951 does not make Section 12-C(3) any less
mandatory and it does not become directory.
(Para 60 and 61)
Held -
67. Even if a provision is held to be directory it
does not mean that the concerned authority
which is required to observe it, can ignore it, as,
no Authority or Forum can ignore a statutory
provision enjoining it to perform any duty
especially a provision such as the one contained
in Section 12-C(3). When a provision is declared
to be directory all that it means is that a failure
to obey it does not render a thing duly done in
disobedience of it a nullity before a Court of law
on the ground of its violation, its noncompliance by itself may not necessarily be
made a ground for interfering with the decision,
but it certainly does not mean that those public
Authorities or Forums, who are enjoined to
comply it, can ignore it.
F. Civil Law - U.P. Panchayat Raj Act, 1947
- Section 12-C (3) - Interpretation of Statute
- Overriding Effect - Provision of the main Act
will always override the Rules made thereunder
in the event of conflict -If a subject matter is
covered by the Act the Rules made by the Rule
Making
Authority
cannot
be
read
and
understood to supplant the object and intent of
Section 12-C(3) of the Act, 1947. (Para 68)
G. Civil Law - U.P. Panchayat Raj Act, 1947
- Section 12-C (1) and (3) - Presentation of
Election Petition - Non-compliance of provision
- Curable or Non-curable - Act of presentation
of an election petition denotes a onetime act of
giving or delivering the petition by the candidate
or the elector as the case may be before the
Prescribed Authority. Once presented, the act of
presentation stands exhausted and there is no
question of it being cured on a subsequent date
in the same proceedings - Non-presentation of
an Election Petition under Section 12-C (1) and
(3) of the Act, 1947 by the candidate/Election
Petitioner personally or, by his Advocate or clerk
in his presence, is fatal and is not a curable
defect in those proceedings.
Held -
72. ... In the event of dismissal of an Election
Petition on the ground of its non-presentation as
aforesaid by the candidate, if the limitation for
filing such a petition is still available, then, the
candidate can file an Election Petition afresh
complying Section 12-C(3) as discussed above,
as, the earlier dismissal is not on merits and
there is no provision in the Act, 1947, nor was
7 All. Sumitra Devi Vs. Special Judge/Addl. Distt. & Sess. Judge E.C. Act Hardoi & Ors.
77
any such provision brought to our notice, which
prohibits filing of a fresh Election Petition as
aforesaid.
Reference stand answered (E-1)
Cases relied on :-
1. Lal Bahadur Singh Vs Vishal Singh (1963) ALJ
542
2. Smt. Prem Lata Vs Rajendra Pati (1959) ALJ
741
3. Ganpat Singh Vs Election Tribunal, Mainpuri
(1960) ALJ 48
4. Viresh Kumar Tiwari Vs A.D.J., Ballia & ors.
(2013) Law Suit All 3871
5. G.V. Sreerama Reddy & anr. Vs Returning
Officer & ors. (2009) 8 SCC 736
6. Devendra Yadav Vs D.E.O./D.M., Mau; (2011)
9 ADJ 219
7. Urmila Vs St. of U.P. & ors. (2019) 2 ADJ 500
8. St. of Mh. Vs R.S. Nayak (1982) 2 SCC 463
9. Sheo Sadan Singh Vs Mohan Lal Gautam
(1969) 1 SCC 408
10. Bhawar Singh Vs Navrang Singh AIR (1987)
Rajasthan 63
11. Jagan Nath Vs Jaswant Singh & ors. AIR
(1954) SC 210
12. Jyoti Basu & ors. Vs Devi Ghosal & ors. AIR
(1982) SC 983
13. Kailash Vs Nanku & ors. AIR (2005) SC 241
14. M/s. Unique Butyle Tube Industries Pvt. Ltd.
Vs U.P. Financial Corporation & ors. (2003) 2
SCC 455
15. Civil Appeal No. 16128 of 2008; Ram Sukh
Vs Dinesh Agarwal
16. Hardwari Lal Vs Komal Singh (1972) SCR 3
742
17. Drig Raj Kuer Vs Amar Krishna Narain Singh
AIR (1960) SC 444
18. Vikas Trivedi & ors. Vs St. of U.P. & ors.
(2013) 2 UPLBEC 1193
(Delivered by Hon'ble Ranjan Roy, J.)

1. An interesting issue regarding the
manner of presentation of an election
petitions under Section 12-C(1) and (3) of
the
U.P.
Panchayat
Raj
Act,
1947
(hereinafter referred to as ''the Act, 1947')
has been referred by a Single Judge Bench
for our consideration. The Single Judge
Bench has referred the matter to us as it
noticed conflicting opinions of various
Benches of this Court on the issue involved
and also as it is an issue which arises quite
often before the Courts in proceedings
arising from of an election petition under
the Act, 1947, hence the need to settle it
conclusively. The question referred to us
vide order dated 13.8.2019 of the writ
court, as rephrased by us vide our order
dated 22.11.2019, are quoted below :-

"1.) Whether presentation of an
election petition by the election petitioner
personally is a mandatory requirement in
view of Sub-section 3 of Section 12 C(1) of
the Act, 1947 and Rule 3(1) of the Rules,
1994 and whether it's non-compliance is
fatal or it would merely be an improper
presentation, a curable defect?

2. Whether the decision of the
Single Judge Bench of this Court in the
case of Viresh Kumar Tiwari (supra) lays
down the law correctly with regard to the
question framed at serial no. 1 or it is the
division Bench judgment in the case Lal
Bahadur Singh (supra) and the subsequent
Single Bench judgment in the case of
Urmila (supra) which lay down the law
correctly ?"

2. As we are not required to decide
any factual issue involved in the Writ
Petition andespecially as the questions
referred to us are not dependent on any
78 INDIAN LAW REPORTS ALLAHABAD SERIES
peculiar facts of the case but are of a
general nature, we do not find it necessary
to mention the facts leading to the filing of
the Writ Petition in question. Suffice it to
say that according to the petitioner the
election petition in question had not been
presented by the candidate, it was presented
by his Advocate, as is recorded in the
ordersheet by the Prescribed Authority,
therefore, the mandate of section 12-C(3)
of the Act 1947 had not been complied
which was mandatory, hence the petition
was liable to be dismissed, but neither the
Prescribed Authority nor the revisional
authority have appreciated this aspect of
the matter appropriately and in accordance
with law.

3. Learned Counsel for the petitioner
argued to persuade the Court that filing of
an election petition under Section 12-C of
the Act, 1947 is to be done by the
candidate/election petitioner himself and
not by any other person, if the petition is by
the candidate. Any defect in this regard,
according to him, was fatal and not curable.

4. On the other hand Shri Anurag
Shukla
appearing
for
the
contesting
opposite party took up a contrary stand. He
tried to convince us that the petition could
be filed by the agent of a candidate/
election petitioner such as his Advocate or
his clerk and in this regard the provisions
of C.P.C would apply in view of the
provision contained in Rule 4 (1) of the
U.P.
Panchayat
Raj
(Settlement
of
Disputes) Rules, 1994 (hereinafter referred
as 'Rules 1994'). Even if it was required to
be filed by the candidate/election petitioner
personally, the defect was a curable one
and not fatal as there were no penal
consequences prescribed in the Act 1947 or
the Rules 1994 for non-compliance of
Section 12-C(3). Shri S.P. Singh, learned
CSC took us through various provisions of
this Act and his stand was the same as that
of the petitioner.

5. Question no. 1 is in two parts. We
would like to first of all consider the first
part of Question No. 1, as to whether an
application questioning the election of a
person as Pradhan or as a Member of Gram
Panchayat referable to Section 12-C(1) is
required to be mandatorily presented by a
candidate personally or it can be presented
by his agent or Advocate, as the case may
be, as well.

6.

The
State
Legislature
has
promulgated the U.P. Panchayat Raj Act,
1947. As per its preamble, it is an Act to
establish
and
develop
local
selfgovernment in the Rural areas of Uttar
Pradesh and to make better provisions for
village administration and development.

7. Subsequent to promulgation of the
said Act, 1947, Part-IX has been inserted in
the Constitution of India by the 73rd Act,
1992 w.e.f. 24.04.1993. Part- IX provides
for
constitution
of
Panchayats,
their
composition and also that all the seats in a
Panchayat shall be filled by persons chosen
by
direct
election
from
territorial
constituencies in the Panchayat area. As per
Article 243-C(1) subject to the provisions
of Part-IX of Constitution, the Legislature
of a State may, by law, make provisions
with
respect
to
the
composition
of
Panchayats. Article 243-K deals with
elections of Panchayats.

8. Article 243-O(b) contained in PartIX of the Constitution of India provides
that ''notwithstanding anything in this
Constitution no election to any Panchayat
shall be called in question except by an
election petition presented to such authority
7 All. Sumitra Devi Vs. Special Judge/Addl. Distt. & Sess. Judge E.C. Act Hardoi & Ors.
79
and in such manner as is provided for by or
under any law made by the Legislature of a
State'. The words ''presented to such
authority and in such manner as is
provided for by or under any law made by
the Legislature of a State' indicate that the
manner of presenting an election petition
has to be such as is provided by the State
Legislature.

9. Now coming back to the Act, 1947,
Section 11-B of the said Act deals with
election of Gram Pradhan. Section 12 of
the Act, 1947 deals with Gram Panchayat
and elections to it. Section 12-BB of the
Act, 1947 provides for superintendence etc.
of such election by the State Election
Commission. Section 12-BC to 12-BD of
the Act, 1947 also deal with elections to the
Gram Panchayat. Section 12-C provides for
filing of an election petition and matters
related thereto.

10. There are general Rules which
have been made under the Act, 1947
known as U.P. Panchayat Raj Rules, 1947
(hereinafter referred to as ''the Rules,
1947').

11. This apart there are separate Rules
made under Section 110 of the Act, 1947
dealing with separate subject matters. One
such set of Rules, as already stated, is
known as U.P. Panchayat Raj (Settlement
of Disputes) Rules, 1994.

12. The Act, 1947 and the Rules made
thereunder provide a complete Code for
dealing
with
matters
related
to
the
Panchayats including elections to the same
and all matters related thereto.

13. Section 12-C of the Act, 1947
which is relevant for our purpose, reads as
under:-

"12-C.
Application
for
questioning the elections - (1) The election
of a person as Pradhan or as member of a
Gram Panchayat including the election of a
person appointed as the Panch of the
Nyaya Panchayat under Section 43 shall
not be called in question except by an
application presented to such authority
within such time and in such manner as
may be prescribed on the ground that -

(a) the election has not been a
free election by reason that the corrupt
practice of bribery or undue influence has
extensively prevailed at the election, or

(b) that the result of the election
has been materially affected -

i- by the improper acceptance or
rejection of any nomination or;

ii- by gross failure to comply with
the provisions of this Act or the rules
framed thereunder.

(2) The following shall be deemed
to be corrupt practices of bribery or undue
influence for the purposes of this Act.

(A) Bribery, that is to say, any
gift, offer or promise by a candidate or
by
any
other
person
with
the
connivance of a candidate of any
gratification
of
any
person
whomsoever, with the object, directly,
or indirectly of including -

(a) a person to stand or not to
stand as, or withdraw from being, a
candidate at any election; or

(b) an elector to vote or refrain
from voting at an election; or as a reward
to -
80 INDIAN LAW REPORTS ALLAHABAD SERIES

i- a person for having so stood or
not stood or having withdrawn his
candidature; or

ii- an elector for having voted or
refrained from voting.

(B) Undue influence, that is to
say, any direct or indirect interference or
attempt to interfere on the part of a
candidate or of any other person with the
connivance of the candidate with the free
exercise of any electoral right;

Provided that without prejudice
to the generality of the provisions of this
clause any such person as is referred to
therein who -

i- threatens any candidate, or any
elector, or any person in whom a candidate
or any elector is interested, with injury of
any kind including social ostracism and excommunication or expulsion from any caste
or community; or

ii- induces or attempts to induce a
candidate or an elector to believe that he
or any person in whom he is interested will
become or will be rendered an object of
divine displeasure or spiritual censure,
shall be deemed to interfere with the free
exercise of the electoral right of such
candidate or elector within the meaning of
this clause.

(3) This application under subsection (1) may be presented by any
candidate at the election or any elector
and shall contain such particulars as may
be prescribed.

(4) The authority to whom the
application under sub-section (1) is made
shall in the matter of -

i- hearing of the application and
the procedure to be followed at such
hearing;

ii- setting aside the election, or
declaring the election to be void or
declaring the applicant to be duly elected
or any other relief that may be granted to
the petitioner,

have such powers and authority
as may be prescribed.

(5)
Without
prejudice
to
generality of the powers to be prescribed
under subsection (4) the rules may provide
for summary hearing and disposal of an
application under sub-section (1).

(6) Any party aggrieved by an
order of the prescribed authority upon an
application under sub-section (1) may,
within thirty days from the date of the
order, apply to the District Judge for
revision of such order on any one or more
the following grounds, namely -

(a) that the prescribed authority
has exercised a jurisdiction not vested in it
by law;

(b) that the prescribed authority
has failed to exercise a jurisdiction so
vested;

(c) that the prescribed authority
has acted in the exercise of its jurisdiction
illegally or with material irregularity.

(7) The District Judge may
dispose of the application for revision
himself or may assign it for disposal to any
Additional District Judge, Civil Judge or
Additional
Civil
Judge
under
his
administrative control and may recall it
7 All. Sumitra Devi Vs. Special Judge/Addl. Distt. & Sess. Judge E.C. Act Hardoi & Ors.
81
from any such officer or transfer it to any
other such officer.

(8)
The
revising
authority
mentioned in sub-section (7) shall follow
such procedure as may be prescribed, and
may confirm, vary or rescind the order of
the prescribed authority or remand the
case to the prescribed authority for rehearing and pending its decision pass such
interim orders as may appear to it to be
just and convenient.

(9) The decision of the prescribed
authority, subject to any order passed by
the revising authority under this section,
and every decision of the revising authority
passed under this section, shall be final."

14.

The
procedure
regarding
proceedings of an election petition as
referred in sub-rule (4) and (5) of section
12-C has been prescribed in the Rules
1994. Rule 3 and 4 of the said Rules, 1994
read as under:-

"3. Election Petition. - (1) An
application under sub-section (1) of Section
12-C of the Act shall be presented before
the Sub-Division Officer, within whose
jurisdiction
the
concerned
Gram
Panchayat lies, within ninety days after the
day on which the result of the election
questioned is announced and shall specify
the ground or grounds on which the
election of the respondent is questioned
and
contain
a
summary
of
the
circumstances alleged to justify the election
being questioned on such ground :

Provided that no such application
shall
be
entertained
unless
it
is
accompanied by a treasury challan to show
that the amount of rupees fifty has been
deposited in the personal Ledger Account
of the Gram Panchayat concerned as
security.

(2) The person whose election is
questioned and where the petition claims
that the petitioner or any other candidate
shall be declared elected in place of such
person, every unsuccessful candidate
shall be made a respondent to the
application.

(3) Every respondent may give
evidence to prove that any person in
respect of whom a claim is made, that such
person be declared elected, should not be
declared so elected on the same ground or
grounds on which his election could have
been questioned, if he had been elected.

4. Hearing of the petition. - (1)
Subject to the provisions of the Act and
these rules, every election petition shall
be tried by the Sub-Divisional Officer, as
nearly as may be, in accordance with the
procedure applicable under the Code of
Civil Procedure, 1908, for the trial of
suits:

Provided that -

(i) the Sub-Divisional Officer may
hear the petitioner or his counsel and if he
finds that the petition has no substance,
reject the same without the issue of any
notice to the opposite parties;

(ii) it shall not be necessary for
the Sub-Divisional Officer to record the
evidence in full and he may maintain only a
memorandum of evidence produced by the
parties before him;

(iii) if there is a sole petitioner
and he dies, or there is a sole respondent
and he dies, the petition shall abate;
82 INDIAN LAW REPORTS ALLAHABAD SERIES

(iv) the Sub-Divisional Officer
may allow only such evidence to be
produced as he deems relevant for the
purpose of deciding the petition;

(v) the District Magistrate may at
any stage on sufficient cause being shown
transfer an application made under subsection (1) of Section 12-C for hearing to
another Sub-Divisional Officer;

(vi) an application not presented
within time or unaccompanied by a
treasury challan as required under sub-rule
(1) of Rule 3 may, at any time, be dismissed
by the Sub-Divisional Officer; and

(vii) the Sub-Divisional Officer
may, on an application of either party made
within five days after the date of his decision,
review his order.

(2) If the Sub-Divisional Officer
after hearing finds in respect of any person
whose election is called in question by the
petition, that his election was valid, he shall
dismiss the petition as against such person
and may award costs at his discretion and in
case he finds the application to be altogether
frivolous he may also order that the security
deposit shall in part or whole be forfeited to
the concerned Gram Panchayat.

(3) If the Sub-Divisional Officer
finds that the election of any person was
invalid he shall either -

(a) declare a casual vacancy to
have been created; or

(b) declare another candidate to
have been duly elected, whichever course
appears, in the particular circumstances of
the case, to be appropriate, and in either
case may award costs at his discretion :

Provided that no such declaration
shall be made unless a claim for it has been
made in the application.

(4) The security deposit or
portion thereof, as the case may be, not
forfeited under sub-rule (2) and not
required for payment of any costs awarded
to any opposite party shall be refunded by
the District Panchayat Officer to the
person depositing the same or in case of his
death, to his legal representative."

15. The question as to whether an
application under Section 12-C(1) and (3)
is to be presented by a candidate or an
elector personally or it could also be
presented through his Advocate or his
agent came up for consideration before a
Division Bench of this Court in a case
reported in 1963 ALJ 542; Lal Bahadur
Singh Vs. Vishal Singh i.e. prior to coming
into force of Rules 1994. The Division
Bench dealt with the issue in the light of
Rule 24 and 25 of the Rules, 1947 and
opined that Clause (2) of Rule 24 of the
Rules, 1947 can not be interpreted as
requiring an election petition to be
mandatorily presented personally by the
petitioner. Even if it is held that it is
necessary for an election petition to be
presented personally too much importance
could
not
be
attached
to
such
a
requirement.
It
observed,
defective
representation has always been held to be a
curable irregularity. It referred to the Code
of Civil Procedure in this regard. The
Division Bench disapproved a contrary
view expressed by a Single Judge Bench of
this Court in the case of Smt. Prem Lata
Vs. Rajendra Pati reported in 1959 ALJ
741 and followed another Division Bench
Judgment rendered in the case of Ganpat
Singh Vs. Election Tribunal, Mainpuri
reported in 1960 ALJ 48 which was a
7 All. Sumitra Devi Vs. Special Judge/Addl. Distt. & Sess. Judge E.C. Act Hardoi & Ors.
83
matter pertaining to a different provision
contained in the U.P. Town Areas (Conduct
of Election of Chairman) Rules, 1953
(hereinafter referred to as ''the Rules,
1953'). The Division Bench found the
provision in Rule 24(2) of the Rules, 1947
to be paramateria with Rule 47 of the
Rules, 1953.

16. A striking feature of the decision
in Lal Bahadur Sing's case (supra) is that
the language used in Section 12-C(3) of the
Act, 1947 has not been considered, instead,
Rule 24(2) of the Rules, 1947 as then
existing, was considered. Rule 24 (2) and
25(1) of the Rules, 1947 made under the
Act, 1947, as considered in the aforesaid
case, read as under:-

"24(2). The application may be
presented by any candidate in whose
favour votes have been recorded or whose
nomination paper was rejected or by any
10 or more electors of the Sabha. "Clause
(1) of R. 25 provides,

"25(1) Subject to the provisions
of the Act and the Rules contained in this
Chapter, every election petition shall be
tried by the Sub-Divisional Officer, as
nearly as may be, in accordance with the
procedure applicable under the Code of
Civil Procedure, 1908 to the trial suits."

17 Subsequently, a Single Judge
Bench of this Court rendering its decision
in the case of Viresh Kumar Tiwari Vs.
Additional District Judge, Ballia and Ors.,
2013 Law Suit (All)3871, noticed the
Division Bench judgment in Lal Bahadur
Singh's case (supra) but it did not follow it
as it relied upon a decision of the Supreme
Court in the case of G.V. Sreerama Reddy
and Anr. Vs. Returning Officer and Ors.
reported in 2009 (8) SCC 736, wherein,
considering a similar provision contained in
Section 81 of the Representation of Peoples
Act, 1951, the Supreme Court had opined
that the election petition had to be
necessarily presented by the candidate or
the elector in person. In the said case
following the aforesaid decision of the
Supreme Court the learned Single Judge
held that an election petition under Section
12-C(1) and (3) of the Act, 1947 was also
required to be presented by the candidate
personally.
The
Single
Judge
Bench
repelled the argument that the defect, if
any, in non-presentation of the petition by
the candidate personally was curable and
not fatal. The said Bench relied upon the
Single Judge Bench decision in the case of
Smt. Prem Lata (supra) wherein it had
been held that the word ''candidate' used in
Section 12-C(3) and the relevant Rule,
would not include the agent of the election
petitioner nor his counsel.

18.
 This
issue
came
up
for
consideration before another Single Judge
Bench of this Court earlier, in the case of
Devendra Yadav Vs. District Election
Officer/District Magistrate, Mau reported
in 2011 (9) ADJ 219, in the context of the
U.P. Panchayat Kshetra Panchayat and Zila
Panchyayat (Election of Pramukh and Uppramukhs and Settlement of Disputes)
Rules, 1994, involving Rule 35(2) therein.
The Court held that presentation of the
election petition in person by the election
petitioner was mandatory on the ground
that the provisions relating to elections
should be construed and applied strictly. It
was also persuaded to take this view on
account of the object behind such a
provision which was to avoid frivolous and
fictitious litigation. The use of the word
''shall' in Rule 35(2) was also a factor
which led the Court to hold such a
requirement to be mandatory. The Court
84 INDIAN LAW REPORTS ALLAHABAD SERIES
held that even in the absence of any penal
consequences provided in the Rules, 1994
flowing from non compliance of Rule 35(2)
if the statute prescribed a manner of doing
a particular thing it should be done in the
same
manner
and
if
there
is
non
compliance, then, the Judge has inherent
powers to dismiss the election petition
otherwise it would make the provision
meaningless and redundant. The Court
further opined that if such a plea was not
taken at the earliest that the election
petition had not been presented by the
candidate/election petitioner, it would be
deemed to have been waived.

19. This issue again came up for
consideration before another Single Judge
Bench of this Court in the case of Urmila
Vs. State of U.P. and Ors. reported in 2019
(2) ADJ 500. This was a case arising out of
an election petition under Section 12-C of
the Act, 1947, just as the case at hand,
though the facts were slightly different. In
the said case the order sheet of the election
petition did not mention that the petition
had been presented by the candidate i.e. the
election petitioner, and the issue cropped
up as to whether it was liable to be
dismissed on this ground or not. The Court,
relying upon the decision of the Supreme
Court in the case of State of Maharashtra
Vs. R.S. Nayak reported in 1982 (2) SCC
463, opined that an order sheet of a Court
or Tribunal is conclusive evidence of the
proceedings before it. However, taking the
reasoning further it opined that what came
out from the said decision of the Supreme
Court was that the recitals in the order
sheet of the Court are evidence only of the
facts stated in the order sheet but are not
evidence of non-existence of any fact not
stated in the order sheet, meaning thereby,
as the order sheet did not mention that the
petitioner was not present at the time of its
presentation, mere mentioning the presence
of Advocate in the order sheet can not be
treated as proof of non-presence of the
petitioner unless it was specifically so
stated. The Court also took cognizance of
the fact that the Sub-Divisional Officer
who is the Prescribed Authority for hearing
an election petition under Section 12-C of
the Act, 1947 is part of the executive
structure of the State. They and their
ministerial staff are not necessarily persons
having knowledge of law nor are they
conscious of the importance and sanctity of
the recitals in the order sheet prepared in
any case. In the said case the Court found
that the order sheet did not indicate as to
who
presented
the
election
petition,
therefore, the said order sheet could not be
conclusive evidence on this issue, as, it was
incomplete and inadequate as regards the
events which took place at the time of
presentation of the petition before the
Prescribed Authority. The Court relied
upon a decision of the Supreme Court in
the case of Sheo Sadan Singh Vs. Mohan
Lal Gautam reported in 1969 (1) SCC 408
to hold that, even if, respondent no. 6
therein had not personally presented the
petition to the Prescribed authority, the said
fact would not itself be fatal for the election
petitioner and it would not invite a
dismissal
on
ground
of
improper
presentation, if respondent no. 6 was
present in the Court when the petition was
being
presented
to
the
Prescribed
Authority. Thus, the imprint on the first
page of the election petition that it had been
presented by the Advocate and the
contention based thereon that it was not
presented by the petitioner, was rejected.
The Court thereafter took notice of the fact
that no such objection had been specifically
raised in the written statement filed in the
election petition nor any application under
order VII Rule 11 CPC had been filed. No
7 All. Sumitra Devi Vs. Special Judge/Addl. Distt. & Sess. Judge E.C. Act Hardoi & Ors.
85
issues were framed on this aspect of the
matter. It found that this argument was
being raised for the first time before the
High Court merely on the basis of recitals
in the order sheet and the imprint of the
first page of election petition. It relied upon
Section 114(e) of the Indian Evidence Act,
1872 to opine that all Judicial and Official
acts are presumed to have been regularly
performed. The said presumption was
rebuttable but the petitioner before the
High Court did not plead nor adduce any
evidence to rebut the same nor did he make
any effort to get an issue framed on the
controversy, as such it opined that he could
not be permitted to raise any objection or
dispute regarding presentation of the
election petition for the first time before the
High Court. The said Bench of this Court
did not specifically go into the question as
to whether the election petition was
necessarily required to be presented by the
candidate but, presumed it to have been so
presented on facts and in law and
thereafter, considered other issues on the
basis of facts before it. It did not lay down
any such proposition that the defect in this
regard, if any, was curable, instead, it put
the burden upon the person raising the
objection
of
non-presentation
of
the
petition by the candidate and found that it
had not been discharged by him.

20. Coming back to the Act, 1947,
Section 12-C(3) is the only provision
which deals with presentation of an
Election Petition referred under Section
12-C(1) of the said Act. When we peruse
the provisions contained in Section 12C(3) we find that the application under
sub-section 1 of Section 12-C may be
presented by any candidate at the
election or any elector and shall contain
such particulars as may be prescribed.
The word ''may be' is a verb phrase that
indicates something that might happen or
a potential state of affairs.

21. Now, the word ''may be' used in
the said provision has nothing to do with
its directory or mandatory character. It is
merely indicative of the choice which a
candidate at an election has i.e. to file or
not to file an application under Section
12-C(1).

22. However, the words ''presented
by any candidate' are significant. The
word ''presented' is derived from the word
''present'.
It
conveys
an
act
of
presentation.
One
of
the
meaning
assigned in the Chamber's dictionary
(1993 Edition) to the word ''present',
which appears apposite in the context of
Section 12-C(3), is, to give, or furnish,
specially formally or ceremonially; to
deliver, convey or handover. Thus, the
word ''presented' conveys an act of
giving, filing or delivering, in the case of
an election petition. The word ''present'
has been defined by the Oxford English
Dictionary (Second Edition, 2014) to
mean, the act of giving something to
somebody
especially
at
a
formal
ceremony.

23. Further, the word ''by' is used in
various contexts and one of the meanings
assigned to the said word by the Oxford
English Dictionary is that it is used after a
passive verb for showing who or what did
or cause something, as for example, the
event was organized ''by local people'.
The same word has been explained in the
Chambers
Dictionary,
inter
alia,
as
meaning ''through' (denoting the agent,
cause, means etc.).

24. Thus, there is no doubt that in the
context of the issue involved in the present
86 INDIAN LAW REPORTS ALLAHABAD SERIES
case, as per Section 12-C(3) of the Act,
1947, an election petition has to be given or
filed by any candidate at the election. The
language used in Section 12-C(3) does not
permit presentation of the Election Petition
by the Advocate of the candidate or his
clerk or any other agent or representative.
As, under Rule 3 of the Rules, 1994, it is
the Sub-Divisional Officer concerned who
is to function as the Prescribed Authority,
therefore, it has necessarily to be given or
filed before him, by the candidate.

25. The word ''candidate' has not been
defined in the Act, 1947 nor in the Rules,
1994. In this context, it is worthwhile to
refer to the Single Judge Bench decision in
the case of Smt. Prem Lata (supra),
wherein, this aspect was considered and the
High Court opined as under:-

"The term "candidate" has not
been defined in the U.P. Panchayat Raj Act
and the U.P. Panchayat Raj Rules. But if
the provisions of the Act are given a proper
meaning, the term "candidate" will not, on
each and every case, include his agent.
Proceedings arising out of an election
petition are treated a quasi criminal
proceedings in which the charge must be
established beyond doubt and the election
of a person cannot be set aside unless all
the
ingredients
are
established,
for
example,
while
defining
the
corrupt
practice of bribery and undue influence it is
mentioned that such corrupt practice
should be committed by the candidate or
any other person with the connivance of the
candidate. Consequently, if an election
agent is guilty of corrupt practice without
the connivance of the candidate, the
election cannot be set aside for the reason
that it will not amount to a corrupt practice
of bribery and undue influence as defined
in the Act. In other words for purposes of
sub-Sec. (2) of Sec. 12-C of the U.P.
Panchayat Raj Act, candidate shall not
include an agent. This finds corroboration
from Sec. 81 of the Act also which lays
down that any party to a civil or criminal
or revenue case may appear before a
Nyaya Panchayat either in person or by a
servant, partner, relation or friend duly
authorized in writing by him. In case the
word "person" included his agent also, it
was not necessary to lay down in Sec. 81
that a person could appear by his agent.

The rules framed by the State
Government as contained in the U.P.
Panchayat Raj Rules also lead us to the
same inference. Rule 24(2) can usefully be
compared with Rules 4-H and 18. Rule
24(2) lays down that the election petition
may be presented by any candidate, while
under Rule 18(1) the nomination paper has
to be delivered to the Returning Officer by
the candidate in person or by his agent. If
the term "candidate" included his agent, it
was not necessary to provide in this rule
that the nomination paper could be
delivered by the agent of the candidate.
Rule 4-H governs the filing of claims or
objections against the provisional Register
of members, that is, the list of persons
entitled to vote. It is laid down in the
proviso to sub-rule (2) of this rule that a
person may file any number of claims or
objections including those on behalf of
others by one petition. While filing a claim
or objection on behalf of others, the
applicant acts as their agent. In other
words, for the purposes of filing claims or
objections to the provisional list of voters,
an agent can act for the principal.

It is thus apparent that in the
U.P. Panchayat Raj Act and also in the
U.P. Panchayat Raj Rules a differentiation
has been made between a candidate and his
agent, and consequently when an act can
7 All. Sumitra Devi Vs. Special Judge/Addl. Distt. & Sess. Judge E.C. Act Hardoi & Ors.
87
be done by the candidate only, it shall be
deemed that it must be done by him, and
not by or through his agent.