ORDER
T.S. Doabia, J.
1. The brief facts for the purposes of this writ petition be noticed.
2. The present petitioner was elected as Sarpanch of Gram Panchayat Miana, Tehsil and District of Guna. His election was challenged by the respondent No. 1. The present petitioner filed an application before the respondent No. 5 pleading that the election-petition deserves to be dismissed summarily as this has not been presented in terms of Rule 3(2) of the M. P. Panchayat Raj (Election Petitions Corrupt Practices and Disqualification for Membership) Rules, 1990 (hereinafter referred to as ‘Rules’). The learned counsel for the parties are agreed that the election-petition is to be filed under the aforementioned rules.
3. The election Court has given its decision. The copy of the same is placed on record as Annexure P-1. It has come to the conclusion that copies of the election petition were not attested by the election petitioners. On facts at least, the learned counsel for the parties are agreed that copies of the election-petition when filed were not attested by the election-petitioner. It was attested only by the advocate appearing on behalf of the election-petitioner. It is on these premises arguments have been addressed.
4. The question arises as to whether the provisions of Rule 3(2) are mandatory or not. For this, reliance is being placed by the petitioner’s counsel on the provisions of Representation of the Peoples Act, 1951 (hereinafter, referred to as the ‘Act’) and the decision rendered thereunder. According to the counsel for petitioner, Rule 3(2) of the Rules is in pan materia with the Sections 81(3) of the Act. He also submits that when there is non-compliance of Rule 3, the petition has to be dismissed summarily in terms of Rule 8. It is again contended that Rule 8 of the Rules is in pari materia with Section 86(1) of the Act.
5. Before noticing further arguments it
would be relevant to note these provisions.
These are as under:–
“Rules 3 and 8 of the Rules:
Rule 3. Presentation of election petitions.– (1) An election petition shall be presented to the prescribed authority during the office hours by the person making the petition, or by a person authorised in writing in this behalf by the person making the petition within thirty days from the date on which the election or co-option in question was notified.
(2) Every election petition shall be accompanied by as many copies thereof petition and every such copy shall be attested by the petitioner under this own signature to be a true copy of the petition.
Rule 8. Procedure on receiving petition–If the provisions of Rule 3 or Rule 4 or Rule 7 have not been complied with, the prescribed authority shall dismiss the petition:
Provided that the petition shall not be dismissed without giving petitioner an op-poertunity of being heard.
Sections 81(3) and 86(1) of the 1951 Act–Section 81(3).– Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under this own signature to be a true copy of the petition.
Section 86(1)– The High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117.”
6. A perusal of the two provisions makes it apparent that there are similarly worded and as such decisions given under the Act can be safely taken as guide for interpretation of the Rules under which the petition was filed.
7. The question which arises is as to whether failure to attest the election petition would lead to dismissal of the election petition or not. The learned counsel for the petitioner has placed reliance on two judgments given by the Supreme Court in the case of Sharif-ud-Din v. Abdul Gani, AIR 1980 SC 303 and F. A. Sapa v. Singora, AIR 1991 SC 1557.
8. The learned counsel for the respondents has also placed reliance on a decision given by the Division Bench of this Court in Tikaram v. Darshanlal, 1988 (1) MPWN 139 and a Single Bench decision of this Court in Writ Petition No. 1162/1994. The Single Bench has placed reliance on the Division Bench decision noticed above. In both the decisions, this Court has held that the provisions of Rule 3(2) are not mandatory.
9. In my view, in view of the judgment given by the Supreme Court in F. A. Sapa’s case (AIR 1991 SC 1557) (supra) there is no doubt that the only interpretation which is possible to be given is that Rule 3 dealing with concept of attestation is mandatory. In the above case, the question before the Supreme Court was, (i) as to whether failure on the part of the election petitioner to verify theelection petition as per the requirements of the Code of Civil Procedure 1908 is fatal and (ii) what are the consequences of no attestation.
10. So far as verification is concerned, the Supreme Court concluded that failure to verify the election petition in the terms of Code of Civil Procedure may not be fatal. In para 20 it was observed as under:
“….. It is thus clear from this decision which is binding on us that mere defect in the verification of the election petition is not fatal to the maintainability of the petition and the petition cannot be thrown out solely on that ground. As observed earlier since Section 83 is not one of three provisions mentioned in Section 86(1), ordinarily it cannot be construed as mandatory unless it is shown to be an integral part of the petition under Section 81.”
11. However with regard to non-compliance of Ss. 81(1) and 81(3), it was said in no uncertain words that failure to attest and comply with these provisions would be fatal and the election petition is necessarily to be dismissed summarily. This aspect has been considered in detail in para 29 and it would be useful to note the same:
“The next objection is based on the language of Section 81 of the R. P. Act. This section deals with the presentation of an election petition. Sub-section(1) thereof says that an election petition may be presented by any candidate at such election or any elector within 45 days from, but not earlier than, the date of election of the returned candidate or if
there are more than one. returned candidate at
the election and the dates of their election are
different, the later of those dates. This sub
section specifies on what ground or grounds
the election of the returned candidate can be
challenged, who can challenge the election
and imposes a period of limitation for filing
such a petition. Sub-section (1) of this section
was omitted by Article 47 of 1966. Then comes Sub-section (3) which stipulates that every elec
tion petition shall be accompanied by as many
copies thereof as there are respondents
mentioned in the petition, and every such
copy shall be attested by the petitioner under
his own signature to be a true copy of the
petition. This sub-section enjoins (i) supply of
such number of copies of the petition as are
respondents, and (ii) every such copy must be
attested by the petitioner under his own
signature to be a true copy of the petition,
There is no controversy regarding the first
aspect, the controversy centres round the
second part. It must be remembered that non-
compliance with the requirement of Sub-section (1) or (3) of Section 81 can prove fatal in view of Section 86(1) of the R.P. Act. See Satya Naran v. Dhuja Ram, (1974) 4 SCC 237 : (AIR 1974 SC 1185); M. Karunanidhi v. Dr. H.V. Handa, (1983) 2 SCC 473 : (AIR 1983 SC 558); Mithilesh Kumar Pandey v. Baidyanath Yadav, (1984) 2 SCR 278 : (AIR 1984 SC 305); Rajendra Singh v. Usha Rani, (1984) 3 SCC 339 : (AIR 1984 SC 956) and U. S. Sasidharan v. K. Karunakaran, (1989) 4 SCC 482 : (AIR 1990 SC 924). It is quite obvious from these decisions that the requirements of Section 81(3) are mandatory and failure to comply with them would render the petition liable to summary dismissal under Section 86(1) of the R.P. Act." 12. The Court took note of the earlier decision on this subject and ultimately concluded that if there is non-compliance of Section 81(3), the election petition deserves to be dismissed summarily. This would apply to this case also. 13. To be fair to the learned counsel appearing for the respondents some other authorities cited by him be also taken note of He has placed reliance on the decision given by the Supreme Court reported as Smt. Sahodra Bai v. Ram Singh Ahirwar, AIR 1968 SC 1079. In this case, copies of the annexures were not made available along with the election petition. It was accordingly held that the omission to supply copies would not bring the case within the scope of Section 81(3) of the Act. The Supreme Court never expressed any opinion that even if requisite number of copies are not furnished or these are not attested, then this will not entail the consequences which are supposed to ensue on account of non-compliance of Section 81(3) of the Act. The fact that whole of the pamplate was reproduced in the election petition was also taken note of. As such, the aforementioned decision is of no assistance to the learned counsel for the respondents.
14. Reliance was again placed on a decision given by the Supreme Court, reported as M. Karunanidhi v. H.V. Handa, AIR 1983 SC 558. This decision is not attracted to the facts of the present case. The question was with regard to proper deposit of security. This is not an issue in the present case.
15. Another case on which reliance is being placed is M. Kamalam v. Dr. V.A. Syed Mohd., AIR 1978 SC 840. In this case, signatures were put by the petitioner as the end of the affidavit and not on the election petition. It was held that this is again not a valid ground for dismissal of the election petition. This decision is again not applicable to the facts of the present case because the question of attestation and non-attestation was not there before their Lordships of the Supreme Court.
16. Another decision on which reliance is being placed by the learned counsel for the respondents is Z.B. Bukhari v. B.R. Mehra, AIR 1975 SC 1788. This decision is again distinguishable on facts.
17. As such in view of the fact that there is a direct decision of the Supreme Court dealing with the question of attestation, I respectfully follow the same and conclude that failure to comply with the provisions of Rule 3(2) which are pari materia with Section 81(3) of the 1951 Act would lead to summary dismissal of the election petition.
17A. Learned counsel appearing for the respondents has again pointed out that Rule 3(1) permits the election petition to be presented by the election petitioner or the authorised representative. According to him this should be taken note of while interpretating Rule 3(2) of the Rules. A further argument has also been raised that Section 83(1) requires election petition to be presented by the election petitioner in person. I am of the view that the difference in phraseology in Section 83(1) and Rule 3(1) would be totally immaterial for interpretating Rule 3(2) which is as noticed above is pari materia with Section 81(3). The Rule making Authority was alive to the fact and it chooses to permit presentation by the authorised person and did not make similar provisions in Rule 3(2). This as a matter of fact goes against the argument raised by learned counsel for the respondents.
18. Attestation by an advocate would also not save the petitioner. This view was expressed in the case of Sharif-ud-Din’s case (AIR 1980 SC 303) (supra). In para 19 it was said that:
“The attestation by the advocate for the petitioner cannot be treated as the equivalent of attestation by the petitioner under his own signature. The object of requiring the copy of an election petition to be attested by the petitioner under his own signature to be a true copy of the petition is that the petitioner should take full responsibility for its contents and that the respondents should have in their possession a copy of the petition duly attested under the signature of the petitioner to be the true copy of the petition at the earliest possible opportunity to prevent any unauthorised alteration or tampering of the contents of the original petition after it is filed into Court.”
19. No doubt a Division Bench of this Court held that Rule 3(2) of the Rules is not mandatory but this decision is earlier to the above noted decision given by the Supreme Court of India. The Single Bench decision has followed the Division Bench. I however, am bound by the decision given by the Supreme Court of India and following the same hold that Rule 3 of the Rules is mandatory in so far as it deals with the concept of attestation. As such, non-dismissal of the election petition by the election Court was contrary to law. This petition is accordingly allowed. The order Annexure P/1 is quashed. This will automatically result in the dismissal of election petition.
