JUDGMENT
B.K. Sharma, J.
1. By this writ application, a challenge has been put to the judgment and order dated 16.12.2003 passed by the Presiding Judge, Panchayat Election Tribunal, in Case No. PR(ET) 00012/2003 by which the election of the petitioner as Anchal Samiti Member has been set aside on the ground of his nomination being not valid.
2. Shortly stated the facts leading to the filing of the writ petition are that the petitioner contested election as a nominee of the Indian National Congress Party to the No. 7-Papu Valley Anchal Samittee from No. 80 Palin Anchal Samittee Constituency of East Kameng District, in the State of Arunachal Pradesh. The respondent No. 3 also contested in the said election. After the election, the petitioner was declared to be duly elected from the said constituency and he secured 27 Nos. of valid votes more than the respondent No. 3.
3. The respondent No. 3 being dissatisfied with the election of the petitioner filed Election Petition under Rule 6(2) of the Arunachal Pradesh Panchayat Raj (Conduct of Election) Rules, 2001. The Election Petition was registered and numbered as Case No. PR(ET) 00012/2003 before the Panchayat Election Tribunal, Arunachal Pradesh. Proceeding before the Tribunal came to an end exparte against the writ petitioner by the impugned judgment and order dated 16.12.2003. The Tribunal allowed the Election Petition filed by the respondent No. 3 by setting aside the election of the petitioner holding the same to be void as per provision of Rule 73(3) of the Arunachal Pradesh Panchayat Raj (Conduct of Election) Rule 2001 and the declaration was made declaring the respondent No. 3 to have returned uncontested as Anchal Samity Member in respect of the aforementioned constituency.
4. According to the writ petitioner, he never received any notice from the Tribunal in respect of the proceeding initiated by the Tribunal on the basis of the aforementioned Election Petition filed by the respondent No. 3. The respondent No. 3 has entered appearance in the case by filing his affidavit-in-opposition. The other two respondents, i.e., the Election Commissioner and the Deputy Commissioner of the Districts who were arrayed as party-respondent in the Election Petition had filed their affidavits before the Tribunal supporting the election of the petitioner. Records were called for from the Tribunal and the said two respondents relied on their affidavit filed before the Tribunal.
5. I have heard Mr. S.S. Dey, learned Counsel appearing for the petitioner and Mr. R.L. Yadav, learned Counsel appearing for the respondent No. 3. Mr. B. Banerjee, learned Govt. Advocate, Arunachal Pradesh represented the respondent Nos. 1 and 2. Mr. Dey made twofold submissions, namely, that the notice of the proceedings before the Tribunal having not being served on the petitioner, the impugned judgment and order passed by the Tribunal is liable to be set aside on trial score alone and secondly the findings arrived at by the Tribunal are perverse and do not appeal to judicial con-science. Elaborating his argument, Mr. Dey submitted that it is an admitted position that the petitioner never received any notice from the Tribunal. Referring to the averments made in the affidavit-in-opposition filed by the respondent No. 3, Mr. Dey submitted that notice relating to the Election Petition was not sent by the Tribunal, but it was sent by the learned Counsel appearing for the respondent No. 3 who was the Election petitioner before the Tribunal. He submitted that it was un-wise on the part of the Tribunal to rely upon the postal receipt furnished by the learned Counsel appearing for the Election petitioner before the Tribunal to give credence to the same so as to hold that there was no appearance on behalf of the writ petitioner who was the respondent No. 3 before the Tribunal. Referring to the various provisions of the aforesaid Rules of 2001, Mr. Dey submitted that the Tribunal proceeded on a wrong premises hold the nomination of the petitioner to be in valid and to set aside his election on that count alone.
6. On the other hand Mr. R.L. Yadav, learned Counsel appearing for the respondent No. 3 submitted that there was no procedural irregularity towards issuance of notice to the writ petitioner who was the respondent No. 3 in the proceeding before the Tribunal. As regards the merit of the case he submitted that there is nothing wrong in the findings recorded by the Tribunal towards setting aside the election of the writ petitioner. Referring to the records of the case before the Tribunal Mr. Yadav submitted that notice was duly sent to the petitioner and even the A/D Card was received back by the Tribunal with due endorsement therein certifying receipt of the notice. Thus, according to him there was no irregularity and or illegality on the part of the Tribunal to proceed in the matter exparte against the petitioner. Mr. B. Banerjee, learned Counsel appearing for the official respondents on the basis of the stand taken before the Tribunal made submissions supporting the election of the writ petitioner. On perusal of the records, he also submitted that there is doubt in respect of service of notice on the writ petitioner in respect of the aforesaid Election Petition.
7. I have considered the rival submissions made by the learned Counsel for the parties and have also considered the materials on record including the records of the Tribunal pertaining to the election proceeding initiated by the respondent No. 3 against the writ petitioner. Before I proceed to deal with the merit of the case, I deal with the first submission made by the counsel for the petitioner that no notice was served on the petitioner by the Tribunal intimating him about the proceeding initiated by the respondent No. 3. The records of the Tribunal reveal that Case No. 00012/2003 was registered on the basis of the Election petition filed by the respondent No. 3. The petition was first taken up on 22.5.2003 on which date the matter was directed to be listed on 23.5.2003. By border dated 23.5.2003, the petitioner/respondent No. 3 was directed to file requisite number of copies of petition for service upon all the respondents, on 18.6.2002, the Tribunal recorded of having taken steps an ordered for issuance of process and to put up the case records after service of notice. On 19.7.2003 and 28.8.2003, the Tribunal passed the following orders:
19.7.2003 Heard Mr. Apang appearing for respondent Nos. 1, 2
and 4. He prays for three weeks time to file WS. Prayer
allowed.
Heard Mr. M. Batt, learned Counsel for
the petitioner. He has submitted that notice was sent to
respondent No. 3 by the registered post and he filed the
postal receipt before this Tribunal. The postal receipt
shows that the notice was sent on 30.6.2003. As such,
put up for orders after lapse of one month from
30.6.2003.
Sd P.J.
28.8.2003 Heard Mr. Mudang Batt and Mr. Ajin Apang, learned
Counsels of both sides. Notice to the respondent No. 3
duly sent by registered post, But he is not present today.
The case will proceed ex parte against him.
Mr. Apang appearing for respondent Nos. 1, 2 & 4 prays
for further time to file WS. Prayer is allowed and the
next date if fixed on 19.9.2003 for WS and issues.
Sd P.S.
8. Thus, it will be seen that it was the learned Counsel for the respondent No. 3 who was the Election petitioner sent notice to the writ petitioner by registered post and he filed the postal receipt before the Tribunal. The Tribunal recorded that notice was sent on 30.6.2003. On 28.8.2003 the Tribunal after recording that notice was duly sent by registered post and the absence of the writ petitioner passed order that the case would proceed exparte against him. In none of the orders there is any indication as to whether any notice was sent by the Tribunal directly to the writ petitioner. On the face of the said two orders it appears that it was the learned Counsel for the respondent No. 3 who appeared before the Tribunal took steps for service of notice on the respondent No. 3, i.e., the writ petitioner. As a token of sending notice to him, postal receipt was furnished and the Tribunal solely on that basis decided to proceed exparted against the writ petitioner. There is no indication as to whether notice/summons were prepared by the Tribunal with due endorsement and seal and then handed over to the learned Counsel for the respondent No. 3 to take steps in addition to the steps by the Tribunal. In this connection the averments made in the affidavit-in-opposition filed by the respondent No. 3 in this proceeding is Worth-quoting. In paragraph 6 of the affidavit, the following statements have been made:
That the statements made in para 4 of the writ petition are not correct and the same are not admitted. The deponent does not admit that the petitioner was not aware as to filing of the election petition before the Election Tribunal. The deponent took steps for sending the notice by registered post with A/D and against the petitioner as per direction of the Hon’ble Judge of the Election Tribunal which was issued vide order dated 23.5.2003. In the said case No. PR(ET)00012/2003 the Hon’ble Judge of the said Tribunal took notice of the steps so taken by the counsel of the deponent which is referred in order dated 18.6.2003. However, in spite of taking steps by the deponent’s council by regd. Post on 30.6.2003 and even after the expiry of one month 28 days, when the petitioner failed to appear before the said Tribunal nor took any steps, then the . Hon’ble Judge of the said Tribunal decided to proceed the case exparte against the petitioner. It is stated that the petitioner has made false statements that no notice was served in him.
9. From the aforesaid averments made in the affidavit and on perusal of the aforesaid two orders passed by the Tribunal, there is no manner of doubt that it was the Election petitioner, i.e., respondent No. 3 who took steps through his learned Counsel for service of notice on the writ petitioner who was the respondent No. 3 in the said Election Petition. There is no indication that such a course of action was directed to be adopted by the Tribunal. There is also no indication as to whether any notice and or summons duly endorsed by the Tribunal had accompanied the Election Petition. There is also no indication as to whether the Election Petition purportedly sent by the learned Counsel for the respondent No. 3 bore any endorsement of the Tribunal. It appears that a strange procedure was adopted by the Tribunal. The notice of the Election Petition was allowed to be served on the writ petitioner by the respondent No. 3 himself who in turn produced the postal receipt as a taken of sending such notice and the Tribunal solely on the basis of the said postal receipt deemed the notice to have been served on the writ petitioner. However, the order sheet and the two orders as quoted above do not reflected that the notice was deemed to be served by the Tribunal. It simply believed the postal receipt produced by the respondent No. 3 as a taken of evidence towards issuance of notice to the writ petitioner.
10. Mr. R.L. Yadav learned Counsel appearing for the respondent No. 3 referred to an A/D Card available on the records of the Tribunal depicting the address of the writ petitioner and the Tribunal, In the said A/D Card above the hand written column “sign, of the receiver” there is an endorsement by way of short signature putting the date as 15.7.2003. Mr. Yadav submitted that such endorsement clearly proved the factum of receipt of the notice by the writ petitioner. The short signature does not bear any resemblance to the signature of the writ petitioner put in the Vokalatnama and in the affidavit filed in this writ proceeding. Another aspect of the matter is even the A/D Card does not bear any endorsement by way of putting any seal or signature of the Tribunal. Thus, it is clear that the notice of the Election Petition was directly sent by the Election Petitioner, i.e., respondent No. 3 herein through his learned Counsel without any endorsement of the Tribunal and on the basis of the postal receipt, the Tribunal decided to proceed exparte against the writ petitioner. In the postal receipt the address given is “Raso Tana Vill Chamte, Veo via Seppa. On the other hand, the A/D Card bears the full address which tallis with the address of the writ petitioner in the writ petition. Thus, it is not discernible as to whether even if any notice was sent to the petitioner, the correct address was given or not. It is also not discernible as to whether the signature in the A/D Card is the signature of the petitioner, but one could very well noticed the difference between the hand wittings in the Vokalatnama and affidavit filed in this writ proceeding with the signature in the said A/D Card.
11. Rule 70 of the aforesaid Rules of 2001 provides for adopting procedure in -accordance with the procedure applicable under the Code of Civil Procedures in respect of trial of suits. If that be so and even otherwise also having regard to the importance of the case in which the fate of a democratically elected candidate was at stake, it was incumbent on the Tribunal to take a proper procedure for service of notice on the person whose interest was involved and to ensure service of notice on him. Instead a strange procedure was adopted towards issuance and service of notice. A postal receipt produced on behalf of the respondent No. 3 was made the sole basis of presumption of service on the writ petitioner so as to proceed ex parte against him.
12. Order 5 of the Code of Procedure deals on the subject of issue and service of summons. Order 5 Rule 9 deals with the procedure for delivery of summons by the Court. Rule 9A provides for service of summons in addition to the procedure laid down in Rule 9. In terms of Rule 9A, the plaintiff may be permitted to effect service of summons on the defendant on the basis of application to be made by the plaintiff before the Court. However, such a procedure also requires proper endorsement and signature of the learned Judge or any authorised officers of the Court. Rule 10 provides for service of summons by delivering or tendering of copy thereof signed by the Judge or such officer as he appoints in this behalf and sealed with the seal of the Court. Thus, the necessary requirement even for service of notice by the plaintiff himself would definitely require endorsement by way of putting the seal and signature of the court in the summons or notice and also on the plaint. But in the instant case the records do not bear any copy of such notice or summons purportedly sent to the writ petitioner. There is also no indication that such a procedure was adopted by the Tribunal. Thus, the procedure laid down for service of notice/summons on the defendants was ignored and given a complete good-bye by the Tribunal and it solely relied upon the postal receipt produced by the learned Counsel who appeared before the Tribunal on behalf of the respondent No. 3. Such a procedure adopted by the Tribunal is strange and hits at the very root of principle of natural justice. The Tribunal could not have drawn any presumption of service of notice on the writ petitioner. Although an argument was made by the learned Counsel for the respondent No. 3 that the A/D Card on record bears the testimony of service of notice on the writ petitioner I do not find any order of the Tribunal acknowledging receipt of the said A/D Card and drawing presumption of service of notice on that basis. There is no whisper in any of the orders of the Tribunal in respect of the said A/D Card. The order only reflects making the postal receipt as the foundation of alleged service of notice and the Tribunal decided to proceed exparte only on that basis unfortunately unmindful of the importance of the case. It is in such context it is often said that justice must not only be done but must appear to have been done.
13. In view of the foregoing discussions, I have no hesitation to hold that there was no occassion for the Tribunal to proceed exparte against the petitioner. Notice was not served on the petitioner as required under the law and thus on this score alone the impugned judgment and order passed by the Tribunal is liable to be set aside and quashed.
14. The learned Counsel for the parties extensively argued on the merit of the case and insisted for a decision on merit irrespective of any findings recorded in respect of service of notice. The name of the petitioner as a candidate for member of the Anchal Samity in question was proposed by one Shri Sacku Tana who also subsequently subscribed as proposer to the nomination of another person Shri Mama Tana, a candidate for member of Gram panchayat of the same constituency. Rule 6(2) of the aforesaid Rules of 2001 provides that any person whose name is entered in the voter list of the constituency for which the candidate is nominated and who is not otherwise disqualified may subscribed as proposer. The proviso to Rule 6(2) provides that such a proposer shall not Subscribed as proposer for more than one nomination. In this connection Rule 12 of the said Rule is also to be noted which reads as follows:
12(1) On the date fixed for the scrutiny of nomination, the candidates or their election agent and one proposer and no other persons may attend at the time and place appointed in this behalf and the Returning Officer shall give them all reasonable facilities for examining the nomination paper of all the candidates which have been delivered within the time.
(2) The Returning Officer shall then examine to nomination paper and shall decide all, objections which may be made to any nomination and may either on such objection or on his own motion, after such summary enquiry, if any as he thinks necessary, reject any nomination on any of the following grounds, namely:
(a) that the candidate is disqualified for being chosen to fill the seat by or under the Act;
(b) that the proposer is not a voter of the Constituency concerned.
(c) that there has been a failure to comply with any provision of the Rules 5 and 6; and
(d) that the signature of the candidate or of the proposer on the nomination paper is not genuine.
(3) Nothing contained in Clause (c) or (d) of Sub-rule (2) shall be deemed to authorise the rejection of the nomination of any candidate on the ground of nay irregularities in respect of a nomination paper, if the candidate has been duly nominated by means of another nomination paper in respect of which no irregularities have been committed.
(4) The Returning Officer shall not reject any nomination paper on the ground or any defect which is not of substantial character.
(5) The Returning Officer shall hold scrutiny on the date appointed in this behalf under Clause (b) Rule 4 and shall not allow adjournment of the proceeding except when such proceedings are interrupted or obstructed by riot or open violence or by cases beyond his control.
(6) The Returning Officer shall endorse on each nomination paper his decision accepting or rejecting the same and, if the nomination paper is rejected shall record in writing brief statement of reasons for such refection.
15. The requirement of Rule 12 is to examine the nomination paper and to decide to all objections which may be made to any nomination. The grounds specified for rejection of nomination do not include the grounds of rejection of nomination on account of the proposer of the candidate having subscribed as a proposer for another candidate. One of the grounds for rejection of nomination is the failure to comply with any provision of Rules 5 and 6 of the said Rules. Sub-rule 4 of Rule 12 of the said rules provides that the Returning Officer shall not reject any nomination paper on the ground of any defect which is not of substantial character. It is in this context, the findings of the Tribunal holding the election of the petitioner to be illegal on ground of being proposed by the proposer who subsequently proposed another name for another candidate for a Gram Panchayat falling in the same Constituency will have to be judged.
16. The admitted position is that the petitioner contested the election in respect of an Anchal Samity in the three tier system of Zilla Parishad, Anchal Samity and Gram Panchayat. His name was proposed by one Shri Sachu Tana who eventually also proposed one Shri Mama Tana a candidate for a Gram Panchayat. Rule 6(2) of the aforesaid Rules puts a bar for a proposer to subscribe as proposer for more than one nomination. Such a provision could be found in the proviso to Sub-rule (2) of Rule 6. The…Perquisite condition to be a proposer in respect of a nomination of a candidate is that his name should be in the voter list of the Constituency for which the candidate is nominated. In the said rule there is no indication that the same very proposer cannot be a proposer in respect of a candidate contesting election for another tier under the same Constituency. There is no dispute and rather admitted by the learned Counsel for the parties that all the three tiers vice, Gram Panchayat, Anchal Samity and Zilla Parishad fall in the same constituency. It could no have been the intention of the legislature to debar a proposers from proposing two candidates in two different tiers. In the instant case the proposer in question first proposed the name of the petitioner as a member of the Anchal Samity and thereafter he proposed the name of another candidate for a Gram Panchayat. The admitted position is that the Anchal Samity and the Gram Panchayat fall within the same Constituency. Thus, a proposer who fulfil the condition of being a voter in a particular Constituency cannot be said to be debarred from proposing two different candidates for two different tiers. Had it been a case of proposing the name of another candidate for the same Anchal Samity for which the name of the writ petitioner was proposed, the position would have been different. It is in this context the said proviso to Rule 6(2) will have to be read and understood. In the instant case the proposer who had proposed the name of the petitioner as a member of Anchal Samity, did not propose any other name for the same very Anchal Samity, but he proposed another name for a Gram Panchayat. Incidentally, the Anchal Samity and the Gram Panchayat fall within the same Constituency in which the proposer is a voter.
17. Any other interpretation to the aforesaid proviso to Rule 6(2) of the Rules of 2001 will naturally lead to an absurd position. A proposer of a candidate for a particular tier will have to be chased and kept track of least he proposes another candidate invalidating very nomination of the earlier candidate, if the interpretation of the purport and intent of the proviso to Rule 6(2) as projected by the learned Counsel for the respondent No. 3 and found favour of the Tribunal are to be accepted. At best it will be the second nomination which would stand cancelled leaving aside the first nomination and this is what exactly was done in the instant case. The Returning Officer upon detection of proposer of another candidate for a Gram Panchayat by the same very proposer who had earlier proposed the name of the petitioner as a member of the Anchal Samity rejected the nomination of the said candidate for the Gram Panchayat, Even such a course of action adopted by the Returning Officer is doubtful on the basis of the interpretation of the said proviso to Rule 6(2) as has been discussed above. However, same need not detain us inasmuch as the legality or otherwise of the rejection of nomination in respect of Shri Mama Tana who was a candidate for Gram Panchayat under the same very constituency in which the Anchal Samity in question falls is not before us. However, on either count the nomination of the petitioner was not to be rejected and in fact the Returning Officer upon scrutiny of the nomination papers in presence the candidates which naturally included the respondent No. 3 did not find any defect in the nomination paper of the petitioner and accepted the same. It was on that basis, the writ petitioner contested the election and eventually declared elected having scored more number of votes than the respondent No. 3. It is in this context Rule 12(4) of the aforesaid Rules of 2001 will have to be understood which provides that the Returning Officer shall not reject any nomination paper on the ground of any defect which is not of substantial character.
18. In a democratic set up, the candidates have a right to contest a election observing certain formalities one of which is that their names are to be proposed by the qualified proposer. The name of the petitioner was duly proposed by a qualified proposer. His subsequent proposal of another name in respect of another tier of the three tier system under the same very Constituency could not have invalidated the nomination of the petitioner and the Returning Officer rightly did not reject the nomination of the petitioner and accepted his nomination papers. It was on that basis he fought the election and got elected. Any other interpretation of Rule 6(2) proviso would lead to absurdity and will defeat the very purpose for which the provision has been made.
19. The construction of a statute must not so strain the words as to include cases plainly omitted from the natural meaning of the language. It is said to be the duty of the Judge to make such construction of a statute as shall suppress mis-Chief and advance the remedy. Occasionally, the principle, that the law does not concern itself with trifles will be invoked, in applying a statutory provision. Before adopting any proposed construction of a provision of the statute susceptible of more than one meaning, it is important to consider the effects or consequences which would result from it. There are certain objects which the legislature is presumed not to intend, and a construction which would lead to any of them is, therefore, to be avoided. It is not infrequently necessary, therefore, to limit the effect of the words contained in a enactment and sometimes to depart, not only from their primary and literal meaning, but also from the rules of grammatical construction in cases where it seems highly improbable that the words in their wide primary or grammatical meaning actually express the real intention of the legislature. It is regarded as more reasonable to hold that the legislature expressed its intention in a slovenly manner, than that a meaning should be given to them which could not have been intended.
20. Above are sound principle of interpretation as emphasised time and again on the subject or Interpretation of statutes. The narrow and restrictive construction sought to be given to the proviso to Rule 6(2) of the Rules of 2001 which found favour with the Tribunal would naturally lead to an absurd situation in which a candidate whose name has been proposed by a proper will have to ensure by adopting such restrictive measures as could be applied to ensure that such a proposer does not propose any other name rendering the nomination of the candidate defective. It is in this context a meaningful interpretation will have to be given to the said proviso, as noticed above the proposer who had proposed the name of the writ petitioner at a later stage also proposed the name of another candidate who offered candidature to be elected as a member of a Gram Panchayat, Both the Anchal Samity and the Gram Panchayat fall within the same Constituency, Thus, in my considered opinion there was no bar for the said proposer to propose the candidate as a member of the Gram Panchayat after proposing the name of the writ petitioner as a member of the Anchal Samity under the same Constituency. However, I need not go into that Aspect of the matter as the same is not called upon to be answerred in the present writ proceeding.
21. The Returning Officer rejected the nomination of the candidate for the Gram Panchayat while up-holding the nomination of the petitioner for the Anchal Samity. There is no dispute at the bar that such proposal in favour of the candidate Shri Mama Tana for a Gram Panchayat was at a later point of time than the proposal made in favour of the petitioner. It was in this context the nomination of Shri Mama Tana was rejected by the returning Officer. Unfortunately, the Tribunal without any discussion of the materials on record placed reliance on the said proviso to Rule 6(2) and held the nomination of the petitioner liable to be rejected as was done in the case of said Shri Mama Tana. In my considered opinion there is total non-application of mind on the part of the Tribunal to set aside and quash the election of the petitioner on that count alone and declaring the respondent No. 3 to have returned un-contested as an Anchal Samity member in place of the writ petitioner.
22. For the foregoing reasons, the writ petition deserves to be allowed which I accordingly do. The judgment and order of the Tribunal dated 16.12.2003 passed in Case No. PR(ET) 00012/03 is hereby set aside and quashed. Consequently, the election of the writ petitioner automatically gets restored and revived with the passing of this judgment and order. Consequently any consequential orders passed in favour of the respondent No. 3 also stand set aside and quashed.
23. Before parting with the case record I would like to point out that the Tribunal in its impugned judgment and order dated 16.12.2003 has mentioned, the Case No. as PR(ET)00023/03. It was on the basis of such wrong number of the case recorded in the impugned judgment and order of the Tribunal, the case records were called for. The Registry of the Tribunal produced the case records of PR(ET) 00023/03 on verification of which it was revealed that the said case records was pertaining to another case. Thereafter further efforts had to be made to procure the records from the Tribunal on the basis of the name of the parties which led to the production of actual records pertaining to the Election Petition by and between the parties involved in this writ proceeding. Thus the Case No. as recorded in the impugned judgment and order dated 16.12.2003, i.e., Case No. PR(ET) 00023/03 should be read as Case No. PR(ET) 00012/03. It is not known as to how this vital aspect of the matter escaped the notice of the Tribunal inasmuch as the proceeding in respect of Case No. PR(ET) 00023/03 pertains to another proceeding not connected with the Election Petition filed by the respondent No. 3 against the writ petitioner.
24. The writ petition stands allowed. There shall be no order as to cost.