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Lal Bahadur Singh v. Vishal Singh
Structured Summary of the Opinion (Srivastava, J.)
Factual and Procedural Background
The petition arises under Article 226 of the Constitution and reached the Division Bench by reference from Mr. Justice Oak. The petitioner and two respondents contested the office of Pradhan of Gaon Sabha Mataundh, tehsil and district Banda. The first respondent was declared elected. The petitioner filed an election petition under section 12‑C of the U.P. Panchayat Raj Act which was presented before the Sub‑Divisional Officer (the Tribunal) not personally by the petitioner but by his counsel, Shri Vireshwar Singh, Vakil, Banda.
A preliminary objection was raised that the petition had not been properly presented. The Tribunal accepted that objection and dismissed the election petition. The petitioner challenged the Tribunal's decision by a writ petition under Article 226, seeking certiorari to quash the dismissal and a mandamus directing the Tribunal to decide the petition on merits.
On hearing, Mr. Justice Oak observed that the Tribunal had relied on a decision by Mr. Justice Mathur in Smt. Premlata v. Rajendra Pati (1959 A.L.J. 741), which held that rule 24(2) of the Panchayat Raj Rules required in‑person presentation. Reference was also made on the petitioner's behalf to a later Division Bench decision in Ganpal (Ganpat) Singh v. Election Tribunal, Mainpuri (1960 A.L.J. 48) that took a contrary view. Because the matter involved reconsideration in the light of conflicting authorities, it was referred to a Division Bench.
Legal Issues Presented
- Whether clause (2) of Rule 24 of the Panchayat Raj Rules requires that an election petition must be presented personally by the petitioner.
- If clause (2) of Rule 24 does require personal presentation, whether omission to present the petition personally is fatal to the petition or is a curable irregularity.
Arguments of the Parties
Petitioner's Arguments
- The petitioner contended that the dismissal of the election petition on the ground that it had not been presented personally was illegal.
- He prayed for quashing the Tribunal's dismissal by certiorari and sought a mandamus directing the Tribunal to decide the petition on its merits.
Respondent / Tribunal Position
- The Tribunal sustained a preliminary objection that the election petition had not been properly presented because it was not presented personally by the petitioner, and dismissed the petition on that basis.
- In support of that view the Tribunal relied on the decision in Smt. Premlata v. Rajendra Pati (1959 A.L.J. 741) where it was held that Rule 24(2) required personal presentation.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Smt. Premlata v. Rajendra Pati (1959 A.L.J. 741) | Held that rule 24(2) of the Panchayat Raj Rules required presentation of an election petition before the Sub‑Divisional Officer by the candidate in person. | The court identified this as the authority on which the Tribunal relied and examined the three considerations that weighed with Mr. Justice Mathur, ultimately finding them unconvincing as conclusive reasons to read a personal‑presentation requirement into R.24(2). |
| Ganpal (Ganpat) Singh v. Election Tribunal, Mainpuri (1960 A.L.J. 48) | Division Bench decision holding that personal presentation of an election petition was not necessary under rules parimateria to R.24(2). | The court regarded this later Division Bench decision as relevant and persuasive; it was a principal reason the matter was referred and was relied on in the court's conclusion that R.24(2) does not require personal presentation. |
| Wali Mohammad Khan v. Ishaq Ali Khan (A.I.R. 1931 Alld. 507) | Held that omission to comply with a personal‑presentation provision is a mere irregularity and not an absence of jurisdiction; the court receiving a plaint not properly presented still has jurisdiction. | The court used this authority to support the proposition that defective presentation is a curable irregularity, not fatal to the proceedings. |
| Kanhaiya Lal v. The Panchayati Akhara (I.L.R. 1949 Alld. 973) | Full Bench held that an application for execution, though not properly presented, if admitted and registered is to be considered made in accordance with law; defects are irregularities and do not vitiate the application. | Quoted to show consistent judicial treatment that defective presentation does not invalidate proceedings and to support the view that omission to present properly is curable. |
| Satya Narayan v. Venkata (A.I.R. 1957 A.P. 172) | Full Bench reached a similar conclusion as Kanhaiya Lal regarding irregularity of presentation. | Relied upon as corroborative authority that defective presentation is an irregularity and not a jurisdictional defect. |
| Govind Singh v. Deoraj (A.I.R. 1958 Rajas. 128) | Expressed the same view that improper presentation is an irregularity. | Used to strengthen the uniform line of decisions treating defective presentation as curable. |
| Kundan Sugar Mills v. The Indian Sugar Syndicate (1959 A.L.J. 398) | Full Bench held that a rule requiring personal presentation (Order 33, C.P.C.) could not deprive a limited liability company from the benefit of that Order where physical personal presentation by the company is impossible. | Invoked to demonstrate that strict literal requirements of presentation should not lead to unjust results and that rules of presentation cannot be used to frustrate substantive rights. |
| Shiv Narain v. Deputy Director (A.I.R. 1959 Alld. 487) | Held that the physical act of presentation is not of great importance and defective presentation is at most a curable irregularity. | Relied upon for the general proposition that defective presentation does not oust jurisdiction and is remediable. |
Court's Reasoning and Analysis
The court addressed the two questions sequentially.
1. Interpretation of Rule 24(2): The court read clause (2) of Rule 24 and found no language requiring that an election petition must be presented personally by the candidate. The sub‑rule merely authorises who may present a petition (a candidate in whose favour votes have been recorded or whose nomination paper was rejected, or any ten or more electors of the Sabha). The court considered it unlikely the rule‑making authority intended to require the physical act of presentation by ten electors joining together; consequently, the sub‑rule was seen as identifying the class of persons entitled to present, not prescribing the manner of presentation.
2. Examination of the reasoning in Premlata: The court analysed the three factors relied on by Mr. Justice Mathur in Premlata:
- Presence elsewhere in the Act and Rules of explicit distinctions between party and agent: the court observed that such express language is used where needed for a specific purpose (for example, section 81 was intended to exclude lawyers), and the mere fact that other rules expressly deal with agents does not imply that Rule 24(2) was intended to exclude agents.
- Application of the Civil Procedure Code: although R.25 incorporates CPC procedure "as nearly as may be" for trial of election petitions, the court noted that the CPC applies principally from the stage when trial begins. Presentation is a pre‑trial stage; however, the court also observed that Order 3, Rule 1 of the CPC authorises acts by a party through an authorised agent, and that the term "trial" could be read broadly enough to cover the proceedings from presentation to disposal, supporting presentation through an agent.
- Strict interpretation due to the quasi‑criminal nature of election proceedings: the court found this consideration inapplicable to the issue of presentation; treating presentation as requiring personal performance was not mandated by the nature of election law.
3. Reliance on analogous authority: The court found the reasoning in the Division Bench decision in Ganpat Singh (interpreting a Town Areas rule parimateria with R.24(2)) persuasive. The Ganpat Singh court held that such a sub‑rule defines who may challenge an election but does not prescribe the manner of presentation; if personal presentation had been intended it would have been made explicit, as in other enactments where such intention is expressed.
4. On the second question (curability): Even assuming R.24(2) required personal presentation, the court held that excessive importance should not be attached to such a formality. It surveyed authorities across jurisdictions and contexts (plaints, execution applications, pauper applications, and other election‑procedure cases) and concluded a consistent judicial approach: defective or improper presentation is ordinarily a curable irregularity and not a jurisdictional defect that would vitiate the petition.
5. Conclusion of analysis: Combining the textual reading of R.24(2), the analogue of R.25 & CPC provisions, the persuasive Division Bench authority in Ganpat Singh, and the line of cases treating defective presentation as irregularity, the court concluded that Rule 24(2) cannot be interpreted as requiring personal presentation, and in any event omission to present personally would be a curable irregularity.
Holding and Implications
Holding: The court allowed the writ petition. The court held that clause (2) of Rule 24 of the Panchayat Raj Rules does not require that an election petition be presented personally by the petitioner; and, in any event, omission to present the petition personally is at most a curable irregularity.
The direct orders made were:
- The order of the Tribunal dismissing the petition for want of proper presentation was quashed.
- The election petition was remitted to the Tribunal for consideration on merits.
- There were no orders as to costs.
Implications: The decision's practical effect is to restore the petition for merits consideration and to prevent dismissal on the ground of non‑personal presentation. The opinion does not purport to set out additional broad legal ramifications beyond reversing the Tribunal's order and remanding the matter; no express statement was made in the opinion that a new, binding precedent was being laid down beyond the court's reasoning and disposition in this case.
Srivastava, J.:— This is a petition under Art. 226 of the Constitution and has come to us on a reference made by Mr. Justice Oak. The petitioner and the first two respondents were candidates for the office of Pradhan of Gaon Sabha Mataundh, tehsil and district Banda. The first respondent was duly declared elected. The petitioner then filed an election petition under Sec. 12-C of the U.P Panchayat Raj Act. The petition was presented before the sub-Divisional Officer not by the petitioner personally but by his duly appointed counsel Shri Vireshwar Singh, Vakil, Banda. A preliminary objection was raised that the petition was likely to fail as it had not been properly presented. The Tribunal accepted the objection and dismissed the election petition. The petitioner then filed a writ petition in this Court challenging the correctness of the view taken by the Tribunal. He contended that the dismissal of the election petition on the ground that it had not been presented by the petitioner personally was illegal. He, therefore, wanted that the order of the Tribunal dismissing the election petition be quashed by a writ of certiorari. He also claimed a writ of mandamus directing the Tribunal to proceed to decide the petition on merits. When this petition under Art. 226 of the Constitution was taken up for hearing by Mr. Justice Oak, he found that in support of the view he had taken the Sub-Divisional Officer (Tribunal) had relied on a decision of Mr. Justice Mathur in Smt. Premlata v. Rajendra Pati 1959 A.L.J 741.. In that case Mr. Justice Mathur had laid down that rule 24(2) of the Panchayat Raj Rules required the presentation of an election petition before the Sub-Divisional Officer by the candidate in person. On behalf of the petitioner reference was made to a Division Bench decision in Ganpal Singh v. Election Tribunal, Mainpuri 1960 A.L.J 48. Mr. Justice Oak thought that the decision of Mr. Justice Mathur required reconsideration in view of the later decision of the Division Bench in Ganpat Singh's case. As that could be done only by a Division Bench he referred the case to a Division Bench. That is how the case has come to us.
2. Election petitions are filed under section 12-C of the U.P Panchayat Raj Act. Rules have been framed under the Act in connection with election petitions and are to be found in Chapter 1-F of the Panchayat Raj Rules. Cl. (2) of R. 24 provides,
“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,
“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 of suits.”
3. Then follows the proviso with which we are not concerned. Two questions arise for our consideration. The first is whether it is required by Cl. (2) of R. 24 that an election petition must be presented personally by the petitioner. The second is if the rule required personal presentation whether omission to present the petition personally is fatal to the petition or whether it is only in curable irregularity.
4. As we read Cl. (2) of R. 24 we do not find any thing in it requiring the candidate to present the petition personally. The sub-rule autherises the presentation of a petition not only by one candidate but also by 10 or more electors. It is difficult to conceive that the rule making authority intended that 10 or more persons should join together in the physical act of presenting a petition: Had it been the intention to require the presentation of a petition in a particular manner some words would have been used in the sub-rule to make that intention clear. It appears to us that sub-R. (2) does not deal with the manner of presentation at all. It only indicates the class of persons who are entitled to challenge an election by filing an election petition.
5. Three considerations appear to have weighed with Mr. Justice Mathur in Prem Lata's case. They were,
1. There are provisions in the Panchayat Raj Act in which a distinction has been made between a party and an agent and where both are intended to be entitled to do any thing both the words are used e.g Sec. 81 of the Act and Rr. 4-H and 18 of the Rules. In R. 18 specific provision has been made for the filing of a nomination paper by a candidate or his agent. If the rule making authority had a similar intention in respect of election petitions it would have used similar language in R. 24.
2. Under the Civil Procedure Code presentation is generally permitted through a duly authorised agent. In case of pauper suits and appeals however personal presentation is specifically required. Under R. 25 the provisions of the Civil Procedure Code are applicable to election petitions but the Code applies only from the stage the trial of the petition begins. Presentation of the election petition is done at a pretrial stage. The provision of the Code about presentation will, therefore not apply so far as presentation is concerned.
3. Election law is a special branch of law. Proceedings arising out of election petitions are treated as quasi-criminal proceedings. The provisions relating to election petitions have, therefore, to be strictly interpreted.
6. These considerations are in no way conclusive in favour of the view taken by our learned brother. It is true that in the Panchayat Raj Act as well as in the rules framed thereunder a distinction had been made sometimes between a party and his agent by both the terms being mentioned together but wherever that has been done it has been done with some particular purpose in view. Sec. 81 of the act was enacted with the obvious purpose of excluding lawyers from representing parties. That is why it was provided in that section that a party to a civil, criminal or revenue case may appear before a Nyaya Panchayat either in person or by such servant (not being a tout) partner, relation or friend (duly authorised in writing) by him as the Nyaya Panchayat may admit as a fit person to represent him. All possible persons who could be allowed to represent a party were mentioned in the section exception was made in respect of a tout expressly and of a lawyer by deliberate omission. The necessity for enumerating the kind of persons who could be allowed to represent a party arose because the intention was to exclude the class which was not being mentioned.
7. R. 4-H does not provide for presentation of a claim or objection in any particular manner. It only says that a claim or objection shall be addressed to the Panchayat Inspector I and made in a form which may be specified by the Director. It is to be filed I in duplicate. Any number of claims I or objections may be filed by any person. There is nothing in the rules to indicate that the claim or objection cannot be filed through an authorised agent. Rule 18 relates to the presentation of nomination papers. At the stage at which nomination papers are filed provisions like those of the Civil Procedure Code are not applicable. It, therefore, became necessary to provide how nomination papers were to be presented. Difficulties may have arisen if in each case the prospective candidate was personally required to present the nomination paper. The rule making authority, therefore, expressly provided in R. 18 that it could be filed through an agent also. The mere fact that express provision for the nomination paper being filed through the agent was made in this rule cannot, in our opinion, lead to the conclusion that in the case of an election petition presentation through an agent was necessarily excluded.
8. Election law is certainly a special branch of law and so far as corrupt practices are concerned it cannot be disputed that proceedings about them have been treated as quasi-criminal proceedings. These considerations appear to be immaterial so far as the question of presentation of an election petition is concerned. On their basis it cannot be insisted that the presentation must be made personally even though there is nothing in R. 24(2) itself necessitating that requirement.
9. Under R. 25 the provisions of the Civil Procedure Code are to apply as for as possible to the trial of election petition. Order 3 R. 1 of the Code authorises all things which can be done by a party to be done through an authorised agent. If, therefore, a petitioner could present the petition personally there is no reasons why he should not be able to do so through an agent. The argument that the Code applies to the trial of a petition only and its provisions cannot apply to the presentation of the petition is not convincing because the term ‘trial’ appear to be wide enough to cover the entire course of the petition from the stage of presentation to that of the final disposal.
10. Under the U.P Town Areas (Conduct of Election of Chairman) Rules, 1953 a question arose in Ganpat Singh's case whether the personal presentation of an election petition by the petitioner was necessary under R. 47. The question was answered in the negative. The provisions of R. 47 appear to be parimateria with the provisions of Cl. (2) of R. 24. The relevant portion of R. 47 reads,
“Election petitions will be presented by only those persons who were candidates for an election against which election petition is filed.”
11. Interpreting this rule it was laid down that,
“In our opinion there is no sufficient ground for placing this restricted interpretation on this sub-rule. We think that the primary object of Sub-R. (1) of R. 47 is to define, and thereby limit, the class of person who can challenge an election. Its purpose is to make clear that the validity of an election can be questioned only by a candidate at that election whose name is on a certain list or whose nomination paper has been rejected; it does not, in our view, prescribe the manner in which the election petition is to be presented. Unless there is something in an enactment which shows that a certain act must be performed by a particular person, or the nature of the act is itself such that it can be performed only by that person, that act can ordinarily be done by a duly authorised agent. If it had been the intention that a petitioner must personally present his election petition it would have been a very simple matter for the rule making authority to make provision to that effect and so put the matter beyond doubt; as it has done, for example, in Cl. (36) of the U.P Municipalities (Conduct of Election of President and Election Petition), 1955 where it is expressly provided that an election petition shall be presented in person by the petitioner or, if there are more than one petitioner, by any one or more of them. “That has not been done, and we do not consider that Or. 47 requires the petitioner to present his petition in person. Such a construction may result in a petitioner who is incapacitated by accident or illness from presenting a petition at all, for it is a common ground that the provisions of the Indian Limitation Act have no application to the presentation of a petition under the Town Area Act.”
12. These observations appear to be applicable with equal force to the case of the presentation of an election petition under the Panchayat Raj Act also.
13. On the first question we are, therefore, clearly of opinion that Cl. (2) of R. 24 of the Panchayat Raj Rules cannot be interpreted as requiring that an election petition must be presented personally by the petitioner.
14. Even if it is held that it is necessary for an election petition to be presented personally too much importance cannot be attached to such a requirement. Defective presentation has always been held to be a curable irregularity.
15. In connection with the presentation of plaints it was held in Wali Mohammad Khan v. Ishaq Ali Khan A.I.R 1931 Alld. 507 at p. 511 by a Special Bench,
“But even if it does (require personal presentation) we are clearly of opinion that the omission to apply with this provision would be a mere irregularity and not an absence of jurisdiction. The Court receiving a plaint which has not been properly presented would have jurisdiction to dismiss it and pass orders on it. It would not be acting without jurisdiction if it did so.”
16. The question whether an application for execution which was not properly presented was or was not in accordance with law and could save limitation was considered in detail by a Full Bench in Kanhaiya Lal v. The Panchayati Akhara I.L.R 1949 Alld. 973 and it was laid down (we are quoting from the head note)
“An application for execution which is in all other respects in order, and which has been admitted and registered by the executing court, is to be considered to have been made in accordance with law within the meaning of Art. 182(5), Indian Limitation Act, 1908 even thouph it has been handed over to the Munsarim by a lawyer who holds no Vakalatnama for the decree-holder. Even if the presentation be not strictly in accordance with law, the defect is a mere irregularity and does not vitiate the application.”
17. The same view was taken by a Full Bench of Andra Pradesh High Court in Satya Narayan v. Venkata A.I.R 1957 A.P 172. and also by the Rajasthan High Court in Govind Singh v. Deoraj A.I.R 1958 Rajas. 128..
18. Even in respect of a pauper application which is specifically required under Or. 33, C.P.C to be presented personally a Full Bench in Kundan Sugar Mills v. The Indian Sugar Syndicate 1959 A.L.J 398. held that the rule relating to presentation could not deprive a limited liability company from the advantage of Or. 33 on the ground that it was not physically possible for the company to present the application in person.
19. In Ganpat Singh's case it was observed that omission to present an election petition under the U.P Town Area (Conduct of Election of Chairman) Rules, 1953 was only an irregularity.
20. In Shiv Narain v. Deputy Director A.I.R 1959 Alld. 487., it was held in respect of an objection under the Consolidation of Holdings Act that the physical act of presentation was not of much importance and defective presentation was at the most a curable irregularity.
21. It follows from what we have said above that the Tribunal when it rejected the petitioner's petition for want of proper presentation acted against the law and committed an error of law which is liable to be quashed by a writ of certiorari. The petition, therefore, succeeds. The order dismissing the petition is quashed. The petition will now go back to the Tribunal for consideration on merits. But in the circumstances there will be no orders as to costs.
22. Petition allowed.
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