M. C. JAIN, J. -
(1.)THE petitioner by this writ petition seeks to quash the order dated April 16, 1983 (Ann. 1) passed by the learned Munsif & Judicial Magistrate, First Class, Bilara, whereby the objection of the petitioner as to the invalidity of the presentation of the election petition was overruled.
(2.)I may state the few relevant facts. In connection with the re-constitution of the Gram Panchayat, Borunda of the Panchayat Samiti, Bilara, the elections were held on December 14, 1981. The petitioner Navaratan Singh and the respondent No. 1 Chandi Dan contested the election for the Office of Sarpanch. The petitioner was declared elected. The respondent No. 1 questioned the election of the petitioner by presenting the election petition on January 13, 1982. The election petition was presented to the Reader of the court of the Munsif Magistrate, Bilara. Shri Baldeopuri Goswami, Munsif & Judicial Magistrate, Bilara on account of his transfer had handed over the charge on January 11, 1982 and an order was passed by the District Judge and authorising Shri Madho Singh, Munsif Magistrate, Piparcity to look after the work and dispose of urgent matters of the court of Munsif Magistrate, Bilara in addition to his duties. On January 13, 1982, the respondent No. 1 submitted an application in the prescribed form for depositing the security amount as envisaged by r. 79 of the Rajasthan Panchayat & Nyaya Up-Samiti Election Rules, 1960 (for short 'the Rules') to the Munsif, Piparcity, who directed that the amount of Rs. 50/- may be deposited. Accordingly, the respondent No. 1 deposited this amount. However, the respondent No. 1 presented the election petition to Shri Vasudeo Dewal, Criminal Clerk, who was working as a Reader. The respondent No. 1 inter alia challenged the election on the ground that the election petition was not Validiv presented as it can only be presented to the Munsif and not to the Reader. The presentation was, therefore, invalid. It was only on February 18, 1981, Shri Mohammed Ayyub Khan took over the charge of Munsif & Judicial Magistrate, Bilara. The objection relating to the invalid presentation of the election petition, was heard by the learned Munsif & Judicial Magistrate, Bilara and the same was over - ruled by the learned Munsif by his impugned order.
The question that arises for consideration is as to whether the presentation of the election petition to the official of the court of Munsif & Judicial Magistrate, Bilara, who was acting as Reader, is a valid presentation. The relevant portion of r. 78 of the Rules reads as under: - "78. Manner of challenging an election or co-option under Rules: - The election or co-option of any person as the Panch of a Panchayat or the election of any person as the Sarpanch or Up-Sarpanch of a Panchayat or as the member or Chairman of a Nyaya Panchayat may be railed in question by presenting a petition to the Munsif, or, where there is no Munsif to the Civil Judge, within whose jurisdiction the place of head-quarters of the Panchayat or the Nyaya Panchayat, as the case may be, is situated, within thirty days from the date on which the result of such election or co-option is declared, on any one or more of the following grounds- (a ). . . . . . . . . . . . . . . . . . (b ). . . . . . . . . (c ). . . . . . . . . . . . . . . . . . . . . . . . . . (d ). . . . . . . . . . . . . . . . . . (e ). . . . . . . . . . . . . . . . . . . . . . . . (f ). . . . . . . . . . . . . . . . . .
It would appear from the above provision that the petition has to be presented to the Munsif. On behalf of the petitioner Mr. M. M. Singhvi, his learned counsel urged that in view of the above provision, the petition has to be presented to the Munsif or not to any other person. No one else can entertain and if the election petition is presented to some official of the court of Munsif, it would be non- observance of the statutory rule, which is mandatory in character, Non-observance of the statutory rule, according to Mr. Singhvi would be fatal to the election petition. The words, "to the Munsif" can only mean that the petition has to be presented to the Munsif in person and these words cannot be interpreted to mean that the petition can be presented to the court of Munsif. It is only where there is no Munsif, the election petition can be presented to the Civil Judge. The omission of the words "the court" is significant, also the framers of the rules could have provided that the election petition can be presented to the court of Munsif. If the expression "the Court of Munsif would have been used by the framers, the Reader of the court could have entertained the election petition but in the absence of the words "the court of Munsif" the election petition can only be presented to the Munsif or the Civil Judge in person as the case may be. Mr. Singhvi, emphasised that the election law is a special law and being a special law, the provisions have to be interpreted literally and strictly in their natural and plane sence and the provisions should not be given equitable or liberal construction and in case, liberal construction is put the democratic rights of the people would be adversely affected. According to Mr. Singhvi, the provisions relating to resolving of the election disputes lay down a complete Code and so, the provisions have to be interpreted treating the provisions as special law relating to the matters of election disputes. Mr. Singhvi tried to support his contention by reference to some case law. It may, however, be stated that so far as r. 78 of the Rules is concerned, there is no direct authority on the point.
First of all, Mr. Singhvi, learned counsel for the petitioner referred to a decision of this Court in Keshav Dev vs. Radhey Shyam (1 ). This authority simply lays down that the Munsif or Civil Judge hearing the election petition under r. 78 of the Rules, is a persons designate and being persons designate, it has been held that the District Judge has no jurisdiction to transfer an election petition from one Munsif to another Munsif or from Munsif to Civil Judge.
He further made a reference to the decision of the Division Bench of this Court in Rewachand vs. Anandsingh Kachhawaha (2 ). This was an election matter filed under the Representation of the People Act and came up for consideration of the rules 247-E and 247-H of the High Court Rules. It was held that the said rules are mandatory in character and non-compliance of the rules would result into dismissal of appeal. In this case, reliance was placed on a decision of the Supreme Court in Rattan Anmol Singh vs. Ch. Atma Ram (3) and after extracting the portion, it was observed that the necessary paper-books should not only have accompanied the memorandum of appeal, but further the said books should have been certified by the advocate of the party preparing the copy as to the correctness of the translation and typing of the paper-book at the time when memorandum of appeal, was filed. It was further observed that not only that this has not been done, but no such valid certificate appears until this date on the paper-books. Because of the Rules, it was held that the appeal is invalidated
(3.)THE next authority, which has been relied upon by Mr. Singhvi is State of U. P. Vs. Singhara Singh (4 ). It was observed in this case- "when a statute confers a power on certain judicial officers, that power can obviously be exercised only by those officers. No other officer can exercise that power, for it has not been given to him. "
In that case, it was held that power under Sec. 164 is conferred on Magistrate of higher classes and confession can not be recorded by the Magistrate of the lower classes.
Reliance has further been placed by Mr. Singhvi on Ashok Shankar Cholap vs. Krishna Rao H. Deshmukh (5 ). This was also a case under the Representation of the People Act. There was non complaince of the provisions of Sec. 81 (3 ). In that case, the election petition was filed on the last day of limitation for filing an election petition without requisite number of copies. The Clerk of the Advocate merely kept the copies of the election petition in the Board Department. It was held that there was non-compliance of Sec. 813 ). The matter relating to the presentation, came to be disposed of in view of the specific provisions contained in Sec. 86.