a 'C•...
p a o q R.
P.
pl C oj S
7.
I R.1 - -- THE MADHYA PRADESHPANCHAYATS"-(ELECTioN - PETITIONS; CORRUPT PRACTIC:ES AND DIS~-- QUALIFICATION FOR :MEMBERSHIP) RULES,. 199r5 - ICONTENTS- 1 - ! ~ (PR)234 ELECTION PETITIONS ... DISQUAL.IFI .... RULES, 1995
1. Short title.
2. Definitions. \
3. Presentation of election petition.
4. Parties to the petition.
5. Contents of the petition.
6. Relief that may be claimed by the petiti<}ner.-
7. Deposit of security.- -S. Procedure on receiVfug'petitioli":-- - -' -- .. .------- ._--~- - ---
9. Copy of the election petition to be 3erved on each respondent.
10. Election petitions to be enquired into through one or more proceedings. - II. Procedure before the specified officer and his powers.
12. Parties to produce their witnesses -
13. Withdrawal of election petition.
14. Abatement of election petition.
15. Reciimination when s~at claimed.
16. Application of the Indian Evidence Act, 1872. - _. - 17. -Appearance before the specified officer. - - -~-_,:-_. .---"-- - .. =- - -
18. Documentary evidence. -
19. Secrecy of voting not to be infringed.
20. Answering of criminating questior.s and certificate of indemnity.
21. Grounds for declaring election to ~Jevoid.
22. Corrupt practices.
23. Decision.
24. Procedure in case of equality of votes.
25. Finality of decision.
26. Costs.
27. Payment of costs out of security end its refund.
28. Execution of orders as to costs.
29. Disability arising out of corrupt practices.
30. Repeal. - I I !
!
I - j i !
I I I:
;.
THE MADHYAPRADESH PANCHAYATS (ELECTION PETI~ TIONS, CORRUPT PRACTICES AND DISQUALIFICATION FOR MEMBERSHIP) RULES, 1995 .
Notiftcation No. B-1-21 (1)95-XXII-P-2, dated 2-6-1995, Pub. in M.P. Gaz.
Ext., dt. 3-6-1995, p. 516(6) to (12), made u/s. 95(1), read with sub-section
(1) & (3) ois. 122. -
1. Short title ..:.These rules may be called the Madhya Pradesh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules. 1995.
I i I .1 \...
" .
R.3 ELECTION PETITIONS ... DISQUALIFI .... RULES, 1995 (PR)235 COMMENTARY In the proceedings of the mEeting against 8arpanch of Gram Panchayat, the names of who' were present was mentioned and all the panchas including 8arpanch and U?-8arpanch signed the proceedings.
Collector gravely erred in setting as'de the resolution recording passing ofno-confidence motion on the ground that presence was not mentioned.
Sukhnandan Pate' v. State of M.P., 2003 (1) MPLJ 220=2003 (2) JLJ
74.
2. Definitions.-In these rules, unless the -context otherwise req~ires,-
(a) "Act"means the Madhya Praeesh Panchayat Raj Adhiniyarn, 1993 (No.1 of 1994);
(b) "Pleader" means any person entitled to appear and plead for another in a CivilCourt and includes an Advocate, a Vakil and an Attorney , of a High Court;
(c) Returned Candidate" means a candidate whose name has been published under sections 19, 26 or 33 of the Act as duly elected;
(d) "Specified Officer"means the Officerspecified in sub- section (1)of Section 122 of the Act in relation to Gram Panchayat, Janpad Panchayat and Zila Panchayat,?-s. the case rpar be.
COMMENTARY I I Returned Candidate.-Asreqnired by 8s.19, 26 and 33 of the Act, unless the election of a candidata is notified there is no 'returned candidate' and no election petition can be filed without impleading as party the returned candidate agai:l.st whom certain allegations under Rule 21 are made and relief SOUght.Chandra Bhan Singh v. State of M.P., Chandra Bhan Singh v. State ofM.P., 2001 (2) MPHT 242~2001
(2) MPLJ 419 (F.B.).
3. Prese~tation of election petition.-(l) All election Petition shall be presented. to the specified Officer 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.
(2) 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 und~r his own signature to be a true copy of the petition. ..
COMl\1ENTARY .1. Requirem.ents .of Election Petition.-[I] Extra copy of memorandum of Election Petition given to returned candidatelrespon,. ..~ ..._=- dent NO.1 before Election Tribunal. It.was not required to be signed and verified by the Election Petitioner. Natthulal v. Shakuntalabai, 2011 (2) MPLJ 424 = 2011(2) MPHT 153.• 1 I : • ~ '!
I , \rp ~,II , • I > \ I, (PR)236 ELECTION PETITIONS ... DISQUALIFI .... RULES, 1995 R. 3, [2]Rule 3 only provides signing and attestation of copies filed along with the election petition. E~ectionpetition filed by the respondent was accepted by the authority in accordance with the provjsions of Rule 3 and thereafter notice on the said election petition was issued to the appellant. Nothing on record to establish that a signed and att~sted copy of the election petition was not sent to the appellant along with the notice. Appellant should have established this fact and as the best evidence which was available to the appellant was not produced by him, an adverse inference has rightly been drawn against him. Additional copy,Le. an extra copywhich was give:t;lto the counsel for theappellailt during the proceedings need not be signed and attested h~'the electionpetitioner as that is not the requirement of Rule 3. Shalnlntalabai v.
Nathulal, 2011(3) MPLJ 119 = 2011(5) MPHT 35.
2. Maintainability of petition.-[l] Election petition filed by respondent NO.6was not duly verified and the security amount required to be deposited at the time ofpresentation of the petition. Petitioner not having complied with mandatory provisions of the Rules was not maintainable. Kana Mandal v. State of M.P., 2010(2) MPLJ 468 ~ 2010(3) MPHT278.
[2] Election Petition not presented by the election petitiqner by presenting it herself or through an authorized advocate. Election petition dismissed in view qf provisions ofRules 3; 8 and 21. Kamlesh Nut v. Commissioner, 2012(4) MPLJ 385= 2012(5YMPHT 127>'... :C. "~~~. -- ,._ •.
[3]Copies of the election petition served on the respondent did not bear the signatures of the petitioner, were not verified and did not bear attestation as required by Rule 3(2).Election Tribunal rightly dismissed the election petition. I;3aijulal Verma v. Additional Collector, Chhindwara, 2009(4) MPLJ 548 = 2010(1) MPHT 477. ' [4]If a party is having the best evidence in his power and possession he is duty bound to produce it in the Court in order to resolve the controversy and that party, should not plaGer~liance 0I.l~he abstract doctrine of onus of proof that it was no part of his duty to produce it.
Respondent NO.1 should have filed the copyof election petition served upon her along witl1the summons in.the court in order to resolve the dispute. The Election Tribunal ~rred in dismissing the election petition by holding that there is non-compliance of Rule 3 'of the ;Rules. The impugned order passed by the Election Trib~nal set aside. Natthulal v.
Shakuntalabai, 2011(2) MPLJ 424 = 2011(2) MPHT 153.. ' [5]Neither the 'requisite c~piesofthe Electipn Petition were filed nor they are signed. Non-Compliance of Rule 3 ,bythe Election Petitioner.
Election petition dismissed. Rakesh v. Returning Officer 'Panchayat Nirvachan, 2012(4) MPLJ 458 = 2012(5) MPHT H)4.
3. Invalid preseritation.- [1] Presentation by Counsel under Vakalatnama which did not. specifically au~horise him -to present the ..
petition. Presentation was held tp be improper and petition liable to be dismissed. Tara v. Dabla, 2002 (3) MPLJ 591=2002 (2) MPHT 554.
R. 3 ELECTION PETITIONS ... DISQUALIFI .... RULES, 1995 (PR)237 [2]The election petition was not presented by the petitioner but it was filed by somebody else. Therefore, a election petition presented contrary to the provisions of sub-rule (1) of Rule 3 is not maintainable and has to be dismissed in view of the mandatory requirement of Rule 8 of the Rules, 1995.Geeta Devi Yadav v. Archana, 2008 :(1)MPLJ 261 = 2008(2) JLJ 34.
[3] Vakalatnama does not authorise an Adv:ocate in writing to present the election petition before the Competent Authority. Urmila Devi v. Returning Officer (PanchayatJ, 2008(4) MPHT'410 = 2008(3) MPWN92. .
4. Electionpetition by voter in a ward different from the ward from the person was elected. Maintainability.-The election petitioner, though he belonged to a different ward of the Gram Panchayat assailed the election of the writ petitioner, who had been elected as Up-'Sarpanch though elected as Panch from a ward in which the election petitioner was not the voter. In that event, the concept of wards melts into insigriificanceand his election becomes a cause of grievance for any person who belongs to Gram Panchayat. It is to be borne in mind that in the absence of any categorisation who can file an election petition and the only provision that throws some light being rule __,:, :':., ..3.;.t4e.. sq~e. h?s .to...b.e::purpQsivelyint~rpre.ted. cThe,..said.provision ::...._.:....
. enshrines that an 'election petition is to be presented to the specified officer during the office'hours by the person making a petition or by a person authorised in writing in that behalf by the person making the petition. It is apparent that a relief can be claimed declaring the election of the returned candidate to be void in addition to further declaration.
Thus, a person may not claim that he himself or other candiddate has been duly elected but may seek a relief for declaration simpliciter that the election of the returned candidate is void. Thus the, keyword is 'person'. Though the word 'pers.on'.J.:!:a~_1?~~~~~~ti9.I!~<iLjt_~0.~l<i,.!1()t__... _..
.engiIlt iii its ariibit"or'seep'aperson from anywhere. He must have some' connection or nexus with the election. He must be a person aggrieved.
The petitioner was therefore a person aggrieved and the election petition 'at his instance was maintainable. Hukum Singh v. Collector, Panna, 2002 (1) MPLJ 233=AIR 2002 MP 32=2001 (2) JLJ270.
5. Recounting ofvotes.-Difference ofvotes was orily17.Electricity failed twice and votes were counted in candle light. Sufficient circumstances to order for recount. Rakib Moh,ammadv. District Collector, AIR 2003 MP 39=2002 (3) MPLJ 415=20,02(5) MPHT 487 (DB). .
" " . \ [2]It is obligatory on part ofElection Tribunal to give specificfinding about its satisfaction for directing recount. Smt. K(Lmlesh Gautam v. Sub Division Offwer, AIR 2009 (NOe) 754 MP. . . .
.. -....6. Petition properlY.:~teE;ted.-A perusal ofthe-copycofthe election=~=~~-.~= petition which was accompanied with the petition and .was supplied to " " the petitioner, reveals that on each and everypage the third respondent has put her signature." IIi the circumstances, Illf.lre non-mention of'true :copy'would not be sufficient to hold that th~.Hulc 3(2) of the Rules' has ".' ..
(PR)238 ELECTION PETITIONS .,. DISQUALIFI .... RULES, 1995 -R. 4 :
-I,- I I I ~ J I 1\ l l ' !
i'! ' not been complied with. Subha Rao v. Member, .Election Tribunal, (AIR 1964 se 1072) REL. Ku. Parwati Bai Thakur v. State of M.P., 2007(3)- MPHT 63. Photo copyofpetition supplied to the respondent was signed by the petitioner but not mentioned words "attested true copy"held'it is substantial compliance ofRule 3(2) and not liable to dismiss under Rule
8. Mrs. Indira Sin"gh'v. Mrs. Anjana Sharma, 2006(4) MPHT 152. See also: Ravindra Sihgh v. SDO cum Prescribed Authority, Datia, 2006(3) MPLJ 570 = 2006(3) MPHT 150. ' , ~
7. Petition not attested by election petitioner- Effect.-[l] Where election petition was not attested by the petitioner as required by sub-rule (2), the' provision of the' rule being mandatory, failure would lead to summary dismissal of election petition. Attestation py Advocate would not save the petitioner. Dr. Omprakash Soni v. AsholJ,Kumar Bhargava, AIR 1996 MP 43.
[2] The provisions are mandatory. Attested copies of documents supplied to respondents not signed by petitioner. Petition liable to be dismissed. Defect cannot be cured after expiry of period of limitation.
Amolsingh v. Hameersingh" 1996 (I) MPWN 122.
'[3rWher~'requirenient of Hie-provision is not complied, D'-O decision on merit can be given. Rambharosa v. State ofM.P., 1996 (I) MPWN 81.
8. Failure to file copies of election petition- Petition to be dismissed.-:[l]Where in compliance with the provisions' of rule 3, election petition did not accompany as,many copies of the same as there were respondents, the requirement being mandatory, such a petition was liable to be dismissed under the provisions of rule 8. Shivdhari 'La~h~sar v. Jaduman Bishwanath, 1999 (1) MPLJ 291.
See also:
, , [2]Udaysingh v. Himmatsingh, 1999 (1) JLJ 200.
[3] Petition should be attested by the election petitioner.' In its absence the petition is liable to be dismissed. Attestation by 'advocate would not save the petition. Omprakash Soni v.Ashokkumar, AIR 1996 MP43.
-[4] Attested copies ofdocuments supplied to respondents not signed bypeti tioner- Petition liable to be dismissed. Defect cannot be cureq,after pe.riodof limitation. Amolsingh v. Hamir Singh; 1996 (I) MPWN 122.
4. Parties to t~e petition.-Where the petitioner in addition to claiming a declaration that the election, of all or any of the returned candidates is void, claims a further declaration that he himself or a.nyother candidate has been duly elected he shall join as respondents to his petition all the contesting candidates at the election. ' COMMENTARY
1. Candidates at the election.- Person who withdrew their can~ ,-" - - J_1 1_1.. L'~~.•:.L1.-,.J_ .r • R. 5 ELECTION PETITIONS ... DISQUALIFI .... RULES, 1995 Ct'H)239'
2. Parties to election petition.-[l] Pers~ns who withdrew their e.andidature on the date of withdrawal of nomination are' not required to be made party to an electjon petition. Devram v. Sadu, 1996 MPLJ 606=1996 JLJ 240.
[2]Where petitioner claims that he or any other person be declared elected in place, of the returned candidate, he has to join only the contest>ingcandidates as party and not those whose nomination has been rejected or who withdrew his nomincttion. Harishankar Suryavanshi v.
State of M.p'., 1998 (2) Vidhi Bhaswar 225.
5. Contents of the petition.-An election petition shall-
(a) contain a concise statement of all material facts on which the petitioner relies;
(b) set forth with sufficient particulars, the grounds on which the election is called in question;
(c) be signed by the petitione:- and verified in the manner laid down in the Code of Civil Procedure, 1908 (V of 1908), for the verifications of pleadings.
COIVIMENTARY
1. Verification. SUQstantial compliance.-The object of verifying the pleading is fix on ihe partyresportsibilityabout truthfulness of its contents and the same Rule has been made applicab~ to the election petition filed under 8.122 of the Panchayat Act. When the facts are verified by affidavit, then the rule has been substantially compiled with .
.Ramrati v. S.D. 0., Sidhi, 2005 (3) MPLJ 101. '
2. Distinction between material facts and particulars.-Under Rule 5 the election petition'requires a concise statement of all material facts on which the petitioner relies, and sets forth with sufficient par- ____t~c~!a~~Lt~~grou~~s on which the election is called In question:, Material facts are facts upon which election petitioner files an election petitton showing cause of' action. What particulars could be material facts would depend upon the facts of each case and no universal rule can be laid down. It is however, absolutely essential that all basic and primary facts which must be proved at the trial by the party to establish the case are material facts and must be stated in the pleading.
by the party. Material facts are primary or basic facts which must be pleaded by the election petitioner in support of the case set up by the petitioner to prove the cause of action. PartiqIlars on the other hand are, details in support ofmateriBl facts pleaded by the party. They amplify, refine and embellish material facts by giving distinctive touch to the bas'is contours of a picture already drawn so as to make iffull; more clear and more informative. Ramavtar Budhollwa v. Smt. Susheela Singh, .==- ~--'2007(~1)--JW54. _.. ' :1' •;. ~.'.
~..
, ,..
iI ' i r, I I ~.
!
" (PR)240 ELECTION.PETITlONS ... DISQUALIFI .... RULES, 1995 R. 6 •,
6. Relief that may be claimed by the petitioner.-A petitioner may claim- , ;
(a) a, declaration that the election of all or any of the returned candidates is void; and
(b) in addition thereto, a further declaration that he himself or any other candidate has been duly elected.
7. Deposit of security.-At the time of presentation of an election, ,petition; the petitioner shall deposit with the specifiedofficera sum ofRs.
fiveHundred as security. Where the election ofmore than one' candidate is called in question, a separate deposit of an equivalent amount ~hall be required in respect of each such returned candidates. .
COMMENTARY D~posit of security amount is essential.-Fresh election petition filed by the petitioner by withdrawing the earli-erpetition. While filing the second election petition, security amount has to be deposited by the petitioner. Amount deposited with the first election petition cannot be treated as deposit of security for entertaining the second election petition. Election petition rightly dismissed by the Election Tribunal for non-compliance of Rule 7 of the Rules. Roopa Singh v. State of M.P., 2012(2) MPLJ 435 :::2012(2) MPHT 502.
Where no security deposit was accompanied with the election .peti-.
tion, the'petition cannot be entertained a,ndliable to be dismissed under Rule 8. No deposit thereafter can remove the ,defect. Saria Tripathi (Smt.) v. Smt. Kaushalya Devi, 2004 (2) JLJ 263 (DB).See alsoAyodhya Prasad v. State of M.P., 2001.(2) MPLJ Notes 25.
Enclosement of receipt not compulsory in each case.-Rule 7 does not say that an,election petitioner is bound and obliged to file a copy of the receipt along with the election petition:lf the Presiding Officer receives the security cost in cash and does not issue the receipt immediately thereafter, then such a lapse or inaction on the part ofthe Presiding Officer or his office,election petitioner cannot be allowed to suffer. Lata Patle v. Smt. Kamlesh Gautam, 2008 (1) MPLJ 388.
8. Procedure on receiving petition.-If the provisions ofrule 3 or rule 4 or rule 7 have not been compliedwith,\the petition, shall be dismissed .
by the specified.officers: , , .
Provided that the petition shall not t>edismissed under this rule without givingthe petitioner an opportunitYofbeing heard. ' , <COMMENTARY' , .
1. Non-compliance of Rules hi ElectionPetition.-[l] Issue of defect of non-compliance of the rules can be taKen up by the Election Tribunal at any stage and it is not incumbent upon the authority to do so only at the threshold. Baijulal Verma v. Additional Collector, Chhindwara, 2009(4) MPLJ 548 = 2010(1) MPHT 477.
\ , .,\ :.6 R.9 ELECTION PETITIONS ... DISQUALIFI .... RULES, 1995 (PR)241 lay ,ed ny on ~.
lte be . , 1- ~z.
a 7 y r g 1 ~ i .
~ =~ f ~ ~ ~ I . H ~ , [2]Non compliance with Rules 3,4 or 7. Prescribed Authority if after hearing the petitioner finds non-compliance of Rules 3, 4 or 7, it has no choicebut to dismiss the petition. Di'Oisiyaw /0 Naresh Paraste v. Shanta w/oNarayan Singh Pusham, 2011(2) MPLJ 701.
2. Provisions are niandatory.-[l] The provisions of Rules 7 and 8 are mandatory. Where security amount- was not deposited along with the election petition, such a petition is liable to be dismissed. Udaysingh v. Himmatsingh, 1999 (1) JLJ 200.
[2]But in a case where deposit was not made along with the election petition but made subsequently before expiration of the period of limit ation and also before cognizance of the matter was taken, the election petition does not suffer from a fatal defect. AIR 1986 MP 49 Disting. Ravi .' Thakur v: Shivshankar, AIR 1997 MP 136. See also Kailashnarayan v.
Namdar, 1996 JLJ 391.
[3] It is essential that an election petition should be signed and verified. Further it is essential that it should accompany as many copies of such a petition as there are respondents. Udaysingh v. Himmatsingh, 1999 (1) JLJ 200.
See also:
[4]Shivdhari v. Jad1:lman, 1998 (2) JLJ 183.
[5],Where deposit of security amount was not made along with 'election petitiog anc;lthe, S.D.a. took cogriizance of it, directed recount of votes and passed order for setting aside election of the returned candidate, the order is bad. Election petition suffered from fatal defect.
Amarsingh v. Sub-divisional Officer, 1997 (2) MPLJ 192.
3. Scope of preliminary objections.-Mter filing of the pleadings the presiding officer heard preliminary arguments and on the basis of this the election petition has been dismissed. Held, preliminary objections may be considered by the Election Tribunal but the scope of preliminary objections is limited under Rule $ of the Rules, in respect of objection relating to the presentation' of election petition under Rule 3, non-furnishing of the security as required under Rule 7 of the Rules or non- impleadment of parties as required under Rule 4 of the Rules.
Except these, there is no provisior: for hearing preliminary objection and .'
deciding the case at preliminary stage. The Election Tribunal committed an error ofjuris dietion in adopting the 'aforesaid procedure. Lalamadas s /0 Roopdas v. VidyaUJati, 2007(1) MPLJ 410.
•
9. Copyof the election petition to be s~rved on each respondent.- The specified,officershall, as soon as may be, cause a copy of petition to be served on each respondent.
COMMENTARY - - =""Rule9 does nowhere say that the copyrequired to be verified under Rule 3 is only to be served upon the respondent. However a juxtapose reading ofRule 9 with Rule 3 we must observe that the copies submitted IR.I0 COMME1~TAR.Y
1. Jurisdiction of specifiedofficer.-The specified Officer cannot entertain application under 8.122 before publicati"n of notification under Rule.22 ofthe.Nirvachari.NiY~J);!,J995.He also cannot order stay ofissue ofnotification under the Nirvachan Niy'ain of1995. Order passed by him staying publication ofnotification and setting aside election were without jurisdiction and therefore quashed. Chandra Bhan Singh v.
State of M.P., 2002 (1) MPLJ 58..
2. Specified Officer.-The term 'specified officer' iri.this rule cannot be construed to mean Collector only. The rule governs enquiry of all election petitions questioning election to. Gram Panchayat, Janpad Panchayat and ZHaoPanchayat. Hence the expression '~ecified officer' has been incorporated. From tne scheme o£the Act and the M.P.Land Revenue Code, the Additional Collector shall be deemed to be a specified officer in case elect~onpetition is transferred. to him by the Collector exercising his power under section 17(2)ofthe M.P.Land Revenue Code, 195'9. IJ,cijkumar Shivhare v. Anand Kumar Tiwari, 2000 (3) MPLJ .391=2000 (2) JLJ121. . .0' • - ~.=._= ~"_ .. --
10. Election petitions to be enquired into through one or n"lore proceedings.-When, in respect of any election of a candidate, more petitions than one are presented, the specified officer may at his discretion enquire into the petitions either in one or more proceedings as he deems.
fit. 11. Procedure before the specified' officer and his powers.-(1} Subject to the provisions of these rules, every election petition shall be enquired into by the.specified officeras nearly, 'as may be, in ascordance with the procedure applicable under the Code of CivilProcedure, 1908, to the trial of suits: .
Provided that it shall onlybe necessary for the specified officerto make a memorandum of the substance of the evidence of any witness'examined by him.
(22)The specified officer, shall have 'the powers which are vested in a 'Court under tlile Code of Civil Procedure, 1908, when trying a suit in respect of the followingmatters:-
(a) discovery and inspection;
(b) enforcing the attendance of witnesses,' and requiFing the deposit of their expenses;
(c) compelling the production of document;
• (d) examinatiori ofwitnesses on ogth; \
(e) receptlon of evidence taken on affi<;lavit;and .... _.- ,. _..... - _.... - .. ,
(f) issuing commission for examination ofwitnesses and summoning and examining suo moto any person whose evidence, ap:"
pears to him to be material.
(PR)242 ELECTION PETITIONS ... DISQUALIFI .... RULES, 1995 under Rule 3(2)must onlybe supplied to the party/respondent after they put their appearance in the Court. Lata Patle v. Smt. Kamlesh Gautam, 2008 (1) MPLJ 388.
l'
1.\ I' I J~.. :, .
, ~ \ R.13 ELECTION PETITIONS ... DISQUALIFI .... RULES, 1995 (PR)243
3. Enquiry essential in election petition.-Provisions of Rule 11 specifically provides that the enquiry in the election petition shall be as nearly as may be in accordance with the procedure applicable to the trial of suits under the Code of Civil Procedure. Lalamadas s /0 Roopdas v.
Vidyawati, 2007(1) MPLJ 410. ' ,
12. Parties to produce their witne~ses.-It shall be the duty of the parties to produce their witnesses on the date fixed for evidence, and they shall not be entitled to an adjournment for non-attendance of their witnesses:' ,.
Provided that the specified officer may, at his discretion, order the issue of summons to any witness on the necessary process fee and costs being deposited by the party conceoed.
COM M E ,N TAR Y No need to examine Returning Officer and to call him in evidence .-Sub-rule (3) of Rule 80 of M.P. Panchayat Nirvachan Niyam, 1995 provides that every decision of the Returning Officer or such other officer authorised by him under sub-rule (2) of Rule 80 shall be in writing and contain the reasons therefor. Thus there ,is no need to examine the Returning Officer by the specified officer in suo motu powers for deciding whether he has passed any written order'or not, it 'can be established. by' filing copy of the order. Kailashi 1). Bharosi Bai, 2008 (2) MPLJ 218 = 2008(5) MPHT 204 = 2008(1) MPWN l06/~ AIR 2008 (NOe) 1536 MP.
13.Withdrawal of election petition.-(l) No election petition shall be withdrawn without the leave of the specified officer.
(2) If there are more petitioners than one, no application to withdraw a petitiqn shall be made except with. the consent of all the petitioners.
(3) When an application for with:lrawal is made, a notice thereof fixing a date for the hearing of the application shall be given to all other parties to the petition.
(4) No application for withdrawal shall be entertained after the evidence of the petitioner is over.
, (5) If the application is granted, the petitioner shall be ordered to pay the costs of.the respondents theret.) as incurred or such portion thereof as the specified officer may deem fit.
.COMMENTA;RY I;
. . . \ Withdrawal of petition.- [1] Mere filing of an application for withdrawal of election petition will not automatically result into withdrawal of election petition. Can be withdrawn only with the leave of the specified officer. This is a matter of common knowledge that in elections lot' of pressure, threatening, 'money and muscle power are .employed and this sometimes results' ihto filing of a wit~drawal application in the election petition. Thus, a power is given to the'specified officer to examine the genuineness of such a request .and if the said authority ..
I I. , ,'.", , I . Ii.Il - ,r " .
, I .
I,, I ., I (PJl)244 ELECTION PETITIONS ... DISQUALIFI .... RULES, 1995 R 14 comes to the conclusion that in the facts and circumstances of the case, such a leave cannot be granted, it has a power to refuse the same.
Leelawati u. Kanhaiyalal, 2011(4) MPLJ 131 = 2012(1) JLJ 33. ,.
. [2] Rule 2l(1)(d) Recount of votes-Consideration.-Held, mere rejection of an application under Rule 80 filed by the petitioner is not a sufficient ground for ordering recount of votes. Vidhyawati Lilhare u.
Sub-DiuisionalOfficer-cum-Frescribed Officer, Lanji, Balaghat, 2010(1) MPLJ 115 = 2010(4) MPHT 92 = 2010(2) JLJ 29.
[3]Withdrawal of election petition by election petitioner as a result of compromise by the petitioner and elected 'candidate-respondent. Parties were closely related and withdrawal was in their domestic interest .
Moreover it was not a case involving any allegation of corrupt practice but only a case ofrecouting ofvotes. Leave to withdraw election petition' granted. Meena Singh u. Prescribed Authority-Cum-Collector, 1998 (2) MPLJ309.
14. Abatement of election petition.-An election petition shall abate duly on the death of the petitioner or of the several petitioners or of the sole respondent.
COMMENTARY .... Death.ofrespondent the returned candidate.- In Bhushan.v .. _ S.D.a. Janjgir [1998 (2) JLJ 79], under s~milar rules of 1991, rule 15, .
it is held that in a case where the respondent, the returned candidate has died and. the petitioner has sought the remedy of declaring the petitioner elected in place of returned candidate, in accordance with the exception provided therein,. the petition shaH have to be decided pn merits and the petition shall not abate. But under the present rules there is no such exception provided and under the circumstances the petition shall abate. • -----_. '-- .. - - - '- --. - - -- --_ .. -- --
15. Recrimi'nation when se'atclaimed.-Whereas, at an enquiry- into an election, any candidate claims, the seat for himself, the elected candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the elected candidate arid a petition had been presented calling in question his election.
CO M'ME NTARY . . .
Applicability.-Rule 15. appIles when'the seat is Claimed by the '. election petitioner. A.prayer for general recount is not included in it.
".Tulsiram u. Uttamkhan,2003 (1) MPLJ 333.. ' '..
. . 16. Application of the Indian :Evidence Act. 1872.'-Subject. to the provisions. of these rules, the pr6vi'sions of the' Indian-EVidence Act, 1872 (l of. 1872) shall apply in all respects to an enquiry into an election petition.
I I I- I I I I R.21 ELECTION PETITIONS ... LISQUALIFI .... RULES, 1995 (PR)245
17.Appearance before the specified officer.-An appearance, application or act before the specified'officermay be made or done by the party in person or by a -pleaderor an agent duly appointed to act on his behalf:
Provided that it shall be open to.the specified officer to direct any party to appear in person whenever it considers if necessary.
18. Documentary evidence.-Nc. document shall be in admissible in evidence on the ground that it is not duly stamped or registered ..
19. Secrecy of voting not to be infringed.-No witness or other person shall be required to or allowed to.state for whom he has voted.
20. Answering of criminating questions and certificate. of indemnity.-(l) Nowitness shall be excuse<;l:rom answering any question as to any matter relevant to a matter in issue in any enquiIy upon the ground that the answer to such question may criminate or may tend to criminate him, or that it may expose or may tend to expose him to any penalty or forfeiture:
Provided that-
(a) a witness who answered tuly all questions which he is required to answer shall be entitled to receive a certificate of indemnity from the specified officer.
(b) an answer given by a witness to a question put by or before the sgecified officer shall EO •. except in the case of any criminal proceeding for peIjury in respect of the evidence, be admissible in evidence against him i:1any proceeding.
, .... (71Wh~~ a~e~~fi~.a_~egq~ge.ITI}?-ityl].9-s.~een,gr:antedto any witness, it may be pleaded by him in' any Court and shall be--a- full' arid-complete"'" - defense to or upori any criminal charge arising out of the matter to which such certificate relates but it shall rot be d~emed to relieve him from any disqualification in connection with an election imposed by the Act or the rules made thereunder.. .
21. Grounds for declaring election to be void.-(l) Subject to the provisions of sub-rule (2) if the spedfied officer is of opinion-
(a) that on the date of his election the returned candidate who was not qualified or was disqualified to be chosen to fill the seat • . :: under.the.Act~,or--,-.- "-.. ~- - , -.' - - -.".' ..
~ 4 + ~
(b) that any corrupt practire has been committed by a returned candidate or his election agent or by.any other person with the consent of a returned 'clli~didateor his election agent; or
(c) that any nomination paper has been improperly rejected; or
(d) that the result of the elel~tionin so far as it concerns returned candidate has been materially affected- .
(i) by the improper acceptance bf any nomination; or
(ii) by a corrupt practice having b~en committed in the interest of the returned candidate by a person acting with the consent of the candidate or his agent; or
(iii) by the improper acceptance, refusal or rejection of any vote . or the ,reception of any vote which is void; or ~'._ .-.._.._ __~,"~Uv)'.by .ap.Y.1J.9D-:_<;Q!I!RlJ~=~_~~lLtl;1~_pr:qvis~on~.of the Act or of . .
any rules or orders made thereunder;' - .. - .. " the specified officer shall deClare the election of the returned candidate to be void. : .
, I COMMENTARY
22. Corrupt practices.-The following shall be deemed to be corrupt practices for the purposes of these rules:-.
(i) Bribery as defined and explainedJn clause (1) of section 123 the Representation' of the People Act,l1951 (No. 43 of 1951).
(ii) Undue influence as defined in clause (2) of section 123 of the Representation of the People Act, 1951.
(iii) The systematic appeal by a candidate or his agent or by any other person With the consent of a cgndidate or his election agent, to vote or refrain from voting on grounds~6fcaste:- rac~ community or religion or the use of or appeal to, religious symbols or, the use of or appeal to national symbol such as the
(2) If in the opinion of the prescribed authority a returned candidate has been guilty by an agent of any corrupt practice, but the prescribed authority is satisfied-
(a) that no such corrupt pra,~t1cewas committed at the election by the candidate and evelY such corrupt practice was committed contrary to the instructions and without the consent of the candidate; .
(b) that the candidate took all reasonable means for preventing the commission of corrupt practice at the election; and
(c) that in all other respect the election was free from any corrupt practice on the part of the candidate or any of his agent;
then the prescribed authority may decide that the election of the returned candidate is not void.
R.22 .(PR)246 ELECTION PETITIONS ... DISQUALIFI .... RULES, 1995.
1.Order of recount.- An orderofrecount cannot be passed onmere asking.
An issue should be framed, evidencebe recorded and the question should be decided on going through such an evidence.Secrecyofvotes cannot be lightly revealed. Udaysingh v.Himmatsingh, 1999 (1)JLJ 200.
[2] Recount. of votes cannot be ordered even on consent. Secrecy of voting cannot be broken lightly. Gajanan v. Ramcharan, 1997 (II) MP\VN3.
2. Result materially affected or not-cases.':
[1]. Election dechl:l-ed void ..-The nomination paper ora returned candidate itself is found to have been improperly accepted because the returned candidate superseded his some assets etc. Held, his result has been obviously materially affected therefore his election properly declared as void. Mehboob Khan v. Lallu Bhai, AIR 2909 (NOC) 532 MP = 2008 (4) MPLJ 198 = 2008(3) JLJ 307 = 2008(5) MPHT 95.
[2] Returned candidate lady superseded fact of having nine children, it would not have caused any disqualification to her, therefore the result of the election is not materially affected and the improper acceptance of nomination paper due to iricomplete information-in the deClaration did not provide a ground to set aside the election. Siyawati v. Phoolwati, 2009(1) MPHT 301 = 2009(1) JLJ 431 = AIR 2009 (NOC) 425 MP = 2008 (4) MPLJ 437.
R.23 ELECTION PETITIONS ... DISQUALIFI .... RULES, 1995 (PR)247 . ":. inational emblem, for national flag, for the furtherance of the prospects of that candidate's election.
(iv) The publication by a candidate or his agent or by any other person with the consent whether direct, indirect or implieS of the candidate or his election agent of any statement of fact in relation to the personnel character or conduct of any candidate, or in relation to the candidature, or withdrawal from contest of .
any candidate being a statement reasonably calculated to prejudice the prospects of that candidate's election.
(v) The hiring or procuring whether on payment or otherwise of any vehicle or vessel by a candidate or his agent or any other person with the consent of the candidate' or his election agent for the conveyance of any elector other than the candidate himself, and the members of his family or his agent, to or from any polling station provided in accordance with the rules made under the Act:
Provided that the hiring of a vehicle or vessel by an elector or by several electors at their joint costs for the purpose of conveying him or them to or from any such polling station, shall not be deemed to be a corrupt. practice under this clause and if the vehicle or vessel so hired is a vehicle or vessel not propelled by a mechanical power:
Provided further that the use of any public transport vehicle by an elector at his own cost for the purpose of going to or coming from, any such polling station shall not be deemed to be a ..... . ..;.-ccorruptp~act~ce.undeL:his.clause~ __ :: ::._._.. : _.. : _ .._..- .
Explanation.-In this. clause the expression 'vehicle' me,ans any vehiCle used or capable or being, used for the purpose of road transport whether propelled by mechanical power or otherwise and whether used for drawing other vehicles or otherwise.
(vi) The holding of any meeting tn which intoxicating liquors are served.
(vii) The issuing of any circular, placard or poster having a reference to the election which does not bear the name and address of the printer and publisher C ereof .
. '--(vii!)" Pers:on'ati'on"at--electton' as' ddinea"fu'.Sectloii"I7T-n .oCilie-- ....
Indian Penal Code, 1860.
. (ix) The employment or connivance at the employment of ,any panchayat officer or servant or an employee' as mentioned in sub- clause (d) of clause (1) of Section 36 of the Act as an agent for canvassing.
(x) Acting of any Panchayat Officer or servant of an employee as mentioned in sub-clause (d) of clause (1) of Section 36 of the Act as an agent in connection with th;y election of the candidate.
23. Decision.-(1) At the conclusion of th~ enquiry the specified officer shall make an order-
(a) dismissing the election petition; or
(b) declaring the election of all or any of the returned candidates to -.be void;.or '..~ ~~-=-~-~~=~~.- ~-~= = ~.=..-.=~,-.~~.. -.
(c) declariJJ.gthe election of all or any o(ffie'returned-canaidate to be void and the petitioner or any other candidate to have been Appeal and Revision.-Rules framed for election petitions etc. do not provide any appeal or revision. Decision pronounced under Rule 23 has further been declared to be final under Rule 25. Hukumchand v.
Dheerji, 2001 (1)JLJ ~29.
. ,;
24. Proced~e in ~ase of equality of vbtes.-If during the enquiry it appears to the specified officer that there is an equality of votes between.
and candidate at the election and that an addition of a vote would entitled any of these candidates to be declared elected then, specified officer shall decide between them by lot and proceed as if the one in whose favour the lot falls, had received an additional vote. - - - -__
25. ~inality of de~ision.-The decision of the specified officer shall be' final. .
duly elected.
(2) If any person who has filed an .election petition has in addition ~o calling in question the election of the returned candidate, claimed declaration that he himse~9r any other candidate has been duly elected and the specified officer is .of opinion-.
(a) that in fact the petitioner of such other candidate received a majority of valid votes, or
(b) that but~r the votes obtained by the returned candidate the petitioner" or such other candidate would have obtained a majority of valid votes;
the specified officer' shall, after declaring the election of the returned candidate to be vo~d,declare the petitioner or such other (";ll1didate,as the case may be, to have been duly elected. . .
(3) At the time of making order under this rule. the specified officer.
shall also make an order- . .
(a) Where any charge is made in the PCI iUon of any corrupt practice having been committed at the election, recording-
(i) a finding whether any corrupt practh'(' has or has not been p:-oved to have been committed al the election and the nature of that corrupt practice, and
(ii) the name of all person, if any, who have been proved to have been guilty of any corrupt practice and the nature of that practice; and .
. (b). fixing the total. amount of costs payable and specifying the persons by whom the costs shall be paid:
Provided that a person who is not party to the petition shall not be named in the order under sub-clause (ii)of clause (a) unless- '(a) he has been given notice to appear before him and show cause why he should not be so named; and
(b) if he appears in pursuance of the notice, he has been given an opportunity of cross examining any witness who has already been examined by the specified officer and had given evidence against, of calling evidence in his defence and of.
being heard.
COMMENTARY R.24(PR)248 ELECTION PETITIONS ... DISQUALIFI .... RULES, 1995 R.30 ELECTION PETITIONS ... DISQUALIFI .... RULES, 1995 (PR)249 ;
, . , . I, J \ !
26. Costs.-(l) The expenses as per the followingtable incurred by any .
person in .attending to give evidence shall unless .the specified officer otherwise directs, be deemed to be part of the cost-
(i) Actual fares of travel by any made ofconveyance including bus, train or taxi or combination thereof from his place of residence or work to the court of tbe specified officer.
(ii) Rs. 40/- per day or part thereof to cover the expenses incurred towards daily allowance.
(2)Co£ts shall be the discretion of the specified officerwho shall have full powers to determine as to by and to whom and to what extent such costs are to be paid.
(3)The pleader's fees payable by a party shall be determined by the s~cified officerwhich shall not exceedmore than Rs. FiveHundred.
27. Payment of costs out of security and its refund.-(l) The costs as determined by the specified officer shall, if they have not already been paid, be paid in full, or so fCl!as possible, out of the security deposit under rule 7, on an application made in writing in that behalf within a period of three months from the date of such 0 der to the specified officer by the person in whose favour the costs have been awarded.
(2) If there is any balance left out of the said security deposit after payment of the costs, such balance, orwhere not costs have been awarded .~:-or.no .application.-qs~foresaid has been.made within said -period:of three -_:_~.'.:.->. .._.-.- months, the whole of said deposit may, on an application made in that behalf in writing to the specified officerby th~ person bywhom deposit has been made or if such person dies after making such deposit, by the legal representative ofsuch person, be re:umed to the said person or to his legal representative as the case may be.
28. Execution of orders as to costS.-An order as to costs under the provisions of these rules may be produced before the Principal CivilCourt of original jurisdiction within the local limits of whose jurisdiction any person direct by such order to pay any sum of money has a piace of . - residence- or tiusine~s, and sucli -Court"sliall-executetlie -ofder-.orcaiise.-- ----------- the same to be executed in the same manner and by the same procedure as if it were a decree for the payment ofmoney maqe by itself in suit.
29. Disability arising'out of cDrrupt practices.-If any person, upon the trial of an election petition, is found guilty of any corrupt practice, he shall, for a period of six years from the date on which such finding takes' effect. be declared by the specified officertq be disqualified for the membership of any panchayat: \ .
Providing that the State Government may! for reasons to be recorded I.
in writing. remove the disqualification incurred under this rule, with effect from such date as may be specified therein or reduce the period of such disqualification.
30. Repeal.-All previous rules on the subject shall stand repealed from the date .of final -publication -of ~e~e r!1I~_~.!:p.~~p.e--~~~c:Ihy~~~Pradesh.
Gazette".
00000001 00000002 00000003 00000004 00000005 00000006 00000007 00000008 00000009 00000010 00000011 00000012 00000013 00000014 00000015 00000016