BHANWAR SINGH Vs. NAVRANG SINGH

JUDGEMENT

(1.) ORDER :- This comes up for the disposal of two applications filed on behalf of respondent, Navrang Singh, one filed under S.81 read with S.86 of the Representation of People Act, 1951 (hereinafter referred to as "the Act"), whereby it has been prayed that the election petition be dismissed for noncompliance of S.81 (1) of the Act. By another application it has been prayed that R.4 of the rules regarding election petition under the Representation of the People Act, 1951 framed by the High Court in exercise of the powers conferred by S.46 of the Rajasthan High Court ordinance be struck down as the same are beyond the powers available to the High Court under Art.225 of the Constitution and the said rule is violative of S.81(1) of the Act as it overrides this provision. In fact the second application was filed during the course of hearing of the earlier application when the petitioner had taken stand that the election petition has been presented in accordance with R.4 of the aforesaid rules.

(2.) The contention of the respondent is that the election petition has been presented by Rajendra Prasad Advocate and not by the petitioner himself, while according to S.81(1) of the Act the petitioner himself should present the petition. It is submitted that presentation of the petition by the election petitioner is mandatory provision of law and non-compliance of it must result in dismissal of the election petition under S.86 of the Act. It is submitted that it is undisputed between the parties that the petitioner neither presented the petition not was physically present at the time of presentation of the election petition. It is further submitted that letter of authorisation from the election petitioner was also not submitted. The learned counsel in this respect relied upon the decision in case of Ramanlal Premi v. Shiv Pratap Singh, ILR (1978) Madh Pra 569 and also seeks support from the observations made in Sheodan Singh v. Mohan Lal, AIR 1969 SC 1024. The learned counsel has submitted the written arguments and has submitted that election petition is required to be presented by two such authorities and in such manner as may be provided for by or under any law made by the appropriate legislature, as is provided in Art.439(b) of the Constitution. In this view of the matter it is submitted that the presentation of the election petition is to be governed by S.81 and not by any other provision and the rules framed by the Rajasthan High Court in this behalf can be of no avail in view of the provisions of Art. 329(b) of the Constitution. It is further submitted that the repealed S.81(2) of the Act where the expression was an election petition shall be deemed to have been presented stands repealed which makes it further clear that Code of Civil Procedure or any other law has no application in the matter of presentation of the election petition and the entire matter has to be governed by the provisions of the Act. The learned counsel has further relied on a portion from the judgement reported in Satya Narain v. Dhuja Ram, AIR 1974 SC 1185 cited by learned counsel for the petitioner and submitted that the petition can only be presented as required by S.81(1) of the Act and further that the R.4 is beyond the powers available to the High Court under Art.225 of the Constitution and S.46 of the High Court Ordinance, 1949.

(3.) The learned counsel for the petitioner submits that the election petition has been validly presented under S.81(1) of the Act because S.81(1) of the Act only makes a provision as to who can file an election petition and does not deal with as to who should actually present it before the Registry. It is submitted that S.81 of the Act nowhere provides that the petitioner should be physically present at the time of presentation of the election petition and as to the manner of presentation rules have been framed under the High Court Ordinance which authorise an Advocate to file the same. It is submitted that the petitioner has specifically authorised Shri Rajendra Prasad Arya to present the election petition and the vakalatnama filed by him duly executed by the petitioner clearly authorises the Advocate to present the election petition on his behalf. Besides this Rajendra Prasad has further filed a letter in writing to the effect that he has been authorised by the petitioner Bhanwar Singh to present the election petition. It is submitted that there is no requirement of law that authority letter should be filed along with the election petition particularly when the Vakalatnama contains a clause to that effect. It is submitted that it is merely a rule of technicality and R.4 does not require a separate authority to be filed. It is further submitted that these rules have been framed under the authority given to the Rajasthan High Court by virtue of S.46 of the Rajasthan High Court Ordinance, 1949 and also under Art.225 of the Constitution. It is further submitted that Art.329 of the Constitution only puts a bar for interference by Court in electoral matters and according to Cl. (b) the election can only be called in question by election petition presented to authority in a manner as is provided by or under any law made by the appropriate legislation. It is submitted that R.4 of the High Court Rules is a properly enacted rule because Art.225 of the Constitution as well as S.46 of the Rajasthan High Court Ordinance given power to the High Court to legislate. In the alternative, it is submitted that even if this Court holds R.4 is beyond the powers of the High Court then also the same can be struck down prospectively and the petitioner cannot be non-suited as on the date of presentation it was validly presented. The learned counsel relies on Rana Harsh Misra v. Sukhad Raj Singh, AIR 1976 All 47, Lal Bahadur Singh v. Vishal Singh, 1963 All LJ 542, Ganpat Singh v. The Election Tribunal Mainpuri, 1964 All LT 48 and Neduramalli Janardhana Reddy v. Y.C. Ranga Reddy, (1971) 46 Ele LR 374 (Andh Pra).