ORDER
Bhawani Singh, C.J.
1. Shri Chandra Bhan Singh and Shri Rao Khetsingh were elected members of Zila Panchayat, Damoh. Election of President, Zila Panchayat, Damoh was held on March 1, 2000 in which they contested against each other. Polling was followed by counting of votes. Shri Chandra Bhan Singh was declared elected and granted certificate to that effect under Rule 17 of the M.P. Panchayat (Up-Sarpanch, President, Vice-President) Nirvachan Niyam, 1995 (hereafter for short 'the Rules of 1995'). Shri Rao Khetsingh immediately approached the Election Tribunal and obtained stay against issuance of notification under Rule 22 of the Rules of 1995. The Election Tribunal entertained the election petition and stayed issuance of notification. Finally, the election of ShriChandra Bhan Singh was set aside. This order of Election Tribunal, passed at the instance of Shri Rao Khctsingh has been challenged through Writ Petition No. 2349 of 2000 by Shri Chandra Bhan Singh.
2. The substance of challenge is thai Election Tribunal could not have entertained the election petition before the issuance of notification. Consequently, the proceedings of the Election Tribunal including the order setting aside election of Shri Chandra Bhan Singh are null and void. This submission is supported by decisions of this Court in Sugna Bai w/o Hariram v. Election Officer, Gram Panchayat, Bamni Bujurga and others (1996 MPLJ 134) and Division Bench decision in Pramila Bai w/o Surendra Singh, Sarpanch v. Sub-Divisional Officer, Bareti and others [1999 (2) MPLJ 209].
The other side contests this claim and submits that Section 122 of the Madhya Pradesh Panchayat Raj Adhiniyam, 1993 (No. 1 of 1994) (hereafter for short 'the Act') does not prevent filing of election petition before the issuance of notification. Support of this view is sought from Division Bench decisions in Tikaram v. Darshanlal [1988 (1) MPWN 192] and Antram v. Badri and others [1996 (2) Vidhi Bhasvar 296]. While dealing with the submissions advanced by the parties, Brother Dipak Misra, J., after exhaustive examination and analysis of various statutory provisions has doubted the correctness of the decision in Tikaram's case (supra). It would be appropriate here to quote precisely the opinion of the learned Judge :
'..... But the sixty four thousand million dollar question that remains to be dealt with is whether in the case of Tikaram (supra) the Court had taken note of all the relevant rules as they existed then. In my humble opinion the Court had not taken into consideration the basic concept of the returned candidate and declaration of an election of a returned candidate. If the person has not assumed the qualification to be elected because there has been no notification, it can irrefragably be stated that the same can not be assailed before the Election Tribunal. If that is made permissible one can approach the Election Tribunal (as what has happened in the instant case) and get an order of stay of the notification which is beyond the jurisdiction of the Election Tribunal. As the relevant facts have not been taken into consideration and the concept of term 'election' as used in Section 122 (1) of the Act, has a different meaning in its connotalive sense and conceptual eventuality, I am of the considered opinion that the decision rendered in the case of Tikaram (supra) requires reconsideration.'
3. Before adverting to the submissions advanced by learned counsel for parties, we hasten to quote the question of law recommended for reference :
'Whether an election dispute can be raised before the Election Tribunal on the basis of the certificate granted under Rule 17 of the 1995 Rules or one is required to file the dispute before the Tribunalafter the notification has been published under Rule 22 of the 1995 Rules ?'
In Kehar Singh v. State (DelhiAdministration) [1988 (3) SCC 609], Shetty, J. said in Paragraph 203 that :
'..... This Court has frequently emphasized that the decision of the Court should be confined to the narrow points directly raised before it. There should not be any exposition of the law at larger and outside the range of facts of the case. There should not be even obiter observations in regard to questions not directly involved in the case.....'
The Courts though have no power to amend the law by process of interpretation, but do have power to mend it so as to be in conformity with the intendment of the legislature. Where the language of statute is precise, explicit, clear and unambiguous, there should not be any attempt to emasculate the same except for compelling reasons to avoid the uncertainty and repugnancy. Further, Latin maxim 'ACTLIS LEGITIMT NON RECIPLIM MODLIM' connotes that when doing of anything in a particular manner is sanctioned by law, then the thing can not be done in a different way. Taylar v. Taylar, (1876) 1 Ch.D 426, decides that where a statutory power is conferred for the first time upon a Court and mode of exercising it is pointed out, it means no other mode is to be adopted. This principle has been approved by the Apex Court in State of U.P. v. Singhere Singh (AIR 1964 SC 358) when the Court said that :
'the rule adopted in (1871) 1 Ch 426 is well recognised and is founded on sound principles. Its result is that if a statute has conferred a power to do an act and has laid down method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner, then that which has been prescribed. The principle behind the rule is that if this were not as, the statutory provision might as well as not been enacted.'
4. In Trans America Morgage Advisors v. Harry Lewis [1 NC (Jame), 444 US II, 62 Law Ed 2nd 146,100 SC 242], it is held as follows :--
'Where statutes limit a thing to be done in a particular mode, it has to be done in that way and for other remedies this principle also applies. A Court must be chary of reading of other remedies into a statute which expressly provides a particular remedy or remedies; when a statute limits a thing to be done in a particular mode it includes the negative or any other mode.'
In Hukum Chand v. Union of India (AIR 1976 SC 789), the above principleis reiterated as follows :--
'18. It is well settled that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all, and all other modes of performances are necessarily forbidden. It is all the more necessary to observe thisrule where power is of a drastic nature and Us exercise in a. mode other than the one provided, will be violative of the fundamental principles of natural justice.....'
5. The Apex Court has defined 'election' in numerous pronouncements starting from N.P. Ponnuswami v. Returning Officer, Namakkal (AIR 1952 SC 64) reiterated in MohinderSingh Gill v. Chief Election Commissioner (AIR 1978 SC 851), VS. Achuthanandan v. P.J. Francis and another, to mean the entire process starting from issuance of notification till declaration of result. The Apex Court has given broader and extended meaning to it by holding that 'election' is not merely the ultimate decision or the ultimate result. 'Election' is every stage from the time the notification is issued till the result is declared and even perhaps if there is an election petition, till the decision of the Election Tribunal. It is one whole continuous integrated proceeding and every aspect of it and every stage of it and every step taken in it is a part of election.
These decisions have been rendered under the Representation of People Act, 1951 (hereafter for short 'the Act of 1951'). They do not point out the period when election can be called in question by election petition. Section 67-A of the Act of 1951 provides for the date of election of the candidate as the date on which candidate is declared elected by Returning Officer. However, the principles laid down can be usefully applied for the determination of election disputes to the extent applicable, otherwise the dispute has to be resolved in the context of the specific law applicable to the case.
6. A right to elect or to be elected, though fundamental in ademocracy, is neither a fundamental right nor a common law right. It is a statutory right. Similarly, right to challenge election is a statutory right, therefore, terms of the statute have to be complied with and lapses committed in following them can not be substituted by discretion jurisdiction vested in the Special Tribunal to determine election disputes is to be exercised in accordance with law (See N.P. Ponnuswami v. Returning Officer, Namakkal, AIR 1952 SC 64 and Jyoti Basu v. Debi Ghosal and others AIR 1982 SC 983).
7. Another question to be examined is what the expression 'entertained' means. Shri N.S. Kale, learned Senior Counsel for petitioner Shri Chandra Bhan Singh contended that Election Tribunal could not have entertained the election petition before notification came into existence. So the subsequent proceedings are null and void; while Shri Rajendra Tiwari, learned Senior Counsel appearing for respondent Shri Rao Khetsingh submitted that Section 122 of the Act can not be interpreted to mean that election petition can not be presented before notification comes into existence. Harmonious reading of sub-sections (1) and (2) of Section 122 of the Act only envisages the period of limitation and there is certain distinction between cause of action and limitation. Precisely, what is sought to be projected is that the moment result is declared under Rule 16 (7) (i) of the Rules of 1995, cause of action arises to approach the Election Tribunal. Section 122 of the Act prescribes theouter limit, therefore, election petition could be filed on arising of cause of action. Strong reliance is placed on the decisions of this Court in Tikaram v. Darshanlal [1988 (1) MPWN 192] and Antram v. Badri and others [1996 (2) Vidhi Bhaswar 296].
There is no dispute that Shri Rao Khetsingh approached the Election Tribunal before the issuance of notification under Rule 22 of the Rules of 1995 and order of stay was obtained, nor there is dispute that ultimately Shri Rao Khetsingh has been notified to have been elected the President of the Zila Panchayat. Question, therefore, is whether election petition could be filed after certificate was issued in favour of Shri Chandra Bhan Singh under Rule 17 of the Rules of 1995 or whether it could be done after the notification was published under Rule 22 of the Rules of 1995.
8. Shri Rajendra Tiwari emphasises that cause of action arose in favour of respondent Shri Rao Khetsingh when Shri Chandra Bhan Singh was declared elected under Rule 16 (7) (i) of the Rules of 1995 and granted certificated under Rule 17 of the said Rules. Cause of action may arise prior to the arising of limitation. We do not accept this contention. Article 243O of the Constitution bars interference by Court in electoral matters. Sub-Article (b) thereof provides that no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State. Section 122 of the Act provides that election under this Act can be called in question only by a petition presented in the prescribed manner. The manner has been prescribed under the Madhya Pradesh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 (hereafter for short the Election Petition Rules). Sub-section (2) of Section 122 of the Act categorically envisages that election petition shall not be admitted unless it is presented within thirty days from the date on which the election in question was notified which means, the election petition is to be presented within thirty days from the dale on which the election is notified under Rule 22 of the Rules of 1995 read with Section 33 of the Act. This provision fixes the starling point and the ending point for filing the election petition. That being so, election petition filed before the issuance of notification is imcompctent. It can neither be filed nor admitted for consideration since it has to be presented after issuance of notification. Some decisions interpreting the word 'entertained' and 'admitted' were placed for our consideration two of which are Laxmi Rattan Engineering Works v. Assistant Commissioner (Judicial) I, Sales Tax, Kanpur Range, Kanpur and another (AIR 1968 SC 488) and Lala Ram v. Hari Ram (AIR 1970 SC 1093). In the first case the word 'entertained' means 'admitted for consideration' unless the requirement subject to which it is to be filed is complied. In the latter decision, the word 'entertained' means 'filed or received by the Court'. However, true meaning can be assigned in the context of the procedure envisaged in the statutory provision. That being so, an election petition can not be taken for consideration unless it is presented within thirty days from the date on whichelection in question was notified. Therefore, applying the principle laid down in Taylar v. Taylar (supra) and approved by the Apex Court in decisions mentioned in the preceding part of the judgment and well known principles of statutory interpretation that where statute is clear and explicit, no other meaning can be given, election petition filed before issuance of notification would be incompetent and cannot be taken up for consideration.
There is another reason to support this view. Chapter III of the Act deals establishment of Panchayats, namely, Gram Sabha, Gram Panchayat, Janapad Panchayat and Zila Panchayat. Section 29 deals with Constitution of Zila Panchayat and Section 32 with election of President and Vice-President. After the election of members, meeting of elected members of Zila Panchayat for the election of President and Vice-President is to be called by the Prescribed Authority. After the election, the names of President and Vice-President are to be published under Section 33 of the Act by the Prescribed Authority in such manner as may be prescribed. 'Prescribed Authority' has been defined under Section 2 (xxi) of the Act to mean such officer or authority as the State Government may, by notification, direct to discharge the functions of a prescribed authority under that provision. This provision in Section 33 has to be read with Rule 22 of the Rules of 1995.
Chapter IV of the Rules of 1995 deals with election of Up-Sarpanch, President and Vice-president. Under sub-rule (2) of Rule 10 of the Rules of 1995, the Collector shall fix a date for election of Up-Sarpanch, President or Vice-President and inform the prescribed authority which shall fix the meeting to be presided over by an officer nominated by the Collector called Presiding Officer. Voting takes place by secret ballots followed by counting and declaration of result under sub-rule (7) (i) of Rule 16 of the Rules of 1995. Presiding Officer, nominated by the Collector declares the candidate who secures the largest number of votes to be duly elected in Form V and in case of equality of votes, the election to be decided by lot to be drawn by he Presiding Officer and the candidate on whom lot falls is declared to have been duly elected. After the candidate has been declared elected under Rule 16 of the Rules of 1995, the Presiding Officer grants to such candidate a certificate of election in Form VI under Rule 17 of the Rules of 1995 and obtain from the candidate an acknowledgment of its receipt duly signed by him. Immediately after the conclusion of the meeting, the Presiding Officer is to prepare record of proceeding and sign it attesting with his initials every correction made therein and also permit any member present at meeting to affix his signature to such record, if he so desires, and publish on the notice board of the Panchayat in Form VII signed by him staling the names of persons elected and send a copy of such notice to the District Collector who himself or officer authorised by him keep the record for one year and shall thereafter, unless otherwise directed by a competent Court or authority or pending legal proceedings, destroy it but the sealed packets prepared and sealed under sub-rule (1) shall not be opened and their contents shall not be inspected or produced except under the order of the competent Court or authority. Where election has beenadjourned due to some reason, fresh date for election is also to be fixed by District Collector. Thereafter, under Rule 22, the Prescribed Authority shall notify or cause to notify under sub-rule (c) of Rule 22 of the Rules of 1995 the election of President and Vice-president of Zila Panchayat in Form VIII-C by affixing on the notice board in the office of Zila Panchayat and in the office of District Collector. Sections 32 and 33 of the Act provide for election and publication of the election of President and Vice-President amongst others by the prescribed authority. There is no conflict between Section 33 of the Act and Rule 22 of the Rules of 1995. Publication under Section 33 of the Act would mean notification under Rule 22 of the Rules of 1995 since purpose is to send out information about the result of election. There is no conflict between the two and the submission to the contrary is liahle to be rejected.
'Election proceedings' under Section 2 (v) of the Act will have to be construed broadly, pragmatically and in harmony with other provisions of the Act and the rules of 1995 apart from judicial pronouncements and not restricted to the period from the issue of the notice for election and the declaration of the result of such election.
9. Another facet of dispute is when 'cause of action' arises in case of elections to Panchayats. Shri Tiwari contended that it arises when result of election is declared under Rule 16 (7) (i) of the Rules of 1995 and the certificate of election is granted to the candidate under Rule 17 thereof and limitation may start after notification is issued under Rule 22 of the Rules of 1995. Having discussed various statutory provisions touching this aspect, there is no difficulty in coming to the conclusion that election petition can be filed after issuance of notification under Rule 22 (c) of the Rules of 1995. Cause of action for filing the election petition would commence after issuance of notification, otherwise the candidate declared elected by the Presiding Officer under Rule 16 of the Rules of 1995 does not fall within the definition of 'returned candidate' under Rule 2 (c) of the Election Petition Rules which defines 'returned candidate' to mean a candidate whose name has been published under Section 19,26 or 33 of the Act as duly elected. Till election is so notified, there is 'no returned' candidate and when there is no 'returned candidate', election petition docs not lie since the returned candidate is to be impleaded party to the case and against whom allegations under Rule 21 of the Election Petition Rules are to be made and declaration/relief sought.
10. Decision in Midnapore Zemindary Co. Ltd. v. State of West Bengal and others (AIR 1961 Cal. 353 Spl. Bench) is brought to our notice. This decision holds that at the earliest, the starting point of limitation must be the accrual of cause of action for a suit. But it may not be always true under the Indian Limitation Act and it can never be before the cause of action has arisen. But cause of action may be postponed till the taking place of particular event. Apart from cause of action, there must be right to sue. Therefore, cause of action can not be construed in the manner submitted by the respondent otherwise in election matters, it arises at number of stages and make thecompletion of election difficult and indefinite. Cause of action in election matters is statutorily shifted to stage after issuance of notification under Rule 22 (c), therefore, election petition can not be filed before and contention to the contrary is liable to be rejected.
10A. We are in complete agreement with the view taken by this Court in Tundilal v. Returning Officer and others (AIR 1965 MP 256), Thakur Prasad v. V.S. Mehta and others (AIR 1965 MP 258), Sugna Bai v. Election Officer, Gram Panchayat, Bamni Bujurga and others (1996 MPLJ 134) and Division Bench decision in Pramila Bai v. Sub-Divisional Officer, Bareli and others [1999 (2) MPLJ 209]. In Sugna Bai's case (supra), the petitioner got highest number of votes and was declared Sarpanch of Gram Panchayat under Rule 77 of the M.P. Panchayats Election Rules, 1994 followed by public announcement and publication in newspapers. When she was not allowed to participate as Sarpanch in the meeting of Gram Panchayat on the ground that instead of her, respondent 4 had been elected Sarpanch, she challenged the action and sought declaration that she was duly elected Sarpanch of the Gram Panchayat and be allowed to function as such without any impediment. Election Officer and Block Development Officer took the plea that there was mistake in the counting of votes. There may be announcement in favour of the petitioner but she was never notified as such. On verification, she got 324 votes while respondent 4 got 399 votes. Mistake came to the notice of the authorities concerned and respondent 4 was notified to have been elected to the office of Sarpanch of the Gram Panchayat. Therefore, the case set up by the State was that issuance of notification was essential for a candidate to be elected to the office in the Gram Panchayat. With this background, C.K. Prasad, J., held that issuance of notification by the Prescribed Authority was essential for a candidate to be elected as Sarpanch and declaration of result was not enough. It is also held that election petition is a remedy contemplated after the result is notified. Decision in Miss Avi J. Cama v. Banwarilal Agarwal and others (AIR 1953 Nagpur 81) holds that cause of action for challenging the election arises on the date the result of election is declared and not on the date of notification and election petition could be made at any time after the result of election is declared by the Returning Officer but not later than fifteen days from the date of notification under Section 16 of the City of Nagpur Corporation Act, 1948. This decision has no application to this case and turns upon the provisions of the City of Nagpur Corporation Act, 1948 since Proviso to Section 16 of the said Act of 1948 created fiction that the candidate declared elected would be deemed to have entered on his office from the date of his election and the notification could follow later.
11. In the two decisions in Tikaram (supra) and Antram (supra), the learned Judges were not apprised of various statutory provisions dealing clearly, explicitly and exhaustively with the manner and method of holding the elections and post election disputes. First case has been decided on one sidesubmissions and by that time factual matrix of the case had taken different turn.In the latter case, learned Judges have not advanced any reasons in support ofthe conclusion. Having examined the matter, we proceed to answer thereference as follows :--
Election dispute can not be raised before the Election Tribunal on the basis of the certificate granted under Rule 17 of the Rules of 1995. Election Petition can be filed before the Election Tribunal after the notification has been published under Rule 22 of the Rules of 1995.
Reference is accordingly answered as aforesaid. The matter to appear beforethe learned Single Judge for decision on merits.