Rajasekhar Vs. Chandrakant Veerabhadrappa Desai - Court Judgment

Excerpt:
karnataka zilla parishads, taluk panchayat samithis, mandal panchayats & nyaya panchayats act, 1983 (karnataka act no. 20, of 1935) - section 14(3) - object - attestation of copies of election petition - 'under his own signature' signifies by petitioner only not advocate or agent - mandatory not recommendatory or directory - accountability being necessary concomitant conferment is of special power neither transferrable or delegable, duty being residual and mandatory - non-compliance fatal; entails dismissal of election petition, defeat being incurable. ; (i) an analysis of the provisions of this section leads to the inference that the object of asseslation is to certify that the copy attested is a true copy of the original petition. the statutory compulsion is that the attesting.....orderbalakrishna, j1. the petitioner had filed an election dispute under section 14 read with section 23 of the karnataka zilla parishads, taluk panchayat samithis, mandal panchayats and nyaya panchayats act, 1983, (hereinafter referred to as 'the act') against the order passed by the election officer, mandal panchayat, murgod mandal, saundatti taluk, belgaum district, who had rejected the nomination of the petitioner. before, the munsiff, saundatti, in the election petition, the petitioner challenged the rejection his nomination on the ground that the returning officer had not followed the procedure prescribed under the act. the munsiff, saundatti, framed a preliminary issue on the basis of the preliminary objection raised by the respondents therein. it is not disputed that no other.....

Judgment:
ORDER

Balakrishna, J

1. The petitioner had filed an election dispute under Section 14 read with Section 23 of the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983, (hereinafter referred to as 'the Act') against the order passed by the Election Officer, Mandal Panchayat, Murgod Mandal, Saundatti Taluk, Belgaum District, who had rejected the nomination of the petitioner. Before, the Munsiff, Saundatti, in the election petition, the petitioner challenged the rejection his nomination on the ground that the Returning Officer had not followed the procedure prescribed under the Act. The Munsiff, Saundatti, framed a preliminary issue on the basis of the preliminary objection raised by the respondents therein. It is not disputed that no other issues were framed besides the preliminary issue. The Munsiff, after hearing, came to the conclusion that the election petition was not maintainable in view of the fact that the copies of the election petition had not been attested by the petitioner under his own signature to be the true copies of the petition notwithstanding the mandate of Section 14(3) of the Act. It is this order of the Munsiff that is challenged before this Court.

2. The point for consideration is whether the impugned order of the Munsiff is contrary to the provisions of the Act and the Rules thereunder.

3. Whereas the learned Counsel for the petitioner Sri B.V. Ramamoorthy strongly contended that even though the copies of the election petition were not attested by the petitioner, admittedly, these copies were attested by the Advocate of the petitioner who appeared before the Munsiff's Court and such an attestation was valid since attestation contemplated under Section 14(3) of the Act was only recommendatory and did not prohibit attestation by an Advocate. It was also contended by the learned Counsel for the petitioner that there was an infraction of procedural law inasmuch as all the issues arising in the case on the basis of the pleadings were not raised by the Munsiff, but only a preliminary issue had been framed regarding the maintainability of the election petition.

4. On behalf of respondent-1 the learned Counsel Sri Ashok B. Patil submitted that under the scheme of the Act, the context, the purpose and the object, what is provided under Section 14(3) of the Act is mandatory and the mandatory statutory compulsion cannot be diluted by importing into the provision what is not expressly provided by the Legislature and that there is no room for adding to the provision what the plain language of the Section does not permit. It was further contended by him that, on the facts and in the circumstances of the case, the Munsiff was justified in framing a preliminary issue instead of casting all the issues particularly because the preliminary issue itself would dispose of the election petition for non-compliance with a statutory mandate.

5. It is necessary to examine the provisions of Section 14(3) of the Act in order to ascertain the true, ordinary, simple and plain meaning of the words employed in the provision. I must add that hardly there is any scope for ambiguity in the language of the Section as the Section would bear out presently. Section 14(3) of the Act reads thus:

'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 under his own signature to be a true copy of the petition.'

6. An analysis of the provisions of this Section leads me to the inference that the object of attestation is to certify that the copy attested is a true copy of the original petition. The statutory compulsion is that the attesting authority shall be the petitioner himself and the wordings clearly implies that attestation by proxy is not permitted whether through an Advocate or through a recognised or authorised agent of the petitioner. The words 'under his own signature' clearly convey the meaning that the signature shall be exclusively and solely of the petitioner himself. It is also provided under this Section that every copy shall be attested by the petitioner himself under his own signature certifying that it is a true 'copy of the petition. It is impossible to construe this statutory provision in any other fashion. The one and the only meaning is that the attestation of every copy of the petition shall be by the petitioner himself and it is mandatory and not recommendatory or directory.

7. Though it may not be necessary to refer to the scheme of the Act and to go behind the legislative intent compelling attestation only by the petitioner and no one else, it would be relevant to observe that the object of the Legislature is to fix accountability and responsibility on the petitioner so as to commit the petitioner to the certification that the copy is a true reflection of the original petition. In a way it could be said that such a statutory compulsion would shut the door to the petitioner to disown a copy that it is attested either by his Advocate or any authorised or recognised agent of the petitioner, accountability being purely personal. It may also be said that this special legislative enactment is intended to transfer power to Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats and to assign to them local Government and judicial functions and also to entrust the execution of certain works and development schemes of the State Five Year Plans to the Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and to provide for the decentralisation of powers and functions under certain enactments to those local bodies for the purpose of promoting the development of democratic institutions and securing a greater measure of participation by the people in the said plans and in local and Governmental affairs and for purposes connected with and incidental thereto. In a participatory democracy, accountability being a necessary concomitant, the Legislature reposing confidence and conferring the power of attestation on the persons like the petitioner competing for office through electoral process has to be regarded as a special power conferred by the Legislature on the petitioner and this power is neither delegable nor transferrable unless the statute itself provides for the same. The power to attest is exclusively given to the petitioner by the statute and it is his responsibility to exercise that power. The power is non-transferable and the duty is residual and mandatory.

8. In this context, strong reliance was placed by the learned Counsel for respondent-1 on the decision rendered by the Supreme Court in SHARIFF-UD-DIN v. ABDUL GANI : [1980]1SCR1177 . In that case, an identical statutory provision came in for Interpretation and decision. I may even add that the words used in the statutory provision considered by the Supreme Court are verbatim the same as in the instant case. The following passage from the Judgment of the Supreme Court rings the bell:

'The difference between a mandatory Rule and a directory Rule is that while the former must be strictly observed, in the case of the latter, substantial compliance may be sufficient to achieve the object regarding which the Rule is enacted. Certain broad propositions which can be deduced from several decisions of Courts regarding the Rules of construction that should be followed in determining whether a provision of law is directory or mandatory may be summarised thus: The fact that the statute uses the word 'shall' while laying down a duty is not conclusive on the question whether it is a mandatory or directory provision. In order to find out the true character of the legislation, the Court has to ascertain the object which the provision of law in question is to subserve and its design and the context in which it is enacted. If the object of a law is to be defeated by non-compliance with it, it has to be regarded as mandatory. But when a provision of law relates to the performance of any public duty and the invalidation of any act done in disregard of that provision causes serious prejudice to those for whose benefit it is enacted and at the same time who have no control over the performance of the duty, such provision should be treated as a directory one. Where however, a provision of law prescribes that a certain act has to be done in a particular manner by a person in order to acquire a right and it is coupled with another provision which confers an immunity on another when such act is not done in that manner, the former has to be regarded as a mandatory one. A procedural Rule ordinarily should not be construed as mandatory if the defect in the act done in pursuance of it can be cured by permitting appropriate rectification to be carried out at a subsequent stage unless by according such permission to rectify the error later on, another Rule would be contravened. Whenever, a statute prescribes that a particular act is to be done in a particular manner and also lays down that a failure to comply with the said requirement leads to a specific consequence, it would be difficult to hold that the requirement is not mandatory and the specified consequence should not follow.'

Again in para 19 of the Judgment it is observed:

'The attestation by the Advocate for the petitioner cannot be treated as the equivalent of attestation by the petitioner under his own signature. The object of requiring the copy of an election petition to be attested by the petitioner under his own signature to be a true copy of the petition is that the petitioner should take full responsibility for its contents and that the respondents should have in their possession a copy of the petition at the earliest possible opportunity to prevet any unauthorised alteration or tampering of the contents of the original petition after it is filed into Court.'

9. When there is a new thinking in the Country of introducing village republics with diffusion of power from the Centre to the last echelon by progressive decentralisation, to take any other view than the view indicated earlier would be a prevarication of the legal principle enunciated in the above mentioned decision of the Supreme Court. When the Act invests the power with the petitioner and the dictate of the provisions in unmistakable terms postulate that such a power should be exercised only by the petitioner, to give a different meaning would be clearly in contravention of the object of the Legislature.

10. Section 14(3) of the Act not only empowers the petitioner to attest the copies of the petition but also imposes a responsibility on him as a candidate for the election which may be classified as accountability in a sense, committing him to the correctness, authenticity and genuineness of the contents of the copies. Indeed, it is not a power without responsibility since the power is not conferred either on an Advocate or an authorised agent of the petitioner by the statute. The dictum in the context appears to be that one who files the election petition alone shall attest every copy of the petition. No one else is permitted to do so. Therefore, non-compliance with the statutory dictates is fatal entailing dismissal of the election petition. The defect is incurable. The power conferred carries with it effects which traverse beyond a mere duty and enter the realm of non-delegable responsibility.

11. The contention of the learned Counsel for the petitioner that a duty was cast on the Munsiff to frame all the issues and that there is failure of justice by disposal of the case only on a preliminary issue, does not carry conviction. If, on the basis of the preliminary issue, the case itself could be disposed of without going to the merits of other contentions which would have given rise to other issues, it would be a exercise in futility to examine and try all the issues likely to arise in the case. The preliminary issue is always intended to examine the maintainability of the case itself without delving into the merits. Preliminary issue is meant for disposal at the preliminary stage particularly if the case ex-facie is not sustainable ab initio. Thus, I find no substance in the contentions raised by the learned Counsel for the petitioner.

12. I am convinced that the impugned order of the Munsiff stands the test of legal scrutiny and deserves to be upheld.

13. For the foregoing reasons, the Writ Petition fails and is hereby dismissed with no order as to costs.