A Full Bench of the Allahabad High Court at Lucknow comprising of Justice Rajan Roy, Justice Rajnish Kumar and Justice D.K.Singh decided an interesting question of law in Sumitra Devi vs Special Judge/Addl Disst. Sess. Judge EC at Hardoi (9920 (M/S) of 2018 with respect to presentation of Election Petition under Section 12-C(1) and (3) of U.P. Panchayat Raj Act 1947. The issue framed by the bench was :
“1.) Whether presentation of an election petition by the election petitioner personally is a mandatory requirement in view of Sub-section 3 of Section 12 C(1) of the Act, 1947 and Rule 3(1) of the Rules, 1994 and whether it’s noncompliance is fatal or it would merely be an improper presentation, a curable defect?
2) Whether the decision of the Single Judge Bench of this Court in the case of Viresh Kumar Tiwari (supra) lays down the law correctly with regard to the question framed at serial no. 1 or it is the division Bench judgment in the case Lal Bahadur Singh (supra) and the subsequent Single Bench judgment in the case of Urmila (supra) which lay down the law correctly?”
The Answer to the issues are
(a) An Election Petition under Section 12-C(1) and (3) of the Act, 1947 has to be necessarily and mandatorily presented by the candidate/ Election petitioner himself, personally, if it is in his name. However, if it is presented by the Advocate or his clerk, in the presence of the candidate/ Election Petitioner before the Prescribed Authority, it would be sufficient compliance of Section 12-C(3) .
(b) In the event an election petition is not presented as aforesaid then it would be fatal and an incurable defect which has to result in dismissal of the petition by the Prescribed authority with liberty however, to the candidate to file a fresh petition, if the limitation is still available and before it expires, in accordance with Section 12- C(3), personally, or by his Advocate or Clerk in his presence. He can not adjourn the matter to some other date for rectification of the incurable defect in those proceedings.
The Court has further directed the Senior Registrar of the Court at Lucknow to communicate the Judgment to the Principal Secretary Panchayat Raj/ Additional Chief Secretary Panchayat Raj, Govt. of U.P. Lucknow, who, in turn, shall communicate it to all Prescribed Authorities in the State, for compliance. A copy of the judgment shall also be circulated by the Registrar General of the High Court to all District Judges in the State of U.P., as they function as Revisional Authorities under Section 12-C(6) of the Act, 1947.