Can't Allow Conversion Of Appeal Into Election Petition Through Amendment If Compliance With Panchayat Rules Not Established: MP High Court

The Madhya Pradesh High Court in a recent ruling held that an appeal cannot be converted into an election petition by way of an application for amendment, if compliance with provisions under M.P. Panchayat (Election Petitions Corrupt Practices & Disqualification For Membership) Rules, 1995 is not established.

In doing so, the court said that an election can only be challenged in an election petition and election petition can be filed in accordance with Rules, 1995.

A single-judge bench of Justice Vinay Saraf observed,

“An application for amendment cannot be allowed to convert an appeal into election petition, if the compliance of mandatory provisions of Rules, 1995 are not established. Election petition is required to be filed strictly as per the provisions of Rules, 1995 and by allowing an application for amendment an appeal which was not filed in compliance of the provisions of Rules, 1995 cannot be permitted to convert into election petition.”

As per factual matrix of the case, the Petitioner and the Respondent had contested for the post of Panch from Gram Panchayat, Chopana. The petitioner was declared as elected and a certificate was issued in his favour. Being aggrieved by the election of the petitioner, the respondent filed an appeal under Section 91 of the Act, 1993 assailing the certificate before the Sub Divisional Officer.

The petitioner raised an objection regarding the maintainability of the appeal under Section 91 of M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (Act of 1993) and thereafter, an application was moved by the respondent under Order 6 Rule 17 of the CPC to rectify the cause title of the appeal by inserting the words 'election petition' in place of 'appeal' and mentioning 'Section 122' in place of 'Section 91 of the Act, 1993' as well as replacing the word 'appellant' by 'petitioner' and 'non-appellant' by 'respondent'.

The said application was opposed by petitioner on the ground that the proposed amendment will change the nature of the lis and an appeal filed under Section 91 of the Act, 1993 cannot be converted into an election petition under Section 122 of the Act. The SDO allowed the application considering the explanation given by the respondent that the mistake occurred due to typographical error and inadvertence. Aggrieved by aforesaid order of SDO, the present petition was filed.

The counsel for the petitioner submitted that an election petition can be filed under Section 122 of the Act, 1993 and in accordance with Rule 3 of Rules of 1995. He further submitted that as per Rule 7 of the Rules, 1995 at the time of presentation of election petition, the petitioner has to deposit a sum of Rs.500/- as security with the specified officer and until and unless amount is deposited, no election petition can be entertained. Thus, where no security deposit was accompanied with the election petition, the petition cannot be entertained and same was liable to be dismissed under Rule 8, which provides that if the provisions of Rules 3, 4 or 7 are not complied with, the petition shall be dismissed by the specified officer.

It was argued that the appeal could not be converted into election petition. It was further submitted that there was no verification as per the provisions of Rule 5 (C) of the Rules 1995 at the time of filing the original appeal or even after amendment. Moreover, no affidavit was filed in support of the so called election petition in accordance with provisions of Order 6 Rule 15 (4) of the CPC.

On the contrary, the counsel for respondents supported the order passed by the SDO on the ground that the election of petitioner was duly challenged by the respondent by preferring a petition but due to typographical error or inadvertently the same was drafted as an appeal and a wrong provision was mentioned in the appeal.

He further submitted that if a petition was filed mentioning wrong provisions, the same could be corrected at any time during the pendency of the petition and when it came to the knowledge of the election petitioner (respondent) that wrong provision has been mentioned, the amendment application was filed, which was duly allowed by the Sub Divisional Officer.

After perusing the documents on record, the court said, “The nature of the appeal cannot be changed into an election petition by simply mentioning the correct provisions.”

The court said that as per Rule 5 of the Rules, 1995 the pleadings were required to be verified in the manner laid down in the Code of Civil Procedure, 1908. However, in the instant appeal no verification was there in the appeal memo and thus, even by way of amendment the appeal could not be converted into a valid election petition.

“When the facts are not verified by affidavit, the petition cannot be treated as election petition. Similarly, the amount of security was not deposited by the respondent as per Rule 7 and therefore, the petition cannot be entertained and is liable to be rejected under Rule 8.”, the Court said.

Thus, the order passed by the SDO was set aside and the present petition was allowed.

Case Title: Smt. Chanchal Gupta Versus Smt. Rakhi Dhali, Writ Petition No. 27237 of 2022

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