NATHTHUJI SON OF CHUNNI v. DISTRICT JUDGE BETUL — 1980 DIGILAW 60 (MP)

JUDGMENT : ( 1. ) THIS is a revision by the applicant arising out of the election petition relating to the election to the Municipal Council, Betul, from Pratap ward No. II being Miscellaneous Case No. 18 of 1978 against the order, dated 19-12-1978, of the Court of the District Judge, Betul. This revision is under section 26 of the Madhya Pradesh Municipalities Act, 1961 (for short here-in-after referred to as the Act ). ( 2. ) THE short facts giving rise to this revision are these :-The general election for the constitution of Municipal Council, Betul was fixed on 15-7-1978. The Pratap Ward No. 11 was a reserved constituency. The applicant and the non-applicant No. 3 had filed their respective nomination papers for that election on 5-6-1978 and on 7-6-1978. On the date of scrutiny of the nomination papers, the Supervising Officer in exercise of his powers under Rule 13 (1) (v) of the Madhya Pradesh Municipalities (Preparation, Revision and Publication of Electoral Rolls, Election and Selection of councillors), Rules, 1962 (hereinafter referred to as the Election Rules)framed under section 29 of the Act, rejected both the nomination papers as invalid. ( 3. ) AGAINST the aforesaid rejection of his nomination papers, non-applicant No. 3, Gannu, had preferred an appeal to the Collector under rule 13 (2) (i) of the Election Rules, which was dismissed vide order dated 15-6-1978 of the Collector. From Pratap Ward No. 11 as only the applicant and respondent No. 3 had filed the nomination papers and both were rejected there being no duly nominated candidate for that Ward, the Collector in exercise of his powers under sub-rule (3) of Rule 14 of the Election Rules took steps to fill up the vacancy for notifying afresh programme of election for this ward. According to this programme, the election was held on 11-8-1978 in which the applicant was declared elected defeating non-applicant No. 3. This result of the election was duly notified in the Government Gazette on 1-9-1978 notifying that the petitioner was duly elected as Municipal Councillor for municipal Council from Pratap Ward No. 11. Thereafter the non-applicant no. 2, namely, Jagjit, filed the present election petition under section 20 of the Act in the Court of District Judge, Betul, challenging the election of the returned candidate on the ground that the nomination paper of non-applicant no. Thereafter the non-applicant no. 2, namely, Jagjit, filed the present election petition under section 20 of the Act in the Court of District Judge, Betul, challenging the election of the returned candidate on the ground that the nomination paper of non-applicant no. 3, Gannu for the earlier election which was scheduled to take place on 15-7-1978 was wrongly rejected; had the nomination paper not been rejected, the non-applicant No. 3 was entitled to be declared elected at that election from Pratap Ward No. 11 under Rule 14 (2) of the Election Rules and the election in question was not necessary. ( 4. ) THE applicant objected to the maintainability of the election petition on the aforesaid ground on the ground that on 15-7-1978 no election was held and as such there was no notification notifying the election that was to be held on 15-7-1978 and, therefore, in view of section 20 (3) of the Act, no election petition relating to that election could be filed and the ground raised by the non-applicant No. 2 could not be a ground for election petition challenging the election of the petitioner at the election that was held on 11-8-1978. ( 5. ) THE Court below vide the impugned order rejected the aforesaid preliminary objection holding that the petition was maintainable. ( 6. ) THE first question to be considered as a preliminary point in this revision is whether the impugned order is an interlocutory order and no revision as such lies against it in view of Rule 19 (1) of the M. P. Municipalities (Election Petition) Rules, 1962 (for short hereinafter referred to as (the Election Petition Rules) made under section 355 read with section 26 of the act. Rule 19 (1) reads as under :- "no petition by way of revision shall lie against any interlocutory order passed by the Judge. " On a plain reading of the aforesaid rule, it is clear that a revision against an interlocutory order is prohibited. Therefore, the moot question is whether the impugned order is an interlocutory order. Rule 19 (1) reads as under :- "no petition by way of revision shall lie against any interlocutory order passed by the Judge. " On a plain reading of the aforesaid rule, it is clear that a revision against an interlocutory order is prohibited. Therefore, the moot question is whether the impugned order is an interlocutory order. The language of Rule 19 (1) is in pari materia to the language employed in section 397 (2) of the Code of criminal Procedure, which reads as under :- " (2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceedings. " (emphasis supplied by me) ( 7. ) IN the context of sub-section (2) of section 397 of the Code of Criminal Procedure, a question had come up before their Lordships of the supreme Court in Madhu Limaye v. State of Maharashtra, 1978 MP L J 24 SC. wherein it was considered by their Lordships as to what orders can be categorised as an interlocutory order. The principle laid down by their Lordships capitalised in head-note a, the relevant part whereof is set out below:- "though ordinarily and generally the expression interlocutory order has been understood and taken to mean as a converse of the term final order such an interpretation and the universal application of the principle that what is not a final order must be an interlocutory order is neither warranted nor justified. If it were so it will render almost nugatory the revisional power conferred by section 397, Criminal Procedure Code. This does not seem to be the intention of the Legislature when it retained the revisional powers of the High Court in terms identical to the one in the 1898 Code though it put a bar in relation to interlocutory orders. In such a situation the real intention appears to be not to equate the expression "interlocutory order" as invariably being converse of "final order". There may be an order passed during course of a proceeding which may not be final but yet may not be interlocutory pure or simple. Some kinds of order may fall in between the two. In such a situation the real intention appears to be not to equate the expression "interlocutory order" as invariably being converse of "final order". There may be an order passed during course of a proceeding which may not be final but yet may not be interlocutory pure or simple. Some kinds of order may fall in between the two. The bar in section 397 (2) Criminal Procedure Code is not meant to be attracted to such kinds of intermediate orders though they may not be final orders for purposes of Article 134, Constitution of India. It is neither possible nor advisable to make an exhaustive list of such orders. But it would be just and proper to apply the same kind of test as is applicable under section 115, Civil Procedure Code to find out whether an order is "a case decided" for finding out the real meaning of the expression "interlocutory order" in section 397 (2), Criminal Procedure Code. The finality of the order is not to be judged by co-relating it with the controversy in the complaint. The fact that the controversy still remained is irrelevant. an order rejecting the plea of the accused on a point which when accepted will conclude the particular proceedings will surely not be an interlocutory order within the meaning of section 397 (2), Criminal procedure Code. " (emphasis supplied by me)In the light of the aforesaid decision of their Lordships of the Supreme Court, the question at hand has to be examined. It cannot be gainsaid that if the preliminary objection raised by the applicant about the maintainability of the petition is accepted will finally dispose of the petition as it cannot then proceed. In this view of the matter, it cannot be held that the impugned order is an interlocutory order. The revision, therefore, is entertainable under section 26 of the Madhya Pradesh Municipalities Act. ( 8. ) I now proceed to consider the merits of the preliminary objection. ( 9. ) THE material part of Section 20 for the present purpose reads as under:-"20. Election petition:- (1) No election or selection under Act shall be called into question except by a petition presented in accordance with the provisions of this section. (2) Such petition may be presented on one or more of the following grounds specified in section 22. ) THE material part of Section 20 for the present purpose reads as under:-"20. Election petition:- (1) No election or selection under Act shall be called into question except by a petition presented in accordance with the provisions of this section. (2) Such petition may be presented on one or more of the following grounds specified in section 22. xxx xxx xxx (3) No petition presented under sub-section (2) shall be admitted unless- (i) It is presented within thirty days from the date on which the result of such election or selection was notified in the Gazette;" On a plain reading of sub-section (1) along with clause (i) of sub-section (3)of the fore quoted Section 20 of the Act, it is obtainable that the following two conditions are the conditions precedent for the presentation of an election petition:- (1) There must be an election or selection at the election in question; and (ii) the election or selection in question must have been notified in the Gazette. ( 10. ) IN the instant case, it is an undisputed position that under the earlier election programme, on 15-7-1978, on account of the rejection of the nomination papers of all the candidates for the election, there was no election and consequently there was no occasion for notifying the result under that programme. As a sequel to this discussion regarding the election that was to be held under the earlier programme (hereinafter referred to as the earlier election), preceding the election in question, no election petition could be filed. The rejection of the nomination papers for that election was in the process of the earlier election. ( 11. ) NOW, in view of sub-section (2) of Section 20, an election petition can be filed on one or more of grounds enumerated in Section 22 of the Act. The language of sub section (2) indicates that the list of grounds enumerated in section 22 of the Act is an exhaustive list. In other words, an election cannot be challenged by way of an election petition on any ground which does not fall within the ken of Section 22 of the Act. The language of sub section (2) indicates that the list of grounds enumerated in section 22 of the Act is an exhaustive list. In other words, an election cannot be challenged by way of an election petition on any ground which does not fall within the ken of Section 22 of the Act. At this stage, it would be pertinent to set out the grounds:- (2) If the Judge is of the opinion :- " (a) that on the date of his election or selection a returned candidate was not qualified or was disqualified, to be chosen as a Councillor; (b) that any corrupt practice has been committed by a returned candidate or his agent or by any other person with the consent of a returned candidate or his agent; or (c) that any nomination paper has been improperly rejected; or (d) that the result of the election or selection, in so far as it concerns a returned candidate, has been materially affected- (i) by the improper acceptance of any nomination; or (ii) by the improper acceptance or refusal of any vote or reception of any vote which is void; (iii) by the non-compliance with the provisions of the Act or of any rules or orders made thereunder save the rules framed under section 29 in so far as they relate to preparation and revision of list of voters; He shall declare the election or selection of the returned candidate to be void. " The ground raised in the present petition to iterate is that the rejection of the nomination papers of non-applicant No. 3 for the earlier election was improper and had that not been rejected, non-applicant No. 3 would have been declared elected at that election and there would have been no vacancy necessitating the notification for the present election. Thus, substantially the prayer is that non-applicant No. 3 be declared elected as Councillor for Pratap Ward no. 11 of the Municipal Council, Betul. ( 12. ) THE ground of improper rejection of nomination paper contained in section 22 (2) (c) quoted here-in-above relates to the nomination paper for the election at which the returned candidate has been elected and not to the nomination paper or papers, as the case may be, relating to any other election. ( 13. ( 12. ) THE ground of improper rejection of nomination paper contained in section 22 (2) (c) quoted here-in-above relates to the nomination paper for the election at which the returned candidate has been elected and not to the nomination paper or papers, as the case may be, relating to any other election. ( 13. ) IT would also be relevant to consider as to whether the ground can be covered under Section 22 (2) (d) (iii ). ( 14. ) CLAUSE (d) of sub-section (2) of Section 22 provides that the election or selection of a returned candidate can be declared to be void on any of the three grounds specified in sub-clause (i) to (iii) subject to the proof that the result of the election, in so far as it concerns the returned candidate is materially affected. In other words, in dealing with the challenge to the validity of the election of the returned candidate under this section 22 (2) (d)it has to be noticed that the election petitioner has to prove not only the existence of one or the other of the grounds specified in sub-clause (i)- (iii)but he has also to establish that as a result of the existence of the said ground, the result of the election in so far as it concerns the returned candidate has been materially affected. The language employed in clause (d) of section 22 (2) of the Act clearly indicates that the non-compliance must relate to the election in which the returned candidate has been declared elected. In the instant case, the question whether the rejection of the nomination papers of non-applicant No 3 for the earlier election was in contravention of the provisions of the Act or the Rules is not a matter relating to the election in which the petitioner has been returned. The process of the present election, i. e. , the election at which the petitioner has been returned, started after the notification under Rule 13 (3) of the Election rules. Thus the ground raised is not covered under Section 22 (2) (d) (iii)of the Act also. ( 15. ) IN the result, the election petitioner namely the non-applicant No. 3 hear in in the light of the grounds raised by him had if any remedy it was not by way of election petition under Section 20 of the Act. Thus the ground raised is not covered under Section 22 (2) (d) (iii)of the Act also. ( 15. ) IN the result, the election petitioner namely the non-applicant No. 3 hear in in the light of the grounds raised by him had if any remedy it was not by way of election petition under Section 20 of the Act. In this view of the matter, in my opinion, the Court below was not right in deciding the preliminary question against the applicant herein. It ought to have held that the election petition under Section 20 of the Act was not maintainable and dismissed it only on this preliminary ground. ( 16. ) IN the light of what has been discussed here-in-above, this revision deserves to be allowed and is, accordingly allowed; the impugned order is set aside and the election petition of the non-applicant No. 2 is hereby dismissed. I make no order as to costs of this revision application. The security amount deposited be refunded. Revision allowed.