Research › Browse › Judgment

Madhya Pradesh High Court · body

1997 DIGILAW 143 (MP)

District Election Officer v. Ram Babu Dewalia

1997-03-14

D.P.S.CHAUHAN

body1997
ORDER D.P.S. Chauhan, J. 1. The revision is directed against the order dated 2.11.96 which is as extracted below:- 2.11.96 The learned counsel for the applicants submitted that the Election Tribunal has acted in an arbitrary manner illegally in the exercise of the jurisdiction. 2. An election petition was tiled by the non-applicant Ram Babu Dewalia challenging the election of Amarjeet from Ward No. 23, Municipal Council, Tikamgarh wherein the present applicants District Election Officer, Nagar Palika Parishad, Tikamgarh, Returning Officer, Nagar Palika Prishad, Tikamgarh and Sub-Divisional Officer & Registration Officer, Nagar Palika Parishad, Tikamgarh were made the respondents No. 6, 7 and 8 respectively. 3. The present revision is at the behest of the District Election, Officer, Nagar Palika Parishad Tikamgarh. Returning Officer, Nagar Palika Parishad, Tikamgarh and Sub-Divisional Officer & Registration Officer, Nagar Palika Parishad, Tikamgarh. The submission advanced is that Section 20 of the Madhya Pradesh Municipalities Act, 1961 (hereinafter referred to as the Act) provides for election petitions and sub-section (4) of Section 20 clearly provides that:- A petitioner shall join as respondents to his petition- (a) where the petitioner, in addition to claiming a declaration that the election or selection, as the case may be, of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidates has been duly elected or selected, all the contensting candidates other than the petitioner, and where no such further declaration is claimed., all the returned candidates: and (b) any other candidate against whom allegations of any corrupt practice are made in the petition. 4. Accordingly, the present applicants have been illegally impleaded as respondents, as, according to him, in sub-section (4) clauses (a) and (b) of word "candidate" means a candidate at the election and not other persons who are not the candidates at the election. In clause (b), the words "other candidate" have been used for the purpose of allegations of corrupt practice, as those person against whom allegations of corrupt practice are made; and when a declaration is sought that he himself or any other candidate has been duly elected or selected, then, all the candidates are to be made parties to the election petition, and where no such further declaration is claimed, all the returned candidates are to be made parties to the election petition. 5. 5. That where only such a declaration that the election be made void, and no such further declaration is claimed, then, all the returned candidates are to be made parties to the petition. 6. Learned counsel has relied on the case of Joti Basu V. Debi Ghosal, A.I.R. 1982 S.C. 983, when the Supreme Court has staled that- A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. 7. Learned counsel further submitted that impleadment or non-impleadment, so far as the applicants are concerned, for the present, would not be material if the operation of the impugned order which directs the applicants to tile Written Statement is stayed, in view of the provision of Section 20 (4) which provides that the persons who are not mentioned in Section 20 (4), are not to be impleaded as respondents. 8. In para 11 of the said Report of the Supreme Court, the Court has said that- The Parliament has expressly provided that an opportunity should be given to a person who is not a candidate to show cause against being 'named' as one guilty a corrupt practice, Parliament, however has not thought fit to expressly provide for his being joined as a party to the election petition either by the election-petitioner or at the instance of the very person against whom the allegations of a corrupt practice are made. The right given to the latter is limited to show cause against being 'named' and that right opens up for exercise when, at the end of the trial of the election petition notice is given to him to show cause why he should not be 'named'. The right docs not extend to participation at all stages and in all matters, a right which he would have if he is joined as a party at the commencement. 9. It is not the stage to express any opinion in the matter. But, so far as the present applicants are concerned, their impleadment is not in accordance with law. 10. 9. It is not the stage to express any opinion in the matter. But, so far as the present applicants are concerned, their impleadment is not in accordance with law. 10. When the persons cannot be made as respondents, they cannot be compelled to file their written statement at the stage when lies is between the successful and non-successful candidates and even the issues have not been decided, as is stated by the learned counsel. 11. The learned counsel for the applicants submitted that the revision petition is maintainable in view of Rule 19 of the Madhya Pradesh Municipalities (Election Petition) Rules. 1962 and submitted that no petition by way of revision shall lie against any interlocutory order passed by the Judge. Rule 19 is as extracted below:- 19. Revision - (1) No petition by way of revision shall lie against any interlocutory order passed by the Judge. (2) At the time of presentation of the petition for revision under sub-section (2) of Section 26 against the decision of the Judge, the petitioner shall deposit with the High Court a sum of Rs. 250/- as security for the costs of the revision. If the provisions of this rule are not complied with, the High Court dismiss the petition. Apart from this, the learned counsel submitted that Section 26 of the Act prohibits the filing of the appeal but provides for a revision against the decision of the Judge. The decision means the decision in the election petition. Even otherwise, the power under the rule cannot go beyond the scope of the provisions of the enactment itself on the ground that stream cannot go higher than the source. 12. The revision is not maintainable. But, the impugned order is without jurisdiction in so far as it directs the applicants to file Written Statement, who are, under the law, not to be made parties. The impugned order, in exercise of suo moto power, is quashed, without prejudice to the rights of any of the parties, in the election petition. Ordered accordingly. Revision is disposed of. Petition dismissed