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Madhya Pradesh High Court · body

2002 DIGILAW 637 (MP)

Seema Gupta v. Sub-Divisional Officer

2002-07-08

A.K.MISHRA

body2002
ORDER 1. Petitioner submits that the SDO is proceeding with the election petition though the requisite amount of security has not been deposited. Election petition has not been filed as required under Rules, nor issues have been framed. An order of recount has been passed as per order Annexure P-6 dated 30.4.2002. It is also the grievance that due opportunity of hearing has not been granted. Witnesses have not been examined which were proposed to be examined by the petitioner. Petitioner placed reliance on Division Bench decision of this Court in Babulal Kaluram Kirar and anr. v. State of M.P. [ 1985 JLJ 644 = 1985 MPLJ 411 ] to contend that deposit of security at the time of filing of petition is mandatory. Petitioner submits that only a security of Rs.250/has been deposited, not Rs.500/- which is required under the rule 7 of the Rules. 2. Respondent No. 2 in the return submits that this is the third round of writ petition before this Court. Initially order of recount was passed by the prescribed authority on 11.9.2000, which was challenged before this Court in WP No. 5448/2000 (Smt. Seema Gupta v. State of M.P.) which was decided on 18.1.2001. The prescribed authority was directed to decided the application for recount after affording opportunity if hearing to the parties and after giving them opportunity to adduce evidence in that regard. Another writ petition WP No. 1198/2002 was filed by Smt. Usha Singh v. State of M.P. and others, which was decided at the motion hearing stage on 6.3.2002. The prescribed authority was directed to decide the election petition within a period of two months, which period was extended on 13.4.2002. The witnesses have been examined. Enquiry has been conducted. Order of recount has been property passed and no interference is called for in the writ jurisdiction of this Court: The order. Annexure- RI2-1 passed by this Court in WP No. 1198/2002 has been placed on record. 3. A rejoinder has been filed by the petitioner contending that ground has been raised that security has not been deposited of Rs.500/- . Rule 7 of the M.P. Panchayats (Election Petitions, Corrupt Practices and Disqualification of Membership) Rules, 1995, requires deposit of security of Rs.500/-. Thus, rule 3 has been violated, so also rule 7. Rules 3 and 7 have not been complied with. Rule 7 of the M.P. Panchayats (Election Petitions, Corrupt Practices and Disqualification of Membership) Rules, 1995, requires deposit of security of Rs.500/-. Thus, rule 3 has been violated, so also rule 7. Rules 3 and 7 have not been complied with. Earlier an objection raised by the petitioner that copy of the election petition supplied to the petitioner was not signed by the petitioner, has been dealt with as per order dated 2.8.2000 which objection was rejected on the ground of having been raised balatedly. 4. Learned counsel for the petitioner submits that the objection as to rule 7 of deposit of security goes to the root of the matter and petitioner has raised in para 10 of the written statement an objection that the petitioner has not averred in the election petition that how much security he has deposited and on which date. Thus, it was incumbent upon the SDO to have framed issue on that count and to decide the matter before proceeding further with the election petition. 5. Shri Prashant Singh, learned counsel for the petitioner, submits that no specific objection as to security has been raised by the petitioner before SDO at any point of time, now faced with the situation of order of recount, this objection has been taken belatedly, which cannot be allowed to be raised in the writ petition, that too by way of a plea taken in rejoinder. 6. After hearing learned counsel for the parties, in my opinion, the objection as to the security goes to the root of the matter and very maintainability of petition and it was incumbent upon the authority itself to have framed an issue on that count and to treat the same as preliminary issue. Rule 7 prescribes deposit of security" of Rs.500/- which has not been deposited as the petitioner deposited only Rs.250/- as security Petitioner has also raised this objection in the written statement that election petitioner has not specified the amount of security which he had deposited and the date of its deposit, that is sufficient objection raised about the amount of security which has to be deposited by petitioner; even in the absence of such an objection, it is for the prescribed authority to record the satisfaction about rule 7, rule 3 and thereafter to proceed with the election petition. The objection as to deposit of security is substantial in nature. The objection as to deposit of security is substantial in nature. The SDO is directed to frame issue on that count and before proceeding further, decide it as a preliminary issue, only thereafter to proceed further in the matter. It is made clear that the life of an order of recount is dependent upon the determination of the preliminary issue as to deposit of security to be struck by the SDO and issue be decided as preliminary issue before proceeding further in the matter. Let the SDO decide this issue within one month from today. 7. Writ petition is disposed of with the aforesaid directions Costs on parties. C.C. as per rules.