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2002 DIGILAW 825 (MP)

Jamuna Prasad v. Harinarayan

2002-09-02

A.K.MISHRA

body2002
ORDER 1. Election petition filed by the petitioner has been dismissed as per order P-4 passed by the SDO on 19.12.2001. On the ground of non-joinder of other contesting candidates. 2. The propriety of the order P-4 is questioned by the petitioner on the ground that the petitioner has not prayed for declaration that he himself or another candidate has been duly elected, as such, it is not necessary for him to join all contesting candidates as per rule 4 of the M.P. Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995. 3. Petitioner filed an election petition P-1 before the prescribed authority SDO, Sehore for setting aside the election of Shri Harinarayan respondent No. 1 who was elected as Sarpanch of Gram Panchayat, Badkheda Kharet, Tehsil and District Sehore. The solitary ground on which the election of respondent No. 1 has been challenged is that he was holding the post of Chairman of Sewa Sahakari Samiti Maryadit, Doraha, hence, could not contest the election as per provision of sub-section (1) of section 17 of the M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993. Clause (iii) of sub-section (1) of section 17 provides that in every Gram Panchayat there shall be a Sarpanch and an Up-Sarpanch. A person who is not Chairman or Vice-Chairman of Cooperative Society, shall be elected as a Sarpanch. Petitioner submits that prayer has been made only to quash the election of respondent No.1. No prayer has beer made to declare the election petitioner as winning candidate and no such prayer has been made in favour of any other contesting candidate. Hence, the order of dismissal of election petition by SDO m per order P-4 is in contravention of rule 4 of the Rules. 4. Counsel for the respondent No. 1 submits that when election has been called to question of the post of Sarpanch as per section 122 of the Act r/w rule 4 of the Rules, it was necessary to have impleaded all the contesting candidates. Thus, the impugned order calls for no interference. 5. 4. Counsel for the respondent No. 1 submits that when election has been called to question of the post of Sarpanch as per section 122 of the Act r/w rule 4 of the Rules, it was necessary to have impleaded all the contesting candidates. Thus, the impugned order calls for no interference. 5. The only question for consideration in the instant writ petition is whether in an election petition filed u/s 122 of the M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 it is necessary to array as parties all the contesting candidates when declaration has not been sought in favour of election petitioner to declare himself as elected or any other contesting candidate as having been elected in place of elected candidates. 6. Section 122 of the Panchayat Raj Evam Gram Swaraj Adhiniyam, 199 reads as under: 122. Election petition. -- (1) A election under this Act shall be called in question only by a petition presented in the prescribed manner -- (i) in case of Gram Panchayat or Gran Sabha to the Sub-Divisional Office Revenue; (ii) in case of Janpad Panchayat to the Collector; and (iii) in case of Zila Panchayat to the Divisional Commissioner and no otherwise. (2) No such petition shall be admitted unless it is presented within thirty days from the date on which the election in question was notified. (3) Such petition shall be inquired into or disposed of according to such procedures as may be prescribed." 7. Rule 4 of the Election Petition Rules is relevant, which reads as under: "4. Parties to the petition -- Where the petitioner, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, he shall join as respondents to his petition all the contesting candidates at the election." 8. A bare reading of rule 4 of the Rules makes it clear that it is necessary to add all the contesting candidates as respondents to the election petition, only when a declaration has been prayed by the election petitioner that he himself or any other candidate has been duly elected, in addition to the prayer that election of returned candidate is void. In the instant case, it is clear from memo of election petition P-1 that the petitioner has prayed only a declaration that election of returned candidate is void. A further declaration has not been prayed that he himself or any other candidate has been duly elected. Thus, in my opinion, it is not necessary to implead all the contesting candidates at the election in the election petition. It is only the returned candidate whose election has been chal1enged, who has to be impleaded as respondent. Thus, in my opinion, the interpretation put by the learned SDO on rule 4 is not permissible. 9. Writ petition is allowed. The impugned order P-4 is set aside. The election petition is ordered to be restored and tried in accordance with law by the SDO expeditiously and to be decide, within four months from today. Costs on parties.