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2004 DIGILAW 1012 (PAT)

Ram Prakash Thakur v. State Of Bihar

2004-09-22

R.S.GARG

body2004
Judgment R.S.Garg, J. 1. Heard learned counsel for the petitioner, learned counsel for the State and learned counsel for the respondent No. 9. 2. It appears that election case No. 9 of 2001 was tiled by one Ram Narain Yadav, who is respondent No. 9 in the matter and election case No. 10 of 2001 has been filed by respondent No. 7, Devendra Yadav. The respondent No. 7, Devendra Yadav, made an application in election matter that he be allowed to withdraw the election petition. The application was opposed by respondent No. 9, submitting inter alia that looking to the nature of the allegation the election petitioner could not be allowed to be withdrawn. He, however, also made an application that he be allowed to be transposed from his capacity, as a defendant to the arrary of the election petition. The learned Court below after hearing the parties and taking into consideration that election of the present writ petitioner has also been impugned in election case No. 10 of 2001, rejected the application for withdrawal of the election petition and allowed the application for transposition. 3. Being aggrieved by the said order the returned candidate, Ram Prakash Thakur is before this Court. 4. Learned counsel for the petitioner, referring to Rule 112 of the Bihar Panchayat Election Rules, 1995 submits that an election petition cannot be withdrawn without the leave of the Court and if there are more than one plaintiffs then consent of all would be needed, but as there is no power in election Court for transposition, on application filed by one of the defendants he could not be allowed transposition. 5. Learned counsel for the respondent No. 9 has opposed the writ application. He submits that in his election petition the election has been challenged with a prayer that re-count be allowed while in the election case filed by Devendra Yadav the election has been challenged on the ground of illegal reception of the nomination papers. He submits that in a matter of election every person is interested in the outcome of the result and in case of re-count so also in a case of illegal reception of a nomination every person who had submitted his candidature would be widely interested. He submits that the Court below was absolutely justified in allowing transposition. 6. He submits that in a matter of election every person is interested in the outcome of the result and in case of re-count so also in a case of illegal reception of a nomination every person who had submitted his candidature would be widely interested. He submits that the Court below was absolutely justified in allowing transposition. 6. True it is that Rule 112 says that an election petition cannot be withdrawn without the order of the Court and in case there are more than one petitioners then consent of all would be needed. It is also true that neither Rule 112 nor any other provision of law provides that one defendant can be transposed as plaintiff, but if the law is seen in its true perspective it would clearly appear from the scheme of the Act that the Court in granting permission for withdrawal relies upon the interest of such election petitioner and in case the Court refuses permission then the Court finds that present would not be a case for withdrawal of the election petition. In a given case if the Court does not allow withdrawal of the election petition and on a subsequent date the election petitioner does not appear in Court then the Court is compelled to dismiss the election petition in default, and virtually the very same purpose is achieved by remaining absent which could not be achieved under Rule 112. The rules are hand-maids of substantive provisions. The rules would not be allowed to be interpreted in a manner which causes loss or violate substantive provisions. The law ordinarily says that when an election petition is filed it should be brought to its logical end. In an election petition allegations are made either against the returned candidate or against the officers of the State Government or the returning officer and if such an election petition is allowed to be withdrawn then virtually such a withdrawal would allow all such things to remain buried of all times to come. In a given case where the reception of the nomination papers has been seriously objected and such objection if is upheld it would lead to setting aside the election of the returned candidate then transposition of any of the defendants would be in accordance with law. In a given case where the reception of the nomination papers has been seriously objected and such objection if is upheld it would lead to setting aside the election of the returned candidate then transposition of any of the defendants would be in accordance with law. A returned candidate cannot be allowed to win over the petitioner, ask him to withdraw the election petition and thereafter raise objection that the election petition should not be allowed to be continued at the instance of some person who is interested in the outcome of such an election petition. 7. Even otherwise it is to be seen that if the same relief is sought in two election petitions then both the matters can be consolidated. The question whether the nomination papers were illegally received or the matter in relation to re-count is to be allowed if are to be agitated simultaneously then after consolidation, the election petition i.e., respondent No. 9 can always be allowed to raise all these disputes and prove the issues which have been raised in the election petition of Devendra Yadav. In any case, I find no reason to interfere in the matter. The Court below was absolutely justified in rejecting the application and permitting transposition of respondent No. 9 as a plaintiff in the election petition. 8. Taking into consideration the totality of the circumstances and exercising my powers under Art. 226 of the Constitution of India, I hereby direct the learned trial Court to consolidate both the matters and allow all the parties to lead evidence on all the issues cast in both the matters. The Court below shall dispose of both the election petitions by a common judgment. 9. The petition on the merits is dismissed, but however, with the further direction as aforesaid.