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2004 DIGILAW 453 (PAT)

Chandreshwar Sah v. State Of Bihar

2004-04-21

CHANDRAMAULI KR.PRASAD

body2004
Judgment Chandramauli Kr.Prasad, J. 1. This application has been filed for quashing the order dated 29.9.2001 passed by the Munsif, 1st, Hajipur in Election Petition (T.S.) No. 68 of 2001 whereby the application filed by the petitioner for dismissal of the application for non-joinder of necessary party has been rejected. 2. Short facts giving rise to the present application are that the petitioner, hereinafter referred to as the returned candidate, has been elected as Mukhiya of Awdharware Panchayat on 23.4.2001. In the said election, respondent no. 5 (hereinafter referred to as election petitioner), was also a candidate. He filed application challenging the slection of returned candidate before the Munsif-I, Vaishali at Hajipur which was registered as Election Petition (T.S.) No. 68 of 2001. The relief sought for by the election petitioner in the said election petition was to declare him to have been duly elected to the office of the Mukhiya of the Gram Panchayat and the returned candidates election null and void. 3. During the pendency of the election petition, the returned candidate filed application for dismissal of the election petition on the ground that other candidates who had contested the election were not made party. By the impugned order, his prayer has been rejected. 4. Mr. Gupta appearing on behalf of the returned candidate submits that besides the relief of declaring the election of the returned candidate null and void, the election petitioner had also sought for the relief that he may be declared to have been duly elected and as such all the contesting candidates were necessary party, hence learned Munsif erred in rejecting the prayer of the returned candidate to dismiss the election petition. In support of his submission he has placed reliance on a judgment of this court in the case of Md. Zakir Hussain vs. Hareshwar Prasad Singh and others 2001 (4) RL.J.R. 713 and my attention has been drawn to para-14 of the judgment which reads as follows: "Once the plea of the election petitioner that results of the election were adversely affected because of wrong counting or wrong rejection of the votes, is accepted and the court proposes to infringe the secrecy of the franchise, then, not only the votes cast in favour of the election petitioner are to be recounted but the votes cast in favour of the other candidates will also have to be seen. Today no body knows about the final result of the election petition. In a case like present where the election petitioner has made allegation of corrupt practices and has also asked for recounting of votes in the opinion of this Court every person who contested the election would be necessary party." 5. Mr. Thakur, however, appearing on behalf of respondent no. 5 submits that no relief has been sought for against other candidates who had contested the election and as such, they are not necessary party. According to his submission, the matter stands concluded by the judgment of this Court dated 4.7.2002 passed in C.W.J.C. No. 15167 of 2001 (Chandreshwar Sah vs. The State of Bihar & Ors.) and my attention has been drawn to the following passage from the said judgment : "In the matter in hand the case of respondent no. 5 is that the votes polled at booth nos. 286 and 290 were wrongly cancelled and a prayer is made that the votes polled at those two booths may also be taken into reckoning. Moreover, it is to be seen that the objection was raised by the petitioner before the Munsif at a stage in the proceeding when his written statement was yet to be accepted and the issues were yet to be framed. In those circumstances, I am satisfied that the order passed by the Munsif does not suffer from any infirmity so as to warrant any interference in a writ proceeding. This writ petition is accordingly dismissed." 6. Having considered the rival submission, I find substance in the contention of Mr. Gupta. Here the election petitioner had not only prayed for declaring the election of the returned candidate as void but had also sought for a declaration that he has been elected. In such circumstances, all other contesting candidates were necessary party. The view which l have taken, finds support from the judgment of this Court in the case of Md. Zakir Hussain (supra). 7. Now, referring to the decision in the case of Chandreshwar Sah (supra) relied upon by Mr. Thakur, the same is clearly distinguishable. From going through the facts of the case, it is not clear as to what relief the election petitioner had sought for in the said case and in the background of the same, this Court found the decision in the case of Md. Thakur, the same is clearly distinguishable. From going through the facts of the case, it is not clear as to what relief the election petitioner had sought for in the said case and in the background of the same, this Court found the decision in the case of Md. Zakir Hussain (supra) to be distinguishable. Here, in the present case the election petitioner has sought declaration that he has been duly elected as the Mukhiya of the Gram Panchayat. In such a situation, all other persons who had contested the election, were necessary party. 8. The view which I have taken, however, will not entail the dismissal of the entire election petition. As stated earlier, the election petitioner had also prayed for declaration of the result of the returned candidate to be void. For that purpose, other candidates may not be necessary party and hence the election petitioner pressing the said relief the learned Munsif shall proceed to dispose of the petition only in relation to the said relief. 9. In the result, the application is partly allowed and the learned Munsif, who is in seisin of the matter, shall proceed to dispose of the election petition bearing in mind the observation aforesaid. No cost.