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2006 DIGILAW 1009 (MP)

SANJU BAI v. GANGA DEVI PIPPAL

2006-08-24

P.K.JAISWAL

body2006
Judgment ( 1. ) THIS revision application has been filed by Smt. Sanju Bai who is non-applicant No. 7 in the election petition, challenging the order dated 7-3-2006 passed by First Additional District Judge, Mungawali, District Guna in Election Petition No. 1/2005, whereby learned Additional District Judge set aside the election of the respondent No. 2 who was elected in the office of president, Municipal Council Chanderi on the ground that at the time of filing of nomination form she did not complete 25 years of age which is required in section 34 (1) (a) of the M. P. Municipalities Act, 1961 (in short "the Act") and she was not eligible for election as President under Section 35 (dd) of the Act. ( 2. ) LEARNED Additional District Judge while setting aside the application of the respondent No. 2 further declared the respondent No. 3 Smt. Sushila Koli as President of Municipal Council Chanderi and allowed the election petition filed by respondent No. 3. ( 3. ) BRIEF facts of the case are that the respondent No. 3- Ramesh chandra filed an election petition under Section 20 (2) (b) (iii) of the Act, challenging the election of the respondent No. 2 Smt. Usha Bai under Section 22 (1) (a) and (d) of the Act and prayed for declaration to declare the respondent no. 4 Smt. Sushila Koli as President of Municipal Council Chanderi under section 24 (1) (c) of the Act. The petitioner who is non-applicant No. 7 in the election petition submitted her reply and supported the election petition filed by the respondent No. 3. Copy of the reply is filed by the respondent No. 4 along with the application for dismissal of revision is marked as Annexure a-2:-The election petition was allowed by the impugned order dated 7-3-2006. ( 4. ) THE respondent No. 2 challenged the impugned order by filing revision application under Section 26 (2) of the Act vide Civil Revision no. 44/2006. The respondent No. 2 in the said Civil Revision has not deposited the security amount of Rs. 250/-, which is mandatory requirement of Rule 19 (2)of the M. P. Municipalities (Election Petition) Rules, 1962 and thereafter, the objection was raised regarding maintainability of the revision application. The matter was referred to the Larger Bench. The Larger Bench after considering the objection came to the conclusion that requirement of deposit of Rs. 250/-, which is mandatory requirement of Rule 19 (2)of the M. P. Municipalities (Election Petition) Rules, 1962 and thereafter, the objection was raised regarding maintainability of the revision application. The matter was referred to the Larger Bench. The Larger Bench after considering the objection came to the conclusion that requirement of deposit of Rs. 250/- as a security deposit in a revision under Section 26 of the M. P. Municipalities Act, 1961 is a mandatory provisions and failure to deposit the said amount will result in dismissal of the revision and subsequent deposit of the said amount will not help the petitioner as that cannot be treated as compliance of Rule 19 (2) of election Rules. Reference is answered accordingly. ( 5. ) THE respondent No. 2 on 8-5-2006 prayed for withdrawal of the revision which was disposed of without giving any liberty by holding that for filing a fresh petition no liberty is required. ( 6. ) LEARNED Counsel for respondent No. 4 filed an application vide I. A. No. 10929/06, for dismissal of the revision on the ground that petitioner in the present petition is not the person aggrieved and no revision is maintainable under Section 26 (2) of the Act. ( 7. ) HEARD the arguments of the parties on the question whether revision application filed by the petitioner who is non-applicant No. 7 in the election petition and who supported the stand of the petitioner by filing his reply can challenge the impugned order dated 7-3-2006 and whether she is the person aggrieved and comes within the purview of Section 26 of the Act. The provisions of Section 26 of the Act reads as under:- "26. Finality of decision.- (1) No appeal shall lie against the decision of the Judge on the petition. (2) Any person aggrieved by the decision of the Judge on the petition may, within thirty days from the date of such decision, apply to the High Court for revision on any of the following grounds :- (a) that the decision is contrary to law; (b) that the Judge has exercised jurisdiction not vested in him by law or has failed to exercise a jurisdiction vested in him by law, but subject to such orders as the High Court may pass thereon, such decision shall be final. " ( 8. ) LEARNED Counsels for respondent Nos. " ( 8. ) LEARNED Counsels for respondent Nos. 3 and 4 submitted that petitioner is not the person aggrieved and since she supported the stand of respondent No. 3, and therefore, she does not come within the purview of sub-section (2) of Section 26 of the Act and revisional jurisdiction does not confer the vested right and revision does not confer any substantive vested right, and therefore, it cannot be said that she is the person aggrieved and the present revision is filed at the instance of respondent No. 2. In C. R. No. 44/06 filed by respondent No. 2 an objection was raised regarding maintainability because security amount was not deposited along with the revision. In the said revision without granting any liberty revision petition was disposed of. Thereafter, the petitioner at the instance of respondent No. 2 filed this revision application. ( 9. ) LEARNED Counsel for the respondent Nos. 3 and 4 drew my attention to the decision of this Court in the case of Madanlal Tiwari Vs. The superintendent and Manager, The Bengal Nagpur Cotton Mills Ltd. , rajnandgaon, AIR 1964 MP 297 , in which this Court has held that an agent of a disclosed principal or class of principals cannot initiate proceedings when the parties are not before the Court. In Vasistha Narain Singh Vs. Kandhari Lal, 177 IInd Cas. 138 (Pat.), it has been held that person who is not aggrieved by an order cannot apply for revision against the order. The Apex Court in the case of thammanna Vs. K. Veera Reddy and others, (1980) 4 SCC 62 , in which an election petition filed by respondent No. 7, a defeated candidate, challenging the election of respondent No. 1, all candidates who had filed their nominations, including the appellant, were joined as respondents. The petition was contested by respondent No. 1 only. The appellant neither filed any written statement, nor led any evidence, nor cross-examined the witness produced by respondent No. 1 or the election petitioner, nor participated even in the arguments. The High Court dismissed the petition and the appellant filed an appeal to Supreme court. A preliminary objection was raised by respondent No. 1 in the appeal that the appellant had no locus standi to maintain the appeal since he was not a person aggrieved or a party adversely affected by the judgment of the High court. The High Court dismissed the petition and the appellant filed an appeal to Supreme court. A preliminary objection was raised by respondent No. 1 in the appeal that the appellant had no locus standi to maintain the appeal since he was not a person aggrieved or a party adversely affected by the judgment of the High court. The Honble Supreme Court allowed the preliminary objection and dismissed the appeal and held that normally, "a person aggrieved must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something, or wrongfully affected his title to something". The Apex court held that the appellant cannot, by any reckoning, be said to be a person aggrieved by the decision of the High Court, dismissed the appeal by allowing the preliminary objections. ( 10. ) HERE in the present case the petitioner by filing written statement supported the stand of respondent No. 3 in the election petition now cannot withdraw her stand and contrary to the stand taken by her in her written statement can challenge the impugned order by saying that she is aggrieved by the impugned order. The admission made by the petitioner in her written statement is binding against her and she cannot be permitted to change her stand in this revision application, and therefore, it cannot be said that she is a person aggrieved and comes within the purview of Section 26 (2) of the Act. ( 11. ) ON the other hand learned Counsel for the petitioner in reply to the said arguments submitted that under the Act no declaration can be made by the learned Additional District Judge to declare the respondent No. 3 as President of Municipal Council, Chanderi and therefore, petitioner is the person aggrieved. He also placed reliance on the decision of this Court in the case of chhotelal Vs. Shyam Kishore, 1999 (2) MPLJ 706 , and submitted that if there are more than two candidates and one candidate is disqualified by the election then in such a case the election can only be set aside, and therefore, declaration made by the Trial Court, electing the respondent No. 4 as a President is wholly illegal and petitioner is aggrieved by the said action. The said arguments of the learned counsel for the petitioner is contrary to the reply and stand taken by the petitioner before the Trial Court, and therefore, I am not impressed by the arguments advanced by the learned Counsel for the petitioner and since petitioner is not the person aggrieved, and therefore, the revision application filed by the petitioner is not maintainable and the same is liable to be dismissed. ( 12. ) ACCORDINGLY, LA. No. 10929/06 is allowed. The revision filed by the petitioner is dismissed as not maintainable. No costs.