Research › Search › Judgment

Madhya Pradesh High Court · body

2007 DIGILAW 1083 (MP)

MOHAMMAD ISHA v. VASUDEO NEBHNANI

2007-10-04

ABHAY M.NAIK

body2007
Judgment ( 1. ) RESPONDENT No. 1 was elected as Sarpanch of Gram panchayat Harda, Tahsil Nepanagar, District Burhanpur. Result of election was declared on 29-1-2005. On 18-2-2005, an Election Petition was submitted by the present petitioner against respondent No. 1. In the reply, respondent No. 1 raised an objection on account of non-joinder of respondents No. 2 and 3, who were stated to be candidates in the said election. Faced with this situation, election petitioner submitted an application on 5-5-2005 under Order 6, Rule 17 of Code of Civil Procedure for impleadment of respondents No. 2 and 3. Learned Sub divisional Officer vide his order dated 27-6-2005 allowed the application and permitted the election petitioner to join them in the Election Petition. Aggrieved by the said order which is marked as Annx. P/3, a revision application was submitted by respondent No. 1 before the Collector Burhanpur, who vide his order dated 6-2-2006 contained in Annx. P/5, allowed the revision application and set aside the order marked as Annx. P/3. ( 2. ) AGGRIEVED by the aforesaid, the election petitioner has preferred the present writ petition. ( 3. ) SHRI Vinod Mehta, learned Govt. Advocate, submitted at the outset that the order of allowing application for amendment contained in Annx. P/3 could not have been challenged before the Collector and the same could be assailed only under Article 227 of the Constitution of India. ( 4. ) THE Madhya Pradesh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995, provides for Election petitions and the procedure for deciding the same. Rule 23 lays down that at the conclusion of the enquiry specified officer shall make an order dismissing the election Petition; or declaring the election to be void; or any other candidate to have been duly elected. This provision empowers the specified officer to make an order only at the conclusion of the enquiry. Thus, it obviously, does not deal with the power of the specified officer to pass interlocutory orders. Rule 25 further lays down that the decision of the specified officer shall be final. Conjoint reading of Rule 23 and 25 makes it clear that the decision which is rendered after conclusion of the enquiry by specified officer shall be final and the same may not be challenged in appeal or revision. ( 5. Rule 25 further lays down that the decision of the specified officer shall be final. Conjoint reading of Rule 23 and 25 makes it clear that the decision which is rendered after conclusion of the enquiry by specified officer shall be final and the same may not be challenged in appeal or revision. ( 5. ) SECTION 91 of the M. P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993, is as follows :- "91. Appeal and Revision.- An appeal or revision against the orders or proceedings of a Panchayat and other authorities under this Act, shall lie to such authority and in such manner as may be prescribed. " Section 95, of the said Act enables the State Government to make rules. In exercise of this power, the M. P. Panchayats (Appeal and Revision) Rules, 1995, have been framed. Relevant position of Rules 3 and 5 of the Rules of 1995 are reproduced below :- "3. Appeal and appellate authorities.- Save where it has been otherwise provided in the Act or rules or bye-laws made thereunder, an appeal shall lie - (a) in the case of an order passed by the Sub Divisional Officer under any provision of the Act or rules or byelaws made thereunder-to the collector. (b) in the case of an order passed by the Collector under any provision of the Act or rules or bye laws made thereunder to the Commissioner. (c) in the case of an order passed by the Commissioner or Director of panchayats to the State Government. (d) in the case of an order passed by the Panchayat specified in Column (1) of the Table below to the authority specified in the corresponding entry in column (2) thereto. TABLESAURAS0_547_MPLJ1_2008.HTM 5. Revision.- (1) (a) The State Government, the Commissioner, the director of Panchayat, the Collector may on its/his own motion or on the application by any party, at any time for the purpose of satisfying itself/himself as to the legality or propriety of any order passed by or as to the regularity of the proceeding of, the authority subordinate to it/him call for and examine the record of any case pending before, or disposed of by such authority and may pass such order in reference thereto as it/he may think fit. " ( 6. " ( 6. ) BY virtue of Rules 23 and 25 of the Madhya Pradesh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995, it has already been found that it is only the final decision in Election petition which is not amenable to the appellate or revisional jurisdiction and the same may be challenged under Article 227 of the Constitution of India. However, this would not be a position with the interlocutory orders passed in the cases of election Petition, since they will not be governed by sections 23 and 25. Election petitions are liable to be entertained and try S. D. O. (Revenue), Collector and divisional Commissioner, as the case may be, by virtue of section 122 of M. P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993. Since there is no contrary provision, there seems to be no reason why an interlocutory order passed in the case of Election Petition may not be challenged in an appeal or revision as the case may be. Accordingly, the objection of Shri Vinod Mehta, Govt. Advocate, is hereby, rejected. ( 7. ) SHRI Riyaz Mohd. learned counsel contended that the application amendment was rightly allowed and learned revisional authority has committed an illegality in setting aside the order dated 27-6-2005. ( 8. ) IT may be seen that result of election was declared on 29-1-2005 and the election Petition was submitted on 18-2-2005 which was within the limitation. An Election Petition is liable to be submitted within 30 days from the date of notification of the election as prescribed in sub-section (2) of section 122 of m. P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993. Thus, in view of the provision of limitation, respondents No. 2 and 3 could not be added and the election Petition could have become incompetent after expiry of 30 days. Thus, in view of the provision of limitation, respondents No. 2 and 3 could not be added and the election Petition could have become incompetent after expiry of 30 days. Honble Supreme Court of India in the case of Pirgonda Hongonda Patil vs. Kalgonda Shidgonda Patil and others, AIR 1957 SC 363 has held :- "it is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. " Result of the election was notified on 29-1-2005 whereas, the application for amendment was submitted on 5-5-2005 for seeking leave to join the two candidates of the election, namely, Kailash and Prabhu. Since, the limitation of 30 days from the date of result of election has been prescribed, an Election petition against the aforesaid persons respondents No. 2 and 3 herein would be barred by limitation on the date of presentation of the application for their joinder by way of amendment. In this view of the matter, the amendment proposed by the Election Petitioner could not have been allowed and appears to have been and is found to have been rightly rejected. ( 9. ) HOWEVER, Shri Riyaz Mohd. learned counsel made a forceful contention that respondents No. 2 and 3 herein had withdrawn from the election and they were not liable to be impleaded. In this view of the matter, it is contended by learned Advocate that absence of these two persons will not affect the proceedings of the Election Petition and the same is liable to be adjudicated upon on merits. Rule 4 of the Madhya Pradesh Panchayats (Election Petitions, Corrupt practices and Disqualification for Membership) Rules, 1995, may be referred for this purpose which requires the Election Petitioner to join as respondents in the election Petition all the contesting candidates at the election. Rule 4 of the aforesaid Rules is reproduced below for convenience :-"4. Rule 4 of the Madhya Pradesh Panchayats (Election Petitions, Corrupt practices and Disqualification for Membership) Rules, 1995, may be referred for this purpose which requires the Election Petitioner to join as respondents in the election Petition all the contesting candidates at the election. Rule 4 of the aforesaid Rules is reproduced below for convenience :-"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. " ( 10. ) IN the application for amendment marked as Annx. P/2, the petitioner has clearly averred that respondents No. 2 and 3 had submitted their nomination papers for the post of Sarpanch of Gram Panchayat Harda, but they had withdrawn their names from the election. This fact has not been refuted either by any of the parties to the Election Petition or by the Presiding Officer dealing with the Election Petition. ( 11. ) RULE 37 of the M. P. Panchayat Nirvachan Niyam, 1995 lays down a procedure for withdrawal of candidature. This provision is reproduced below for convenience :- "37. Withdrawal of candidature.- (1) Any candidate may withdraw his candidature by delivering an application in Form 6 to the Returning officer on the date and by the hour appointed under clause (c) of Rule 28. (2) The application may be given either by the candidate in person or by his proposer or election agent who has been authorised in this behalf in writing by the candidate: provided that where the application is delivered to the Returning Officer by the proposer or the election agent of a candidate, it shall be accepted only if presented along with the acknowledgment of the nomination paper given to the candidate or his proposer at time of presentation of the nomination paper under rule 32. (3) No person who has given a notice of withdrawal of his candidature under sub-rule (1) shall be allowed to cancel such notice. (3) No person who has given a notice of withdrawal of his candidature under sub-rule (1) shall be allowed to cancel such notice. (4) The Returning Officer shall, on being satisfied as to the genuineness of an application of withdrawal and the identity of person delivering it under sub-rule (2), cause a notice in Form 7, giving particulars of the candidates who have withdrawn their candidature, to be affixed on the notice-board in his office. " ( 12. ) CONSIDERING the same, it is observed that the impugned order marked as annx. P/5 has no ill-effect for the time being on the maintainability of the election petition. Learned Sub Divisional Officer dealing with the Election Petition shall first decide whether respondents No. 2 and 3 herein, had duly withdrawn from the election. The Collector Burhanpur has not given any finding that whether respondents No. 2 and 3 had withdrawn their candidature from the election. In the absence of any such finding, the Election Petition cannot be treated as incompetent for want of joinder of respondents No. 2 and 3. ( 13. ) IF the respondents No. 2 and 3 are found to have withdrawn in accordance with Rule 37 (supra), it is observed that the Election Petition will not be vitiated and shall have to be decided on merits in accordance with law. It is made clear that, if, they are not found to have been withdrawn in due manner, learned Sub Divisional Officer shall take a decision at his own and will proceed with the matter, in accordance with law. ( 14. ) SHRI Riyaz Mohd. learned counsel for the petitioner expressed an apprehension that the learned Collector Burhanpur has observed in penultimate paragraph of Annx. P/5, that the fees was not deposited along with the election petition. This according to the learned counsel for the petitioner is contrary to record. Learned counsel for the petitioner is apprehensive that the specified officer being subordinate to the Collector may dismiss the petition on this ground. On perusal, it is observed that the Collector Burhanpur was expected to decide the (question of amendment only and was not dealing with the question of deposit of election fees. Thus, this point is left open for being decided in accordance by the specified officer after giving an opportunity to the petitioner in case, if, the same is agitated. ( 15. Thus, this point is left open for being decided in accordance by the specified officer after giving an opportunity to the petitioner in case, if, the same is agitated. ( 15. ) PETITION accordingly, stands disposed of with the aforesaid observations. Order accordingly.