Research › Search › Judgment

Madhya Pradesh High Court · body

2008 DIGILAW 585 (MP)

MADANLAL v. SUB DIVISIONAL OFFICER (REVENUE)

2008-04-15

S.K.SETH

body2008
Judgment S.K.Seth, J. ( 1. ) This petition under Article 227 of the Constitution of India is directed against the order dated 21.01.2008 (Annexure P/l) passed by the prescribed authority in the election petition filed by the respondent No.2. The said order was passed allowing an application under Order 6 Rule 17 preferred by the respondent No.2 to introduce the amendment in the election petition. ( 2. ) Facts in brief are as under. Petitioner and respondent No.2 along with other candidates contested the election of Sarpanch, Gram Panchayat, Dhardi, district Neemuch. The result of the election was declared on 27.01.2005 and the petitioner was declared elected to the office of Sarpanch. The election of the petitioner was challenged by respondent No.2 alone basically on the ground that there was illegal rejection of valid votes or acceptance of invalid votes. After recording evidence, the Specified Officer passed an order for recounting of votes on 9.8.2005. After recounting, without setting aside the election of the petitioner, the specified officer declared respondent No.2 as the returned candidate to the office of Sarpanch. The said order was challenged by the petitioner before this Court in W.P. No. 2282/05, which was allowed on 1.5.2007, and the order passed by the Specified Officer was set aside and the case was remanded for a fresh decision in accordance with law. Being aggrieved by the order passed by this Court, respondent No.2 preferred an appeal, which was registered as W.A. No. 353/07. The said writ appeal was dismissed on 29.8.2007 in view of the fact that matter has already been remanded, therefore, respondent No.2 who was the appellant would be free to raise all legal pleas before the Specified Officer and further with a direction that the authority will not be influenced by the order passed by this Court. Taking a cue from the order passed by this Court, respondent No.2 (election petitioner) moved an application for amendment in the pleadings. The application was opposed by the petitioner herein and after hearing rival submissions, the application was allowed by the order impugned, hence this petition. ( 3. ) I have heard Shri C.L.Yadav, learned senior counsel and Shri Amit Agrawal, learned counsel for the respondent No. 2 at length. Perused the material available on the record. The application was opposed by the petitioner herein and after hearing rival submissions, the application was allowed by the order impugned, hence this petition. ( 3. ) I have heard Shri C.L.Yadav, learned senior counsel and Shri Amit Agrawal, learned counsel for the respondent No. 2 at length. Perused the material available on the record. Shri C.L.Yadav, learned senior counsel submitted that an election petition can be submitted under the M.P. Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995. He invited attention to Rule 5, which provides that an election petition shall contain concise statement of material facts with sufficient particulars, the grounds on which election is called in question. He also invited attention to Rule 21 (d) (iii) of the said rules, which reads as under: - 21. Grounds for declaring election to be void. - (1) Subject to the provisions of sub - rule (2) if the specified officer is of opinion - (a) .............. (b) .............. (c) .............. (d) that the result of the election in so far as it concerns returned candidate has been materially affected - (i) ............ (ii) ............. (iii) by the improper acceptance, refusal or rejection of any vote or the reception of any vote which is void; or (iv) ............. the specified officer shall declare the election of the returned candidate to be void. (2) .............. ( 4. ) Rule 23 contemplates making of an order at the conclusion of the enquiry by the Specified Officer, which includes a declaration that the election petitioner is duly elected on the ground that the election petitioner has received a majority of valid votes. ( 5. ) Shri Yadav, learned senior counsel has placed reliance on the decision of the Supreme Court reported in AIR 2000 SC 256 in the case of Jeet Mohinder Singh Vs. Harminder Singh Jassi. A reading of the said decision of the Supreme Court reveals that the election of Harminder Singh Jassi to the Legislative Assembly was challenged on various grounds in an election petition. The said petition was dismissed by the Designated Election Judge and against that order matter went to the Supreme Court in an appeal under Section 116A of the Representation of People Act, 1951. One of the grounds taken in the election petition was with regard to the corrupt practices. The said petition was dismissed by the Designated Election Judge and against that order matter went to the Supreme Court in an appeal under Section 116A of the Representation of People Act, 1951. One of the grounds taken in the election petition was with regard to the corrupt practices. During the course of the trial of the election petition, the election petitioner filed a replication to the written statement wherein he came out with the averment that some of the voters to the said election were threatened by Sangram Singh, SHO, Jagseer Singh, Dharminder Singh, Jaswant Singh, Jagraj Singh and Mander Singh. Except Dharminder Singh who was examined as PW/13, all of the persons were not examined and in this context it was held by their Lordships of the Supreme Court speaking through R.C.Lahoti, J. (as His Lordship then was) as under: - "Here itself, we may observe that material facts and particulars as to commission of corrupt practice are required to be given in the election petition and not in the replication filed much after the expiry of period of limitation for filing election petition. The material facts and particulars alleged for the first time in the replication and not forming part of averments made in the election petition cannot be tried and cannot be made subject matter of issues framed by the Court." ( 6. ) Per contra, Shri Agrawal, learned counsel appearing for the respondent No.2 submitted that what is to be pleaded has been prescribed in Rule 5 and Rule 21 talks about the opinion of the Specified Officer, therefore, the pleading whether the receipt or rejection of invalid votes has materially affected the election is not required to be pleaded. He also placed reliance on a decision of the Supreme Court reported in AIR 2007 SC 581 in the matter of Virender Nath Gautam Vs. Satpal Singh and ors. and submitted that an application for amendment can always be made to explain material facts already pleaded in the election petition and as such the Specified Officer committed no illegality in allowing the application for amendment. ( 7. Satpal Singh and ors. and submitted that an application for amendment can always be made to explain material facts already pleaded in the election petition and as such the Specified Officer committed no illegality in allowing the application for amendment. ( 7. ) After having heard learned counsel for the parties and going through the material as well as the decisions cited at the bar, I am of the opinion that the Specified Officer have acted in exercise of its jurisdiction illegally or at any rate with material irregularity in allowing the application for amendment contrary to the law as declared by the Supreme Court in Jeet Mohinder Singh (supra). In order to succeed in an election petition, the election petitioner is required to plead all material facts, which have affected material the result of the election. In absence of such pleadings in the original election petition, the election petitioner cannot be permitted to introduce said facts by way of amendment after the period of limitation. ( 8. ) In view of the foregoing discussion, the order impugned is unsustainable in law and accordingly is hereby set aside. Now the Specified Officer shall proceed to decide the election petition in accordance with law. Order accordingly.