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2011 DIGILAW 29 (MP)

Jaipal Singh v. Mahendra Singh Yadav

2011-01-06

BRIJ KISHORE DUBE, S.K.GANGELE

body2011
ORDER 1. The petitioner has filed this petition against the order dated 27.10.2005, Annexure P-1. 2. An election to the post of President, Municipal Council, Ashoknagar. District Guna, was held on 22.12.1999. After counting of votes the petitioner was declared elected as President of the Municipal Council, Ashoknager on 27.12.1999. Thereafter, respondent No. 1 filed an election petition on 03.02.2000 questioning the election of the petitioner under Section of the M.P. Municipalities Act, 1961. Respondent No. 5 was also added as respondent in the aforesaid election petition because he was also a contesting candidate to the post of President. In the aforesaid election, the petitioner received 11, 125 votes, Mr. Neelam Singh Yadav, respondent No. 2 received 8501 votes and Mr. Girish Chand Patwa respondent No. 5 received 435 votes. 3. After receiving notice, the respondent No. 5 filed a recrimination claim petition. The trial Court vide order dated 08.05.2000 rejected the recrimination claim filed by respondent No. 5. Against the aforesaid order respondent No. 5 filed a petition before this Court, which was registered as Writ petition No. 1118/2000. This Court vide order dated 07.01.2003 allowed the writ petition and held that the recrimination claim filed by respondent No. 5 was maintainable. Against the aforesaid order passed by the leaned Single Judge of this Court a Letters Patent Appeal No. 18/2003 was filed by the present petitioner. That appeal was disposed of by the Division Bench of this Court with the following directions. 1. At this stage without entering into the controversy in the matter we direct that the appellant will have right to object to the recrimination claimed by the respondent No. 1 before the court of Additional District Judge in the election petition. Appellant will raise the objection available to him against such claim. If the objections are raised the court trying the election petition shall decide the said objections while deciding the election petition finally and any party aggrieved by the said decision will be at liberty to challenge that finding before the appropriate forum. Petition in election and the returned candidate may lead evidence on the question of allowing or disallowing the recrimination. 5. With the aforesaid directions order of Single Bench is clarified and appeal is disposed of. 4. Petition in election and the returned candidate may lead evidence on the question of allowing or disallowing the recrimination. 5. With the aforesaid directions order of Single Bench is clarified and appeal is disposed of. 4. In the meanwhile the term of five years of the petitioner to continue as President, Municipal council Ashoknagar, was over, hence, the election petitioner filed an application for withdrawal of the election petition. That application has been allowed by the impugned order, Annexure P-1. However, the trial Court observed that the recrimination claim petition filed by respondent No. 5 shall continue. 5. Being aggrieved by the aforesaid order in regard to continuation of recrimination claim, the present petition has been filed. Learned Counsel for the petitioner has contended that the recrimination claim petition filed by respondent No. 5 under Rule 10 of the after the M.P. Municipalities (Election petition) Rules, 1962 could not continue because tenure of returned candidate is over. Hence, the impugned order is bad in law. 6. Contrary to this learned Senior Counsel appearing on behalf of respondent No. 5 has contended that the petition of the petitioner is not maintainable because the impugned order is interlocutory order in nature. The petitioner has suppressed material fact of filing writ petition before the Main Seat at Jabalpur and also the fact that respondent No.5 has raised allegations of corrupt practice against the petitioner and that has to be adjudicated. 7. The admitted facts of the case are that respondent No. 5 filed a recrimination claim petition in the claim petition. Rule 10 of the M.P. Municipalities (Election Petition) Rules, 1962, prescribes the provision for recrimination when seat claimed, which is as under: - 10. Recrimination when seat, claimed.- Where at any enquiry into an election petition, any candidate, other than the elected or selected candidate claims the seal for himself, the elected or selected candidate or any other party may give evidence to prove that the election or selection of such candidate would have been void if he had been the elected or selected candidate and a petition had been presented complaining of his election or selection. 8. 8. Form the aforesaid provision, it is clear that any candidate other than elected or selected candidate claims the seat for himself, the he could produce evidence to prove that the election or selection of such candidate would have been void if he had been the elected or selected candidate. In the present case, if it is to be presumed that respondent No. 5 is eligible to continue the recrimination claim petition then certainly a declaration has to be issued by the election tribunal in record to declaring the respondent. No. 5 as a president of The Municipal Council and the period for which the election petition was filed has already been over, hence, no such declaration can be granted by the election tribunal on the recrimination claim petition filed by respondent No. 5. In such circumstances. The recrimination claim petition filed by respondent No.5 is not maintainable after the period to the post of Present of Municipal Council for which the relief has been sought for has already been over. 9. The argument advanced by the learned Senior Counsel for respondent No. 5 the learned Senior Counsel for respondent No. 5 That the petition is not maintainable because it is filed against an interlocutory order, is not acceptable, hence, certainly the petitioner has a right to question, the legality of continuation of the proceedings under the recrimination claim application. The another objection raised by the learned Senior Counsel for respondent No. 5 that the petitioner has suppressed the fact in regard to filing of another writ petition before the Main Seat at Jabalpur. Is also not acceptable because the petitioner has mentioned the same fact in para 5.11 in the present petition. 10. Learned Counsel for the petitioner has cited various judgment of the Hon'ble Supreme Court in support of his claim, however, in our opinion, it is not necessary to discuss all those judgments because the proceedings on the basis of recrimination claim petition filed by respondent No. 5 could not continue in the facts and circumstances of the case. 11. Considering the aforesaid fats, the petition of the Petitioner is allowed. The impugned order P-1 in regard to continuation of proceedings under the recrimination claim petition filed by respondent No.5 are hereby quashed. No. order as to costs.