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Madhya Pradesh High Court · body

2011 DIGILAW 661 (MP)

Nand Kishore v. Kamred Goverdhan Dudhiya

2011-06-23

N.K.MODY

body2011
ORDER 1. Being aggrieved by the order dated 13.10.10 passed by XII ADJ, Indore in Civil Appeal No. 1/10, whereby election petition filed by petitioner was dismissed on the application filed by respondent No.3 under Order VII Rule 11 CPC, present petition has been filed. 2. Short facts of the case are that the petitioner filed a petition under section 441-8 of M.P. Municipal Corporation Act, 1956 (which shall be referred hereinafter as the' Act') wherein the election of respondent No.3 was challenged alleging that petitioner submitted the nomination form on 30.11.09 for election of Councilor from Ward No. 27 as an independent candidate and also deposited the requisite fee. After scrutiny the nomination form of the petitioner was accepted and symbol of Hut was allotted to the petitioner on 30.11.09. It was alleged that after allotment of the symbol petitioner got printed the material which includes pamphlets, posters, etc. and started canvassing. It was alleged that the Returning Officer on 3.12.09 changed the symbol of the petitioner from Hut to Rail Engine. It was alleged that since the Returning Officer changed the symbol on 3.12.09 which was allotted on 30.11.09, therefore, election of the petitioner was materially affected. It was alleged that in the facts and circumstances of the case, petition filed by the petitioner be allowed and the election of respondent No.3 as Councilor be declared as void. After service of notice respondent No.3 submitted an application under Order VII Rule 11 CPC, wherein it was alleged that since no allegation has been made against the respondent No.3 about corrupt practices, therefore, election petition filed by the petitioner be dismissed. 3. The application was contested by the petitioner. After hearing the arguments, learned trial Court dismissed the application against which present petition has been filed. 4. Learned counsel for the petitioner argued at length and submits that the impugned order passed by the learned Court below is illegal, incorrect and deserves to be set aside. It is submitted that in the election petition, provisions of Order VII Rule 11 CPC are not applicable, therefore, election petition filed by the petitioner could not have been dismissed on the application filed by respondent No.3. It is submitted that in the election petition, provisions of Order VII Rule 11 CPC are not applicable, therefore, election petition filed by the petitioner could not have been dismissed on the application filed by respondent No.3. It is submitted that since the petition filed by the petitioner was covered in clause-IV of sub-section (D) of section 441-B of the Act, therefore, the same could not have been dismissed, as the election petition filed by the petitioner is barred under the law. 5. Learned counsel for respondent No.3 supports the order passed by the learned Court below and submits that no illegality has been committed by the learned Court below in dismissing the election petition filed by the petitioner. It is submitted that the petition filed by the petitioner be dismissed. 6. In CR No. 221110 in the matter of Am it Kumar Sharma v. Madanlal & Others this Court had a occasion to consider the scope of application filed under Order VII Rule 11 CPC and after taking into consideration the law laid down in the matters of Ram Sukh v. Dinesh Aggarwal, AIR 2010 SC 1227 this Court held that the provisions of order VII Rule 11 CPC are applicable in an election petition and the election petition can be rejected at the thresh hold. In view of the aforesaid contention of the petitioner, that the application filed by respondent No.3 under Order VII Rule 11 itself was not maintainable cannot be allowed to succeed. 7. So far as dismissal of election petition is concerned. Section 441-B of the Act lays down the grounds for declaring the election to be void. In view of the aforesaid contention of the petitioner, that the application filed by respondent No.3 under Order VII Rule 11 itself was not maintainable cannot be allowed to succeed. 7. So far as dismissal of election petition is concerned. Section 441-B of the Act lays down the grounds for declaring the election to be void. sub-section (1) of section 441-B of the Act reads as under : 441-B. Grounds for declaring elections or nomination to be void -(1) Subject to the provisions of sub-section (2), if the Court is of the Opinion (a) That on the date of his election or nomination a returned candidate was not qualified or was disqualified, to be choses as a Mayor or a Councilor; or (b) That any corrupt practice has been committed by a returned candidate or his agent or by any other person with the consent of a returned candidate or his agent; or (c) That any nomination paper has been improperly rejected; or (d) That the result of the election, or nomination, in so far as it concerns a returned candidate has been materially affected. (i) by the improper acceptance of any nomination; or (ii) by a corrupt practice having been committed in the interest of the returned candidate by a person other than that candidate or his agent or a person acting with the consent of such candidate or agent; or (iii) by the improper acceptance or refusal of any voter or reception of any vote which is void; or (iv) by the non-compliance with the provisions of this Act or of any rules or orders-made thereunder save the rules framed under section 14 is so far as they relate to preparation and revision of list of voters; the Court shall declare the election of the returned candidate to be void. (2) If in the opinion of the Court a returned candidate has been guilty by an agent of any corrupt practice, but the Court is satisfied-(a) that no such corrupt practice was committed at the election or nomination by the candidate, and every such corrupt practice was committed contrary to the instructions, and without the consent of the candidate; (b) that the candidate took al1 reasonable means for preventing the commission of corrupt practices at the election or nomination; and (c) that in all other respect the election or nomination was free from any corrupt practice on the part of the candidate or any of his agents; then, the Court may decide that the election or nomination or the returned candidate is not void." 8. Clause-IV of sub-section (D) of Section 441- B of the Act empowers the Court to declare the election of returned candidate to be void, if Court is of the opinion that the result of the election of a returned candidates has been materially affected by non-compliance with the provisions of the Act or of any Rules or orders made thereunder. In exercise of powers conferred by section 433 read with Sub-Section 6 of the Section 10 of M.P. Nagar Palika Adhiniyarn, 1961 State Government has framed the Rules, which are known as M.P. Nagarpalika Nirvachan Niyam, 1994 (which shall be referred hereinafter as the 'Rule'). Rule 31 deals with allotment of Symbol for election. Sub-Rule 4 of Rule 31 of Rules lays down that the allotment by Returning Officer of any symbol to a candidate shall be final except where it is inconsistent with any direction issued by the election Commission in this behalf, in which case Election Commission may revise the allotment in such manner as it deems fit. 9. As per sub-rule (5) of Rule 31 of the Rules every candidate or his election agent shall forthwith be informed of the symbol to the candidate and be supplied with a specimen thereof by the Returning Officer. 10. As per allegations made by the petitioner in the election petition symbol of Hut was allotted to the petitioner by the Returning Officer on 30.11.09, which has subsequently changed on 3.12.09. 10. As per allegations made by the petitioner in the election petition symbol of Hut was allotted to the petitioner by the Returning Officer on 30.11.09, which has subsequently changed on 3.12.09. It is true that no allegation of corrupt practice has been alleged by the petitioner in the election petition, but at the same time sufficient pleadings are in the petition, which empowers the Court to declare the election of the returned candidate to be void under Clause-IV of sub-section (D) of sub-section (1) of section 441-B of the Act. In an election symbol is having its own importance by which a candidate is being identified. Allotment of symbol is an important job of the Returning Officer. Sub-Clause IV of Rule 31 of the Rules also lays down that the allotment of symbol to a candidate by Returning Officer is final but at the same time it empowers the Returning Officer where it is inconsistent with any direction issued by the election Commission in this behalf. There is nothing on record that the change symbol had become necessary because of directions issued by the election Commission in this behalf. 11. An Election Guideline has been published by the Election Commission for the use of returning Officer which is revised from time to time. As per Clause VI of the said guidelines (sixth edition published in 2009) which reads as under:" ^^vkids }kjk vkcafVr izrhd vafre gksxk] flok; ml n’kk esa tgka ,slk vkcaVu fu;eksa ;k fuokZpu vk;ksx }kjk izlkfjr funsZ’kksa ds fo:) gksA ;fn vkids }kjk fu;eksa ;k funsZ’kksa ds foijhr izrhd dk vkoaVu fd;k x;k gks rks vk;ksx mls iqujhf{kr dj ldrk gSA oSlh fLFkfr esa vkidksa fuokZpu yM+us okys vH;fFkZ;ksa dh ,d iqujhf{kr lwph] e; mlds la’kksf/kr fuokZpu izrhdksa ds] izdkf’kr djuh gksxhA vkidks la’kkf/kr lwph dh ,d&,d izfr dk iznk; fuokZpu yM+us okys izR;sd vH;FkhZ dks Hkh lqfuf’pr djuk gksxkA izrhd vkoaVu esa xyrh ls vuko’;d fookn iSnk gksrs gSa vkSj Hkze dh fLFkfr fufeZr gksrh gSA vr% ;g vko’;d gS fd ;g dk;Z vR;ar lko/kkuh ls fd;k tk, rkfd dksbZ xyrh u gks**A 12. Whether there was non-compliance of the provisions of this Act or Rules thereunder and whether the result of the election in so far as it concerns a Returning candidate has materially affected or not is a matter of enquiry, therefore, only because no allegation has been made by the petitioner against the respondent No. 3 cannot be a ground for rejection of election petition under Order VII Rule II CPC. in view of this, petition filed by the petitioner is allowed and the impugned order dated 13.10.10 is set aside and the case is remanded to the leal1led trial Court to decide the Election Petition filed by petitioner on merits. 13. With the aforesaid observations, petition stands disposed of. Parties are directed to remain present before the learned trial Court on 20.7.200 1. No order as to costs.