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2013 DIGILAW 1285 (RAJ)

Mahendra Kumar v. Arjun Kumar

2013-07-16

VIJAY BISHNOI

body2013
JUDGMENT : 1. By this writ petition, the petitioner has challenged the order dated 31.05.2013 passed by learned Civil Judge (Senior Division), Mount Abu - Camp Abu Road, District Sirohi (for short 'the trial court' hereinafter), whereby the learned trial court has rejected the application filed by the petitioner under Order 7, Rule 11 read with section 151 of the Code of Civil Procedure. 2. Brief facts of the case are that respondent-No.1 - Arjun Kumar had filed an Election Petition No. 11/2010, while challenging the election of the petitioner on the post of Sarpanch of Gram Panchayat, Dhanari, Panchayat Samiti, Abu Road, District Sirohi and the said election petition is pending trial in the trial court. In the aforesaid election petition, the respondent No. 1 has impleaded the petitioner - returned candidate and the Returning Officer of the said election by name as party respondent. 3. The petitioner has moved an application under Order 7, Rule 11 read with section 151 CPC and has prayed for dismissal of the election petition on the ground that the election petitioner has not made the State Government as party respondent in the election petition, though as per section 79 of the Code of Civil Procedure, the State Government is a necessary party in a suit preferred against the State Government. It was also contended in the said application that before filing of the election petition, the election petitioner had not given any notice as contemplated under section 80 of the Code of Civil Procedure and, therefore, on this count also, election petition of the election-petitioner is liable to be rejected. 4. Another application under Order I Rule 10 of the Code of Civil Procedure was also preferred by respondent No. 1 - Arjun Kumar (Election Petitioner) with a payer to delete the name of respondent No. 2 - the Returning Officer from the array of the respondents. 5. The learned trial court proceeded to decide both the applications preferred by the petitioner under Order 7, Rule 11 of the Code of Civil Procedure and by the respondent No. 1 under Order I Rule 10 CPC vide order dated 31.05.2013 and has rejected both the applications. 6. Being aggrieved with the rejection of the application under Order 7, Rule 11 Code of Civil Procedure, the petitioner has preferred this writ petition. 7. 6. Being aggrieved with the rejection of the application under Order 7, Rule 11 Code of Civil Procedure, the petitioner has preferred this writ petition. 7. The learned counsel for the petitioner has argued that in the election petition, the respondent-No.1 election petitioner has prayed that the election record may be called from the District Election Officer, Sirohi and recount of the ballet papers may be conducted and as such the election petitioner has claimed relief against the State Government and looking to the said relief claimed by him, as per section 79 of the Code of Civil Procedure, the State Government is a necessary party and the election petition filed by him without impleading the State Government as party, is not maintainable and liable to be rejected. It is also contended by the learned counsel for the petitioner that before filing of the election petition, the respondent-election-petitioner has not given any notice as contemplated under section 80 of the CPC and, therefore, also, the election petition filed by the respondent-election petitioner is liable to be rejected. It is further argued by the learned counsel for the petitioner that as per Rule 85 of the Rajasthan Panchayati Raj (Election) Rules, 1994 (for short 'the Panchayat Election Rules, 1994' hereinafter), the Code of Civil Procedure, 1908 is applicable in the trial of an election petition in relation of a panchayat election, however, the learned trial court without considering the provisions of Rule 85 of the Panchayat Election Rules, 1994, has rejected the application preferred by the petitioner under Order 7, Rule 11 CPC in illegal manner. 8. Learned counsel for the petitioner has placed reliance on decisions of Hon'ble Supreme Court rendered in District Collector, Srikakulam & Ors. v. Bagathi Krishna Rao & Anr., reported in AIR 2010 (SC) 2617 and in Jagtu v. Suraj Mal & Others. 9. Heard the learned counsel for the petitioner and perused the record. 10. The arguments of the learned counsel for the petitioner, regarding the applicability of the Civil Procedure Code in an election petition of a Panchayat Election, in respect of necessary and proper party, are considered but for rejection only. 11. The right to elect, to be elected and to dispute an election neither fundamental rights nor common rights but simply statutory rights and, therefore, they are subject to statutory limitation. 11. The right to elect, to be elected and to dispute an election neither fundamental rights nor common rights but simply statutory rights and, therefore, they are subject to statutory limitation. An election petition of a Panchayat Election is not an action in common law nor in equity but is a statutory proceeding to which only statutory rules applied. The statute concerned in the election of panchayat are the Panchayat Election Rules, 1994, which is a self-contained code and thus it must be found that any right claimed in an election or in an election dispute, the provisions of Code of Civil Procedure cannot be invoked in relation to any procedure, which is provided in the Panchayat Election Rules, 1994. 12. The relevant provisions of Rules 83 and 85 of the Panchayat Election Rules, 1994 are as under: "Rule 83. Parties to the petition.-The person whose election is challenged, and where the petition claims that any other candidate shall be declared as elected in place of such person, every unsuccessful candidate who has polled more vote than such candidate, shall be made respondent to the petition. Rule 85. Hearing of petition.-The procedure provided in the code of Civil Procedure, 1908 (Central Act V of 1908) in regard to suits, shall, in so far as it can be made applicable, be followed in the hearing of the petition: Provided that- (a) any two or more petitioners relating to the election of the same person shall be heard together; (b) the Judge shall not be required to record evidence in full but shall only make a memorandum thereof sufficient in his opinion for the purpose of deciding the petition.; (c) the petitioner may at any stage of the proceeding be asked to give further security for the payment of the costs likely to be incurred by any respondent; (d) the Judge, shall only be bound to require the production of, or to receive so much evidence, oral or documentary as her considers necessary; and (e) no witness or other person shall be required to state for whom he has voted at any election." 13. Rule 83 of the Panchayat Election Rules, 1994 designates the persons who are to be joined as respondents to the petition and the provisions of the Civil Procedure Code, 1908 relating to the joinder of the parties stands excluded. Rule 83 of the Panchayat Election Rules, 1994 designates the persons who are to be joined as respondents to the petition and the provisions of the Civil Procedure Code, 1908 relating to the joinder of the parties stands excluded. The concept of joining a necessary or a proper party to an election petition is ruled out by the provisions of Panchayat Election Rules, 1994. The concept of joinder of a necessary or a proper party to a suit or proceeding underlying Order I of the Civil Procedure Code cannot be imported to the trial of election petition in relation to a panchayat election in view of the provisions of Rule 83 of the Panchayat Election Rules, 1994. The Panchayat Election Rules, 1994 are self-contained code, which does not contemplate joinder of a person or authority to an election on the ground of necessary or proper party. 14. Rule 85 of the Panchayat Election Rules, 1994 only contemplates that the procedure provided in the Civil Procedure Code in regard to the suits, shall, in so far as it can be made applicable, be followed in the hearing of the petition. The provisions of Code of Civil Procedure, 1908 has thus been made applicable to the trial of an election petition of a Panchayat Election to a limited extent as would appear from the expression "so far as it can be made applicable". 15. In Jyoti Basu & Ors. v. Debi Ghosal & Ors., reported in (1982) 1 SCC 691 , the Hon'ble Supreme Court has held as under: "A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An election petition is not an action at common law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to common law and equity must remain strangers to election law unless statutorily embodied. A court has no right to resort to them on considerations of alleged policy because policy in such matters as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, court is put in a straight-jacket." 16. The Hon'ble Supreme Court in Kailash v. Nanhku & Ors., reported in (2005) 4 SCC 480 , while examining the question of applicability of Civil Procedure Code in a trial of an election petition under the Representation of People Act, 1951 has held in para 9 as under: "9. ..............Thus, the procedure provided for the trial of civil suits by CPC is not applicable in its entirety to the trial of election petitions. The applicability of the procedure is circumscribed by two riders; firstly, CPC procedure is applicable "as nearly as may be"; and secondly, CPC procedure would give way to any provisions of the Act and of any rules made thereunder." 17. This Court in Smt. Sushila v. The Additional District Judge No. 2, Alwar & Ors., reported in 2006 (2) WLC (Raj.) 242 after relying upon the decision of Hon'ble Apex Court rendered in Kailash v. Nanhku & Ors. (supra), while dealing with the provisions of Panchayat Election Rules, 1994 has held in para 25 as under: "25. Same is the language of Rule 85 of the Rules of 1994 whereby the procedure provided under the Code of Civil Procedure, 1908 in regard to suits, shall, in so far as it can be made applicable be followed in the hearing of the petition. 18. The decisions rendered in District Collector, Srikakulam & Ors. v. Bagathi Krishna Rao & Anr. and Jagtu v. Suraj Mal & Ors. 18. The decisions rendered in District Collector, Srikakulam & Ors. v. Bagathi Krishna Rao & Anr. and Jagtu v. Suraj Mal & Ors. (supra) referred by the learned counsel for the petitioner have, therefore, no application in the present controversy as the same relate to disputes where the parties concerned have claimed relief against the State Government and, therefore, the Hon'ble Apex Court has held that in those cases, the State Government is necessary party. 19. In view of the above, this Court does not find any illegality in the order passed by the learned trial court to the extent of dismissal of the application preferred by the petitioner under Order 7, Rule 11 CPC. 20. Before parting with the case, it is noticed that by the impugned order, the learned trial court has also dismissed an application preferred on behalf of the respondent-election-petitioner under Order I Rule 10 CPC for deleting the name of the Returning Officer while observing that the Returning Officer is a necessary party to the election petition as allegations of irregularities have been levelled against him in the election petition. This Court is of the opinion that the approach of the learned trial court in rejecting the application of the respondent-election petitioner for deleting the name of the Returning Officer from the array of respondents is not in accordance with the provisions of the law. As observed earlier, in an election petition in relation to panchayat election only those persons can be joined as party respondents as provided under Rule 83 of the Panchayat Election Rules, 1994. 21. Since the learned trial court has erred in holding that Returning Officer in the election petition, of a Panchayat Election, is a necessary party, this Court, while exercising powers under Article 227 of the Constitution of India, is expected to correct the error committed by the lower court and, therefore, the order dated 31.05.2013 passed by the learned trial court, so far it relates to rejection of the application under Order I Rule 10 CPC preferred on behalf of the respondent-election petitioner, is set aside and it is ordered that the name of the Returning Officer be deleted from the array of the respondents in the Election Petition No. 11/2010, Arun Kumar v. Mahendra Kumar pending in the trial court. 22. With above observations, this writ petition is disposed of. 23. 22. With above observations, this writ petition is disposed of. 23. A copy of this order be sent to the Civil Judge (Sr. Division), Mount Abu Camp Abu Road, District Sirohi for necessary action.Petition Disposed of.