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2016 DIGILAW 811 (MP)

Ashutosh v. State of M. P.

2016-09-14

PRAKASH SHRIVASTAVA

body2016
ORDER 1. This writ petition has been filed by the petitioner challenging the order of SDO dated 30.3.2016 whereby the election petition filed by the petitioner has been dismissed. 2. In brief, the petitioner had filed the election petition under section 122 of the Madhya Pradesh Panchayat Raj Adhiniyam, 1993 challenging the election of the respondent No.2 as Sarpanch of the concerned gram panchayat. 3. Learned counsel for petitioner submits that the SDO has committed an error in rejecting the election petition without giving an opportunity to the petitioner to lead the evidence and without framing the issues. 4. As against this, learned counsel for respondents has submitted that the petitioner had not deposited the requisite fee as per rules at the proper place, therefore, the election petition is liable to be dismissed. 5. Having heard the learned counsel for parties and on the perusal of the record, it is noticed that the SDO has dismissed the election petition on the ground that there is no strong proof has been produced in support of the election petition and the petitioner had not produced any oral or documentary evidence in support of the plea taken in the election petition. 6. Learned counsel for petitioner has drawn attention of this Court to the proceedings which were conducted before the SDO and filed as Annexure P-6 which reveals that the SDO had never fixed the case for recording the evidence of the parties, therefore, it was not proper on the part of the SDO to dismiss the election petition on the ground that the petitioner had not produced any oral and documentary evidence. That apart, even the issues were not framed in the matter. 7. So far as the objection of the respondent No.2 that the requisite fee was not deposited at the proper place as per rules, the election petition has not been dismissed on that ground, therefore, that issue need not be examined at this stage which may be raised by the respondent No.2 before the tribunal in accordance with law. 8. This Court in the matter of Lalamadas v. Vidyawatim and others, reported in 2007(1) MPLJ 410, considering the procedure which is to be followed by the election tribunal has held as under :- 4. The procedure for the trial of the Election Tribunal is envisaged in rule 11 of the Rules which reads thus:-- 11. 8. This Court in the matter of Lalamadas v. Vidyawatim and others, reported in 2007(1) MPLJ 410, considering the procedure which is to be followed by the election tribunal has held as under :- 4. The procedure for the trial of the Election Tribunal is envisaged in rule 11 of the Rules which reads thus:-- 11. Procedure before the specified officer and his powers -- (1) Subject to the provisions of these rules, every election petition shall be enquired into by the specified officer as nearly, as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits : Provided that if shall only be necessary for the specified officer to make a memorandum of the evidence of any witness examined by him. [2] The specified officer, shall have the powers which are vested in the Court under the Code of Civil Procedure, 1908, when trying a suit in respect of the following matters :-- a] Discovery and inspection ; b] enforcing the attendance of witness, and requiring the“deposit of their expenses; c] compelling the production of document; d] examination of witnesses on oath; e] reception of evidence taken on affidavit and f] issuing commission for examination of witnesses and summoning and examining suo motu any person whose evidence, appears to him to be material. � The aforesaid provision specifically provides that the enquiry in the election petition shall be as nearly as may be in accordance with the procedure applicable to the trial of suits under the Code of Civil Procedure. But in this case after filing of the pleadings the presiding officer heard preliminary arguments and on the basis of this the election petition has been dismissed. Though in the order the Tribunal has referred the evidence filed by the parties and discussed them but without extending any opportunity to the parties to cross-examine on the aforesaid affidavits. Apart from this no order was passed by the Election Tribunal in respect of filing of any evidence on affidavits by the parties. It appears that the aforesaid affidavits were filed along with the election petition and the reply of the parties and considered by the Election Tribunal while deciding the case. Apart from this no order was passed by the Election Tribunal in respect of filing of any evidence on affidavits by the parties. It appears that the aforesaid affidavits were filed along with the election petition and the reply of the parties and considered by the Election Tribunal while deciding the case. Such recourse was not available to the Election Tribunal as the procedure envisaged in the Code of Civil Procedure has been made applicable to the Election Tribunal under the Rules. In the absence of this, I the evidence produced by the parties along with the pleadings ought not to have considered by Election Tribunal while deciding the case of the preliminary arguments. The Election Tribunal ought to have directed the parties to produce the witness or to produce their evidence on affidavits. If the procedure for filing of the evidence on affidavits could have been followed, then the parties ought to have been allowed an opportunity to cross examine the deponent of the affidavit but in absence of this the affidavit filed along with the election petition or reply ought not to have been taken into consideration while deciding the matter. Preliminary objections may be considered by the Election Tribunal but the scope of preliminary objections is limited under rule 8 of the Rules, in respect of objection relating to the presentation of election petition under rule 3, non-furnishing of the security as required under rule 7 of the rules or non-impleadment of parties as required under rule 4 of the Rules. Except these, there is no provision for hearing preliminary objection and deciding the case at preliminary stage. The Election Tribunal committed an error of jurisdiction in adopting the aforesaid procedure which is not permissible under the law. 5. In the result the impugned order passed by the election Tribunal dated 29.6.2005 is not sustainable under the law and accordingly it is set aside and the matter is remitted back to the Election Tribunal to hear and decide the election petition afresh in accordance with law. The petitioner present herein is directed to remain present before the Election Tribunal on 20.11.2006 and file an application for restoration of the election petition. The Election Tribunal after issuing notices to the respondents shall decide the matter in accordance with the provisions under the Act and Rules afresh. The petitioner present herein is directed to remain present before the Election Tribunal on 20.11.2006 and file an application for restoration of the election petition. The Election Tribunal after issuing notices to the respondents shall decide the matter in accordance with the provisions under the Act and Rules afresh. Petitioner shall be entitled for the cost of this petition from respondent No.1.� 9. The Coordinate Bench of this Court in the similar circumstances whereby the election petition was dismissed without following the procedure has placed reliance upon the judgment of the Supreme Court in the matter of Kisan Shankar Kathore v. Arun Datatray Sawant and others, reported in AIR 2014 SC 2069 , and has set aside the similar order of the SDO. Since the SDO in the present case has passed the impugned order and has dismissed the election petition without following the prescribed procedure and without giving an opportunity to the parties to lead the evidence, therefore, the impugned order passed by the SDO cannot be sustained and is hereby set aside. The matter is remitted back to the SDO for fresh decision in accordance with law. The writ petition is accordingly disposed of. N. Phadke for petitioner; M. I. Khan for respondent No.2; Romesh Dave for respondent No.1.