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2017 DIGILAW 1233 (MP)

Ramesh Patel Madhpura v. State of M. P.

2017-12-05

VIJAY KUMAR SHUKLA

body2017
ORDER : In the instant petition filed under Article 226 of the Constitution of India, an exception has been taken to the order dated 27-02-2016, passed by the Commissioner, Sagar Division, Sagar as Election Tribunal, whereby the election petition filed by the petitioner under Section 122 of M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as ‘the Adhiniyam, 1993’) has been dismissed summarily without framing any issue and recording the evidence. 2. The petitioner filed an election petition under the provisions of Adhiniyam 1993, challenging the election of respondent no.3, as a member of Ward No. 6 of Jila Panchayat, Panna on the various grounds including corrupt practice etc. 3. The respondent no.3 filed an application/objection for dismissal of the election petition on preliminary objections. It was contended on behalf of the contesting respondent that the allegations made in the petition do not make any cause of action for trial of the election petition and the grounds are not covered under Rule 22 of M.P. Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership)Rules, 1995 (hereinafter referred to as ‘the Rules 1995’). 4. On perusal of the order impugned passed by the respondent no.2, it is evident that the Election Tribunal has taken into consideration the merits of the case on the basis of allegations made in the petition and the objections of the respondent no.3. The Election Tribunal decided the petition on merit. 5. Learned counsel for the petitioner submitted that the order passed by the respondent no.2 is illegal, arbitrary and contrary to the provisions of Rules, 1995. It is submitted by him that the election petition can be summarily dismissed under Rule 8 of Rules, 1995 on the ground of non compliance of mandatory provisions enshrined in Rules, 3, 4 and 7 of Rules, 1995 and not otherwise. It is further submitted by him that the election petition cannot be dismissed in a cavalier and cryptic manner. The authority has to conduct full fledged trial and to decide the election petition after framing the issue and give opportunity to the parties to lead the evidence. 6. Combating the aforesaid submissions, learned counsel for the respondents submitted that there was objection regarding the non compliance of the provisions of Rules 3, 4 and 7 of Rules, 1995. He referred para-15 of the application. 6. Combating the aforesaid submissions, learned counsel for the respondents submitted that there was objection regarding the non compliance of the provisions of Rules 3, 4 and 7 of Rules, 1995. He referred para-15 of the application. Para-15 of the objection is reproduced as under: ^^15- ;g fd izLrqr ;kfpdk esa e/; Áns'k iapk;r ¼fuokZpu vthZ Hkz"Vkpkj lnL;rk ds fy;s fugZjrk½ ds fu;e 3] 4 ,oa 7 ds vkKkid izkok/kkuksa mica/kksa dk ikyu ugha fd;k x;k gS] tks fuokZpu ;kfpdk dks [kkfjt dj nsukA ;kfpdkdrkZ dk mn~ns'; U;k;ky; dh 'kfDr;ksa dk nq:i;ksx djrs gq;s fupkZpu dks 'kwU; ?kksf"kr djus gsrq lkexzh fudkyus dk] ftldh vuqefr fo/kku esa ugha gS bl izdkj izLrqr ;kfpdk xzkg~; ;ksX; u gksus ls izkajfEHkd Lrj ij fujLr fd;s tkus ;ksX; gSA** 7. On consideration of said para-15, it is found that there was general allegation that the provisions of Rules 3, 4 and 7 of Rules 1995 were not complied with. There was no specific objection that in what manner the provisions of Rules 3, 4 and 7 of Rules 1995 were not complied with. Further, there is no consideration by the Tribunal in regard to the non compliance of the mandatory provisions of Rules, 3, 4 and 7 of Rules, 1995 in the impugned order. The election petition has been dismissed on merit without conducting trial by framing issues and recording evidence. 8. The validity of the order passed by the respondent no. 3 has to be examined on the anvil of the facts of the present case and the law governing the field of trial of election petition under the Adhiniyam 1993 and Rules 1995. It is condign to refer certain provisions of Rules : - “3. Presentation of election petition.- (1) An election Petition shall be presented to the specified Officer during the office hours by the person making the petition, or by a person authorised in writing in this behalf by the person making the petition. (2) Every election petition shall be accompanied by as many Copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. 4. (2) Every election petition shall be accompanied by as many Copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. 4. Parties to the petition.-Where the petitioner in addition to claiming a declaration that the election, of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected he shall join as respondents to his petition all the contesting candidates at the election. 7. Deposit of security.- At the time of presentation of an election petition, the petitioner shall deposit with the specified officer a sum of Rs. Five Hundred as security. Where the election of more than one candidates is called in question, a separate deposit of an equivalent amount shall be required in respect of each returned candidates. 8. Procedure on receiving petition. – If the provisions of rule 3 or rule 4 or rule 7 have not been complied with, the petition, shall be dismissed by the specified officers : Provided that the petition shall not be dismissed under this rule without giving the petitioner an opportunity of being heard.” 9. From perusal of the aforesaid rules and specially Sub-Rule 8, it is clear as noon day, if the provisions of rule 3, Rule 4 and Rule 7 have not been complied with, the election petition shall be dismissed by the Specified Officer. The said provision is further coupled with the proviso that the petition shall not be dismissed under this Rule without giving the petitioner an opportunity of being heard. In the present case, the Election Tribunal decided the election petition on merit considering the disputed questions of facts of corrupt practices and allegations of tampering in ballots etc. The election petition cannot be dismissed summarily on merit without framing issues on disputed questions of facts and recording of evidence. 10. From reading Rule 8 of Rules, it is crystal clear that the Election Tribunal can only dismiss the election petition summarily under Rule 8 of the Rules 1995 when the Election Petition is filed without compliance of rule 3, Rule 4 or Rule 7 and not otherwise. 11. 10. From reading Rule 8 of Rules, it is crystal clear that the Election Tribunal can only dismiss the election petition summarily under Rule 8 of the Rules 1995 when the Election Petition is filed without compliance of rule 3, Rule 4 or Rule 7 and not otherwise. 11. There is no substance in the contention of learned counsel for the respondents that the respondent no.3 is possessed with the jurisdiction to dismiss the Election Petition if the petition was not disclosing any cause of action under the provision of code of Civil Procedure. The Election petition has to be tried strictly in accordance with the provisions of Adhiniyam 1993 and Rules 1995. There is no merit in the contention of the learned counsel for respondent no.4 that the Specified Officer has exercised his power under Rule 11 of Rules 1995 to dismiss the election petition as there was no cause of action. The Rule 11 prescribes the procedure before the Specified Officer and his powers. The Rule 11 makes a provision that 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. Under Sub-rule 2 of Rule 11, it is provided that Specified Officer, shall have the powers which are vested in a 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 witnesses 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 moto any person whose evidence, appears to him to be material. 12. Thus from bare reading of the Rule 11 it is clear that Rule 11 is not a substantive provision but it is a procedural provision which empowers the specified officer to try the election petition as may be as possible in accordance with the procedure of the trial of suit. Rule 11 Sub-rule 2 has further specified from clause (a) to (f) as mentioned above conferring the procedural powers to the Election Tribunal for trial of election petition. Rule 11 Sub-rule 2 has further specified from clause (a) to (f) as mentioned above conferring the procedural powers to the Election Tribunal for trial of election petition. Thus the election petition under the Rules can only be dismissed summarily as mentioned under Rule 8 of Rules 1995. Where the election petition is filed without compliance of mandatory provision of Rule 3, 4 and 7 of Rules and not on any other ground. Under the scheme of the Act and the Rules, the election Tribunal is under obligation to decide election petition on merit after examining the grounds mentioned in the election petition after framing issues, recording evidence and affording opportunity to the parties of the petition except under Rule 8, the cases where election petition is filed without compliance of mandatory provisions of Rule 3, Rule 4 and Rule 7. A sacrosanct duty is cast on the Election Tribunal and Courts to try and adjudicate election petitions like a trial of a suit. The election petition can not be decided in a cavalier manner by adopting casual approach. 13. As already discussed, on perusal of the impugned order, it is found that the election petition has been dismissed in cryptic and cavalier manner without framing any issue or giving opportunity to the parties to lead evidence. This court in the case of Omkar Vs. State of M.P. and others 2017(2) MPLJ, 715 held that the Election Tribunal can dismiss the election petition summarily under Rule-8 of Rules, 1995 only when the election petition is filed without compliance of the provisions of Rules, 3, 4 and 7 of Rules 1995 and not otherwise. It is also settled law that election petition has to be tried in the manner prescribed under Rules, 1995 and therefore, except under Rule-8 Tribunal has to frame issue, to give opportunity to the parties to lead evidence and thereafter to decide the issues of the election petition. This view is fortified by the judgment of the Apex Court in case of Makhan Lal Bangal Vs. Manas Bhunia & Ors. (2001)2 SCC 652 wherein it has been held that in an election trial, evidence has to be adduced and issues are also to be framed. This view is fortified by the judgment of the Apex Court in case of Makhan Lal Bangal Vs. Manas Bhunia & Ors. (2001)2 SCC 652 wherein it has been held that in an election trial, evidence has to be adduced and issues are also to be framed. It has been held by the Supreme Court that the trial of an election petition is like a civil trial and framing of issues and recording of evidence are necessary for proper adjudication and following the said ratio, this Court has also decided the case of Kalka Prasad Vs. Ramjilal 2002(3) MPLJ 121 . 14. This Court has held in number of cases that the Election Petition has to be tried as far as possible like a trial of the Civil Suit. The Court has to frame issues, record evidence and after affording opportunity of hearing to the parties and then to adjudicate the election petition. Even in the cases of election petition claiming relief of recounting, this Court held that an order of recounting can not be passed even with the consent of the parties Gajanand Vs. Ramcharan 1997 (ii) MPWN 3. In the case of Uday Singh Vs. Himmat Singh 1991 (I) JLJ 200 it is held that issue should be framed, evidence should be recorded and thereafter, issues should be decided on going through such evidence. 15. The Election Tribunal dismissed the election petition summarily on the ground that the allegation made in the petition does not constitute the corrupt practices. The said ground is not a ground under Rule 8 to dismiss the election petition summarily. 16. In view of the aforesaid enunciation of law, the impugned order passed by the respondent no.2 is unsustainable being in violation of the provisions of Rule-8 of Rules, 1995 and the law settled by this court regarding trial of an election petition under Adhiniyam, 1993 and the rules framed there under. The impugned order dated 27-02-2016 is quashed and respondent no.2 is directed to decide the election petition in accordance with law. 17. With the aforesaid directions, the writ petition is allowed.