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2017 DIGILAW 1609 (RAJ)

Bhalla Ram v. Virendra Dudi

2017-07-20

SANGEET LODHA

body2017
JUDGMENT : Sangeet Lodha, J. By way of this revision petition, the petitioner has questioned legality of the order dated 19.1.16 passed by the Senior Civil Judge, Jodhpur District, whereby an application preferred by the petitioner herein under Order 7, Rule 11 read with Order 27, Rule 5A, Section 79, Order 1, Rule 9 CPC and Rule 85 & 86 of Rajasthan Panchayati Raj (Election) Rules, 1994 (for short "Rules of 1994"), stands rejected. 2. The respondent has filed an election petition before the Election Tribunal, questioning the election of the petitioner herein on the ground that at the time of contesting the election, the returned candidate was not holding the requisite academic qualification and the certificate of academic qualification Class VIII produced on his behalf was forged document. The petitioner preferred an application seeking rejection of the plaint on the ground that since the District Election Officer has been impleaded as party respondent in the election petition, by virtue of Order 27, Rule 5A CPC, the petition filed against the public officer in respect of an act alleged to have been done by him in his official capacity, without impleading the Government as party to the petition, is not maintainable. 3. The application has been rejected by the Election Tribunal observing that the Election Officer has been impleaded as party to the election petition without there being any allegation against him. The court observed that the matter with regard to parties to the election petition is governed by Rule 83 of the Rules of 1994, which makes the provision as to who will be made respondent to the petition and further that as per the provisions of Rule 85, the procedure provided under the CPC in regard to the suit is required to be followed in so far as it can be made applicable and thus, the State Government being not the necessary party, the election petition cannot be rejected. 4. Learned counsel appearing for the petitioner relying upon the provisions of Order 27, Rule 5A contended that the applicability thereof to the election petition cannot be excluded and thus, in a petition filed against a public officer in his official capacity, the State Government is the necessary party. 4. Learned counsel appearing for the petitioner relying upon the provisions of Order 27, Rule 5A contended that the applicability thereof to the election petition cannot be excluded and thus, in a petition filed against a public officer in his official capacity, the State Government is the necessary party. In support of the contention, learned counsel has relied upon a decision of the Hon'ble Supreme Court in the matter of "Chaman Lal v. State of Punjab & Ors.", AIR 2014 SC 3640 and a decision of this court in the matter of "Karan Singh v. Dr. Balwant Singh", RLW 1998 (1) Raj. 251. 5. On the other hand, the counsel appearing for the respondent submitted that in the election petition filed, the petitioner has not claimed any specific relief against the Election Officer rather, the election of the returned candidate has been challenged on the ground that at the time of contesting the election, he was not holding requisite academic qualification and the documents relating to academic qualification of Class VIII filed by him at the time of filing of the nomination were forged documents. Learned counsel submitted that the matter with regard to the parties to the election petition is governed by Rule 83, which does not provide for impleadment of the State Government as necessary party and therefore, the application preferred by the petitioner was absolutely misconceived. 6. I have considered the rival submissions and perused the material on record. 7. It is to be noticed that by virtue of Article 243K, the superintendence, directions and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayat is vested in State Election Commission consisting of State Election Commissioner to be appointed by the Governor. Further by virtue of Article 243 O of the Constitution, no election to the Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by Legislature of State. 8. Further by virtue of Article 243 O of the Constitution, no election to the Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by Legislature of State. 8. Section 43 of Rajasthan Panchayati Raj Act, 1994 enacted by the State Legislature, an election under the Act of 1994 or the Rules made thereunder may be called in question by any candidate at such election by presenting in the prescribed manner to the District Judge having jurisdiction, a petition in this behalf on the prescribed ground and within the prescribed period. 9. The procedure for challenging an election is prescribed under Chapter XIII of the Rules of 1994 and Rule 83 incorporated therein, specifically provides that the person whose election is challenged and where the petitioner 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. Indisputably, in the instant case, the petitioner has questioned the election of the returned candidate on the specified ground noticed as above and none of act of the Election Officer is questioned. Moreover, the Election Officer is controlled and governed by the State Election Commission, an independent body, and thus, even otherwise, the State Government has nothing to do with the matter and in no manner, it could be considered as necessary party to the petition. Further, by virtue of Rule 85 of the Rules of 1994, the procedure provided in the CPC in regard to the suit is required to be followed in so far as it can be made applicable and thus, in view of the specific provision of Rule 83 of the Rules of 1994, providing for the parties to the election petition, the question of applicability of provisions of Order 27, Rule 5A CPC does not arise. 10. In Chaman Lal's case (supra) relied upon by the petitioner, the plaintiff therein claimed the relief against the State but State was not impleaded as party to the suit. In these circumstances the Supreme Court held that suit itself would not be maintainable. 10. In Chaman Lal's case (supra) relied upon by the petitioner, the plaintiff therein claimed the relief against the State but State was not impleaded as party to the suit. In these circumstances the Supreme Court held that suit itself would not be maintainable. Similarly, in Karan Singh's case (supra), in a suit for damages filed on the basis of the action of the public servant in his official capacity, State was not impleaded as party respondent and therefore, the suit was held to be not maintainable. Thus, in the considered opinion of this court, the said decisions do not help the petitioner in any manner. 11. In view of discussion above, the order impugned passed by the Election Tribunal, rejecting the application preferred by the petitioner, does not suffer from any infirmity, illegality or jurisdictional error warranting interference by this court in exercise of its re-visional jurisdiction. 12. The petition is therefore, dismissed. No order as to costs.