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2017 DIGILAW 48 (MP)

Omkar Mahule v. State of Madhya Pradesh

2017-01-10

VIJAY KUMAR SHUKLA

body2017
ORDER : Vijay Kumar Shukla, J. 1. In the present petition under Article 226 of the Constitution of India. The petitioner has called in question the legality and propriety of the order dated 24th March, 2015 passed by the respondent no.3 in Panchayat Election Case No. 26/A-89(1)/2014-15, whereby the election petition filed by the petitioner under the provisions of Section 122 of the M.P. Panchayat Rajya Avam Gram Swaraj Adhiniyam, 1993 (hereinafter in short shall be referred as “Adhiniyam”) has been dismissed summarily on admission itself without notice to the other side on the very first date. 2. Petitioner filed an election petition under Section 122 of the “Adhiniyam” before the respondent no.3 challenging the election of respondent no.4 for the office of Sarpanch of Gram Panchayat Kosmi, District Balaghat (M.P.). The petition was presented on 24th March, 2015 before the respondent no.3/Specified Officer and on that very day respondent no.3 heard the petitioner on the question of maintainability of the petition and dismissed the election petition stating that the petition is based on the issue that the respondents no. 4 to 7, published defamation letter and circulated to the voters of the villager during the election period. But they had not made any complaint regarding that to the Returning Officer and, therefore, he has no locus to present election petition, accordingly the same is dismissed. 3. Learned counsel for the petitioner submits that the impugned order is illegal and arbitrary as it is contrary to the provisions of M.P. Panchayat (Election Petition, Corrupt Practise and Disqualification for Membership) Rule 1995 (hereinafter same shall be referred as Rules) framed under Adhiniyam. 4. Combating the aforesaid submissions, the counsel for respondent no.4 submits that the order passed by respondent no.3 is legal and valid and it is in accordance with the provisions of Rule 25 as the petitioner has failed to show any cause of action for maintaining the Election Petition against him. He relied upon Rule 11 and 21 of the Rules 1995. He submits that in accordance with the provisions of Rule 11 of Rule 1995, the respondent no. 3 was clothed with the power to dismiss the election petition as no cause of action was shown by the election petitioner. He relied upon Rule 11 and 21 of the Rules 1995. He submits that in accordance with the provisions of Rule 11 of Rule 1995, the respondent no. 3 was clothed with the power to dismiss the election petition as no cause of action was shown by the election petitioner. He further submits that the grounds stated in the Election Petition are not covered under Rule 21 of the Rules 1995 which engrafts the grounds for declaring the election to be void. 5. Before proceeding further to examine the rival contentions, it is apposite to re-produce the impugned order passed by the respondent no.3 as under:- “ iapk;r fuokZpu ;kfpdk drkZ Jh vksaedkj ekgqGs firk Jh Lo0 fnxEcj ekgqGs fuoklh okMZ ua0 12 rglhG ckGk?kkV tuin iapk;r dksleh }kjk Jh ia0 ixnh’kpUnz frokjh vf/koDrk lfgr mifLFkr gksdj Lo;a ;kfpdk xzke iapk;r dksleh rglhG o ftGk ckGk?kkV varxZr /kkjk 122 iapk;r jkt ,oa xzke Lojkt vf/kfu;e 1993 ds rgr ;kfpdk is’k fd;kA ** **2- izLrqr ;kfpdk xzkg~;rk esa fu;r dj ;kfpdkdrkZ ds vf/koDrk ds rdZ Jo.k fd;k x;kA izLrqr ;kfpdk esa vH;fFkZ;ksa ds ;kfpdk ds }kjk frfFk fnukad 20-01-2015 dks izR;FkhZ dz0 3 ,oa 4 us ,d lwpuk ‘khZ”kd okGk ipkZ gs.M fcy@ikWEiysV eqfnzr ,oa izdkf’kr djok;k vkSj nksuksa ifr&iRuh us xzke iapk;r dksleh {ks= esa dksleh ds fuokfl;ksa ds ?kj&?kj tkdj mls forfjr fd;k vkSj xzke dksleh ds leLr iathd`r ernkrkvksa dks mDr ipkZ forfjr dj vihG izLrqr dh xbZ gSA vr,o fjVfuZax vkWfQlj iapk;r pquko ckGk?kkV ds le{k pquko vkpkj lafgrk dk mYya?ku ls lacaf/kr gSA ftldh f’kdk;r DysDVj ,oa ftyk fuokZpu vf/kdkfj;ksa dks izLrqr fd;k tkuk Fkk tks ugha fd;k x;k gS] ;g pquko ;kfpdk dh ifjf/k esa ugha vkrk gSA nLrkostksa dk voGksdu fd;k vihG xzkg~; ;ksX; u gksus ls fujLr fd;k tkrk gSA “ 6. 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. 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. 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. 7. 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 respondent no.3 has dismissed the Election Petition on the ground that the ground raised in the election petition regarding publication of defamation material by the respondent no. 4 to 7 and circulating the same to the voters of villagers cannot be a ground of election petition because the petitioner has not made any complaint to the Returning Officer, therefore, the ‘appeal’ (word used in the impugned order) is dismissed. 4 to 7 and circulating the same to the voters of villagers cannot be a ground of election petition because the petitioner has not made any complaint to the Returning Officer, therefore, the ‘appeal’ (word used in the impugned order) is dismissed. The said ground for dismissal of election petition does not come within the ambit of the non-compliance of Rule-3, Rule 4 or Rule 7 and therefore, the petition could not have been dismissed at the threshold on the very first date of hearing. 8. 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. 9. 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. 10. 10. 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. 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. 11. In the present case, the respondent no.3 dismissed the election petition by order dated 24.03.2015 in a cryptic and cavalier manner by a very casual approach. The election petition has been dismissed on the very first date of admission without examining the provisions of Rule 3, Rule 4, Rule 7 and Rule 8 of Rules. No notice was issued to the other side and without there being any objection to the admissibility of the petition, the same was dismissed summarily. It is reiterated that the election petition can be dismissed under the Act and Rules, summarily only when the petition is filed without compliance of Rule 3, Rule 4 and Rule 7 exercising the power under Rule 8 after giving opportunity of hearing to the election petitioner. In the impugned order the specified officer has used the word ‘appeal dismissed’. It is reiterated that the election petition can be dismissed under the Act and Rules, summarily only when the petition is filed without compliance of Rule 3, Rule 4 and Rule 7 exercising the power under Rule 8 after giving opportunity of hearing to the election petitioner. In the impugned order the specified officer has used the word ‘appeal dismissed’. This also shows the non-application of mind by the specified officer as the case before him was not an appeal but an election petition challenging the election of Sarpanch under the provisions of Adhiniyam 1993 and Rules 1995. 12. Except under Rule 8 the 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 v. 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 v. Ramjilal 2002 (3) MPLJ 121 . 13. 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 v. Ramcharan 1997 (2) MPWN 3 . In the case of Uday Singh v. Himmat Singh 1999 (1) 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. In the case of Uday Singh v. Himmat Singh 1999 (1) 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. Thus the light of aforesaid enunciation of law, it is vivid that the election petition has been dismissed only on the ground that the petitioner did not make any complaint to the Returning Officer regarding publication of defamatory statements against him, therefore, not maintainable, is not sustainable in view of above settled proposition of law. The said ground is not a ground under Rule 8 to dismiss the election petition and an election petition can be dismissed summarily only on non-compliance of mandatory provisions enshrined in Rule 3, Rule 4 and Rule 7 as provided under Rule 8 of Rules 1995. 14. Thus, the impugned order passed by respondent no.3 is unsustainable being in violation of the provisions of Rule 8 of Rules 1995 and law settled by the Court regarding trial of an election petition under M.P. Panchayat Rajya Avam Gram Swaraj Adhiniyam , 1993 and Rules framed therein. The impugned order dated 24.03.2015 is quashed and respondent no.3 is directed to decide the election petition in accordance with law. 15. With the aforesaid directions, the writ petition is allowed.