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2017 DIGILAW 672 (ALL)

ARCHANA v. PREMLATA

2017-03-02

SURYA PRAKASH KESARWANI

body2017
JUDGMENT Hon’ble Surya Prakash Kesarwani, J.—Heard Sri Vivek Singh, learned counsel for the petitioner, the learned standing counsel for the State respondent Nos. 8, 9 and 10 and Sri Ashutosh Kumar Singh, learned counsel for respondent No. 1. FACTS : 2. Briefly stated, facts of the present case are that the petitioner contested for election of village Pradhan of village Barahapur, Vikas Khand Deokali, Tehsil Saidpur, District Ghazipur. He was declared elected on 5.12.2015. The election of the petitioner was challenged by the respondent No. 1 by filing an Election Petition No. 9 of 2016 under Section 12C(1) of the U.P. Panchayat Raj Act, 1947 (hereinafter referred to as ‘the Act’), which was presented before the Prescribed Authority on 25.1.2016. The respondent No. 1 filed a Writ-C No. 9755 of 2016 (Smt. Premlata v. Smt. Archana and nine others), which was disposed by a Division Bench of this Court by order dated 2.3.2016 as under: “The petitioner had contested the recently concluded Gram Panchayat election in which respondent No. 1-Smt. Archana has been declared elected. The petitioner has filed an election petition under Section 12-C of the U.P. Panchayat Raj Act, 1947 for recount of the votes. The sole relief pressed for by learned counsel for the petitioner is that the election petition filed by the petitioner may be decided expeditiously. Learned Standing Counsel appearing for the respondents states that the election petition filed by the petitioner shall be decided expeditiously. In the judgement rendered on 17 December 2015 in Writ-C No. 67587 of 2015 (Manni Lal v. State of U.P. and others), this Division Bench directed that the Presiding Judge shall make all endeavours to decide the election petition without granting any unnecessary adjournments to any of the parties and on priority basis within six months from the date a certified copy of this order was filed by the petitioner. Following the aforesaid judgement of this Bench in Manni Lal, this writ petition is disposed of with the same terms by directing that the election petition filed by the petitioner shall be decided after hearing the parties concerned without granting any unnecessary adjournments to any of the parties and on priority basis within six months from the date a certified copy of this order is filed by the petitioner.” 3. Although there was a clear direction by the Division Bench as afore-quoted to decide the aforesaid election petition on priority basis within six months from the date a certified copy of the order is filed, yet the disposal of the election petition has been delayed by the petitioner on one pretext or the other. As per averments made in paragraph-8 of the writ petition, the petitioner had filed written statement on 30.8.2016. In paragraph-9 of the writ petition, it is stated that the petitioner has filed an application on 2.2.2017 for deciding the issue Nos. 7 and 9. The said application dated 2.2.2017 filed by the petitioner after about 11 months of the afore-quoted Division Bench order of this Court, was rejected by the Prescribed Authority on the same day observing that the application has been moved with intent to delay the disposal of the election petition. The petitioner again moved an application on 7.2.2017 under Order VI Rule 15, C.P.C. which was rejected by the Prescribed Authority by order dated 13.2.2017 in which he observed that the application dated 7.2.2017 has been moved by the petitioner after the issues have been framed and evidences have been led and there is a direction of the High Court in Writ-C No. 9755 of 2016 (decided on 2.3.2016) to decide the election petition within six months and as such the application of the petitioner is disposed of. The orders dated 2.2.2017 and 13.2.2017 have been challenged in this writ petition. SUBMISSIONS : 4. Learned counsel for the petitioner submits that with respect to the question of maintainability, issue Nos. 7 and 9 have been framed which should be decided by the Prescribed Authority as preliminary issues and only thereafter the election petition should be heard. 5. Learned counsels for the respondent Nos. 1, 8, 9 and 10 support the impugned orders. DISCUSSION AND FINDINGS : 6. I have carefully considered the submissions of learned counsels for the parties and with their consent, the writ petition is being finally heard without calling for counter-affidavit. 7. I find no substance in the submission of learned counsel for the petitioner inasmuch as all the issues may be decided together by the Prescribed Authority while finally deciding the election petition. I have carefully considered the submissions of learned counsels for the parties and with their consent, the writ petition is being finally heard without calling for counter-affidavit. 7. I find no substance in the submission of learned counsel for the petitioner inasmuch as all the issues may be decided together by the Prescribed Authority while finally deciding the election petition. It appears from the conduct of the petitioner that he wants to delay disposal of the election petition despite a clear direction by the Division Bench of this Court by order dated 2.3.2016 in Writ-C No. 9755 of 2016 for disposal of the election petition within six months. 8. From the facts afore-noted, it is evident that the Election Petition No. 9 of 2016 was filed by the respondent No. 1 under Section 12(1) of the Act which was presented before the Prescribed Authority on 25.1.2016. The said respondent No. 1 filed Writ-C No. 9755 of 2016 (Smt. Premlata v. Smt. Archana and 9 others) which was disposed of by a Division Bench of this Court by order dated 2.3.2016 directing that the election petition filed by the respondent No. 1 shall be decided after hearing the parties concerned without granting any unnecessary adjournment to any of the parties and on priority basis within six months from the date a certified copy of this order is filed. The petitioner (returned candidate) participated in the election petition proceedings in which nine issues were framed. The evidences have already been led by the parties. After expiry of about 11 months from the date of direction of the Division Bench of this Court in Writ-C No. 9755 of 2016 as afore-quoted, the petitioner moved an application on 2.2.2017 praying that the issue Nos. 7 and 9 should be decided first. This application was rejected by the Prescribed Authority on the same day observing that the application has been moved with intent to delay the disposal of the election petition. 7 and 9 should be decided first. This application was rejected by the Prescribed Authority on the same day observing that the application has been moved with intent to delay the disposal of the election petition. Again on 7.2.2017 after expiry of about 11 months from the date of direction of the Division Bench dated 2.3.2016 as afore-quoted; the petitioner moved an application under Order VI Rule 15, C.P.C. which was rejected by the Prescribed Authority by order dated 13.2.2017 observing that the application has been moved by the petitioner after the issues have been framed and evidences have been led and there is a direction of the High Court in Writ-C No. 9755 of 2016 to decide the election petition within six months and as such the application of the petitioner is disposed of. The finding of the Prescribed Authority in the order dated 2.2.2017 that the application has been moved with intent to delay the disposal of the election petition, has not been disputed by the petitioner. Thus, the intention of the petitioner behind moving the applications dated 2.2.2017 and 7.2.2017 as well as in filing the present writ petition, is clearly to delay the disposal of the election petition and to flout the clear direction of Division Bench of this Court by order dated 2.3.2016 in Writ-C No. 9755 of 2016. This further indicates that the petitioner has abused the process of law to delay the disposal of the election petition and not to allow the Prescribed Authority to comply with the direction of the Division Bench order dated 2.3.2016. 9. Section 12-C(4) of the Act read with Rule 4 of the Uttar Pradesh Panchayat Raj (Settlement of Election Disputes) Rules, 1994 (hereinafter referred to as ‘’the Rules’) clearly mandates that subject to the provisions of the Act and Rules, every election petition shall be tried by the Sub-Divisional Officer as nearly as may be in accordance with the procedures applicable under the C.P.C. 1908 for the trial of the suits. However, proviso to Rule 4(1) provides for certain exceptions. For ready reference, the provisions of Rule 4(1) of the Rules, is reproduced below: “4. However, proviso to Rule 4(1) provides for certain exceptions. For ready reference, the provisions of Rule 4(1) of the Rules, is reproduced below: “4. Hearing of the petition.—(1) Subject to the provisions of the Act and these rules, every election petition shall be tried by the Sub-Divisional Officer, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, for the trial of suits: provided that- (i) the Sub-Divisional Officer may hear the petitioner or his counsel and if he finds that the petition has no substance, reject the same without the issue of any notice to the opposite parties; (ii) it shall not be necessary for Sub-Divisional Officer to record the evidence in full and he may maintain only a memorandum of evidence produced by the parties before him; (iii) if there is a sole petitioner and he dies, or there is a sole respondent and he dies, the petition shall abate; (iv) the Sub-Divisional Officer may allow only such evidence to be produced as he deems relevant for the purpose of deciding the petition; (v) the District Magistrate may at any stage on sufficient cause being shown transfer an application made under sub-section (1) of Section 12-C for hearing another Sub-Divisional Officer, and (vi) an application not presented within time unaccompanied by a treasury challan as required under sub-rule (1) of Rule 3 may at any time be dismissed by the Sub-Divisional Officer, and (vii) the Sub-Divisional Officer may, on an application of either party made within five days after the date of his decision, review his order.” 10. Order XIV Rule 2 of C.P.C. provides as under: “2. Court to pronounce judgement on all issues.—(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues. Order XIV Rule 2 of C.P.C. provides as under: “2. Court to pronounce judgement on all issues.—(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues. (2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to- (a) the Jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other Issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.” 11. The afore-quoted Rule 2 was substituted by Act No. 104 of 1976 with effect from 1.2.1977 by amending the then existing Rule 2. The amended Rule 2 as afore-quoted is divided in Sub-Rule (1) and Sub-Rule 2. Sub-Rule (1) clearly provides that all issues must ordinarily be tried together notwithstanding that a case may be disposed of on a preliminary issue. Sub-Rule (2) provides an exception to the aforesaid normal rule. The exception so provided is limited and discretionary in nature. It provides that where issues both of law and fact arise in the same suit and the Court is of opinion that the case or any part thereof may be disposed on an issue of law only, it may try that issue first, if that issue relates to the jurisdiction of the Court, or a bar to the suit created by any law for the time being in force. Thus, to decide an issue as preliminary issue is discretionary and discretion may be exercised only in the circumstances that such preliminary issue relates to the jurisdiction of the Court or a bar to the suit created by any law for the time being in force. Thus, to decide an issue as preliminary issue is discretionary and discretion may be exercised only in the circumstances that such preliminary issue relates to the jurisdiction of the Court or a bar to the suit created by any law for the time being in force. Reference in this regard may be had to the full bench judgment of this Court in the case of Sunni Central Waqf Board v. Gopal Singh Visarad, AIR 1991 All 89 (FB) and another judgment of this Court in Mithilesh Kumari v. Gaon Sabha, Kishanpur, AIR 1999 All 304 : 1999 (2) AWC 1654 . 12. The very object behind the enactment of Rule 2 appears to be to ensure expeditious disposal of suit and for that reason, a limited discretion has been given to the Court as provided in Sub-Rule (2). In the present set of facts, as many as nine issues were framed together. The evidences have already been led by the parties. The application dated 2.2.2017 was moved by the petitioner on the ground that RO and ARO have been made party in the election petition but it has not been shown that who were posted on that posts and in this regard issue Nos. 7 and 9 have been framed. For this reason alone, it was insisted that these two issues should be decided as preliminary issues. The application dated 7.2.2017 was moved by the petitioner alleging non-verification of a verification clause in the affidavit by the Oath Commissioner. Both the aforesaid two applications prima facie do not fall within the scope of Sub-Rule (2) of Rule 2 of Order XIV of the C.P.C. Thus, the entire issues framed by the Prescribed Authority in the election petition in question, deserve to be decided together in view of the provisions of Sub-Rule (1) of Rule 2 of Order XIV C.P.C. Under the circumstances, I do not find any error in the impugned orders passed by the Prescribed Authority. 13. 13. In the case of Prithvi Raj Jhingta v. Gopal Singh, AIR 2007 HP 11 (FB) (para-9), a full bench of Himanchal Pradesh High Court held that where the Court has framed all issues together both of law as well as facts and has tried all those issues together, it is not open to the Court to adopt the principle of severability and proceed to decide issues of law first without taking up simultaneously other issues for decision. The Court further observed that Sub-Rule (1) of Rule 2 of Order XIV does not permit the Court to dispose of the suit only on preliminary issues, or what can be termed as issues of law. 14. In the case of Jayant Samal v. Kulamani Behra and another, (2004) 13 SCC 552 (para-12), Hon’ble Supreme Court considered the plea of limitation in an election petition and held as under: “So far as the plea as to limitation, that is, the election petition having been filed after expiry of period of limitation is concerned, it is stated at the Bar that condonation of delay has also been sought for by the election petitioner. The plea of limitation, in these circumstances, raises a mixed issue of law and fact. Evidence has been recorded on all the issues which will be heard and decided in one go, at the end. The fact that such an issue is awaiting decision, does not take away the jurisdiction of the Tribunal to order a re-count in a case in that regard having been made out” (Emphasis supplied by me) 15. From the facts as afore-noted, it is clear that the order dated 2.3.2016 passed by the Division Bench in Writ-C No. 9755 of 2016 directing to decide the election petition in question within six months, was well within the knowledge of the petitioner. When the election petition reached at the final stage, the petitioner moved an application dated 2.2.2017 to circumvent the aforesaid order of the Division Bench dated 2.3.2016. While rejecting the said application, the Prescribed Authority recorded a finding that the application has been moved by the petitioner with intent to delay the disposal of the election petition. This finding of fact has not been even disputed by the petitioner in the present writ petition. While rejecting the said application, the Prescribed Authority recorded a finding that the application has been moved by the petitioner with intent to delay the disposal of the election petition. This finding of fact has not been even disputed by the petitioner in the present writ petition. These facts clearly indicate that the petitioner wants to delay the disposal of the election petition and has filed the aforesaid applications so as to circumvent the Division Bench order of this Court dated 2.3.2016. The present writ petition is a frivolous writ petition, which has been filed as an attempt to abuse the process of Court so as to circumvent the Division Bench order dated 2.3.2016. This attracts an exemplary cost to be imposed upon the petitioner. 16. In the case of Dnyandeo Sabaji Naik and another v. Mrs. Pradnya Prakash Khadekar and others (Special Leave Petition (C) Nos. 25331-33, decided on 1.3.2017), a three judge bench of Hon’ble Supreme Court considered an attempt to abuse the process by a litigant and imposed an exemplary cost of Rs. 5 lacs and commended all Courts to deal with frivolous filings firmly. 17. After the judgment was dictated, learned counsel for the petitioner referred to certain judgments of this Court and Hon’ble Supreme Court which in fact do not support the case of the petitioner. He relied upon a Division Bench judgment of this Court in the case of Ram Abhilakh Tewari v. Election Tribunal, Gonda, AIR 1958 All 663 and the judgments of Hon’ble Supreme Court in the case of Jyoti Basu v. Debi Ghosal, AIR 1982 SC 983 , Harcharan Singh v. S. Mohinder Singh, AIR 1968 SC 1500 , Jitendra Bahadur Singh v. Krishna Behari, AIR 1970 SC 276 , Lakshmi Charan Sen v. A.K.M. Hassan Uzaman, (1985) 4 SCC 689, Hari Shanker Jain v. Sonia Gandhi, (2001) 8 SCC 233 , Kabul Singh v. Kundan Singh, AIR 1970 SC 340 , Sadhu Singh v. Darshan Singh, JT 2006 (7) SC 95, Nripendra Bahadur Singh v. Jai Ram Verma, AIR 1977 SC 1992 , Baldev Singh v. Shinder Pal Singh, (2007) 1 SCC 341 . 18. In the case of Ram Abhilakh Tewari (supra), the Court directed the Tribunal to proceed to reconsider the issues and frame them in the light of the view expressed in the judgment. 18. In the case of Ram Abhilakh Tewari (supra), the Court directed the Tribunal to proceed to reconsider the issues and frame them in the light of the view expressed in the judgment. In the case of Jyoti Basu (supra), the controversy was with respect to joining of the parties and it was held that in view of the provisions of the Representation of People Act, 1950, only candidates in the election can be joined as respondents. In the case of Harcharan Singh (supra), Hon’ble Supreme Court was considering the question with respect to rejection of nomination paper on the ground of age appearing in electoral roll. In the case of Jitendra Bahadur Singh (supra), Hon’ble Supreme Court was considering inspection of ballot papers under Rule 93 of the Conduct of Election Rules of 1961 and the provisions of Section 92 of the Representation of People Act and it was held that before an order of inspection of ballot papers, trial Court must be prima facie satisfied in order to decide the dispute and to do complete justice between the parties that inspection of ballot papers is necessary. In the case of Luxmi Charan Sen (supra), the controversy before the Hon’ble Supreme Court was with respect to inclusion/exclusion of names from electoral rolls. In the case of Harishankar Jain (supra), Hon’ble Supreme Court considered the requirement of Section 100 of the Representation of People Act, 1951 for declaring an election to be void. In the case of Kabul Singh (supra), Hon’ble Supreme Court held that right to vote being purely a statutory right, validity of any vote is to be examined on the basis of provisions of the Act. In the case of Nripendra Bahadur Singh (supra), Hon’ble Supreme Court dealt with issue of correction of electoral rolls and explained the meaning of electors under Section 2(1)(e) of the Representation of People Act, 1951. In the case of Baldev Singh (supra), Hon’ble Supreme Court considered the question as to whether Tribunal was correct in directing recounting under the Punjab Panchayat Raj Act, 1994 and the Punjab Panchayat Election Rules, 1994. Thus, the judgments relied by the petitioner as afore-noted have no bearing on the facts of the present case. 19. In view of the above discussion, the writ petition is dismissed with cost of Rs. Thus, the judgments relied by the petitioner as afore-noted have no bearing on the facts of the present case. 19. In view of the above discussion, the writ petition is dismissed with cost of Rs. 50,000/- which the petitioner shall deposit with Legal Cell Authority, High Court, Allahabad within two months from today.