Jaswant Singh vs Nageshwar Singh and Others

Sunil Kumar Sinha, J.—Heard finally with the consent of learned Counsel for the parties.

The Petitioner is an elected Sarpanch of Gram Panchayat, Gamhria, Janpad Panchayat, Ramchandrapur, Tehsil Ramnujganj Distt. Sarguja (C.G.). The election of the Petitioner was called in question by Respondent No. 1 by filing an election petition u/s 122 of Chhattisgarh Panchayat Raj Adhiniyam, 1993. In the said election petition, the Petitioner filed an application under Order 7 Rule 11 of CPC for rejection of the petition on the ground that there was noncompliance of Sub-rule (2) of Rule 3 of Chhattisgarh Panchayat (Election Petition, Corrupt Practice & Disqualification for Membership) Rules, 1995. By the impugned order dated 15-7-10, the Respondent No. 9/Sub Divisional Officer after hearing arguments on the said application, directed that the application filed by the Petitioner under Order 7 Rule 11 of Code of Civil Procedure, shall be decided at the time of final disposal of the election petition.

Mr. Bhupendra Singh, learned Counsel appearing on behalf of the Petitioner, argued that the Election Tribunal erred in law in directing for deciding the application filed under Order 7 Rule 11 of CPC at the time of final disposal of the election petition. His submission is that the said application would have been decided at the threshold because if the application is allowed, the entire election petition would be rejected.

On the other hand, Mr. V.K. Pandey and Mr. Shashank Thakur, learned Counsel appearing on behalf of Respondent Nos. 1 and 9, opposed these arguments and supported the order passed by the Respondent No. 9.

I have heard learned Counsel for the parties at length and have also perused the records of the writ petition.

Rule 11 of Rules, 1995 prescribes the procedure before the Specified Officer. Sub-rule (1) of Rule 11 provides that 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. Therefore, there is no dispute that the " provisions of Code of Civil Procedure, are made applicable in the election petition filed u/s 122 of Chhattisgarh Panchayat Raj Adhiniyam, 1993.

In case of Azhar Hussain Vs. Rajiv Gandhi, , the Supreme Court held that the Court has power to reject an election petition summarily under the provisions of the Code of Civil Procedure. The purpose of conferment of such power is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the Court and the concerned litigants are relieved of the psychological burden of the litigation so as to be free to follow their ordinary pursuits and discharge their duties. There is greater reason why in a democratic set-up, in regard to a mater pertaining to an elected representative of the people which is likely to inhibit him in the discharge of his duties towards the nation, the controversy is set at rest at the earliest if the facts of the case and the law so warrant. Since the Court has the power to act at the threshold the power must be exercised at the threshold itself in case the Court is satisfied that it is a fit case for the exercise of such power and that exercise of such power is warranted under the relevant provisions of law.

In case on hand, when the application was filed under Order 7 Rule 11 of CPC for rejection of the election petition at the threshold on the ground that there was non-compliance of Sub-rule (2) of Rule 3, which leads to dismissal of the election petition under Rule 8 of the above Rules, it was incumbent on the Tribunal to decide the said application at the threshold and not to leave it for decision along with the election petition. If the application filed for rejection is kept in abeyance till the final decision of the election petition and ultimately, the election petition is dismissed on the same ground, the very purpose of keeping such provision in the statute book would render frustrated.

On the above ground, the impugned order passed by the Sub Divisional Officer/Specified Officer/Respondent No. 9 cannot be sustained.

In the result, the writ petition is allowed, the impugned order dated 15-7-10 (Annexure P-4) is hereby quashed. The Sub Divisional Officer/Specified Officer (Respondent No. 9) is directed to dispose of the application filed under Order 7 Rule 11 of the CPC at first, and then, it required, to proceed with the matter in accordance with law.

There shall be no order as to cost(s).