Lalita vs Rami Bai And Others

Pranay Verma, J

By this petition preferred under Article 226 of the Constitution of India, the petitioner has challenged the order dated 09.02.2024 (Annexure P-1) passed by the Election Tribunal whereby application under Order 7 Rule 11 of the CPC filed by her for rejection of the Election Petition preferred by respondent No.1 has been rejected.

The facts of the case in brief are that on 27.09.2022 election was held for the post of President of Nagar Panchayat, Petlawad, District Jhabua. Counting was done on 30.09.2022 and the result was declared on 04.10.2022 in which the petitioner was declared elected. On 14.10.2022 Election Petition was filed by respondent No. 1 before the Election Tribunal under Section 20 of M. P. Municipalities Act, 1961 (hereinafter 'the Act, 1961'). On 27.09.2023 an application under Order 7 Rule 11 of CPC was filed by the petitioner for rejection of the Election Petition on the ground that respondent No.1 has not complied with the provisions of Act, 1961. The said application has been rejected by the Election Tribunal by the impugned order.

Learned counsel for the petitioner has submitted that the Election Petition filed by respondent No. 1 does not disclose any cause of action. The ground raised is not a ground permissible under Section 22 of the Act, 1961. Even if the allegations as levelled in the Election Petition are taken to be true at their face value then also no ground as provided under Section 22 of the Act, 1961 is made out. The only ground taken by respondent No. 1 is that the petitioner is enrolled in voter list at two places. However, the same cannot be a ground to challenge the election after preparation and finalization of the voter list which is evident from language of Section 22 (1) (d) (iii) read with Rule 5 of Madhya Pradesh Nagar Palika Niravachan Niyam, 1994 ('the Niyam,1994'). It is hence submitted that the Election Petition preferred by respondent No. 1 deserves to be rejected.

Despite service of notice of this petition upon respondent No. 1 no one has entered appearance on her behalf.

I have heard the learned counsel for the petitioner and have perused the record.

From a perusal of the Election Petition filed by respondent No. 1, it is revealed that as per her the petitioner is enrolled as a voter at two places namely Gram Panchayat Karwad and Nagar Panchayat Petlawad. Despite being enrolled at two places, the petitioner has contested the election from Nagar Panchayat Petlawad which is impermissible and contrary to law. Since the petitioner is enrolled in two voter lists, the same is illegal and on the basis of the same she could not have contested the election unless and until her name had been deleted from the electoral roll of Gram Panchayat Kasrawad.

Section 22 of the Act, 1961 provides the grounds for declaring election or nomination as void. As per the said Section the election of the returned candidate can inter alia be declared as void if on the date of election he/she was not qualified or was disqualified to be chosen as a President or by the improper acceptance of any nomination as provided under sub Section 1(a) and sub Section 1 (d) (i). The said provisions being material are reproduced below :-

"22. Grounds for declaring election or [nomination] to be void.

(1)Subject to the provisions of sub-section (2) if the Judge is of the opinion-

(a)that on the dale of election or [nomination] a returned candidate was not qualified or was disqualified, to be chosen as a [President or a Councillor];

****

(d) that the result of the election or [nomination], in so far as it concerns a returned candidate, has been materially affected-

(i)by the improper acceptance of any nomination;

****"

Section 34 of the Act, 1961 provides for the qualification for election as President and states that a person who is enrolled in the municipal electoral roll as a voter shall be qualified to be a candidate for the election of President. The relevant part of the said Section is as under:-

"34. Qualifications for election as President or Councillor.

(1)Subject to the provisions of this Act, a person who is enrolled in the Municipal electoral roll as a voter, shall be qualified to be a candidate

(a)for the election of President, if he is not less than 25 years of age;

*****"

Section 35 of the Act, 1961 provides for the disqualification of candidates and states that no person shall be eligible for election as a President if he falls within any of the categories as mentioned therein. Thus, the qualification for contesting election as a President is that a person must be enrolled in the municipal electoral roll as a voter. There is no specific disqualification to the effect that if a person is enrolled in the municipal electoral roll as a voter is also enrolled as a voter in another municipal electoral roll he would be disqualified to be a candidate for election as a President. A candidate is required to fulfil the qualifications and should not be incurring any disqualification. This is the yardstick on which it has to be tested whether a candidate is or is not qualified to be a candidate for election as a President. If he fulfils the criteria for qualification and has not incurred any disqualification then he is certainly entitled to contest the election.

Rule 4 of the Rules, 1994 prescribes that as soon as the voter list is ready, the Registration Officer shall give a public notice inviting claims for inclusion of names in the list and objections to any entry therein. Rule 5 provides inter alia that any person who objects to inclusion of name of any other person in the list may prefer a claim or objection by way of an application in writing not later than the last day specified in the notice under Rule 4 and no claim or objection thereafter shall be entertained. Rule 6 provides for the disposal of claims and objections and states that the Registration Officer shall after holding such summary enquiry into the claims or objections as he may deem fit, record his decision in writing and shall amend the voter list in accordance with his decision and the voter list so amended shall subject to decision in appeal, if any, be final. Sub Rule (5) of Rule 6 provides that any person aggrieved by the decision of the Registration Officer may prefer an appeal to the appellate authority within five days of such decision. For ready reference relevant part of Rules 4, 5 and 6 of the Niyam, 1994 are reproduced below:-

"Rule - 4.Publication of Voters' List for inviting claims and objections.

(1) As soon as the voters' list is ready, the Registration Officer shall give a public notice inviting claims for inclusion of names in the list and objections to any entry therein, by displaying a notice in such form as may be prescribed by the Election Commission and making a copy of the list available for inspection :

(a) at his office, if it is within the Municipality;

(b) at the office of the Municipality; and

(c) at such other places in or near the ward as may be specified by him for the purpose.

(2) The notice shall specify the period during which and officer with whom an objection or claim may be lodged and the date, time and place for the hearing of such objections and claims, if any, by the Registration Officer.

(3) The voters' list shall remain open for inspection, free of charge, by the public for a period of at least seven days from the date of publication of the notice, during office hours.

(4) Copy of the voters' list may be supplied to any person on payment of such fee as may be fixed by the Election Commission by a general or special order.

Rule - 5.Claims and objections.

(1) Any person, whose name is not entered in the voters' list or is entered at an incorrect place or with incorrect particulars or any person whose name is entered in the list and who objects to the inclusion of his own name or the name of any other person in that list, may prefer a claim or objection by delivering to the Registration Officer an application in writing duly signed by him not later than 3 O'clock in the afternoon of the last day specified in the notice under Rule 4 and no claim or objection thereafter shall be entertained.

(2) ****

(3) ****

Rule - 6.Disposal of claims and objections.

(1) The Registration Officer shall, after holding such summary inquiry into the claims or objections as he deemed fit, record his decision in writing and shall make available on demand a copy of such decision to the claimant or objector free of charge forthwith.

(2) ****

(3) The Registration Officer shall amend the voters' list in accordance with his decision.

(4) The voters' list so amended shall, subject to decision in appeal, if any, be final and a copy thereof duly authenticated by the Registration Officer shall be kept in his office and another copy deposited in the office of District Election Officer.

(5) Any person aggrieved by the decision of the Registration Officer may prefer an appeal to the Appellate Authority within five days of such decision. **** The Appellate Authority, after giving the appellant an opportunity of hearing and after making such summary enquiry as it deems fit, shall pass suitable orders expeditiously and in the event of the appeal succeeding, direct the Registration Officer to amend the voters' list to give effect to its decision. The decision of the Appellate Authority shall be final:

Provided that no amendment shall be carried out in the voters' list according to the decision of the Appellate Authority after the last date and time fixed for making nominations in the notice issued under Rule 21 and before the completion of election."

Thus, from the scheme of the Niyam, 1994, it is apparent that upon the voter list being ready, public notice inviting claims and objection is given to any entry therein pursuant to which any person may prefer an objection inter alia to inclusion of name of any person in that list. Such objection is adjudicated upon by the Registration Officer who records his decision in writing. The same can be subjected to appeal. After conclusion of this process, the voter list is finalized and published after which no correction in any entry therein is permissible.

Section 9-A of the Niyam, 1994 provides that if the Registration Officer on an application made to him or on his own motion is satisfied that the name of any person in the voter's list of municipality after its finalization under Rule 6 should be deleted on the ground that the person concerned is registered in the voter's list of more than one ward of the municipality concerned or of any other municipality or any other Panchayat, he shall delete the entry. No deletion of any such entry shall be made after the last date fixed for making nomination and before completion of the election. Rule 9 –A is reproduced below:-

"9-A. Deletion of entries in the Voters' List in certain cases.

( 1 ) If the Registration Officer, on an application made to him or on his own motion, is satisfied after such inquiry as he thinks fit, that the name of any person in the voters' list of a Municipality after its finalisation under Rule 6 should be deleted on the ground that the person concerned is registered in the voters' list of more than one ward of the Municipality concerned or of any other Municipality or of any Panchayat, the Registration Officer shall subject to such general or special directions, if any, as may be given by the Commission in this behalf, delete the entry :

Provided that before taking any action in this behalf, the Registration Officer shall give the person concerned a reasonable opportunity of being heard in respect of the action proposed to be taken in relation to him.

(2) No deletion of any entry shall be made under sub-rule (1) after the last date fixed for making nomination in the notice issued under Rule 21 for an election in any ward of the Municipality concerned and before the completion of that election.

(3) The Registration Officer shall record in writing the reasons for his decision to delete an entry under sub-rule (1) and shall make available, on demand, a copy of such decision to the person concerned free of charge, forthwith.

(4) Any person aggrieved by the decision of the Registration Officer under sub-rule (1) may prefer an appeal to the District Election Officer within fifteen days of such decision.

( 5 ) The District Election Officer, after giving the appellant an opportunity of being heard and making such enquiry as he deems fit, shall pass suitable order on the appeal and the order of the District Election Officer shall be final."

Thus, even after finalization of the voter list, the Registration Officer on an application made to him or on his own may delete the entry of any person as a voter in the voter list on the ground that the person concerned is registered in the voter's list of any other municipality or of any Panchayat.

There is hence a detailed mechanism provided under the Niyam, 1994 as regards preparation of the voter list and inclusion of name of a voter therein. Inclusion of name of a person in the list can be challenged by any person as per Rule 5 by preferring a claim or objection. Even after finalization of voter list, any entry therein can be deleted if the voter is registered in the voter list of any other municipality of any other Panchayat provided that the same is done before the last date fixed for making nomination and before completion of the election.

In the present case, as per respondent No.1 herself, she has never laid any claim or objection to inclusion of name of petitioner in the voter list of Nagar Panchayat, Petlawad after claims were invited upon publication of the voter list. Thereafter, the final voter list was published in which there was an entry of name of the petitioner. Even thereafter, no application was preferred by respondent No.1 before the Registration Officer objecting to inclusion of name of the petitioner therein on the ground that her name is included in the voter's list of Gram Panchayat, Kasrawad. Even the Registration Officer on his own motion did not take any steps in that regard. The result thereof was that as on the last date fixed for making nomination and before completion of the election, no objection was there to inclusion of name of the petitioner in the voter list. Respondent No.1 could have very well taken an objection to inclusion of name of petitioner in the voter list prior as well as subsequent to its finalization but from the pleading as made by her in the election petition, it is evident that she never took any such objection.

The result of no objection having been taken by responding No.1 was that the name of the petitioner was included in the voter list of Nagar Panchayat, Petlawad and as per section 34(1) of the Act, 1961, she was qualified to be a candidate for election as a President and contested the same. Since she was so qualified, her nomination form was rightly accepted by the Election Officer.

From a perusal of the Election Petition of respondent No.1, it is evident that the only ground taken by her is inclusion of name of petitioner in the voter list of Gram Panchayat Kasrawad as well as Nagar Panchayat, Petlawad. However, the name of petitioner was included in the voter list of Nagar Panchayat, Petlawad as a result of which she acquired the status of a person qualified to be a candidate for election as a of President. She hence could not be said to be a candidate who was not qualified or was disqualified to be chosen as a President under Clause (a) of sub Section (1) of Section 22 and it further cannot be said that her nomination form was improperly accepted by the Election Officer under sub Clause (d)(i) of Sub Section (1) of Section 22. Thus, the ground on which election of the petitioner has been challenged by respondent No.1 as per section 22 of the Act, 1961 is not available to her. After finalization of the voter list and after the last date fixed for making nomination and after completion of the election the ground as regards the petitioner being enrolled in the voter list at two places is not available to respondent No.1 to challenge her election.

The only ground taken by respondent No. 1 in her election petition is not a ground available to her to challenge the election of petitioner. Even if the entire allegations as levelled by respondent No. 1 in her election petition are taken to be true then also no ground can be said to have accrued to her for challenging the election of the petitioner. In absence of any such ground it is evident that no cause of action has arisen to her to maintain the election petition against the petitioner.

In view of the aforesaid discussion since the election petition preferred by respondent No.1 lacks any cause of action as mandated under the law the same deserves to be rejected. Consequently, the application under Order 7 Rule 11 of the CPC preferred by the petitioner is allowed and the election petition preferred by respondent No.1 is hereby rejected.

The petition is accordingly allowed.