Mohd. Qaisar vs Chhabili Devi and Others

Rakesh Tiwari, J.—Heard Sri R.K. Awasthi, learned Counsel for the petitioner and Sri Siddarth, learned Counsel representing respondent No. 1.

The petitioner was elected as Chairman of Nagar Panchayat Deorania, Tehsil Baheri, District Bareilly in the election held in November, 2006. Election Petition being Election Petition No. 34 of 2006 was filed by respondent No. 1, Chabili Devi challenging the election of the petitioner on various grounds. One of the grounds taken in the Election Petition was that the petitioner has committed the corrupt practice of undue influence with the assistance of Sri Ataur Rahman, a sitting M.L.A. belonging to Samajwadi Party who was also the Chairman of the Minority Financal Corporation. Similar allegations were also made against his brother Sri Wafaur Rahman, who is a sitting Block Pramukh of Block Damkhora, Tehsil Baheri.

During the pendency of the Election Petition an application under Order 7 Rule 11 CPC was filed praying that since no triable cause of action had been shown in the election petition, hence it was liable to be dismissed.

The Court vide its order dated 4.3.2008 dismissed the aforesaid application under Order 7 Rule 11 C.P.C.

Thereafter 12 issues were framed by the Court vide order dated 14.7.2008. Issue Nos. 9 and 10 were to be tried and decided as preliminary issues. Issue No. 9 was as to whether the election petition was bad for non-joinder of necessary parties and issue No. 10 related to as to whether the Court lacks the jurisdiction to hear the election petition. Issue No. 10 was not pressed by the party.

The argument of learned Counsel for the petitioner is therefore, confined to the challenge of issue No. 9 only in regard to which he submits that the aforesaid three persons, namely, Sri Ataur Rahman, a sitting M.L.A., his brother Sri Wafaur Rahman, a sitting Block Pramukh and Sri J.S. Musafir, a Government Servant, who are alleged to have assisted the petitioner in corrupt practices have not been made parties in the election petition, hence if any finding of corrupt practice is recorded against them, they would have to face serious consequences i.e. Sri Ataur Rahman, who is a sitting MLA and Sri Wafaur Rahman, who is a sitting Block Pramukh might incur disqualification, Sri J.S. Musafir who is Government Servant also could be proceeded departmentally etc. and even would also entail criminal prosecution u/s 171-C and punishment u/s 171-F of the IPC.

Learned Counsel for the petitioner has urged that on the analogy of Section 99(1) of the Representation of Peoples Act, 1951, similar provisions should be read in the UP. Municipalities Act which are equitable and that u/s 99(1) of the Representation of Peoples Act no finding of corrupt practice can be recorded against any person (who is not a candidate) unless notice has been issued to him, he has been heard and has been given an opportunity of cross-examining the witnesses.

Sri Siddarth, learned Counsel for respondent No. 1 submits that in the impugned order by which issue No. 9 has been decided and that the Court below has not made any observations against the aforesaid three persons, who are alleged to have assisted the petitioner in corrupt practices therefore, the writ petition appears to have been filed on an assumption and under a presumption that while deciding the election petition finally some observations might be made by the Court below against the aforesaid three persons who are said to have helped the petitioner in corrupt practices.

Admittedly, the Court below has neither recorded any finding nor has made any observation while deciding issue No. 9 in the election petition against the aforesaid three persons being well aware of the law that it can not record any finding or make any observations in the judgment without issuing any notice to them or without giving an opportunity of hearing to them to lead evidence.

The petitioner does not appear to be an aggrieved person under Article 226 of the Constitution of India. The writ petition is premature as it is not based on any reasonable cause of action by which his rights are prejudiced.

For the reasons stated above, the writ petition is dismissed. No order as to costs.