Mohinder Singh vs Sohan Singh

M.L. Singhal, J.—Sohan Singh respondent (petitipner herein) filed eleclion petition against Mohinder Singh and others whereby he questioned the election of respondents namely Mohinder Singh, Gurmit Singh, Prito (petitioner herein) and Avtar Singh, Rani, Narin-der Kumar and Jaila Ram respondents 2 to 5 herein. On 15.10.98, counsel for Mohinder Singh etc. appeared before the Election Tribunal. None appeared for Avtar Singh, Rani, Narinder Kumar and Jaila Ram in the election petition. The Election Tribunal ordered ex parte against them and the case was adjourned to 5.1.99 for filing reply by the respondents and fresh notice to official respondent i.e. Block Development and Panchayat Officer, Nawanshahar. Case was not taken up on 5.1.99 as it was holiday. Case was taken up on 7.1.99. The case was taken up before the counsel could reach the court and the election tribunal ordered to proceed ex parte against Mohinder Singh, Gurmit Ram and Prito. On 25.5.99, the petitioners i.e. Mohinder Singh, Gurmit Ram and Prito filed application for setting aside ex parte proceedings taken vide order dated 7.1.1999 saying that their absence was neither wilful nor intentional, as such, the ex parte order be set aside. Along with the application for setting aside ex parte order, they filed written statement to the election petition. Sohan Singh filed reply to the application for setting aside ex parte order. Vide order dated 28.10.99, which has been called in question through this revision petition filed under Article 227 of the Constitution of India, Election Tribunal refused to set aside the ex parts order passed against Mohinder Singh, Avtar Singh and Gurmit Ram on 7.1.99.

It is alleged in this revision that the Election Tribunal dismissed their prayer for setting aside ex parte order without any speaking order and without any application of mind. Impugned order reads as under :-

"Due to holiday on 5.1.99, file has been put up today on 7.1.99. Case was called. Counsel for appellant present. Neither respondents I, 3 and 4 present nor their counsel. Case was again called, no one from respondents present nor reply to petition has been filed by them. Therefore, ex parte proceedings are done against respondents 1,3 and 4. On behalf of respondentNo. 9, Pawan Kumar Superintendent is present. Copy of the petition given. Case adjourned. File be put up for reply of the petition on 28.1.99."

It is further alleged that till date, only the statements of the election petitioner and one Draftsman have been recorded and the case is being adjourned from time to time because the Election Tribunal is Deputy Commissioner of the District who does not find time to hold court. Vide order dated 15.10.98 and 7.1.99, the Election Tribunal ordered ex parte against all the elected members of the Panchayat. Election petition is to be contested only by them. It is alleged that if ex parte order is not set aside, no wonder, the election of the elected representatives of the people is set aside with-out any contest by them.

Since the prayer for setting aside ex parte order had been made much before the commencemnt of evidence in the election tribunal, the election tribunal should have set aside ex parte order by imposing certain conditions on them. Sohan Singh is the election petitioner. He has questioned the election of Mohinder Singh etc. 7 panchs who have been elected by the voters constituting the gram sahba. If their election is set aside without contest, that may be against the will of the electorate. In election matters, the will of the electorate requires to be manifested. In this case, if ex parte order is not set aside, the will of the electorate may remain undemonstrated. So, the ex parte order pased against the petitioners i.e. Mohinder Singh etc. dated 7.1.99 is set aside. They shall pay Rs. 1,000/- to the election petitioner i.e. Sohan Singh as costs. In consequence, the impugned order passed on 7.1.99 by the election tribunal is set aside. Order dated 28.10.99 refusing to set aside ex parts order is also set aside. Mohinder Singh etc. petitioners are allowed to participate in and contest the election petition. They shall put in written statement. Election tribunal shall decide the election petition on merit in accordance with law.

Petition allowed.