Smt. Anita Chandra vs Mem Bai and Others

Sunil Kumar Sinha, J.—Respondent No. 1 is an elected Panch of Gram Panchayat - Kirari, Block - Malkharoda. Her election was called in question by the Petitioner, a defeated candidate, by filing an Election Petition u/s 122 of the Panchayat Raj Adhiniyam, 1993. The aforesaid Election Petition was registered as E.P. No. 5/A-89 (21)/ 09-10 before Respondent No. 3/Specified Officer. The Election Petition was filed on 6-2-2010. Notices were directed to be issued on the same day. Process Fee was also paid. After service of the notice, Respondent No. 1 appeared and filed preliminary objection on 15-3-2010. The preliminary objection was in relation to non-payment of process fee for service of Respondent No. 2 and non-impleadment of the Presiding Officer as a party Respondent in the Election Petition. The Specified Officer/Respondent No. 3, after hearing the arguments on the preliminary objection, allowed the same and dismissed the Election Petition vide impugned order dated 17-5-2010.

Mr. Awadh Tripathi, learned Counsel appearing on behalf of the Petitioner, in light of the provisions of Rule 11 of the Chhattisgarh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 (for short "the Rules, 1995"), would submit that this pre-liminary objection was not maintainable and P.F. for appearance of Respondent No. 2 was already paid; therefore, the dismissal of Election Petition, upholding the preliminary objections on the above grounds, was wholly unjustified.

On the Ors. hand, Mr. Pawan Shrivastava, learned Counsel appearing on behalf of Respondent No. 1 and Mr. Arvind Dubey, learned Panel Lawyer appearing on behalf of Respondents 2 and 3 opposed these arguments and supported the order passed by the Election Tribunal.

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

Admittedly, the Rules relating to procedure of Election Petitions filed u/s 122 of the Panchayat Raj Adhiniyam, 1993, are Chhattrsgarh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995. Rule 11 of the aforesaid Rules prescribes 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 (for short "the Code of Civil Procedure"), to the trial of suits. The proviso to Sub-rule (1) of Rule 11 of the Rules, 1995 provides that it shall only be necessary for the specified officer to make a memorandum of the substance of evidence of any witness examined by him.

Rule 11 of the Rules, 1995 reads as under:

Procedure before the specified officer and his powers.- (1) 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:

Provided that it shall only be necessary for the specified officer to make a memorandum of the substance of evidence of any witness examined by him.

(2) The specified officer, shall have the powers which are vested in a Court under the Code of Civil Procedure, 1908, when trying a suit in respect of the following matters:

(a) discovery and inspection;

(b) enforcing the attendance of witnesses, and requiring the deposit of their expenses;

(c) compelling the production of document;

(d) examination of witnesses on oath;

(e) reception of evidence taken on affidavit; and

(f) issuing commission for examination of witnesses and summoning and examining suo motu any person whose evidence, appears to him to be material.

Order VII, Rule 11, CPC provides for rejection of the plaint. Order VII, Rule 11, CPC which would be applicable by virtue of Rule 11 of the Rules, 1995 in these matters, provides the circumstances on which the plaint shall be rejected. Likewise, Rule 8 of the Rules 1995 provides the consequence of dismissal of the Election Petition at the threshold on non-compliance of Rule 3 or Rule 4 or Rule 7. These are the only two provisions under which an Election Petition filed u/s 122 of the Panchayat Raj Adhiniyam, 1993 could be dismissed by the Specified Officer at the threshold.

A perusal of the impugned order would show that the Election Petition was dismissed on the grounds that no steps were taken for service of Respondent No. 2; and that the Presiding Officer was not arrayed as a party Respondent in the Election Petition. Though no finding has been recorded by the Election Tribunal that the Presiding Officer was a necessary party, but on that account, the Election Petition has been dismissed at the threshold. So far as non-service of Respondent No. 2 is concerned, we find from the records that the Petitioner had already paid P.F. for service of Respondent No. 2 in the prescribed pro forma, therefore, the above finding was factually incorrect. About parties to the petition, Rule 4 of the Rules, 1995 provides that where the Petitioner in addition to claiming a declaration that the election, of all or any of the returned candidates is void, claims a further declaration that he himself or any Ors. candidate has been duly elected he shall join as Respondents to his petition all the contensting candidates at the election. Admittedly, this mandate would not apply for joining or non-joining the Presiding Officer as a party Respondent in the Election Petition. Therefore, none of the grounds either under Order VII, Rule 11, CPC or under Rule 8 of the Rules, 1995, were available on which the Election Petition could have been dismissed at the threshold.

For the foregoing reasons, the impugned order passed by the Specified Officer/ Respondent No. 3 cannot be sustained.

In the result, the petition is allowed. The impugned order dated 17-5-2010 passed by Respondent No. 3/Specified Officer is set aside. The matter is remitted back to the Election Tribunal/Respondent No. 3 for deciding the Election Petition afresh in accordance with law.

No order as to cost(s).