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Judgment
Sheel Nagu, J.—This revision filed u/s. 26(2) of the M.P. Municipality Act 1961 (Act of 1961 of Brevity) assails the interlocutory order passed on 06.04.2013 in Election Petition No. 02/2010 by District Judge, Guna, whereby I.A. No. 18 preferred by the election petitioner/petitioner herein for recounting of votes by the tribunal has been rejected. The basic facts giving rise to the instant civil revision are that the election petitioner assailing the election of returned candidate/respondent No. 1 to the Office of Counselor Ward No. 22 (Jagjeevan Ram Ward) of Municipal Council Guna, approached the election tribunal. During pendency of the election petition I.A. No. 18 was moved by the election petitioner seeking recounting of votes on various grounds including the ground of the election officer having wrongly declared 49 valid votes as invalid. The tribunal, considering the said I.A. for recounting on merits, rejected the same.
At the very outset, the learned counsel for the respondent No. 1 raised preliminary objection as to the maintainability of this civil revision by contending that Section 26 of M.P. Municipalities Act 1961(Act of 1961 for Brevity) provides for revision to the High Court against the final order of the Election Tribunal and not against any interlocutory order as is the case herein. Assistance of Rule 19(1) of the M.P. Municipality (Election Petition) Rules 1962 (Rules of 1962 for Brevity) has been sought.
To analyze the above said legal objection as regards maintainability of this civil revision, it would be appropriate to reproduce both the statutory provisions which provide for revision to the High Court against the order of the Election Tribunal.
Sec. 26. Finality of decision � (1) No appeal shall lie against the decision of the Judge on the petition.
(2) Any person aggrieved by the decision of the Judge on the petition may, within thirty days from the date of such decision, apply to the high court for revision on any of the following grounds:
a. that the decision is contrary to law;
b. that the Judge has exercised jurisdiction not vested in him by law or has failed to exercise a jurisdiction vested in him by law, but subject to such orders as the High Court may pass thereon, such decision shall be final.
Rule 19(1) Revision � (1) No petition by way of revision shall lie against any interlocutory order passed by the Judge.
(2) At the time of presentation of the petition for revision under sub-section (2) of section 26 against the decision of the Judge, the petitioner shall deposit with the High Court a sum of Rs. 250 as security for the costs of the revision. If the provisions of this rule are not complied with the High Court shall dismiss the petition.
Perusal of Section 26(1) of the Act of 1961, which is couched in negative terminology, the intention of the legislature is vivid, that preferring of appeal against the decision of the tribunal is barred by law meaning thereby that the decision of the Election Tribunal cannot be subjected to judicial scrutiny by the High Court on facts. As such Section 26(2) bestows revisional power upon High Court, with the same trappings as contained in Section 115 of CPC, to the extent of allowing interference only where jurisdictional error can be detected and not otherwise.
On the other hand, Rule 19(1) bars entertainment of revision against interlocutory order passed by the Election Tribunal. This rule is a part of the Rules of 1962 which have been framed deriving strength from Section 23 of the Act of 1961 which empowers framing of rules for governing the summary procedure to be followed for inquiry into and disposal of an election petition.
Conjoint reading of Section 26(2) and Rule 19(1) gives an impression that Rule 19(1) provides for a bar which Section 26(2) does not contemplate and therefore some contradiction between the said two provisions prima-facie appears to exist, but since the validity of the said provision under Rule 19(1) is not under challenge and cannot be before this single bench for obvious reasons, this Court refrains from commenting any further.
Thus, the statutory provision of Rule 19(1) places a complete bar of entertainment of revision u/s. 26(2) by the High Court against an interlocutory order passed by Election Tribunal.
The next and natural question which crops up is as to whether the impugned order falls within the four corners of definition of interlocutory order or not. If it does, then the instant civil revision cannot be maintained in view of the statutory power contained in Rule 19(1).
The learned counsel for the respondent No. 1 has placed reliance on the decision of Mubarak Master Vs. Hansraj and Others, Perusal of the above said single bench decision of this Court discloses that somewhat similar facts were involved where the revision was dismissed as not maintainable due to bar contained in Rule 19(1) under Rules of 1962 filed against the order of rejection of prayer for recounting.
The learned counsel for the petitioner on the other hand places reliance on various decisions including the case of Akanshha Shrivastava (Smt.) Vs. Virendra Shrivastava and Another, in case of Amar Nath and Others Vs. State of Haryana and Another, and in case of Mohan Lal Magan Lal Thacker Vs. State of Gujarat,
These decisions do not assist the petitioner herein as they relate to revisional power u/s. 397 Cr.P.C.
Since the case of Mubarak Master (Supra) is directly relatable to the factual scenario contained in the instant case, this Court has no hesitation to rely upon the same. The learned counsel for the petitioner is unable to state that the case of Mubarak Master (Supra) is no more a good law.
The impugned order which has resulted in rejection of the prayer of recounting cannot be termed as final in substance or in form as allowing of the said application for recounting would not have resulted into final disposal of the election petition. Moreso, allowing or refusal of a prayer for recounting does not substantially affect the rights and liabilities of the rival parties.
In view of the above, this civil revision is not maintainable in view of the statutory bar contained under Rule 19(1) in the Rules of 1962.
The learned counsel for the petitioner mostly contends that in case this revision petition is held to be not maintainable then permission be granted to convert the same into writ petition by placing reliance in case of 2009 (5) MPHT 431(Para 17 and 19) and decision of Apex Court in the case of Nawab Shaqafath Ali Khan and Others Vs. Nawab Imdad Jah Bahadur and Others, In view of the above, this civil revision is not maintainable against the impugned order which is of interlocutory nature. Consequently, this civil revision is dismissed as not maintainable with liberty to the petitioner to convert the same into a writ petition by carrying out necessary amendments.