Vishnu Singh vs State of Madhya Prades

Writ jurisdiction of this court u/Art. 226 of the Constitution is invoked praying for the following reliefs:-

(i) Impugned order dated 25.4.2018 (Annexure P/1) passed by Sub-Divisional Officer, Tahsil and District Morena in Case No. 1/17-18/Election

Petition A/89 may be set aside/quashed. Application filed by the petitioner for dismissal of the election petition may kindly be allowed in toto and the

aforesaid election petition may be dismissed under Rule 8 of the 'Rules of 1995' due to non-compliance of Rule 3(1) and (2) of the said rules.

(ii) Any other relief which this Hon'ble Court thinks appropriate in the facts and circumstances of the case may be granted in favour of petitioner.

Learned counsel for the rival parties are heard.

The instant petition assails the order dated 25/4/2018 (P/1) by which the Election Tribunal (SDO), Morena while adjudicating the election petition

filed by the respondent No.5-Panjab Singh challenging the election of the petitioner as Sarpanch of Gram Panchayat Madanbasai Tahsil and District

Morena (M.P.) passed an interlocutory order dated 25/4/2018 declining to adjudicate the application preferred by the petitioner raising preliminary

objection as to the maintainability of the election petition on the ground of non-compliance of of Rule 3(1) and (2) of the M.P. Panchayat (Election

Petitions, Corrupt Practices and Disqualification for Membership) Rules 1995 (for brevity the 1995 Rules) inasmuch as filing of the election petition

was neither by the election petitioner in person nor by a person especially authorised in that behalf by the election petitioner and also that copy of the

election petition served on the respondent No.5 herein was not attested by the petitioner's own signature to be true copy of the petition.

4.1 Learned counsel for the petitioner has primarily submitted by relying upon the single bench decisions of this court in Baijulal Verma Vs. Additional

Collector, Chhindwara reported in 2009(4) MPLJ 548 and Kamlesh Nut Vs. Commissioner and others reported in 2012 (4) MPLJ 385 that the

Election Tribunal was obliged to decide the said preliminary objection as to the maintainability of the election petition raised by the petitioner before

adverting to the merits of the election petition and thus could not have deferred the same for a later stage to be adjudicated upon.

4.2 On the other hand, learned counsel for the respondent No.5 and the State submit that the election petition was filed before the Tribunal on

23/2/2015 and instead of raising the aforesaid objection as to the maintainability of the election petition at the initial stage of the election trial, the

petitioner/returned candidate raised the objection by an application filed after 3 years of filing of the election petition. Learned counsel for the

respondent No.5 also submits that delaying tactics are being adopted by the returned candidate/petitioner which are further evident from earlier round

of litigation initiated by the respondent No.5 vide W.P.No.7758/2015 where this court had set aside the order of dismissal of the election petition filed

by the respondent No.5 on the ground of non-impleadment of all nominated candidates after holding that the Election Tribunal appears to be hand in

glove with the returned candidate by dismissing the election petition by applying the provisions of M.P. Panchayat (Election Petitions, Corrupt

Practices and Disqualification for Membership) Rules 1991 to the issue which had arisen after the said Rules were repelled and the 1995 Rules had

come into being.

4.3 Respondent No.5 has also pointed out that while allowing the W.P.No.7758/2015, cost of Rs. 5,000/- was imposed on the State. Respondent No.5

further submits that the election petition is presently at an advanced stage where the evidence on the part of the election petitioner is closed. It is

further submitted that Vakalatnama was duly filed by the election petitioner (respondent No.5) which empowers in generic terms the advocate who

had himself filed the election petition and also that the election petitioner was personally present alongwith his duly authorised counsel at the time of

filing of the election petition before the Tribunal. It is accordingly submitted that there is no force in the preset petition and thus deserves to be

dismissed.

4.4 A close scrutiny of the impugned order reflects that the Tribunal instead of deciding the application raising objection as regards maintainability of

the election petition has declined to adjudicate the same on the ground that this court while deciding W.P.No.7758/2015 has directed for expeditious

disposal of the election petition and therefore the process involved in deciding the said application would further delay in disposal of the election

petition.

It is settled principle of law that if any objection is raised as to the maintainability of any particular lis which goes to the root of the matter and for

which adducing of evidence is not required and the same relates purely to the field of law involving no factual dispute, then such preliminary objection

deserves to be decided as and when same is raised unless the statute governing the lis bars filing and adjudication of such an application beyond a

certain stage of the lis. The 1995 Rules (supra) do not lay down any such stage beyond which an objection regarding maintainability of the election

petition cannot be raised.

5.1 Rule 11 of the 1995 Rules lays down that the election petition shall be enquired into in accordance with the procedure applicable in CPC to the trial

of suits. Order 14 of CPC deals with settlement of issues and determination of the suit on issue of law or on issue agreed upon. The overall reading of

Order 14 reflects that the CPC recognizes the issues to be of two kinds. “Issue of factâ€​ and “Issue of lawâ€​.

5.2 Rule 2 of Order 14 CPC provides that where issues both of law and of fact arise in the same suit and the court is of the opinion that the case or

any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to (i) the jurisdiction of the court, or (ii) a bar

to the suit created by any law for the time being in force. This provision of CPC further provides that till a decision is taken on the aforesaid two types

of issue, the court if it thinks fit may postpone settlement of other issue which concern the field of fact.

5.3 The scheme of CPC reflected from the aforesaid provision and which applies to the Election Tribunal reveals that whenever Tribunal finds that an

election petition involves question of law relating to the jurisdiction of the Tribunal or concerning any legal bar as to the maintainability of the election

petition then it would be appropriate and in the fitness of things that the said objection regarding maintainability should be decided before proceeding

ahead to adjudicate upon issue involving factual dispute.

5.4 The reason for the above said interpretation is obvious. If a case can be decided without adducing of evidence on the question of law alone then to

save precious time of the court and litigants the preferred course would be to dwell into the legal issues first which do not require adducing of

evidence.

When the impugned decision of the Election Tribunal is tested on the anvil of the aforesaid provision of CPC which in principle and essentiality

applies to the Election Tribunal constituted u/S. 122 of the M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam 1993, then it is vivid that the Tribunal

has failed to discharge it's jurisdiction vested in it by failing to decide the application of the petitioner/returned candidate raising question of

maintainability on merits. The SDO who is the prescribed authority and the Election Tribunal should not only eschew transgressing the jurisdictional

limits set by law but correspondingly is also obliged to exercise the power and authority vested in it to the extent the law and fact situation requires him

to discharge.

1 In the instant case by not adjudicating the application raising objection regarding maintainability of the election petition at the time when the same

was raised, the Tribunal failed to exercise jurisdiction vested in it thereby impelling this court to step in and set things right by invoking powers of

superintendence.

Various decisions cited by the counsel for the rival parties need not be gone into in view of the nature of the order being passed today where the

merits of the objection regarding maintainability of the election petition have not been taken into account leaving it for the Election Tribunal to decide

the same.

Consequently, this petition in question stands allowed to the extent of quashing the interlocutory order dated 25/4/2018 so far it relates to disposing

of the application of the petitioner/returned candidate raising objection regarding maintainability of the election petition without deciding the same on

merits.

1 Direction is issued to the Election Tribunal to decide the said objection regarding maintainability of the election petition for which no evidence shall

be allowed to be adduced. The said objection raised by the petitioner/returned candidate should be decided within a period of 8 (eight) weeks from

today.

The rival parties who are represented in this court are directed to make their oral submission before the Election Tribunal/SDO, Morena District

Morena on 4/6/2018 or on such further date (within 8 weeks from today) as deemed fit by the Tribunal on the said objection regarding maintainability

of the election petition.

The Principal Registrar of this court is directed to communicate copy of this order directly to the SDO, Morena/Election Tribunal at the earliest for

necessary compliance.

No cost.