26.07.2011.
Shri J.N. Tripathi for the petitioner.
Shri S.M. Lal, Government Advocate, for respondent Nos.5 to 8.
None appears for the remaining respondents, even though
served and represented. None had appeared on the last date of
hearing also.
Petitioner was a returned candidate having been elected to
the post of Sarpanch in the Gram Panchayat elections held in the
year 2009-2010. She was elected to the post of Sarpanch of
Gram Panchayat Nikkum under Block Birsa District Balaghat.
Subsequently, on recounting the petitioner was declared to have
lost the election and in her place respondent No.1 Smt. Urmila
Vinod Saiyyam was declared as elected. Assailing the aforesaid
election of respondent No.1, petitioner presented an election
petition before SDO, Baihar – the prescribed authority, and on
notice being issued respondent No.1 filed an application under
Order VII Rule 11 of the Code of Civil Procedure, interalia
contending that the statutory requirement of Rule 3 sub-rule (1)
and (2) of the M.P. Panchayats (Election Petitions, Corrupt
Practices and Disqualification for Membership) Rules, 1995, has
not been complied with and, therefore, the petition be dismissed.
This application has been allowed by the impugned order-dated
19.7.2010 – Annexure P/1 and, therefore, the petitioner is before
this Court.
Shri J.N. Tripathi, learned counsel for the petitioner,
argued that even though in the impugned order-dated 19.7.2010
2
no reason is given for rejecting the election petition, but in the
application filed under Order VII Rule 11 CPC, an objection was
raised to the effect that the election petition is not personally
presented by the petitioner and, therefore, the same is
unsustainable. It is stated by Shri J.N. Tripathi that the petitioner
personally appeared before the SDO on 9.2.2010 and presented
the petition and an endorsement in this regard is available in the
election petition so also in the order-dated 10.2.2010.
Accordingly, it is the case of the petitioner that the petition is
dismissed on improper considerations.
To consider the aforesaid ground, this Court on the last
date of hearing had summoned the original records of the
election petition and the records have been sent by the Election
Tribunal directly to the Registrar of this Court and the same is
available on record.
Even though in the order passed by the learned prescribed
authority on 19.7.2010 vide Annexure P/1, it is only stated that
the election petition does not comply with the requirement of
Rule 3(1) read with Rule 8, the actual defect in the election
petition is not pointed out. It is, therefore, a case where the
election petition has been rejected and no reason is shown for
rejecting the election petition. It is a non-speaking order and does
not show application of mind. That apart, if the objection filed by
respondent No.1 under Order VII Rule 11 is taken note of, it
would be seen that basically two objections have been raised.
The first is to the effect that the election petition was presented
before the Superintendent of the Office on 9.2.2010 and it was
3
registered before the SDO on 10.2.2010 on which date the
petitioner was not present. It is further stated that each and every
page of the election petition and the documents filed does not
bear the signature of the petitioner.
As far as presentation of the election petition is concerned,
in the original record a note regarding presentation of the petition
is made on 9.2.2010 and it is indicated that Smt. Sulekha Kushre
is present personally and has presented the election petition. In
the order-sheet dated 10.2.2010 also, it is stated that the election
petition is presented by the petitioner and the order-sheets of the
election petition are signed by the SDO on 10.2.2010. Prima
facie on going through the same, it is clear that petitioner is
shown to be present at the time of presentation of the election
petition and without taking note of these factors the application
under Order VII Rule 11 has been allowed.
That apart, signature of the petitioner is available on each
and every page of the election petition so also in the copies filed,
available on record. Even the photocopies of the documents filed
bear the signature of the petitioner. In that view of the matter, it
is a case where the application under Order VII Rule 11 CPC has
been allowed without appreciating the totality of the facts and
circumstances and without going through the records in detail.
The fact as to whether the election petition was presented
by the petitioner, whether the petitioner was present on 9.2.2010
and 10.2.2010, whether presentation of the election petition in
the office of the SDO and acceptance of the same by an
authorized representative is permissible or not, are all questions
4
of fact and law, which has to be decided after hearing all
concerned and recording evidence and it was not a fit case where
these questions could be decided in a proceeding under Order
VII Rule 11 CPC, that also in the manner done, by a non-
speaking order which does not show application of mind. Under
such circumstances, it is a fit case where the impugned order
should be quashed and the matter remanded back to the Election
Tribunal to proceed with the election petition afresh in
accordance with law.
Accordingly, the petition is allowed. The order-dated
19.7.2010 – Annexure P/1 is quashed and the matter is remanded
back to the Election Tribunal to proceed with the election
petition in accordance to law and liberty is granted to respondent
No.1 to raise the objections made in the application under Order
VII Rule 11 CPC in the written statement and thereafter the
Election Tribunal shall frame issues on this count and decide it
after recording of evidence.
With the aforesaid, the petition stands allowed and
disposed of.
Registry is directed to send back the records received from
the office of the Election Tribunal immediately to the Election
Tribunal for proceeding further in the matter.
Petition stands allowed and disposed of.
Certified copy as per rules.
(RAJENDRA MENON)
JUDGE
Aks/-