Madhya Pradesh High Court
Kalka Prasad vs Ramji Lal And Ors. on 8 May, 2002
Equivalent citations: 2002(3)MPHT547
Author: Rajendra Menon
Bench: Rajendra Menon
ORDER Rajendra Menon, J.
1. Petitioner aggrieved by order Annexure P-1, dated 18-1-99 passed in Election Petition No. 8/93-94 has filed this petition. By the impugned order the election of the petitioner as Sarpanch of Gram Panchayat has been set aside.
2. The petition was admitted for hearing on 23-1-99 and the order Annexure P-1 was stayed. Accordingly, the petitioner is still holding the post of Sarpanch of the Gram Panchayat.
3. The election of the Gram Panchayat, Bhaguapura was notified and election to the post of Sarpanch was held on 23-5-94. The post was reserved for the backward class candidates.
4. The petitioner contested the election and was declared elected. Respondent No. 1 Ramjilal filed a petition inter alia contending that the nomination papers of respondent No. 6 Raghuveer was illegally accepted, Raghuveer was not a member of the backward class, acceptance of his nomination papers according to the petitioner violates the entire election process. In the election petition the allegations were with regard to acceptance of nomination papers of respondent No. 6. The petitioner had secured 310 votes and respondent No. 6 had secured 13 votes. According to the petitioner even if after the respondent No. 6 was permitted to contest the election, the fact is that he secured only 13 votes and therefore the final result of the election is not materially affected.
5. That apart the petitioner filed an objection Annexure P-3 with regard to delay in filing of the election petition. The election in question was held on 23-5-94 and notification was also issued on the same day. Accordingly, the election petition should have been filed within 30 days but the election petition was filed on 27-7-94. It is argued by the learned Counsel for the petitioner that as the petition was filed beyond the period of limitation, the Election Tribunal ought to have dismissed the petition.
6. It is further averred by the petitioner that apart from the aforesaid objection, on 6-1-99 the petitioner had submitted an application Annexure P-5 making a prayer that issues be framed and evidence be recorded. However by order dated 6-1-99 (Annexure P-6) this prayer was rejected and the Election Tribunal held that the petition can be disposed of on the basis of record of election and arguments. Accordingly issues were not framed and no evidence was recorded. This according to the learned Counsel for the petitioner vitiates the entire proceedings of the Election Petition.
7. Per contra learned Counsel for the respondent submits that the orders passed vide Annexures P-1 and P-6 are legal and proper. The Tribunal has correctly appreciated the facts and no case for grant of relief is made out by the Tribunal.
8. I have considered the submissions made by the learned Counsel for the parties.
9. Section 122 of the M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 provides for filing election petition calling in question any election conducted under the provisions of the Adhiniyam, Sub-section (2) of the aforesaid Section provides for filing of an election petition within 30 days from the date on which the election is notified. In this section there is no provision for condoning the delay in filing the petition, on the contrary express provision has been made wherein admittance of a petition presented after a prescribed period of 30 days is prohibited. In the instant case the election petition was filed beyond the period of 30 days. Notification of the election was done on 23-5-94 and accordingly, the petition should have been filed on 23-6-94. However the petition was filed on 27-7-94, therefore, it is beyond the period prescribed in Sub-section (2) of Section 122. This Court in the case of Kishan Singh v. Harveer Singh, 1998(1) M.P. Weekly Notes 83, had held that the limitation prescribed for filing of election petition under Section 122 cannot be extended. It has been held in the aforesaid case that the provisions of the Limitation Act including the provisions of Section 5 had no application to such proceedings.
10. In the light of the aforesaid enunciation of law, the present petition was not maintainable as it was filed beyond the period prescribed in Sub-section (2) of Section 122. The learned Tribunal in the instant case has accepted the petition by condoning the delay. The ground for condoning the delay is, acceptance of nomination papers of respondent No. 6 which according to the Tribunal vitiates the election proceedings and therefore delay has to be condoned. I am of the considered view that the Election Tribunal has condoned the delay and accepted the petition for decision on merits when there is a statutory bar in admitting a petition filed beyond the period of 30 days, that apart delay has been condoned on extravenous consideration without there being any explanation for the delay. Even otherwise as held by this Court in the case of Kishan Singh (supra) the provisions of Section 5 of the Limitation Act are not applicable to such proceedings, the order condoning the delay is therefore contrary to the statutory provisions and cannot be sustained.
11. The Tribunal had no jurisdiction or authority to entertain the petition as it was filed beyond the period prescribed for filing of an election petition. In these circumstances the learned Election Tribunal should have dismissed the petition. Apart from this, the order Annexure P-6 rejecting the application for framing of issues and recording of evidence was also unsustainable in law. The Supreme Court in the case of Makhan Lal Bangal v. Manas Bhunia and Ors., (2001) 2 SCC 652, has held that in an election trial evidence has to be adduced and issues are also to be framed. It has been held by the Supreme Court in the aforesaid case that trial of an election petition is like a civil trial and framing of issues and recording of evidence are necessary for the proper adjudication of the dispute. It has been observed in the aforesaid case as under :--
"An election petition is like a civil trial, the stage of framing the issues is an important one inasmuch as on that day the scope of the trial is determined by laying the path on which the trial shall proceed excluding diversions and departures therefrom. The date fixed for settlement of issues is, therefore, a date fixed for hearing. The real dispute between the parties is determined, the area of conflict is narrowed and the concave mirror held by the Court reflecting the pleadings of the parties pin-points into issues, the disputes on which the two sides differ. The correct decision of civil lis largely depends on correct framing of issues, correctly determining the real points in controversy which need to be decided. The scheme of Order 14 of the Code of Civil Procedure dealing with settlement of issues shows that an issue arises when a material proposition of fact or law is affirmed by one party and denied by the other. Each material proposition affirmed by one party and denied by other should form the subject of a distinct issue. An obligation is cast on the Court to read the plaint/petition and the written statement/counter, if any, and then determine with the assistance of the learned Counsel for the parties, the material propositions of fact or of law on which the parties are at variance. The issues shall be framed and recorded on which the decision of the case shall depend. The parties and their Counsel are bound to assist the Court in the process of framing of issues. Duty of the Counsel does not be little the primary obligation cast on the Court. It is for the Presiding Judge to exert himself so as to frame sufficiently expressive issues. An omission to frame proper issues may be a ground for remanding the case for retrial subject to prejudice having been shown to have resulted by the omission. The petition may be disposed of at the first hearing if it appears that the parties are not at issue on any material question of law or of fact and the Court may at once pronounce the judgment. If the parties are at issue on some questions of law or of fact, the suit or petition shall be fixed for trial calling upon the parties to adduce evidence on issues of fact. The evidence shall be confined to issues and the pleadings. No evidence on controversies not covered by issues and the pleadings, shall normally be admitted, for each party leads evidence in support of issues the burden of proving which lies on him. The object of an issue is to tie down the evidence and arguments and decision to a particular question so that there may be no doubt on what the dispute is. The judgment, then proceeding issue-wise would be able to tell precisely how the dispute was decided."
Similar views have been taken by this Court in the case of Hari Singh v. Anwar Khan and Ors., 2001(1) MPJR SN 6.
12. From the aforesaid it is clear that the order Annexure P-6 rejecting the application of the petitioner for framing of issues and recording of evidence is also unsustainable. Considering the aforesaid the petition has to be allowed. The order Annexure P-1, dated 18-1-99 and order Annexure P-6, dated 6-1-99 are quashed.
13. The petition is accordingly allowed.
14. Parties to bear their own costs.