Rajasthan High Court - Jaipur
Supyar Kanwar vs Civil Judge (S D ) Anr on 25 May, 2012
Author: Alok Sharma
Bench: Alok Sharma
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH ORDER Supyar Kanwar Vs. Civil Judge (Sr.Dn) Fatehpur Shekhawati & Another (S.B. Civil Writ Petition No.14862/2011) S. B. Civil Writ Petition under Articles 226 and 227 of the Constitution of India. Date of Order: May 25, 2012. PRESENT HON'BLE MR. JUSTICE ALOK SHARMA Mr. S.K. Gupta, for the petitioner. Mr. Hanuman Chaudhary, for respondent No.2. BY THE COURT:
This petition has been filed under Articles 226 and 227 of the Constitution of India challenging the order dated 21-9-2011 passed by Civil Judge (Senior Division) Fatehpur Shekhawati, District Sikar (herein after `the Trial Court') in Election Petition No.1/2010. The trial court has dismissed the application under Order 7 Rule 11 CPC, filed by the returned candidate, the petitioner herein, seeking rejection of the election petition filed by the respondent No.2 (herein after the election petitioner) under Section 43 of the Rajasthan Panchayati Raj Act, 1994 (herein after `1994 Act') and the Rule 80 of the Rajasthan Panchyati Raj (Election) Rules, 1994 (herein after `1994 Rules') for having failed to disclose a cause of action.
The facts of the case are that the petitioner (herein after the returned candidate) contested election to the office of Sarpanch, Gram Panchayat Thimoli against the election petitioner and was declared elected on 31-1-2010 having secured the highest number of votes at election for the office of Sarpanch, Gram Panchayat Thimoli i.e. 968, as against the election petitioner who secured 957 votes. Aggrieved of the aforesaid election result the election petitioner filed an election petition under Section 43 of the 1994 Act read with Rule 80 of the 1994 Rules.
In para No.4, 5 and 6 of the election petition it was stated that out of the 2899 polled votes cast for the office of Sarpanch, Gram Panchayat Thimoli the returned candidate purportedly having received 968 votes in his favour as against 957 votes in favour of the election petitioner was wrongly declared elected by a difference of 11 (eleven) votes. It was submitted that 13 (thirteen) votes cast in favour of the election petitioner were wrongly rejected and further that owing to a disruption in the electric supply at the counting of votes, 15 (fifteen) votes, purportedly cast in favour of the election petitioner, were wrongly accepted as having been casted in favour of the returned candidate. It was alleged that the Returning Officer complicit with the returned candidate fudged the counting of votes consequent whereto the returned candidate was wrongly declared having been elected to the office of Sarpanch, Gram Panchayat Thimoli. It was also stated that 42 votes cast at the election on 31-1-2010 for the office of Sarpanch, Gram Panchayat Thimoli were also wrongly declared invalid and further that in fact only 2897 votes were accounted for at the counting even while 2899 votes were casted without any explanation of the unaccounted for 2 votes. In para 6 of the election petition it was stated that the returning officer colluded with the returned candidate for the reason that he was under the influence of the Zonal Magistrate Hemendra Singh Rathore, who was stated to be related to the successful candidate. The further allegation in the election petition was that owing to nexus of the returned candidate with powers that be, the application of the election petitioner for re-counting of votes was not entertained by the Returning Officer resulting in an unfair outcome of election in issue. It was also stated that in the event there was a recounting of votes as prayed for by the election petitioner the irregularities in the counting of votes would be evident and the election petitioner be declared the winning candidate for the post of Sarpanch, Gram Panchayat Thimoli.
On notice being served on the returned candidate, now the petitioner before this court, he filed reply to the election petition controverting the allegations made by the election petitioner. It was stated that the allegations were baseless; the election petition did not contain a concise statements of material facts with definitive allegations to make out a ground under Rule 80 (d) (iii) of the 1994 Rules but was based on surmises and conjectures and failed to disclose any cause of action consequent to which it was liable to be dismissed. The Returning Officer and Election Officer also filed reply to the election petition, even though subsequently they were got deleted from the array of parties in the election petition at the instance of the election petitioner.
The petitioner as defendant in the election petition also moved an application under Order 7 Rule 11 CPC praying therein that the election petition be rejected at the threshold as it was bereft of material facts and in absence thereof did not make out any cause of action for a valid election petition under Section 43 of the 1994 Act and Rule 80 r/w 82 of the 1994 Rules. It was stated that the election petition was founded on vague and baseless allegations and was a mere meaningless and frivolous exercise at the instance of election petitioner piqued at having lost at the election. It was prayed that consequently the election petition was liable to be rejected at the very threshold without trial under Order 7 Rule 11 CPC.
The election petitioner filed a reply to the application under Order 7 Rule 11 CPC stating therein that the allegations of election petitioner would be borne out from a mere re-counting of votes. The absence of cause of action was denied and reference was made to para 9 of the election petition, wherein it was alleged that there was mischief in counting of votes held on 31-1-2010. It was submitted that the cause of action was evident from the petition. It was further stated that in the course of trial it would be proved that 15 votes, cast in favour of election petitioner, had been wrongly counted in favour of the returned candidate, apart from 13 votes cast in his favour having been wrongly rejected. It was submitted that as a cause of action had been made out from the mere reading of the election petition, the application under Order 7 Rule 11 CPC was liable to be dismissed.
On the matter coming before the trial court vide order dated 21-9-2011 it cryptically and perfunctorily held that allegations in election petition could not be said to have failed in disclosing a cause of action and that the grounds raised in Order 7 Rule 11 CPC application were determinable only on evidence being laid before it in the course of trial. The application under Order 7 Rule 11 CPC filed by the defendantpetitioner hereinwas thus dismissed.
Mr. S.K.Gupta, learned Advocate appearing on behalf of the petitioner has submitted that the order of the trial court is an unreasoned order and the court failed to address the specific case of the returned candidate that the cause of action for laying election petition in terms of under Section 43 of the 1994 Act and Rule 80 r/w 82 of the 1994 Rules was not made out as the concise statement of material facts to constitute a ground of challenge under Rule 80 (d) (iii) of the 1994 Rules had not been set out in the election petition. It is submitted that no details of 13 votes allegedly rejected wrongly qua the election petitioner, and the 15 votes allegedly wrongly accepted in favour of returned candidate had been averred in election petition consequent to which it was apparent that cause of action based on wrong counting of votes to the advantage of returned candidate was not made out. It has been submitted that an election petition to unseat a returned candidate elected through the democratic process is to be strictly regulated in terms of Section 43 of the 1994 Act read with Rule 80 and 82 of the 1994 Rules which inter alia provide that an election petition can be laid only in the prescribed manner and on the prescribed grounds and has necessarily to be founded upon a concise statement of material facts leading to a cause of action being made out. It has been submitted that the grounds on which election petition could be entertained have been limited in Rule 80 under Chapter 13 of the 1994 Rules. Counsel has further submitted that a bare perusal of election petition, which has been annexed to the writ petition, indicate in para No.5 that only bald and vague allegations have been made that 13 votes of election petitioner were wrongly rejected and 15 valid votes cast in favour of election petitioner had wrongly been counted in favour of the returned candidate. It has been submitted that even though a cause of action under sub-clause (iii) of Clause (d) of Rule 80 of the 1994 Rules was not made out, but even if it were to be assumed so for the sake of arguments the election petition was even otherwise incomplete on the ground that no allegation of the result of election having been materially affected has been made. It has been submitted that it was a mandatory requirement of law for a complete cause of action to be made out to allege that the result of election in so far as it concerned the returned candidate was materially affected by the improper refusal and reception of the votes cast. It was thus submitted that the election petition was not based on grounds enumerated in Rule 80 of the 1994 Rules and deserved dismissal at the threshold under Order 7 Rule 11 CPC.
Counsel emphasised that Rule 82 (1) of the 1994 Rules required the election petition to contain a concise statement of material facts on which election petition has been filed. It was submitted that without a concise statement of material facts, a cause of action could not be made out and that bald, vague and general allegations of either improper reception of vote or improper rejection of votes sought to be proved on the basis of a roving inquiry was impermissible. It has been submitted that the election petitioner was under a duty, for setting up a case of improper reception/ rejection of votes affecting the outcome of the election, to detail the ballot numbers of the votes in issue. Mr. Gupta has referred to Rule 49 of the 1994 Rules to contend that the said rule provides for each candidate having a right to be present at the time of counting of the votes cast and avail of an opportunity to inspect ballot papers/ votes counted and record the offending ballot number and request for recounting of votes if aggrieved of any wrong doing. It has been submitted that nothing was done at the time of the count of votes and thereafter on a second mind a frivolous petition was laid based on vague averments. Mr. Gupta vehemently submitted that the trial court committed a serious error of law in cryptically dismissing the application under Order 7 Rule 11 CPC filed by the returned candidate in the aforesaid circumstances when no cause of action was made out. It is submitted that the order of the trial court is based on a misdirection that material facts not pleaded in the petition could be proved by evidence in the course of trial. It was submitted that even though provisions for laying of election petitions against invalid elections was for ensuring the purity of the election process, yet essential requirements had to be fulfilled to construct a competent petition entitled to be tried. It is submitted that and election petition could not be allowed to be an instrument of harassment/ oppression by a contesting candidate piqued at his loss at the election.
Mr. Hanuman Chaudhary, learned counsel appearing on behalf of election petitioner, respondent herein, has opposed the writ petition filed against the order dated 21-9-2011 passed by the trial court and submitted that if the petitioner, a returned candidate, had been fairly elected she should not have any fear of the election petition and re-counting of votes. It is submitted that the averments made in election petition constitute a complete cause of action compliance of Rule 80 and 82 of the 1994 Rules having been made and a cause of action adequately formulated. It was prayed that the order dated 21-9-2011 passed by the trial court should be upheld and the writ petition be dismissed.
Heard learned counsel for the parties, perused the material available on record of writ petition and considered the submissions made by the counsel for the parties.
For facilitating ready reference to the provisions the Section 43 of the 1994 Act, Rule 49, 80 and 82 of the 1994 Rules are reproduced here under:-
Section 43 of the 1994 Act:-
43. Determination of disputes as to elections (1) An election under this Act or the rules made thereunder may be called in question by any candidate at such election by presenting in the prescribed manner to the District Judge having jurisdiction a petition in this behalf on the prescribed grounds and within the prescribed period:
Provided that an election petition presented as aforesaid may, for the reasons to be recorded in writing, be transferred by the District Judge for hearing an disposal to a Civil Judge or Additional Civil Judge (Senior Division) subordinate to him.
(2) A petition presented under sub-section (1) shall be heard and disposed of in the prescribed manner and the decision of the Judge thereon shall be final.
Rule 49 of the 1994 Rules:-
49, Counting of votes. (1) The counting of votes shall commence on such date and at such time and place as the Returning Officer may appoint.
(2) Such date, time and place shall be communicated to all the candidates.
(3) Votes shall be counted by or under the supervision of the Returning Officer and each candidate shall have a right to be present at the time of counting.
(4) No other person shall be allowed to be present at the counting of votes except polling and Assistant Polling Officers and such other person as the Returning Officer may permit to assist him in the task.
(5) The Returning Officer shall allow each candidate a reasonable opportunity to inspect, without handling the ballot papers which he considers to be liable to rejection.
(6) Any candidate present at the counting may, at any time during the counting of votes, request the Returning Officer in writing, to recount the ballot papers relating to the ward and the Returning Officer may for reasons to be recorded either reject the request or order recounting of votes.
(7) The Returning Officer may, in his discretion recount the ballot papers of all or any of the candidates once or more than once, if he is not satisfied as to the accuracy of the immediately preceding count.
(8) Every ballot paper which is not rejected under rule 50 shall be deemed to be valid and shall be counted as one valid vote.
(9) The Returning Officer shall count all valid votes given to such candidate and make candidate-wise packets of counted ballot papers and those of rejected ballot papers and then all such packets shall be sealed properly.
Rule 80 of the 1994 Rules:-
80. Manner of challenging an election under the Act. An election under the Act or under the Rules may be called in question by any candidate at such election by presenting a petition to the District Judge having jurisdiction within thirty days from the date on which the result of such election is declared on any or more of the following grounds:-
(a) that on the date of election, a returned candidate was not qualified or was disqualified, for such election, or
(b) that any corrupt practice was committed by a candidate or by any other person with the consent or connivance of the candidate, or
(c) that any nomination was improperly rejected, or
(d) that the result of the election in so far as it concerns the returned candidate was materially affected-
(i) by the improper acceptance of any nomination, or
(ii) by any corrupt practice committed in the interest of the candidate by a person other than that candidate or by a person acting with the consent or connivance of such candidate, or
(iii) by improper reception, refusal or rejection of any vote or the reception of any vote which was void, or
(iv) by any non-compliance with the provisions of the Act or of these rules, or
(e) that in fact the petitioner or some other candidate received a majority of the valid votes, or
(f) that but for votes obtained by the returned candidate by corrupt practices, the petitioner or some other candidate would have obtained a majority of the valid votes.
Rule 82 of the 1994 Rules:-
82. Contents and verification of election petition. (1) The petition shall contain a concise statement of the material facts on which the petitioner relies and shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure 1908 (Central Act V of 1908) for the verification of pleadings.
(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified by him in the same manner as the petition.
It is no longer res integra that the provisions of Order 7 Rule 11 CPC apply to election petition filed under Section 43 of the 1994 Act read with Rule 80 of the 1994 Rules as they do to petitions under the Representation of People Act, 1951. In the case of Smt.Manju Sharma Vs. Suji Sharma & Another [1996 (3) WLC (Raj.) 161] this court has held that the provisions of the Representation of People Act, 1951 and the principles embodied therein shall apply in equal measure to the petitions under the Rajasthan Panchayati Raj Act and an application filed by returned candidate in an election petition under Section 43 of the 1994 Act read with Rule 80 of the 1994 Rules seeking its dismissal under Order 7 Rule 11 CPC was maintainable and could not be perfunctorily dismissed by the trial court without appreciating the judgments of the High Court as also the Apex Court holding that in the absence of concise material facts the election petition was liable to be dismissed at the threshold. It was further held that all facts which were required to be proved at the trial by an election petitioner to establish existence of cause of action for laying election petition would be covered within the words material facts and had to be averred. It was also held that all those facts which were essential to clothe the petition with a complete cause of action are material facts, which must be pleaded and failure to plead even a single material fact would tantamount to contravention of the mandate of Rule 82 (1) of the 1994 Rules resulting in dismissal of election petition itself. Referring to the case of Manu Bhai, Nand Lal Amarsay Vs. Popat Lal Mani Lal [AIR 1969 SC 734] this court reiterated that material facts are the facts which if remained unanswered would result in a verdict in favour of the election petitioner. Relying on the judgment of the Apex Court in case of Ajhar Hussain Vs. Rajiv Gandhi [AIR 1986 SC 1253] this court endorsed the proposition that absent the cause of action owing to the failure to aver material facts an election petition was liable for summarily dismissal in exercise of powers under Order 7 Rule 11 of the Civil Procedure Code and even absence of a single material fact would entail an incomplete cause of action and dismissal of the election petition.
Counsel for the petitioner has also placed reliance on judgment of the Apex Court in case of Saleem Bhai Vs. State of Maharashtra [(2003) 1 SCC 557] wherein the Apex Court has held that Court's power under Order 7 Rule 11 CPC can be exercised at any stage of the suit before the conclusion of the trial and that where an application under Order 7 Rule 11 CPC is filed it has to be as of necessity addressed by the trial court, and non-address would be a case of failure to exercise the jurisdiction by the trial court. Reliance was also placed on the case of Samar Singh Vs. Kedar Nath [AIR 1987 SC 1926] wherein the Apex Court has held that if an election petition does not disclose any cause of action, the respondent's right to raise objection to the maintainability of the petition, or the court's power to consider the objection is not affected adversely merely because the objection is raised after filing of written statement or framing of issues. Counsel further submitted that in the case of Kripal Singh Vs. Darshan Singh [1986 WLN (UC) 202] this Court has held that the law with regard to inspection of ballot papers and recounting of votes is settled and a bare and bald assertion that the ballot papers were improperly rejected was an inadequate statement of material facts. Counsel has referred to para 13 of the Judgment to contend that in an election petition based on wrongful acceptance/ rejection of votes for one reason or another, it is necessary to state with precision with reference to ballot numbers as to which votes cast in favour of the election petitioner were improperly rejected and similarly which votes were wrongly accepted for the returned candidate. Mr. Gupta submits that a generalised and vague assertion of improper reception or rejection of votes would fail to satisfy the tests laid down by the Hon'ble Supreme Court for a properly constituted election petition such as under Rule 80 (d) (iii) of the 1994 Rules.
Counsel for the petitioner has also referred to judgment of Supreme Court in case of Jitendra Bahadur Singh Vs. Krishana Behari [1969 (2) SCC 433] to contend that the Hon'ble Supreme Court has held that mere assertion of particular number of votes being improperly rejected and corresponding number of votes being improperly accepted in favour of the returned candidate was inadequate as a concise statement of material fact and in such a situation no cause of action for filing an election petition would be made out. It is submitted by Mr. Gupta that Rule 49 of the 1994 Rules makes it possible for a candidate seeking to challenge the outcome of election process following a counting of votes to make a concise statement of material facts detailing the ballot numbers in respect of which an election result is put to challenge.
Against the submissions of Mr. Gupta, the learned counsel appearing on behalf of the election petitioner, respondent herein, Mr. Hanuman Chaudhary has reiterated that the election petitioner had laid a proper election petition which disclosed a complete cause of action. He has reiterated that 15 votes cast purportedly in favour of the returned candidate were wrongly received and 13 votes cast for the election petitioner were wrongly rejected. He submits that details of ballot numbers would reflect from the recounting of votes as prayed for in the election petition.
Having heard learned counsel for the parties and having perused the material available on record, particularly the impugned order dated 21-9-2011 passed by the trial court, the application under Order 7 Rule 11 CPC filed by the returned candidate, petitioner herein and the election petition itself. I am of the view that the impugned order dated 21-9-2011 passed by the trial court is a cryptic and non-speaking order. Although reference to the cases of Jitendra Bahadur Singh (supra) as also Laxman Singh Vs. Arun Singh [RLW 2003 (3) (Raj) 2050] has been made in the order, but the principles enunciated therein have not been applied to the facts of the case before the trial court. The trial court has not even attempted to consider as to whether the concise statement of material facts with regard to improper rejection and acceptance of votes had been made in the election petition to constitute cause of action for laying of the election petition under Rule 80 (d) (iii) of the 1994 Rules. Consequently the application under Order 7 Rule 11 CPC has been dismissed mechanically without regard to the duty of the trial court to adjudicate an issue squarely raised before it.
Section 43 of the 1994 Act provides that an election can be called into question by presenting an election petition in the prescribed manner on the prescribed grounds and within the period prescribed. Rule 80 of the 1994 Rules sets out the grounds on which an election can be challenged. An election to the office of Sarpanch can be challenged inter alia on the ground that it is vitiated by the improper reception/ rejection or refusal of any vote or the reception of a void vote which has materially affected the election result of a returned candidate. Rule 82 of the 1994 Rules mandates the making of a concise statement of material facts to supply the ingredients of the ground on which the cause of action for laying the election petition is alleged.
The question which thus arises in the present writ petition as to whether the election petition sets out a concise statement of material facts as mandated by Rule 82 of the 1994 Rules for challenging an election on ground under Rule 80 (d) (iii) of the 1994 Rules.
What the concise statement of the material facts in the case at hand would be, will have to be addressed with reference to Rule 49 of the 1994 Rules, which provides for the manner of counting of votes. A bare perusal of Rule 49(3) indicates that votes are to be counted by the Returning Officer in presence of each candidate or his agent at the time of counting. The Returning Officer under sub-clause of (5) of Rule 49 of 1994 Rules is under an obligation to allow each candidate or his agent to inspect the ballot paper without handling the same, which the returning officer considers liable for rejection. It is thus clear that under Rule 49 of the 1994 Rules the election petitioner/ his agent had a right to oversee the ballot papers in the course of counting and even inspect ballot papers rejected in the course of counting. In the context of a challenge to an election under Rule 80 of the 1994 Rules based on improper acceptance/ rejection of votes, in my considered opinion a concise statement of the material facts as mandated under Rule 82 of the 1994 Rules would be a statement with regard to specific ballot numbers in dispute and an averment that improper reception or rejection of the votes in issue materially affected the result of the election in so far as it concerned the returned candidate.
In the case of Bhabhi Vs. Sheo Govind [(1976) 1 SCC 687] the Hon'ble Supreme Court has reiterated its earlier view in the case of Jitendra Bahadur Singh (supra) wherein it was held that vague and inadequate allegations with regard to improper reception and rejection of votes in the course of counting leading to the result of the election did not constitute the statement of material facts which is essential to plead a cause of action for laying an election petitionmore so when the election petitioner/ candidate or his agent was entitled to be present at the time of counting of votes and was in a position to record the offending ballot numbers. In the case of Virender Nath Gautam Vs. Satpal Singh [(2007) 3 SCC 617] the Hon'ble Supreme Court has held that the election petition must contain a concise statement of the material facts on which petitioner relies and all material facts therefore are required to be set out in the election petition failing which the election petition would be dismissed as not furnishing cause of action for its laying. In para 31 of the judgment, the Hon'ble Supreme court has held that even though the expression material facts had been defined neither in the Act nor in the Code, according to the dictionary meaning of the word material it meant fundamental, vital, basic, cardinal, central, crucial, decisive, essential, pivotal, indispensable, elementary or primary. It was held that consequently the phrase material facts would be facts which uncontroverted would lead to a decree for the plaintiff. It was held that all issue and primary facts required to be proved at the trial by a party to establish existence of the cause of action are material facts and must be pleaded by the party. In para 35 of the judgment the it was held that the object and purpose of mandatorily pleading of all material facts was to enable the opposite party to know the case he has to meet with. It was further held that in the absence of pleading, a party cannot be allowed to lead evidence and consequently failure to state even a single material fact, would entail dismissal of the suit or petition.
Thus in the obtaining state of law material facts are facts which when averred by the plaintiff and left uncontroverted would entail decreeing of the plaintiff's case and a judgment in his favour without anything more. Consequently vague pleadings even when left uncontroverted, would not result in decreeing of the suit or rendering of judgment for the plaintiff and would not satisfy the requirements of laying out material facts. In the instant case the election petitioner, respondent herein, had made vague allegations with regard to improper rejection of 13 votes allegedly cast in his favour, and improper acceptance of 15 votes in favour of returned candidate, without details as to which of the said 13 and 15 votes were in issue, in spite of the fact that the petitioner or his agent had occasion in terms of Rule 49 of the 1994 Rules to note the number of offending ballot numbers. The absence of ballot numbers in respect of votes which were allegedly improperly accepted in favour of returned candidate or improper rejection of ballot papers which were allegedly cast in favour of the election petitioner in the election petition would render even the uncontroverted case of the election petitioner incapable of being allowed or election of returned candidate being set aside.
In my considered opinion the pleadings in the election petition laid by the election petitioner did not contain the concise statement of the material facts. No cause of action was spelled out thus owing to the failure of election petitioner to state the numbers of offending ballot papers wrongly rejected on the one hand and wrongly accepted on the other. The trial court could not have permitted the election petitioner to even adduce evidence on this score in the absence of pleadings. In this view of the matter, there was nothing for the returned candidate to answer in the election petition and no cause of action was made out. With specific reference to a similar fact situation the Hon'ble Supreme Court in case of Jitendra Bahadur Singh (supra) has held that where before rejection/ acceptance of a vote the candidate or his agent was permitted to examine ballot papers and note down serial number of concerned ballot papers, if the election petition were to be silent as to the serial numbers of those ballot papers no cause of action for recounting of the votes would be made out and an election petition based on such a ground would be liable to be rejected.
I am of the view that the election petition as laid by the election petitioner, respondent herein, did not include a concise statement of the material facts, as warranted under Rule 82 of the 1994 Rules to make out a cause of action under Rule 80 (d) (iii) of the 1994 Rules. In paras No.4 and 5 of the election petition the election petitioner has merely stated that 13 votes cast for him had been wrongly rejected by the returning officer, and 15 votes have been improperly counted in favour of the returned candidate, without detailing the serial number of such ballot papers. The lacuna of ballot numbers of the votes in issue being absent fatal as it is in view of the judgment of the Apex Court in the case of Jitendra Bahadur Singh (supra) is further compounded by the Election petitioner not having averred that the outcome of the election in favour of the returned candidate was materially affected. In my considered view the pleadings of the election petition for making a ground under Rule 80 (d) (iii) of the 1994 Rules are vague and do not satisfy the requirement of Rule 82 read with Rule 49 of the 1994 Rules and fail against the mandate of Section 43 of the 1994 Act, which requires that an election petitioner may call in question an election by presenting a petition only on the prescribed grounds and in the prescribed manner. The election petition as laid was/ is liable to fail both under Rule 80 and Rule 82 of the 1994 Rules.
The upshot of the aforesaid discussion is that the impugned order dated 21-9-2011 passed by the trial court having failed to address the fundamental issues raised in the application under Order 7 Rule 11 CPC filed by the returned candidate is liable to be set aside. It is held that the election petition did not disclose any cause of action as it failed to make a concise statement of the material facts for generating a cause of action qua a ground under Rule 82 (d) (iii) of the 1994 Rules. The impugned order dated 21-9-2011 passed by the trial court is a cryptic, non speaking order, sidestepping and circumventing the fundamental objection to the election petition being improperly laid and not constructed as per legal requirement. I would therefore, for the reasons aforesaid, set aside the impugned order dated 21-9-2011 passed by the trial court i.e. Civil Judge (Senior Division) Fatehpur Shekhawati, District Sikar and allow the application under Order 7 Rule 11 CPC filed by the petitioner herein (returned candidate). Consequently the election petition No.1/2010 pending before the trial court i.e. Civil Judge (Senior Division) Fatehpur Shekhawati, District Sikar stands dismissed for not disclosing any cause of action as the election petitioner failed to make out a concise statement of the material facts to generate a cause of action under Rule 82 (d) (iii) of the 1994 Rules to the election of the returned candidate, the petitioner herein as the Sarpanch of Gram Panchayat Thimoli, Panchayat Samiti Fatehpur Shekhawati, District Sikar.
The writ petition is allowed accordingly. Stay application stands disposed of.
(Alok Sharma),J.
arn/ All corrections made in the order have been incorporated in the order being emailed.
Arun Kumar Sharma, Private Secretary.