Madhya Pradesh High Court
Laddu Ram Kori vs Jajpal Singh Jajii on 26 August, 2019
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
1 of 3
EP-8-2019
The High Court Of Madhya Pradesh
EP-8-2019
(LADDU RAM KORI Vs JAJPAL SINGH JAJII & OTHERS)
5
Gwalior, Dated : 26-08-2019
Shri R.D. Jain, Senior Advocate with Shri Sangam Jain, Advocate for the
petitioner.
Shri V.K. Bhardwaj, Senior Advocate with Shri S.S. Gautam and Shri Rohit
Batham, Advocates for respondent no.1.
Heard on I.A. No. 3244/19, an application under section 10 of the CPC, for staying the proceedings of the present Election Petition moved on behalf of respondent no.1.
In the instant petition, the petitioner seeks to call in question the election of respondent no.1 as a member of M.P. Legislative Assembly from Assembly Constituency No.32 (SC) namely Ashoknagar within district Ashoknagar in M.P. Vidhan Sabha general elections 2018, wherein respondent no.1 has been declared as a successful candidate on the basis of Scheduled Caste certificate.
Learned counsel for respondent no.1 contends that a certificate showing petitioner belonging to a Scheduled Caste was issued on 6/11/2008 and based on the said certificate, petitioner filed nomination papers which were duly accepted. On the basis of the aforesaid, petitioner has been elected as a member of Legislative Assembly. Subsequently, High Power Caste Scrutiny Committee (for short "the Committee"), vide its order dated 16/9/13, cancelled the SC certificate issued in favour of respondent no.1 on 6/11/2008. Being aggrieved, respondent no.1 challenged the said cancellation before this Court in W.P. No.7047/2013 which came to be finally decided on 1/5/2019. This Court quashed the order of Committee dated 16/9/13 and remitted the matter for fresh adjudication and, at the same time, gave a direction that till the decision of Committee, the SC certificate dated 6/11/2008 issued in favour of respondent no.1 shall remain in abeyance and he shall not be entitled to take advantage of the same. It is further contended that in the present petition, challenge is to the certificate issued in favour of respondent no.1, therefore, till disposal of the case by the Committee, the proceedings of the present petition deserve to be stayed. To buttress his contentions, learned counsel has 2 of 3 EP-8-2019 placed reliance on decisions of this Court in the cases of Vedprakash and others Vs. Guru Granth Saheb Sthan Meerghat Town Vanaras Sarvrahi and another (2009 (I) MPJR 131) and Malkit Singh Vs. State of M.P. & another (2010 (5) MPHT 246).
On the other hand, learned Senior Counsel Shri R.D.Jain appearing for the petitioner submitted that respondent no.1 contested the election for the post of Member, Janpad Panchayat in the year 1994 as a general category candidate.
Thereafter, in 1999, he contested election for the post of Member, Zila Panchayat as a candidate of Scheduled Caste category. Again, he contested the election for the post of President, Municipal Council as a candidate of OBC category and now he has contested the election of Member of Legislative Assembly on a reserved Scheduled Caste category seat. It is submitted that vide paragraph 77 of the order passed in W.P. No.7047/15, this Court did not restore back the SC certificate dated 6/11/2008. Instead, the SC certificate was kept in abeyance and it was observed that respondent no.1 shall not take advantage of the certificate till decision of the Committee. The order passed in writ petition is retrospective in nature as the writ Court has not held that the order is prospective. Learned Senior Counsel contended that every election furnishes a fresh cause of action for challenge to that election. He further submitted that decision of the Committee would not decide the fate of the election petition since findings given by the Committee are not binding on this Court and the petitioner can prove in the present petition that respondent no.1 is not a member of a Scheduled Caste. The decision of the Committee will not operate as resjudicata. Moreover, respondent no.1 is taking advantage of the SC certificate and drawing salary and other amounts, for which he is not entitled. The sole purpose of filing the present application for stay is just to linger on the proceedings till completion of tenure of respondent no.1. With the aforesaid submissions, it is prayed that the stay application deserves to be rejected.
Heard, learned counsel for the parties.
The Apex court in the case of Satrucharla Vijaya Rama Raju Vs. Nimmaka Jaya Raju and others ((2006)1 SCC 212) has held as under:-
"Obviously, the whole of the constituency concerned is interested in the outcome of an election petition, since it either affects the choice they have already made, or their right to have the freedom of a fresh
3 of 3 EP-8-2019 choice. Since (i) an election petition is not a suit of a general nature or a representative action for adjudication of a status of a person, (ii) a challenge to an election petition is only a statutory challenge under the Representation of the People Act, (iii) the acceptance of the challenge or the rejection of it in a given case would be based on facts and law available therein, and (iv) an adjudication therein is not one which comes directly within the purview of Section 41 of the Evidence Act, the same could not be treated as a judgment in rem. In fact, if it were a judgment in rem, the ratio of the decision in Armugam case (1976) 1 SCC 863, holding that the subsequent election furnishes a fresh cause of action would not have been rendered, since the adjudication in the earlier election petition would have barred the consideration of the question even if it be based on additional facts."
In view of the aforesaid and taking into consideration the facts and circumstances of the case, no ground is made out for staying the proceedings of this election petition. Besides, the decisions in the cases of Ved Prakash (Supra) and Malkit Singh (Supra) are of no avail to respondent no.1 being completely distinguishable on facts, inasmuch as the former relates to civil proceedings while the latter is in respect of criminal proceedings and the same cannot be treated as guiding principles for adjudication of stay application in this election petition.
The application is, accordingly, dismissed.
Respondent no.1 may file counter affidavit within four weeks. List on 26/9/19.
(S. A. DHARMADHIKARI) JUDGE (and) ANAND SHRIVASTAVA 2019.08.31 17:55:40 +05'30'