Madhya Pradesh High Court
Smt Pushpa Bai Patidar vs Smt Sangeeta Bail Rathore on 22 July, 2024
Author: Pranay Verma
Bench: Pranay Verma
1 WP-30496-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 22nd OF JULY, 2024
WRIT PETITION No. 30496 of 2023
SMT PUSHPA BAI PATIDAR
Versus
SMT SANGEETA BAIL RATHORE AND OTHERS
Appearance:
Shri Piyush Mathur, Senior Advocate with Shri Sunil Verma,
Advocate for the petitioner.
Shri Anendra Singh Parihar, Panel Lawyer for the State.
Shri Satish Jain, Advocate for respondent No.1.
Shri Kamal Airen, Advocate for respondent No.2.
ORDER
With the consent of learned counsel for the parties, the matter is finally heard.
By this petition preferred under Article 226 of the Constitution of India, the petitioner has challenged the order dated 05.12.2023 (Annexure P/9) passed by the Specified Officer cum Collector, District Mandsaur, respondent No.3, whereby the election petition preferred by respondent No.1 under Section 122 of M.P. Panchayat Raj avam Gram Swaraj Adhiniyam, 1993 against the election of the petitioner on the post of President of Janpad Panchayat, Malhargarh, District Mandsaur has been allowed.
02. Learned senior counsel for the petitioner has submitted that the Signature Not Verified Signed by: SHILPA NAGDEVE Signing time: 24-07-2024 14:56:03 2 WP-30496-2023 election petition preferred by respondent No.1 was barred by time but no issue in that regard was framed by respondent No.3. The Election Petition is governed by the provisions of CPC thus respondent No.3 ought to have framed issues and decided each issue after recording of evidence. The petitioner has not even been permitted to adduce evidence. It is also submitted that no finding has been given whether petitioner was belonging to OBC category in her original State i.e. Rajasthan and has married a person of same caste Patidar which has been notified as OBC for the State of Madhya Pradesh and thus also belongs to OBC category. The election petition has been decided in a very cursory manner hence the impugned order deserves to be set aside. Reliance has been placed on the decision of this Court in Kalka Prasad Vs. Ramji Lal and Others 2002 (3) MPLJ 121, Pramila Bai Vs. Sub Divisional Officer, Bareli and Others 1999 (2) MPLJ 209, Mumbi Bai Vs. State of M.P. and Others 2012 (2) MPLJ 456 and upon order dated 13.09.2023 passed in W.P. No.13777/2023 (Ramesh Bhabor Vs. State of M.P. and Others).
03. Per contra, learned counsel for respondent No.1 has submitted that the election petition preferred by respondent No.1 was well within time. The petitioner admittedly is not entitled for contesting any election in the State of M.P. as she belongs to OBC category in her original State. There was no requirement for framing any issues particularly when respondent No.1 had specifically expressed that no evidence is required to be adduced. Respondent No.4 has discussed and decided each and every point in dispute in which there is no illegality. It is further submitted that the judgments relied Signature Not Verified Signed by: SHILPA NAGDEVE Signing time: 24-07-2024 14:56:03 3 WP-30496-2023 upon by the learned counsel for the petitioner are not applicable to the facts of the case since they are in respect of election to the post of Sarpanch whereas in the present case election to the post of a President is involved. No Caste Certificate was submitted by the petitioner at the time of filing her nomination form hence it is not open for her to raise such a grievance at this stage. It is hence submitted that the petition deserves to be dismissed. Reliance have been placed on the decisions of the Apex Court in Ranjana Kumari Vs. State of Uttarakhand and Others 2019 (15) SCC 664, Dharampal Satyapal Limited Vs. Deputy Commissioner of Central Excise, Gauhati and Others 2015 (8) SCC 519, Bhadar Ram Vs. Jassa Ram and Others 2022 (4) SCC 259, Melwin Chiras Kujur Vs. State of Maharashtra and Others 2015 (17) SCC 549, MCD Vs. Veena and Others 2001 (6) SCC 571 and of this Court in Seema Devi Vs. Union of India and Others 2024 (2) MPLJ 71, Uma Devi Navaiya Vs. State of M.P. and Others AIR 2020 MP 152, Savitri Bai Vs. Sarita Singh and Others 2017 (4) MPLJ 127 and Ajab Rao Chadokar and Another Vs. State of M.P. and Others 2001 (3) MPLJ 251.
04. Learned counsel for respondent No.2 has made similar submissions as made by learned counsel for respondent No.1.
05. I have considered the submissions of learned counsel for the parties and have perused the record.
06. Firstly, it would be apt to consider the ground raised by the petitioner to the effect that the election petition has been decided by respondent No.3 without framing of any issues. From the pleadings of petitioner as well as respondent No.1, it is apparent that there are various Signature Not Verified Signed by: SHILPA NAGDEVE Signing time: 24-07-2024 14:56:03 4 WP-30496-2023 factual disputes between them including the issue of limitation and as to whether the Caste Certificate was submitted by the petitioner and whether she is entitled for contesting the election on the basis of her Caste Certificate. The issue as to whether the petitioner complied with the mandatory requirements at the time of filing of her Nomination Form is also a question of fact. Her entitlement on the basis of her caste has to be adjudicated upon. However, no issue was framed by respondent No.4 as regards any of the disputes and he has proceeded to straightaway decide the election petition on merits and has allowed the same. In view of existence of several factual disputes it was incumbent upon him to have framed appropriate issues on the basis of pleadings of the parties and permitted them thereafter to lead evidence on the same. However, he has not done so. For the reason that respondent No.1 chose not to adduce any evidence, such right of the petitioner could not have been dispensed with.
07. This Court in Kalka Prasad (supra) has categorically held that in an election petition framing of issues and recording of evidence are necessary for its proper adjudication. It has been held as under:-
"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, (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 Signature Not Verified Signed by: SHILPA NAGDEVE Signing time: 24-07-2024 14:56:03 5 WP-30496-2023 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 pinpoints 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 belittle 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 the 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, 2001 (1) MPJR SN 6."
08. In Ramesh Bhabor (supra) it has been held by this Court as under:-
"6] Be that as it may, on perusal of the impugned order it is apparent that the issues have not been framed. In such circumstances, it cannot be said that the election petition has been decided in accordance with law, as it clearly violates the principles of natural justice as the framing of issue is also an important aspect of the case, on the basis of which only the evidence is led by the parties and appreciated by the Trial Court."
09. In the circumstances as aforesaid, since issues have not been framed by respondent No.4, who has decided the election petition in absence Signature Not Verified Signed by: SHILPA NAGDEVE Signing time: 24-07-2024 14:56:03 6 WP-30496-2023 of the same, the impugned order cannot be sustained and deserves to be set aside. In view of the same, the judgments relied upon by the learned counsel for respondent No.1 are not required to be dealt with. The petition is consequently allowed. The impugned order is hereby quashed and the matter is remanded back to respondent No.4 to proceed further in accordance with law after framing necessary issues.
10. The petition is accordingly allowed and disposed off.
(PRANAY VERMA) JUDGE Shilpa Signature Not Verified Signed by: SHILPA NAGDEVE Signing time: 24-07-2024 14:56:03