Dwas Das Manikpuri vs Mahendra Singh Bargo and Others

Sunil Kumar Sinha, J.—The petitioner is an elected sarpanch of Village Panchayat - Akoli. The election of the petitioner was called in question by filing an election petition by respondent No. 1 u/s 122 of the Panchayat Raj Adhiniyam, 1993 (hereinafter referred to as "the Act, 1993"). Amongst others, respondent No. 1 (election petitioner) look the ground that the petitioner, on the date of filing of the nomination, was in arrears of payment of certain amount to the government, therefore, he was a defaulter and his nomination ought to have been rejected on the said account, whereas, the petitioner contested the election by suppressing all theses materials. He pleaded various financial irregularities committed by the petitioner. The petitioner appeared in the election petition and filed an application under Order 7 Rule 11 read with Section 151 C.P.C., praying that the grounds taken by the election petitioner were incorrect therefore, the election petition was not required to be entertained and the same should be dismissed at the threshold. A reply to the said application was filed by the election petitioner, who further substantiated his plea taken in the election petition. The learned Election Tribunal heard the arguments on the said application filed by the petitioner and dismissed the same vide impugned order dated 28.06.2010 (Annexure P/3), holding that there was sufficient material on record to prosecute the election petition and the election petition was not liable to be dismissed at the threshold However, the Tribunal, referring to the provisions of Section 66 of the Act, 1993, directed that the financial powers of the petitioner be withdrawn in the above facts and circumstances of the case. Mr. H.B. Agarwal, learned Senior Advocate appearing on behalf of the petitioner argued that the rejection of the application filed under Order 7 Rule 11 C.P.C. was not proper. He also argued that the Election tribunal was having no jurisdiction to pass� the order relating to withdrawal of the financial powers of the petitioner at the instance of the election petitioner in an Election Petition filed u/s 122 of the Act, 1993.

On the other hand, Mr. Sahu, Mr. Bajpayee and Mr. Dubey, learned counsel appearing on behalf of the respective respondent, opposed these arguments and supported the order passed by the Election Tribunal.

I have heard learned counsel for the parties at length and have also perused the records of the writ petition.

Rule 21 of the Chhattisgarh Panchayats (Election Petitions, corrupt Practices and Disqualification for Membership) Rules, 1995 provides grounds for declaring election to be void. One of the grounds under Rule 21 is that "the result of the election in so far as it concerns returned candidate has been materially affected by the improper acceptance of any nomination.

The election petitioner pleaded that the nomination of the petitioner was improperly accepted, because, the petitioner was in huge arrears of payment of government amount; he was a defaulter; and was not eligible to contest the election. The petitioner filed application under Order 7 Rule 11 C.P.C. pleading that he was not declared defaulter by the concerned authorities and in fact, there was not arrears of government amount against him, therefore, his nomination was not improperly accepted and the election petition should be dismissed.

Rule 11 of Order 7 C.P.C. provides that the plaint shall be rejected in case (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the court, fails to do so; (c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law etc".

In the present case, the thresh was on the ground that the election petition filed by the election petitioner does not disclose the cause of action. On perusal of the election petition, it does not appear so. Therefore, in the above facts and circumstances of the case, I do not find any irregularity in the order impugned so far as it relates to dismissal of the application filed by the petitioner under Order 7 Rule 11 C.P.C.

So far as withdrawal of the financial powers referring to Section 66 of Act, 1993 is concerned, Section 66 deals with the Panchayat fund and the manner in which the Panchayat fund would be drawn. It never provides any power to the Election Tribunal/specified officer to pass an order regarding withdrawal of the financial powers of the returned candidate. It appears that the Election Tribunal/Specified Officer without going into the provisions of section 66 and without recording any finding relating to any financial irregularity committed by the petitioner, has passed the order relating to withdrawal of the financial powers of the petitioner. The order relating to the withdrawal of the financial powers of the petitioner appears to be based on no material on record and it also appears to be beyond the jurisdiction of the specified officer hearing an election petition filed u/s 122 of the Act, 1993.

For the foregoing reasons, the writ petition is partly allowed. The order passed by the Tribunal dismissing the application filed under Order 7 Rule 11 C.P.C. is hereby confirmed. However, the order relating to withdrawal of financial power of the petitioner is hereby set-aside. No order as to cost(s).