Gayad Ram vs Pratap Singh Bhati And Ors

This writ petition has been filed by the petitioner aggrieved against the order dated 30/1/2020 passed by the Senior Civil Judge, Jodhpur District,

whereby, the application filed by the petitioner under Order VII Rule 11 CPC read with Section 151 CPC has been rejected.

The respondent filed the election petition under Section 43 of the Rajasthan Panchayati Raj Act, 1994 (‘the Act, 1994’) read with Rule 80 of the

Rajasthan Panchayati Raj (Election) Rules, 1994 (‘the Rules, 1994’) calling in question the election of the petitioner as Sarpanch of Gram

Panchayat, Chandelao in the elections held on 1/2/2015. The petition was filed on the ground that the petitioner was disqualified on account of his

having more than two children after the cut off date. The election petition remained pending after reply was filed by the petitioner contesting the

averments made in the petition.

An application came to filed by the petitioner inter alia indicating that the term of office as Sarpanch has come to an end and by Notification dated

26/12/2019, fresh elections have been announced and, therefore, the election petition has been rendered infructuous and the trial of the election petition

would only be academic and, therefore, the same be rejected.

The application was contested by the respondents by filing reply inter alia with the averments that as the issue raised in the election petition pertains to

disqualification of the petitioner, the same, despite the period having lapsed, cannot be rendered infructuous.

After hearing the parties, the trial court by its order dated 30/1/2020, came to the conclusion that the court is required to decide as to whether the

petitioner was eligible at the time when he filled the nomination form and as the petition pertains to qualification or disqualification, despite the fact that

the period of panchayat has come to an end, the same cannot be rendered infructuous and consequently rejected the application.

It was vehemently submitted by learned counsel for the petitioner that the trial court committed grave error in rejecting the application filed by the

petitioner inasmuch as once the period of five years since the election of the petitioner was over, the pendency of the petition was mere academic as

no effective relief could be granted to the respondent.

Submissions were made that the determination made by the trial court that as the issue pertains to qualification of the petitioner to contest the election,

the same, irrespective of the fact that the term of the panchayat is over, would not be rendered infructuous, is wholly incorrect inasmuch as it is well

settled that after the term of the respective elected body is over the election petition, unless the same is based on the allegations of corrupt practice

would be rendered infructuous, as no effective relief can be granted.

Further submissions were made that contesting the election and/or filing the petition is only a statutory right and, therefore, once the period of elected

body is over, irrespective of the plea raised in the election petition, which does not pertain to corrupt practice, the petition is liable to be dismissed as

infructuous.

Reliance has been placed on Narendra Singh Bhati vs. Ramnarain Bishnoi : AIR 1993 Raj. 130, P.H.Pandian vs. P.Veldurai & Anr. : (2013) 14 SCC

685.

Learned counsel for the respondent reiterated the submissions as made before the trial court and submitted that as the issue raised pertains to the

qualification of the petitioner, which issue would continue to arise in future as well, the determination in this regard was imperative and, therefore, the

rejection of the application by the trial court is justified.

Reliance was placed on the judgment in Sheodan Singh vs. Mohan Lal Gautam : AIR 1969 SC 1024.

I have considered the submissions made by learned counsel for the parties and have perused the material available on record.

The facts are not in dispute, wherein, the election of the petitioner as Sarpanch has been called in question by way of election petition on the ground

that he was disqualified to be elected as Sarpanch. The disqualification pertained to Section 19(l) of the Act, 1994. The election took place on 1/2/2015

and the term of the panchayat has already come to an end with the fresh elections having been held for the Gram Panchayat, Chandelao, which event,

though, is subsequent to the filing of the application.

The law on the aspect is well settled, wherein, it has been repeatedly held by various courts that other than the case where the election petition has

been filed on the ground of corrupt practice, on account of term of the elected body/office having come to an end and/or its premature dissolution, the

petition would be rendered infructuous.

In the case of Narendra Singh Bhati (supra), it was inter alia laid down as under:

“13. Keeping in view all these facts and circumstances of this case, this election petition has now become infructuous because no live issue

survives for the decision of the Court. If there had been any allegations about corrupt practice or mala fides, then, of course, proceedings could have

been continued as held by their Lordships of the Supreme Court in Jyoti Basu’s case (AIR 1982 SC 983) (Supra).

In the result, the application filed by respondent no.1 for dismissing the election petition as having become infructuous is allowed and consequently,

this election petition is hereby dismissed as having become infructuous.â€​

In the case of P.H.Pandian (supra) also, it was inter alia held by Hon’ble Supreme Court that as fresh elections have been held, the appeal before

the Hon’ble Court has been rendered infructuous.

Insofar as the case of Sheodan Singh (supra) is concerned, the same was a case where the allegation pertained to corrupt practice and in those

circumstances it was held that the election petition alleging corrupt practice etc. against the respondent does not abate or become infructuous on the

dissolution of Assembly.

As noticed, the only exception with regard to petition not rendered infructuous, despite the term of the elected body/office coming to an end/it stands

dissolved, is the petition based on allegations of corrupt practice as the same has consequences, whereby, the candidate, if found guilty of corrupt

practice, stands debarred for certain term.

In view thereof, the judgment in the case of Sheodan Singh (supra) has no application to the facts of the present case.

The trial court has distinguished the judgment in the case of Narendra Singh Bhati (supra) by observing that as the same pertained to recount of votes,

the same was not applicable. The distinction sought to be drawn has no basis inasmuch as all the grounds of calling in question an election are at the

same pedestal except the ground of corrupt practice. Therefore, the finding in this regard recorded by the trial court cannot be sustained.

Consequently, the writ petition filed by the petitioner is allowed. The order dated 30/1/2020 passed by the trial court is quashed and set aside. The

application filed by the petitioner is allowed. The election petition No.60/2015 pending before the Senior Civil Judge, Jodhpur District shall stands

dismissed as having become infructuous.