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Dharamvir Vs. Vijay Kumar and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revision No. 1888 of 1992
Judge
Reported in(1993)105PLR295
ActsPunjab Municipal Rules, 1952 - Rules 60 and 61; Code of Civil Procedure (CPC) , 1908 - Order 9, Rule 17
AppellantDharamvir
RespondentVijay Kumar and ors.
Appellant AdvocateNone
Respondent AdvocateNone
DispositionPetition allowed
Cases ReferredDr. P.Nalla Thampy Thera v. B.L. Shanker and Ors.
Excerpt:
.....the act. so viewed two inferences are clear viz., (1) sections 80 and 89 of the act read with rule 85 of the rules make it obligatory for the authorities making the order to communicate it to the applicant concerned and (2) the period of limitation for any appeal against the order is reckonable from the date of such communication of the reasons would imply communication of a copy of the written order itself, a party who knows about the making of an order cannot ignore the same and allow grass to grow under its feet and do nothing except waiting for a formal communication of the order or to choose a tenuous plea that even though he knew about the order, he was waiting for its formal communication to seek redress against the same in appeal. if a party does not know about the making of..........that rule 60 or 61 are not applicable to a case where the election petition has been dismissed in default. rule 60 is applicable in the case of withdrawal of the election petition and rule 61 is applicable in case the election petition abates due to the default of the petitioner.6. as against this, stand taken by the respondents is that no petition under article 227 of the constitution of india is maintainable; that in an election petition the contest is between the constituency on the one side and the persons or person complained of on the other. once the machinery under the act has been put into motion then it does not entirely rest upon the person challenging to continue or not to continue with the petition that the collusion between the elected candidate and the election petitioner.....
Judgment:
ORDER

Ashok Bhan, J.

1. General elections of the Councillors for Municipal Corporation, Amritsar, were held on 28.4.1991 under the Punjab Municipal Corporation Act (hereinafter referred to as the Act). Petitioner alongwith respondents No. 1 to 9 and 15 contested the election from Ward No. 39 of the Municipal Corporation, Amritsar, and was declared elected.

2. Vijay Kumar respondent No. 1 filed an election petition on 27.5.1991 under Section 18 of the Act read with Rules 17, 23, 38-E, 51 and 53 of the Punjab Municipal Rules, 1952 (hereinafter referred to as the Rules) before the Deputy Commissioner challenging the election of the petitioner. Deputy Commissioner forwarded the election petition to the Punjab Government who in turn entrusted the same to the Regional Deputy Director, Local Government Punjab at Amritsar (hereinafter referred to as the Prescribed Authority).

3. On 9.4.1992 Vijay Kumar respondent No. 1 filed an application under Rule 60 of the Rules for withdrawal of the election petition. This application was dismissed by the Prescribed Authority holding that the same was not in consonance with Rule 60 of the Rules and further ordered that if respondent No. 1 was to withdraw the petition then he should move an application in accordance with Rule 60 of the Rules. The case was adjourned to 20.4.1992. On this adjourned date, respondent No. 1 was not present before the Prescribed Authority and his counsel made a statement that he has received no instructions to proceed with the election petition. The Prescribed Authority dismissed the petition in default.

4. Rajinder Kumar Bhalla respondent No. 2 moved an application under Order 9 Rule 7 and Section 151 C.P.C. read with Rule 60 of the Rules for restoration of the election petition to proceed with the same in accordance with law. This application was allowed by the Prescribed Authority on 7.5.1992 without issuing any notice to the petitioner. An application for restoration was allowed under Rule 61 of the Rules. Copy of this order which has been impugned in this revision petition has been attached as Annexure P2 to this petition.

5. Petitioner being aggrieved has filed the revision petition under Article 227 of the Constitution of India impugning the order dated 7.5.1992 (Annexure P2) whereby the election petition has been ordered to be restored at the instance of respondent No. 2. Main plea taken in this petition is that the application for restoration was not maintainable at the instance of Rajinder Kumar Bhalla respondent No. 2; that Rule 60 or 61 are not applicable to a case where the election petition has been dismissed in default. Rule 60 is applicable in the case of withdrawal of the election petition and Rule 61 is applicable in case the election petition abates due to the default of the petitioner.

6. As against this, stand taken by the respondents is that no petition under Article 227 of the Constitution of India is maintainable; that in an election petition the contest is between the constituency on the one side and the persons or person complained of on the other. Once the machinery under the Act has been put into motion then it does not entirely rest upon the person challenging to continue or not to continue with the petition that the collusion between the elected candidate and the election petitioner could not be allowed to avoid the consequences of the misdeeds committed by the elected candidate during the elections.

7. I have considered the rival pleas taken by both the parties. Rule 60 is applicable in a situation where the election petition is sought to be withdrawn by the election petitioner. It provides that election petition can only be withdrawn by leave of the Prescribed Authority and a notice of that application has to be given to all other parties to the petition and has to be published by being posted at the office of he Deputy Commissioner and at the Municipal office. Any person who might have been petitioner may, within 14 days from the date of such publication apply to be substituted as petitioner in place of the party withdrawing and, upon compliance with the conditions of Rule 55 as to the security, shall be entitled to be so substituted and to continue the proceedings upon such terms as may be imposed by the Government or the Prescribed Authority. Clearly this rule is not applicable to the present case. The Prescribed Authority was also conscious of this fact and, therefore, invoked Rule 61 for restoration of the election petition. Rule 61 which deals with the abatement of election petition reads as under :-

'61(1). An election petition shall abate only on the death of a sole petitioner or the survivor of several petitioners.

2.Notice of the abatement of an election petition shall be published by the Commission, or if the petition abates before any Commission has been appointed by the Punjab Government by being posted at the office of The Deputy Commissioner and the Municipal Corporation.

3. Any person who might himself have been a petitioner, may, within fourteen days from the date of such a publication, apply to be substituted as petitioner, and, upon compliance with the condition of Rule 55 as to security shall be entitled to be so substituted and to continue the proceedings upon such terms as the Punjab Government or the Commission, as the case may be, may think fit.'

8. An analysis of this rule would show that the same would also not be applicable to the present case. This rule talks of abatement of a petition on the death of sole petitioner or the survivor of several petitioners. It does not refer to a situation where the petition is dismissed for default. No doubt, it is true that in an election petition the contest is really between the constituency on the one hand and the person or persons complained of on the other. The scheme of the Act shows that once the challenge to the election has been put by filing the election petition then the same cannot be brought to an end by collusion between the election petitioner on the one hand and the person elected on the other. An elaborate procedure has been provided where the election petition is sought to be withdrawn or the same abates but it is silent where the election petition is dismissed for non prosecution/default. Legislature in its wisdom has made special provisions for continuation of election petition in case of withdrawal and abatement but no such provision has been made in where the election petition has been dismissed for non prosecution. The point in issue was considered by the Supreme Court in Dr. P.Nalla Thampy Thera v. B.L. Shanker and Ors.,1, AIR 1984 S.C. 135 wherein it was held that dismissal of the election petition for default under Order 9 or Order 17 of the C.P.C. would be valid and it would not be open to challenge on the ground that these provisions which provides for dismissal of the election petition for default do not apply. It was further held that where an election petition has been dismissed for default under Order 9 or Order 17 C.P.C. then an application for restoration of the petition would be maintainable only by the election petitioner himself and not by any other respondent. It was held as under :-

'.........We, therefore, conclude that an election petition is liable to be dismissed for default in situations covered by Order IX, or Order XVII of the Code and for its restoration an application under Rule 9 Order IX of the Code would be maintainable but such application for restoration can be filed only by the election petitioner and not by any respondent.'

9. For the reasons recorded above, the impugned order Annexure P2 passed by the Prescribed Authority restoring the petition at the instance of respondent No. 2 is held to be bad in law and the same is ordered to be set aside. It is held that the application filed by respondent No. 2 for restoration of the election petition was not maintainable at his instance. Thus this petition stands allowed with no order as to costs.


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