Mahendra Kumar vs Arjun Kumar - 2013 Supreme(Raj) 1532

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2013 Supreme(Raj) 1532

RAJASTHAN HIGH COURT
Vijay Bishnoi, J.
Mahendra Kumar - Appellant
Versus
Arjun Kumar & Anr. - Respondent
S.B. Civil Writ Petition No. 8698 of 2013.
Decided On : 16-07-2013

Advocates:
For the Petitioner:D.L.R. Vyas, Advocate.

Important Points

The provisions of the Civil Procedure Code, 1908 relating to the joinder of the parties stands excluded in an election petition of a Panchayat Election.

Subject

Election Law - Panchayat Election

Act Referred

CIVIL PROCEDURE CODE : O.1 R.10
RAJASTHAN PANCHAYAT ELECTION RULES : R.83

Headnote

ELECTION PETITION - NECESSARY PARTY - APPLICABILITY OF CIVIL PROCEDURE CODE - PANCHAYAT ELECTION RULES, 1994 - Rule 83 and 85 - The provisions of the Civil Procedure Code, 1908 relating to the joinder of the parties stands excluded in an election petition of a Panchayat Election.

Fact of the Case:

The petitioner challenged the order of the trial court rejecting his application to dismiss an election petition on the ground that the State Government was not made a party and no notice was given before filing the petition. The petitioner also challenged the trial court's order rejecting the election petitioner's application to delete the Returning Officer from the array of respondents.

Finding of the Court:

The court held that the provisions of the Civil Procedure Code, 1908 relating to the joinder of the parties stands excluded in an election petition of a Panchayat Election. The court also held that the Returning Officer is not a necessary party to an election petition of a Panchayat Election.

Issues: 1. Whether the provisions of the Civil Procedure Code, 1908 relating to the joinder of the parties apply to an election petition of a Panchayat Election? 2. Whether the Returning Officer is a necessary party to an election petition of a Panchayat Election?

Ratio Decidendi: 1. The court held that the provisions of the Civil Procedure Code, 1908 relating to the joinder of the parties stands excluded in an election petition of a Panchayat Election because: a. The right to elect, to be elected and to dispute an election are statutory rights and are subject to statutory limitation. b. An election petition of a Panchayat Election is a statutory proceeding to which only statutory rules applied. c. The Panchayat Election Rules, 1994 is a self-contained code and thus it must be found that any right claimed in an election or in an election dispute, the provisions of Code of Civil Procedure cannot be invoked in relation to any procedure, which is provided in the Panchayat Election Rules, 1994. 2. The court held that the Returning Officer is not a necessary party to an election petition of a Panchayat Election because: a. Rule 83 of the Panchayat Election Rules, 1994 designates the persons who are to be joined as respondents to the petition and the provisions of the Civil Procedure Code, 1908 relating to the joinder of the parties stands excluded. b. The concept of joining a necessary or a proper party to an election petition is ruled out by the provisions of Panchayat Election Rules, 1994.

Final Decision: The court dismissed the writ petition and set aside the trial court's order rejecting the election petitioner's application to delete the Returning Officer from the array of respondents.

JUDGMENT :

1. By this writ petition, the petitioner has challenged the order dated 31.05.2013 passed by learned Civil Judge (Senior Division), Mount Abu - Camp Abu Road, District Sirohi (for short 'the trial court' hereinafter), whereby the learned trial court has rejected the application filed by the petitioner under Order 7, Rule 11 read with section 151 of the Code of Civil Procedure.

2. Brief facts of the case are that respondent-No.1 - Arjun Kumar had filed an Election Petition No. 11/2010, while challenging the election of the petitioner on the post of Sarpanch of Gram Panchayat, Dhanari, Panchayat Samiti, Abu Road, District Sirohi and the said election petition is pending trial in the trial court. In the aforesaid election petition, the respondent No. 1 has impleaded the petitioner - returned candidate and the Returning Officer of the said election by name as party respondent.

3. The petitioner has moved an application under Order 7, Rule 11 read with section 151 CPC and has prayed for dismissal of the election petition on the ground that the election petitioner has not made the State Government as party respondent in the election petition, though as per section 79 of the Code of Civil Procedure, the State Government is a necessary party in a suit preferred against the State Government. It was also contended in the said application that before filing of the election petition, the election petitioner had not given any notice as contemplated under section 80 of the Code of Civil Procedure and, therefore, on this count also, election petition of the election-petitioner is liable to be rejected.

4. Another application under Order I Rule 10 of the Code of Civil Procedure was also preferred by respondent No. 1 - Arjun Kumar (Election Petitioner) with a payer to delete the name of respondent No. 2 - the Returning Officer from the array of the respondents.

5. The learned trial court proceeded to decide both the applications preferred by the petitioner under Order 7, Rule 11 of the Code of Civil Procedure and by the respondent No. 1 under Order I Rule 10 CPC vide order dated 31.05.2013 and has rejected both the applications.

6. Being aggrieved with the rejection of the application under Order 7, Rule 11 Code of Civil Procedure, the petitioner has preferred this writ petition.

7. The learned counsel for the petitioner has argued that in the election petition, the respondent-No.1 election petitioner has prayed that the election record may be called from the District Election Officer, Sirohi and recount of the ballet papers may be conducted and as such the election petitioner has claimed relief against the State Government and looking to the said relief claimed by him, as per section 79 of the Code of Civil Procedure, the State Government is a necessary party and the election petition filed by him without impleading the State Government as party, is not maintainable and liable to be rejected. It is also contended by the learned counsel for the petitioner that before filing of the election petition, the respondent-election-petitioner has not given any notice as contemplated under section 80 of the CPC and, therefore, also, the election petition filed by the respondent-election petitioner is liable to be rejected. It is further argued by the learned counsel for the petitioner that as per Rule 85 of the Rajasthan Panchayati Raj (Election) Rules, 1994 (for short 'the Panchayat Election Rules, 1994' hereinafter), the Code of Civil Procedure, 1908 is applicable in the trial of an election petition in relation of a panchayat election, however, the learned trial court without considering the provisions of Rule 85 of the Panchayat Election Rules, 1994, has rejected the application preferred by the petitioner under Order 7, Rule 11 CPC in illegal manner.

8. Learned counsel for the petitioner has placed reliance on decisions of Hon'ble Supreme Court rendered in District Collector, Srikakulam & Ors. v. Bagathi Krishna Rao & Anr., reported in AIR 2010