BHARAMU SUBRAO PATIL Vs. NARSINGRAO GURUNATH PATIL

JUDGEMENT

(1.) BY the present Chamber Summons respondent has moved this Court to contend that Election Petition No. 16 of 1999 be dismissed under section 86 (1) of the Representation of People Act, 1951 and/or Order VII of the Code of Civil Procedure, 1908 on the ground that the petition discloses no cause of action. A few relevant facts may be set out. On the petition being presented on 6th December, 1999, order was passed to issue summons for appearance and filing written statement. The same was made returnable on 17th June, 2000. Matter has thereafter come up on various dates. In between on 18th February, 2000 the respondent took out the present Chamber Summons. Written statement was filed on 31st January, 2000. In para 3 (u) of the written statement the respondent had averred that there is no cause of action for filing the present petition. In paragraph 4, it is averred that the respondent was advised and accordingly craved leave to take appropriate proceedings including Chamber Summons for dismissal of the election petition at threshold and/or upon framing preliminary issue for non-compliance of the various mandatory provisions of the Act, Rules and the Code and that the respondent was taking appropriate steps. The Chamber Summons was not taken for hearing then and it was set for hearing after the issues were framed. Issues were framed on 10th August, 2000. It was directed that Issues Nos. 1 and 2 to be heard as preliminary issues. Issues Nos. 1 and 2 read as under:---

(2.) THE election petition is based solely on the ground that the respondent has incurred a disqualification as contemplated by section 8 of Representation of People Act, 1951, hereinafter referred to as "the Act of 1951". It was contended on behalf of the petitioner that respondent was one of the accused in Special Case No. 44 of 1993 along with 16 others and charged with offences punishable under sections 147, 148, 149, 324, 337, 325, 504 and 506 of the Indian Penal Code as also under section 7 (1) (d) of the Protection of Civil Rights Act, 1955 and under section 3 (1) (10) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The Special Judge, Kolhapur by judgment and order dated 12th July, 1996 found respondent guilty under section 7 (1) (d) of the Protection of Civil Rights Act, 1955 read with section 506 of the Indian Penal Code and convicted the respondent. The respondent aggrieved and dissatisfied with the aforesaid judgment and order has preferred an appeal to this Court which is numbered as Criminal Appeal No. 459 of 1996. That appeal was admitted on 7th August, 1996. The respondent herein was granted bail. Thereafter, the respondent filed a Criminal Application No. 2201 of 1999 under section 389 (1) of the Criminal Procedure Code seeking suspension of the conviction and sentence for reasons set out therein relying on the judgment of the Supreme Court in the case of (Rama Narang v. Ramesh Narang and others), 1995 (2) S. C. C. 513. A learned Single Judge of this Court by judgment and order dated 24th August, 1999 was pleased to allow the said application and was further pleased to suspend the execution of the sentence and operation of the judgment within the terms of section 389 (1) of the Criminal Procedure Code and also suspended the order of conviction under the said provision. One Shri Mahadeo Satuppa Kamble filed a Special Leave Petition against the said order before the Apex Court which was numbered as Special Leave Petition (Criminal) No. 3578 of 1999. The Apex Court was pleased to pass an order issuing notice in the said matter. For the sake of narration though this does not form part of the pleadings in the petition, but in the written submissions filed it has been pointed out that the Apex Court has subsequently dismissed the Special Leave Petition. Nothing however turns on that. It is also averred that the respondent as also the aforesaid Mahadeo S. Kamble filed their nomination papers, for contesting the elections. Mahadeo S. Kamble objected to the nomination papers filed by the respondent by raising several objections dated 25th August, 1999. The first objection raised was that the respondent was convicted under the Atrocities Act in Special Case No. 44 of 1993. The second objection was that the respondent was a permanent resident of Belgaum and staying there permanently along with his family members. The affidavit filed by the respondent herein that he was resident of Mhalewadi, Taluka Chandgad was false and therefore he is liable to be punished. It was stated that the respondent was disqualified and hence his nomination papers be rejected. Some other objections were raised which are not relevant for the petition. The Returning Officer by an Order dated 25th August, 1999 was pleased to reject the objections. The Returning Officer relied on the order of this Court dated 24th August, 1999. It is contended that the Returning Officer accepted the nomination papers of the respondent illegally and contrary to the provisions of the said Act. The Returning Officer accepted the nomination papers of the petitioner and two other candidates and consequently all of them contested election against each other. On 11th September, 1999 voting took place. On 6th October, 1999 the counting of votes took place. After counting was over, the Returning Officer was pleased to declare the respondent as a candidate duly elected from 288 Chandgad Legislative Assembly Segment of the State of Maharashtra. The petitioner secured the second highest votes. It is contended that on the date of the election the respondent was not qualified for being chosen to fill the seat in question and was disqualified under section 8 of the Act of 1951.

(3.) IN Chamber Summons taken out by the respondent as already referred to earlier, it is the case of the respondent that petition should be dismissed under section 8 (1) of the Representation of Peoples Act, 1951 and/or Order VII, Rule 11 of the Code of Civil Procedure, 1908 on the ground that the petition does not disclose any cause of action. In support of the Chamber Summons, the respondent has filed his own affidavit and relied on the averments in the election petition and various annexures thereto. It is contended that right to challenge the election is a statutory right and can be resorted to only in the manner provided under Part VI of the Act. It is specifically contended that Criminal Appeal No. 459 of 1999 preferred by the respondent against the judgment and order in Special Case No. 4 of 1993 passed by the learned Special Judge, Kolhapur has been admitted by order dated 7th August, 1996 by this Court. By a further order dated 25th August, 1999 in Criminal Application No. 2201 of 1999, this Court suspended execution of sentence and conviction and operation of the order and judgment in Special Case No. 44 of 1993. In these circumstances, it is pointed out that there is no cause of action available to the petitioner to challenge the election of the respondent by way of present petition. It is, therefore, contended that the Chamber Summons for dismissal of the petition be made absolute.