LATA PATLE Vs. KAMLESH GAUTAM

JUDGEMENT

(1.) THE appellant/petitioner being aggrieved by the order dated 10-5-2007 passed by the learned single Judge in Writ Petition No. 15573/2006 whereby the writ application filed by the petitioner was dismissed, is before this court with a submission that the learned single Judge without appreciating the facts has wrongly rejected the writ petition.

(2.) THE short facts necessary for the disposal of the present appeal are that the petitioner Smt. Lata Patle and the contesting respondent Smt. Kamlesh gautam contested the election to the office of the Sarpanch, Gram Panchayat, chimnakhari. The respondent was declared returned candidate, the petitioner being aggrieved by the result of the election challenged the result of the declaration by filing election petition under section 122 of the M. P. Panchayat and Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as the 'act') on various grounds. In that writ petition Smt. Lata Patle made an application for recounting of the votes. It is to be noticed that the election petition was filed on 10-2-2005, the Presiding Officer after going through the election petition and the documents annexed with it directed that notices be issued to the returned candidate. Notices were accordingly issued. The summons which were issued to the present respondent came back with the endorsement made by the process server that the summons were served along with the copy. The summons issued by the concerned Tribunal directed that the matter would be taken up for hearing on 7-3-2005. The matter was taken up on 7-3-2005 but however, as the Presiding officer was not available the matter was adjourned. The matter was again taken up on 28-3-2005 and 11-4-2005 but as the Presiding Officer was not available the matter was adjourned. On 13-4-2005 the learned Presiding Officer recorded that despite service of the notice there was no representation from the side of the respondent. He accordingly ordered that the matter be proceeded ex parte. In the same proceedings he again observed that it appeared from the records that summons were not served upon the- respondent. He accordingly ordered that summons be issued afresh. Notices were issued for 18-4-2005. As 18-4-2005 was declared a holiday the matter was taken up on 20-4-2005. The respondent did not appear in the Court but however her husband appeared and obtained copy of the election petition and other documents. The written statement came to be filed on 25-4-2005. It is to be noted that in the written statement dated 25-4-2005 any objection in relation to non-deposit of the security cost or non-verification of the copy of the petition served upon the present respondent were not raised. On 26-5-2005 under an independent application objections relating to non-deposit of security cost and non-verification of the copies served on the respondents were raised. It appears that the learned Election Tribunal without taking into consideration the objections raised by the parties and even without casting issues directed that the ballot papers be re-counted. It is not in dispute before us that before the respondent could file Writ Petition No. 4237/2005 the ballot papers were re-counted and the result of recounting of the votes were declared in favour of the present petitioner. Writ Petition No. 4237/2005 filed by Smt. Kamlesh gupta (present respondent) was allowed by this Court on 20-7-2005 observing that the order passed by the Election Tribunal could not be allowed to stand. The court after setting aside the order remanded the matter back to the Election tribunal with a further direction that if objection with regard to non-compliance of the mandatory provisions were raised then issue be framed in that regard. It appears that after remand, the Election Tribunal did not cast the issues on the question of maintainability of the election petition. It also appears that the parties probably did not crave indulgence of the Election Tribunal to the fact that under the directions of the High Court it was required to cast such issues. The parties joined the issue and proceeded with the evidence. The learned trial Court after recording the evidence and hearing the parties held that present was a fit case for recounting. It accordingly allowed the writ application and held that the declaration of the result in favour of the present respondent was illegal. The respondent again being aggrieved by the order dated 31-10-2005 passed by Sub divisional Officer, Revenue, Barghat, District Seoni, came to this Court in Writ petition No. 14243/2005. The matter was heard and finally disposed of on 16-5-2006. After discussing the entire material available on the record this Court observed that the Election Tribunal was unjustified in not casting necessary issues which related to non-compliance of Rule 3 (2) and Rule 7 of the Election petition Rules. The Court accordingly framed the following two issues and remanded the matter back to the Election Tribunal for decision afresh after recording further evidence of the parties. Issue No. 1 : whether, the copy of the election petition supplied to Smt. Kamlesh was in accordance with Rule 3 (2) of Election Petition Rules? issue No. 2 : whether, the election petitioner Smt. Lata Patle deposited the security amount as required under Rule 7 of the Election Petition Rules?

(3.) THE learned Court below, in accordance with the directions of this Court granted appropriate opportunity to the parties to lead evidence. The respondent besides examining her own self examined her husband in support of the objections. The present petitioner Smt. Lata Patle in addition to her examination examined one Sitaram Thakur working in the office of the Sub Divisional officer, Revenue, Barghat. After hearing the parties the learned Election tribunal rejected the objections raised by the respondent in relation to non-deposit of the security cost and non-compliance of Rule 7 of the Election Petition rules. It however held that the copy of the election petition supplied to the present respondent was not in accordance with Rule 3 (2) of the Election Petition rules. As a consequence of the findings it dismissed the election petition. The election petitioner being aggrieved by the order dismissing the election petition filed W. P. No. 15573/2006, after rejection of the same, is now before this Court.