SIRAJ AHMED Vs. STATE ELECTION COMMISSION

JUDGEMENT

(1.) The order dated 19th May, 1998 passed by the learned Member, Election Tribunal, Imphal, Manipur in Election petition Misc. Case No, 1 of 1998 (Ref: Election Petition No. 1 of 1998) is the subject matter under challenge in this writ petition.

(2.) Supporting the case of the writ petitioner. Mr. N. Kotishwor Singh, the learned counsel contended inter alia, that the writ petitioner, the respondent No. 4 and other 4(four) persons were the contesting candidates in the Election to the Pradhan of seat No. 7/18, Kairang Khomidok Gram Panchayat and that the election was held smoothly on 31 -01 -1997; the writ petitioner was declared to have been elected by over 60(sixty) votes more than his nearest rival candidate, namely, the respondent No. 4 and accordingly, on the same day a certificate of election was issued by the respondent No. 3 in favour of the petitioner; but the petitioner heard that his election has been nullified by the respondent No. 3 and subsequently, a notice was issued on 8th February, 1997 by the respondent No. 3, thereby cancelling (sic) the certificate of election issued in favour of the writ petitioner as null and void, thus notifying the respondent No. 4 as the returned candidate for the said Gram panchayat; and being aggrieved by the impugned notification dated 8th February, 1997, the writ petitioner had challenged the validity of the said notification dated 8th February, 1997 before the Election Tribunal, Manipur, Coupled with a prayen for declaring the Election Certificate dated 6th February, 1997 issued in favour of the writ petitioner as valid one and for declaring the subsequent election certificate dated 8th February, 1997 issued in favour of the respondent No. 4 as null and void. According to the writ petitioner, he filled a miscellaneous application being Election petition Misc. Case No. 1 of 1998 for grant of temporary injunction against the respondents restraining them to administer the oath of office as pradhan of the said Gram Panchayat till the disposal of the main election petition under order 39 Rules 1,2 and 3 read with Section 151 of the Code of Civil Procedure and after hearing the parties the learned Member of the Election Tribunal, Manipur dismissed the application by holding that the Election Tribunal has no jurisdiction or power to entertain the present application filed under order 39 read with Section 151 of the Code of Civil Procedure. Mr. Kotishwor, the learned counsel argued that the learned Member of the Election Tribunal has erred in holding that Election Tribunal is not a Civil Court in as much as the matter pertaining to grant of temporary injunction for restraining the taking of oath of the respondent No. 4 is directly related to election matter for which Section 103 of the Manipur Panchayati Raj Act conferred upon the Election Tribunal to deal with any other election matter and rather, the Election Tribunal has jurisdiction to pass appropriate order under order 39 or Section 151 of C.P.C. It is also argued that Rule 71 of the Manipur Panchayeti Raj Act (Election) Rules, 1995 provides that Che procedure applicable under the Code of Civil Procedure 1908 will be applicable, which includes powers under Section 151 and Order 39 C.P.C. and that the Rules under the Manipur Panchayati Raj (Election) Rules, 1995 cannot restrict the scope of the Election Tribunal as has been provided under Section 103 of the Manipur Panchayati Raj Act, 1994. Mr. Kotishwar, learned counsel contended as the inherent power conferred by Section 151 C.P.C. has not been excluded by the Panchayati Raj Act, the Election Tribunal has jurisdiction to pas appropriate orders for grant of injunction or any interim order restraining taking of oath by the respondent No. 4. It is also submitted by the learned counsel that where Section 103 of the Manipur Panchayati Raj Act conferred a jurisdiction to deal with any other election matter, it impliedly also grant the power of doing or deciding a matter pertaining to an application under order 39 C.P.C. or Section 151 C.P.C. but the learned Member of the Election Tribunal had failed to exercise jurisdiction conferred upon it and as such the impugned order deserves to be quashed and necessary direction may be made to the learned Tribunal for deciding the matter pertaining to temporary injunction on its merit.

(3.) At the hearing Mr. N. Promode Chandra Singh, learned counsel for the respondent Nos. 1,2 and 3, the writ petitioner nowhere in his petition claimed or challenged the validity of the nos. of votes secured by respondent No. 4 and as such the claim of the writ petitioner is quite unsustainable and also unjustifiable. According to Mr. N. Promode Chandra Singh Election Tribunal constituted under Section 103 of the Manipur Panchayati Raj Act, 1994 is not a Court but a creature of statute and as such the Election Tribunal has only such powers as are conferred on it by statute expressly or by necessary implication and it has none of the inherent powers of an ordinary Court. It is also submitted by the learned counsel for the respondents that according to Rule 71(1) of the manipur Panchayati Raj (Election) Rules, 1995, "Every dispute relating to election shall be enquired into by the Election Tribunal as early as may be in accordance with the procedure applicable under the Code of Civil Procedure 1908 to the Trial of Suits", and as such the language and expression of this Rule is quite clear that the Election Tribunal may borrow or apply the procedure available in the Code of Civil Procedure while dealing with an Election petition. Supporting the case of the respondents Mr. Promode Chandra Singh, learned counsel had relied upon certain decisions and judgments rendered by the Apex Court as well as by different High Courts reported in AIR 1958 SC 687; AIR 1954 SC 210; AIR 1982 SC 983; AIR 1958 SC 698; AIR 1978 SC 851, AIR 1952 SC 64; AIR 1987 Mad 60; AIR 1963 All 618 & AIR 1965 All 450 and contended that the present writ petition is not maintainable as the remedy in a election petition to be presented after the election is over, there is notemedy provided at any intermediate stage in view of the facts and circumstances of the present case. Mr. H. Raghumani Singh, learned counsel appearing for the respondent No. 4 supported the submissions and contentions advanced by Mr.N. Promode Chandra Singh, learned counsel for the respondents No. 1,2 and 3.