MATHURA DASS Vs. JAGDISH

JUDGEMENT

(1.) Jagdish respondent filed an election petition under Rules 52 and 53 of the Punjab Municipal Election Rules , against Mathura Dass petitioner. It was dismissed for default on 13th May, 1980. An application for its restoration was filed by Jagdish respondent on 5th June, 1980. The same was allowed vide impugned order dated 5th September, 1980. It has been allowed by the learned Executive Magistrate mainly on the ground that the Department of the Local Government Punjab vide its letter dated 18th July, 1980 written to the Presiding Officer, has desired to know whether it would not be necessary to decide the issue raised in the election petition on the basis of the record available, without giving any consideration to the fact that the petitioner is reluctant to pursue his petition against the respondent. From the observations made in the impugned order to the effect that "it is clear from this application that the main intention of the Government of Punjab is to go into the merits of the case", it appears that the learned Executive Magistrate allowed the application for restoration on this ground alone.

(2.) The learned counsel for the petitioner contended that there is nothing in the said letter of the Government to hold further inquiry in the matter. The powers of remand for the further inquiry are contemplated under Rule 67 of the Punjab Municipal Election Rules , but the said letter cannot be said to be an order passed by the Punjab Government under Rule 67. In any case, after the dismissal of the election petition, the matter was reported to the State Government under Rule 64 of the Election Rules and therefore, after the said report there was no power with the Commission to reopen the matter on the application for restoration.

(3.) After hearing the learned counsel for the parties, I am of the considered opinion that the learned Executive Magistrate could not allow the restoration application on the basis of the said letter received by him from the Department of Local Government and Urban Development, Punjab. According to that letter, it only requires that the issues raised in the election petition may be decided on the basis of the record available. It does not direct any further inquiry into the matter as contemplated under Rule 67 of the Election Rules. Under these circumstances, the case could not be reopened because of the said letter of the Punjab Government.