GANESH PAREEK Vs. MUSTFA LUHAR

JUDGEMENT

(1.) The instant writ petition under Article 226/227 of the Constitution of India is preferred by the petitioner Ganesh Pareek elected Sarpanch of the Gram Panchayat Bigod, Panchayat Samiti Mandalgarh, District Bhilwara for assailing the proceedings of the election held on 24.01.2015 result whereof was declared on the same day.

(2.) The respondent No.1 Mustfa Luhar presented the above mentioned election petition on 23.02.2015 in the Court of District Judge, Bhilwara under Section 43 of the Rajasthan Panchayati Raj Act, 1994 read with Rule 80 of the Rajasthan Panchayati Raj (Election) Rules, 1994. The registry of the District Court, Bhilwara made a noting on the petition wherein, mentioning at serial No.4 that the election petitioner (respondent No.1 herein) had not deposited security amount of Rs. 500/- alongwith the election petition. As per the order-sheet dated 27.02.2015, it is indicated that the election petitioner sought some time to remove the defects. Thereupon, the next date was given by the Election Tribunal as 11.03.2015. The requisite security amount of Rs.500/- was tendered and deposited by the election petitioner on 11.03.2015. The election petition was registered and notice thereof was issued to the petitioner herein being the returned candidate by order dated 11.03.2015. Soon after marking appearance in the proceedings, the petitioner proceeded to submit his reply on 04.01.2016. Thereafter, the petitioner submitted an application under Order 7, Rule 11 CPC read with section 151 CPC praying that the election petition be dismissed as the same suffered from the fatal defect of non-tendering of the security amount of Rs. 500/- simultaneously with the election petitioner in terms of Rule 81 of the Panchayat Raj (Election) Rules and thus, it had to be presumed that the election petition was not lawfully submitted within the statutory time of 30 days and hence, the same was liable to be dismissed. The Election Tribunal, proceeded to reject such application filed by the petitioner vide order dated 01.02.2016 holding that the election petition itself was presented within a period of 30 days of declaration of result of election and non-deposition of the security amount of Rs. 500/- within the said period of 30 days was not mandatory nor could this defect be treated as fatal so as to terminate the proceedings. The learned Election Tribunal held that the election petitioner could not receive certain copies within time and thus, the delay could be excused and was not fatal to the proceedings. With these findings, the application preferred by the petitioner returned candidate under Order 7, Rule 11 of CPC read with section 151 CPC was dismissed vide order dated 01.02.2016 which is assailed in the instant writ petition.

(3.) Shri Paramveer Singh Champawat has put in appearance on behalf of election petitioner-respondent No.1 whereas, Shri Manish Patel, learned AGC has marked appearance on behalf of the State through Panchayati Raj Department. Both have filed reply to the writ petition craving dismissal thereof.