Meena Kumari @ Meena Chaudhary v. Sumitra Devi & ORS

-1IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision.21.10.2016 Meena Kumari @ Meena Chaudhary .......Petitioner Vs Sumitra Devi and others ........Respondents

Present:

Mr. R.S. Budhwar, Advocate for the petitioner.

Mr. Ravinder Malik (Ravi), Advocate for the respondents.

CORAM:HON'BLE MR. JUSTICE AMIT RAWAL -.- AMIT RAWAL J. (ORAL) C.M. No.15092-CII of 2016 For the reasons stated in the application, order passed by this Court on 26.07.2016 is recalled and the petition is restored to its original number.

Application is allowed.

C.R. No.2092 of 2016 The petitioner is aggrieved of the impugned order dated 14.03.2016 whereby the Election Tribunal has restrained the petitioner from taking the charge of the office of Member of Block Samiti, Shahabad Markanda from Ward No.3 of District Kurukshetra. Mr. R.S. Budhwar, learned counsel appearing for the petitioner submits that in election petition instituted by Sumitra Devi under Section 176 of the Haryana Panchayati Raj Act, 1994, the interim order under challenge is not in the scope and ambit of provisions of aforementioned Act. The aforementioned order tantamounts to allowing the election petition before its adjudication which is not sustainable in the eyes of law in view of

-2the law laid down by Division Bench of this Court in Sham Lal Vs. State Election Commission, Punjab 1997(1) RCR (Civil) 82. Per contra, Mr. Ravinder Malik (Ravi), learned counsel appearing for the respondents submits that the order under challenge is perfectly legal and justified as prima facie, the Election Tribunal had found that the election petition contains merit and in this aspect of the matter, the interim order was passed.

I have heard learned counsel for the parties, appraised the paper book and of the view that the order under challenge cannot be passed in view of the dictum laid down by this Court in Sham Lal's case (supra). The relevant para No.7 is reproduced here-in-below:-

7. Perusal of the provisions contained in Part IX of the Constitution generally and Art. 243K in particular shows that the Legislature of State has been vested with the power to make laws with respect to all matters relating to or in connection with elections to the Panchayats. With a view to avoid judicial interdiction in the process of election, constitutional bar has been imposed against entertaining of any petition involving challenge to the validity of laws relating to delimitation of constituencies. At the same time it has been made clear that no election to any Panchayat shall be challenged except by way of an election petition presented to an authority which is constituted by or under any law made by the Stale Legislature.

In order to provide a forum for adjudication of election disputes, comprehensive provisions have been made in. Chapter XII of '1994 Act'. Provisions of that Chapter deal with the constitution of Election Tribunal, presentation of election petitions, contents thereof and the relief, trial of election petitions, the procedure to be followed by the Election Tribunal, the manner of recording of evidence, the decision of the Tribunal, the grounds for setting aside the election and appeal etc. It is thus clear that the entire gamut of challenge to the election is regulated by the statutory provisions contained in Ss. 73 to 107.

-3petition. Sections 87 and 88 refer to the nature of orders which can be passed by the Election Tribunal. Section 87 provides that at the conclusion of trial of election petition the Tribunal may dismiss the election petition or declare the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected. In cases where an election petition is filed on the ground of any corrupt practice the Tribunal is required to make further order whether any corrupt practice has or has not been proved to have been committed and also to indicate the nature of such corrupt practice; the name of persons who have been found guilty of corrupt practice and the costs payable. This shows that only at the time of final adjudication the Election Tribunal can make appropriate order.

But it has no power to pass injunction/ stay order. The only provision under which an order of injunction or stay order can be passed is to be found in S. 101 which authorises the Election Tribunal and the High Court to stay the operation of the order made under S. 87 or 88 of '1994 Act'. The Election Tribunal can suo motu stay an order passed by it under S. 87 or 88. Likewise in an appeal filed under S. 100 against the order of the Election Tribunal, the High Court can stay the operation of the order passed by the Election Tribunal."

Unless and until, the respondent is succeeded in the election petition, such type of orders cannot be passed, much less, the Election Tribunal would not have the power to pass any interim order during the pendency of election petition. The order under challenge is without jurisdiction.

For the reasons aforementioned, the impugned order is set aside and the revision petition is allowed.

(AMIT RAWAL) JUDGE October 21, 2016 Pankaj* Whether reasoned/speaking Yes Whether reportable No