Madhya Pradesh High Court
Anjali Shivhare vs Neetu Parmar on 6 April, 2026
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Civil Revision Nos.464 of 2023,
497 of 2023 & 499 of 2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
CIVIL REVISION No. 464 of 2023
NEETU PARMAR
Versus
VARSHAGADEKAR AND OTHERS
WITH
CIVIL REVISION No. 497 of 2023
ANJALI SHIVHARE
Versus
NEETU PARMAR AND OTHERS
AND
CIVIL REVISION No. 499 of 2023
SHIVKUMAR MAHORE
Versus
NEETU PARMAR AND OTHERS
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Appearance:
Shri Sanjay Agrawal - Senior Advocate with Ms. Aishwarya Nandani
Tiwari and Shri Aditya Raj Shukla - Advocates for petitioner in respective
petitions.
Shri Nikhil Tiwari - Advocate for respondent No.2 in CR
No.499/2023.
Shri Rajendra Kumar Mishra - Advocate for respondent No.1 in CR
No.464/2023 and for respondent No.2 in CR No.497/2023.
Shri Amit Mishra - Panel Lawyer for respondent-State.
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Signed by: PREM SHANKAR
MISHRA
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Civil Revision Nos.464 of 2023,
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ORDER
(Reserved on 07.01.2026)
(Pronounced on: 06.04.2026)
These three revisions under Section 115 CPC read with Section
26(2) of the Madhya Pradesh Municipalities Act, 1961 (for short “Act
of 1961”) have been filed arising out of the judgment dated
13.06.2023 passed by the Election Tribunal of First District Judge,
Multai in Election Petition MJC No.23/2022, whereby the election of
the petitioner in CR No.464/2023 has been set aside and declared
illegal and void. Consequential directions have been issued to carry
out fresh process of election to the office of President, Municipal
Council, Multai, Distt. Betul (MP).
2. CR No.464/2023 is filed by the returned candidate whereas CR
No.497/2023 and CR No.499/2023 have been filed by the Councillors
of Municipal Council who were voters to the election of President in
their capacity of electors, but they were not parties to the election
petition.
3. The counsel for the respondents has raised serious objection as
to maintainability of all the three revisions. So far as maintainability
of revisions filed by electors is concerned, it is contended that elector
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Civil Revision Nos.464 of 2023,
497 of 2023 & 499 of 2023
is having a right to file election petition but once there is a decision
given by the Election Tribunal, then as per Section 26(2) any person
aggrieved by decision of the Judge on the petition can file revision
and the person aggrieved would be the person who would have been
party in the election petition or who would have been contesting
candidate in the election. Now as the fresh election only has been
ordered, therefore, the person who would have been aggrieved is the
elected candidate and to that extent, the revision of only elected
candidate can be entertained, but of no other party can be entertained
and, therefore, the revisions filed by two Councillors in their capacity
as electors deserve to be dismissed as not maintainable.
4. So far as the revision filed by the returned candidate is
concerned, it is contended that initially in CR 464/2023, this Court
had granted stay on 07.08.2023 and the stay order had been
challenged before the Hon’ble Supreme Court. Thereafter revision
itself had been heard on merits by a coordinate Bench of this Court on
04.10.2023 and it was decided by this Court that since the revision
was filed on 01.07.2023 and the security deposit as required under
Rule 19(2) of the M.P. Municipalities (Election Petition) Rules has
been filed on 03.07.2023 which is two days later to the date of
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Civil Revision Nos.464 of 2023,
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presentation of the revision, therefore, in terms of the language of
Rule 19(2), the revision is not maintainable and it is mandatorily
required to be dismissed and, therefore, the coordinate Bench
dismissed the revision.
5. The aforesaid order was challenged by the petitioner before the
Hon’ble Apex Court in SLP (Civil) No. 1397 of 2024 wherein the
Hon’ble Apex Court has directed vide order dated 27.10.2025, that the
revision is to be heard on merits.
6. It was contended by learned counsel for the respondents election
petitioners that even if the Hon’ble Supreme Court has directed the
revision to be heard on merits but even then the Hon’ble Supreme
Court has not set aside the order passed by this Court dated
04.10.2023. Therefore, the aforesaid objection still stands because the
findings as contained in the order dated 04.10.2023 have neither been
set aside nor dealt with by the Hon’ble Supreme Court while
reminding the matter back to this Court. It is argued that the merits
would mean the questions of maintainability also because once there
is provision in mandatory language of Rule 19(2) that revision has to
be dismissed for non-compliance of provision of deposit of security,
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then that is binding in nature and, therefore, this Court should
consider this objection also on merits.
7. Though the Hon’ble Supreme Court has not reserved the said
objection to be raised again before this Court after remand, but
looking to the arguments of the learned counsel for the respondents
that the Hon’ble Supreme Court has not set aside the findings as to
non-maintainability of the revision on account of non-compliance of
Rule 19(2) and the question, therefore, this Court deems fit that the
said question be also dealt with by this Court and deals with the
question again in terms of the remand made by the Hon’ble Supreme
Court.
8. Though this Court had heard the case within the time limit of
three months as fixed by the Hon’ble Apex Court, but at the time of
hearing, it was intimated by counsel for respondents that against the
remand order dated 27.10.2025, a review petition has been filed at
Diary No. 69466 of 2025 but not listed due to defects therein. This
Court after hearing the parties had reserved the case for orders, but
granted liberty to the parties to intimate if any order is passed in
review. However, till date, no progress in pending review has been
intimated nor it is intimated as to whether defects have been removed,
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or not. Therefore, as the matter was reserved on 07.1.2026, hence,
without waiting any more, the present final order is being passed.
9. The question raised is that Rule 19(2) has not been complied
and it is not in dispute that the security deposit has not been made on
the very same date but has been made after 2 days i.e. on 03.07.2023.
The Madhya Pradesh Municipalities (Election Petition) Rules, 1962.
(for short referred to as “Rules of 1962”) provides in Rule 19(2) as
under:-
“(2) At the time of presentation of the petition for revision under
sub-section (2) of Section 26 against the decision of the Judge, the
petitioner shall deposit with the High Court a sum of Rs.250 as
security for the costs of the revision. If the provisions of this rule are
not complied with the High Court shall dismiss the petition.”
10. The language of Rule 19(2) is, therefore, mandatory but it is to
be seen that whether this Rule 19(2) is in violation of the provisions of
the Act, or it merely fills the gap or there is conflict between the Act
vis-à-vis the Rules, or there is conflict of Rules of 1962 against the
High Court Rules. If Rule 19(2) of the Rules of 1962 only fills up the
gap, then their validity has to be adjudged on the anvil of the vires of
the said Rules. However, the vires of the said Rules have not been put
to challenge, therefore, this Court cannot go into the question of
validity of Rules of 1962 and the vires of Rules of 1962 as such.
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However, this Court restricts itself to the question whether the Rules
of 1962 are in conflict with the parent Act, or with the High Court
Rules, or not. In case of conflict, the Rules of 1962 would not apply
and the parent Act would apply. High Court Rules shall also apply in
case of conflict with Rule 19(2) of Rules of 1962.
11. The Rules of 1962 have been framed exercising powers
conferred on the State Government as per Sections 355(1), 355(2)(i)
and 23 of the Act of 1961. Section 23 gives power to the State
Government to regulate the procedure for disposal of election
petitions. Section 23 reads as under:-
“23. Procedure to be followed in disposal of election petition.-
An election petition shall be enquired into and disposed of
according to such summary procedure as may be prescribed by
rules made under this Act.”
12. Section 355(1) and 355(2)(i) of the Act of 1961 give a power to
the State Government to regulate procedure to be followed in disposal
of election petitions. Section 355(1) and 355(2)(i) are as under:-
“355. Power to make rules.- (1) In addition to any power
specially conferred by this Act, the State Government may
prescribe forms and make rules generally for the purpose of
carrying into effect the provisions of this Act.
(2)In particular and without prejudice to the generality of the
foregoing power, such rules may provide for all or any of the
following matters, namely:-
(i) procedure to be followed in disposal of election petition;
xx xx xx”
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13. Therefore, the Act does not empower the State Government to
regulate the procedure before the High Court. The procedure before
the High Courts is regulated in terms of Article 225 of the
Constitution of India which is as under:-
“225. Subject to the provisions of this Constitution and to the
provisions of any law of the appropriate Legislature made by
virtue of powers conferred on that Legislature by this
Constitution, the jurisdiction of, and the law administered in, any
existing High Court, and the respective powers of the Judges
thereof in relation to the administration of justice in the Court,
including any power to make rules of Court and to regulate the
sittings of the Court and of members thereof sitting alone or in
Division Courts, shall be the same as immediately before the
commencement of this Constitution:
Provided that any restriction to which the exercise of
original jurisdiction by any of the High Courts with respect to
any matter concerning the revenue or concerning any act
ordered or done in the collection thereof was subject
immediately before the commencement of this Constitution shall
no longer apply to the exercise of such jurisdiction.”
14. In terms of Article 225 of the Constitution of India, the
procedure which was prevailing at the time of enforcement of the
Constitution was the Letters Patent of the High Court at Nagpur and
the Letters Patent of the High Court at Nagpur in Clause 27 gives
right to the High Court to regulate its own procedure. Letters Patent of
Nagpur High Court are now applicable to Madhya Pradesh High
Court since its inception on 01.11.1956. Clause 27 of the Letters
Patent is as under:-
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“27. Regulation of Proceedings.-
And we do further ordain that it shall be lawful for the
High Court of Judicature at Nagpur from time to time to make
rules and orders for regulating the procedure of the Court and
for the purpose of adopting as far as possible the Code of Civil
Procedure 1908, passed by the Governor General in Council
and the provisions of any law which has been or may be made,
amending or altering the same, by competent legislative
authority for India, to all proceedings in its testamentary,
intestate and matrimonial jurisdiction respectively.”
15. Therefore, the High Court may regulate its procedure, or the
competent Legislature may make laws, regulating its procedure. It is
to be seen that whether the Act contemplates the procedure before the
High Court to be regulated at all anywhere in the entire Act, or not. If
Section 23 is seen, it gives an enabling provision to regulate the
procedure of election petitions, but in the entire Act, there is no
corresponding provision to regulate the procedure before the High
Court. The election petitions are filed under Section 20. Section 21
relates to relief that may be claimed by the petitioner. Section 22
enumerates the grounds for declaring election to be void. Section 23
provides procedure to be followed in disposal of election petition.
Section 26 is in respect of finality of decision and revision is to be
filed as per Section 26(2). Section 26 is as under:-
“26. Finality of decision.—
(1) No appeal shall lie against the decision of the Judge on
the petition.
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(2) Any person aggrieved by the decision of the Judge on
the petition may, within thirty days from the date of such
decision, apply to the High Court for revision on any of the
following grounds:-
(a) that the decision is contrary of law;
(b) that the Judge has exercised jurisdiction not vested in
him by law or has failed to exercise a jurisdiction vested in him
by law, but subject to such orders as the High Court may pass
thereon, such decision shall be final.”
16. The Act does not contemplate regulating the procedure before
the High Court in any manner whatsoever. Despite this, Rule 19(2)
regulates the procedure before the High Court. The Act consciously
contains enabling provision for regulating the procedure before the
Election Tribunal but consciously does not contain any provision to
regulate the procedure before the High Court while dealing with
challenge to the election petition. The framers of the Act were
conscious of provisions of Article 225 of the Constitution of India
read with Clause 27 of Letters Patent of the High Court of Nagpur and
they consciously did not engraft any provision in the Act to regulate
the procedure of the High Court. Despite that, the rule-making
authority by way of delegated legislation, has regulated the procedure
of the High Court, which conflicts with the parent Act and in case of
conflict with the parent Act, it is settled in law that the delegated
legislation has to give way to the parent Act.
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17. Therefore, Rule 19(2) being in conflict with the parent Act, it
cannot be pressed into service to hold that the High Court is obliged to
dismiss the civil revision on the ground of non-payment of security
deposit. All the judgments which were considered earlier on
04.10.2023 and were placed before this Court during course of
hearing of these revisions also do not take into account the position
that Rule 19(2) in regulating the procedure before the High Court is in
conflict with the parent Act and, therefore, the Rules have to give way
to the Act.
18. One more important aspect is to be noted here that as per
Section 20 of the Act of 1961, the requirement of security deposit is
laid down in the Act itself. The provision for security deposit in the
election petition is laid down in the Act itself in Section 20(4),
whereas the provision of security deposit for filing revision before the
High Court is laid down in the Rules, which again conflicts with the
Act.
19. Not only there is conflict with the parent Act, the Rule 19(2) is
in conflict with M.P. High Court Rules 2008 (for short “High Court
Rules”) also. These Rules have been made exercising the following
powers as contained in its Preamble:-
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“PREAMBLE
In exercise of powers conferred by 1 [Article] 225 of the
Constitution of India, section 54 of the States Reorganisation
Act, 1956, clauses 27 and 28 of the Letters Patent, section 3 of
the Madhya Pradesh Uchcha Nyayalaya (Khandpeeth Ko
Appeal) Adhiniyam, 2005, the High Court of Madhya Pradesh
hereby makes the following Rules, regulating practice and
procedure of the High Court:”
20. The High Court Rules do not contain any requirement of
security deposit for Civil Revisions. Civil Revision is defined in
Chapter-2, Rule 5 as under:-
“5. Civil Revision – Ordinarily following categories of
cases shall be registered as a Civil Revision-
(1) revision under section 23-E of the M.P. Accommodation Control Act, 1961; (2) revision under section 115 of the Code of Civil Procedure, 1908; (3) revision under section 392 or 441-F of the M.P. Municipal Corporation Act, 1956; (4) revision under section 26 of the M.P. Municipalities Act, 1961; (5) revision under section 75 of the Provincial Insolvency Act, 1920; (6) revision under 1 [section] 25 of the Provincial Small Cause Courts Act, 1887; (7) revision under section 83 (9) of the Wakf Act, 1995; or (8) any other revision of civil nature, provided or
permissible under any other law for the time being in force.
(9) a revision under section 53 of the Juvenile Justice
(Care and Protection of Children) Act, 2000 relating to civil
matters.
(10) a revision under section 102 of the Juvenile Justice
(Care and Protection of Children) Act, 2015 relating to civil
matters.]”
(Emphasis supplied)
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21. Chapter-10, Rule-3 contains general requirements for filing, that are
as under:-
3.(1) Every –
(a) memorandum of appeal civil or criminal,
(b) memorandum of objection under order XLI rule 22 of the
Code of Civil Procedure, 1908,
(c) a writ or revision (civil or criminal) petition,
(d) an application under section 6 [528 of the Sanhita, 2023],
(e) return or rejoinder in a writ petition,
– shall be in paper-book form, enclosed in cover with page
numbers & index in Form No. 4; and shall be filed in two
identical sets in a division bench case.”
22. Therefore, there is no requirement of filing any security deposit. The
entire Chapter-10 does not contain any requirement for filing security in
any Civil Revision, though the provisions of Civil Procedure Code and the
Court Fees Act, etc. have been mentioned to be applicable in Rule 10 and
11 of Chapter 10. Rule 16 and 17 relate to filing certified copies of
impugned order, filing to be made in paper book form, narration of
grounds, etc.
23. So far as payment/deposit of security is concerned, neither the High
Court Rules, nor the Code of Civil Procedure, contemplates any security
for Revisions. As per CPC, the only security that is provided for making
challenge to a higher court, is under Order XLI Rule 10 and Order XLV
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Rule 7, for appeals to High Court and Supreme Court respectively, that
have to be paid as ordered by the appellate Court.
24. Further provision is made in Chapter 13 Rule 18, and Chapter 13-A
Rule 18 of the High Court Rules, that provide security to be levied in writ
petitions and Public Interest Litigations at discretion of the Court.
However, there is no provision to levy security in other cases in the High
Court Rules. These clauses 18 of Chapter 3 and 3-A respectively are as
under:-
“18 The Court may in its discretion, either before the opposite
party is called upon to appear and answer or afterwards on the
application of the opposite party, demand from the petitioner
security for the costs of the petition.
18. The Court may require a petitioner to deposit such security
as deemed fit.”
25. Therefore, the requirement under Rule 19(2) of the Rules of 1962
directly militates against the provisions the Letters Patent under which the
High Court is constituted, as well as against the High Court Rules, apart
from it being in conflict with its parent Act, i.e. M.P. Municipalities Act. In
case of conflict with High Court Rules, the High Court Rules shall prevail,
as they have been framed under the powers conferred by Article 225 of the
Constitution, so also Conferred by the Letters Patent.
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26. Therefore, the objection that this Court is obliged to dismiss the
revision (CR No. 464 of 2023) for want of compliance of Rule 19(2)
is discarded and the revision is to be heard and decided on merits, as
the Revision complies with all the requirements as per the High Court
Rules. All the previous judgments that have been relied by counsel for
the respondents, do not turn anything in favour of the respondents
because in none of the said judgments, the issue of Rule 19(2) of the
Rules of 1962 being in conflict with High Court Rules, fell for
consideration.
27. Now this Court proceeds to decide the revision filed by returned
candidate, i.e. CR No. 464 of 2023, on merits.
28. This Civil Revision has been filed by the petitioner/returned
candidate whose election has been set aside, being aggrieved by the
order dated 13.06.2023 passed by the First District Judge, Multai,
District Betul, whereby the election petition filed by the respondent
No.1/runner-up candidate has been allowed by the Election Tribunal
of the First District Judge, and by setting aside the election, fresh
elections have been directed to be conducted.
29. The elections were held to Municipal Councils in Madhya
Pradesh in the year 2022 and the election for the post of President was
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indirect election inasmuch as the Councillors, one each from each
Ward, were to be elected directly by the electorate of general public
and the 15 Councillors would then elect a President of the
Municipality from amongst themselves. The election to the post of
Councillors was on party line but the election to the post of President
was not on party line and in the Municipal Council, Multai, District
Betul, there were 15 Wards and, therefore, 15 Ward
Members/Councillors had been elected by the electorate of general
public. The election of President was to be conducted from amongst
the 15 Councillors.
30. In the election for the post of President, the respondent No.1,
the present petitioner as well as the respondent No.2 had filled up the
nomination forms. The respondent No.1 had the support of Bhartiya
Janta Party (BJP) though the election was not on party lines. The
respondent No.2, namely, Vandana Sahu thereafter withdrew from her
candidature and only two candidates remained in the fray i.e. the
present petitioner and the respondent No.1. The present petitioner
secured 9 votes out of 15 whereas the respondent No.1 secured 6
votes out of 15 and the petitioner was, therefore, declared elected by
the Electoral Officer.
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31. Against the election of petitioner, an election petition under
Section 20 of the M.P. Municipalities Act, 1961 was filed by the
respondent No.1 wherein allegation was made that various ballots had
identification marks made on them and the Election Officer accepted
4 of such ballots which had such identification marks which has
polluted the election process. It was alleged that the petitioner as well
as the respondent No.1 both originally belonged to BJP and were
elected on an BJP mandate as Councillors, but the returned candidate
i.e. the present petitioner unlawfully took the support of Indian
National Congress (INC for short) Councillors and managed to
succeed in the indirect election to the post of President. The allegation
was made that the democratic process was misused and by employing
illegal resources the Councillors of aforesaid political party were
managed to get election in her favour. It was alleged that there were 6
Councillors of Congress Party and 9 Councillors of Bhartiya Janta
Party. The present petitioner i.e. returned candidate secured one vote
which is her own vote, two votes of Bhartiya Janta Party and six votes
of other political parties and since she has managed votes of other
political party, therefore, it is to be inferred that there is corrupt
practice and employment of illegal resources in getting such election
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and, therefore, the election is void and deserves to be declared as
such.
32. On these assertions, the election was challenged on two
grounds. The first ground was that there are identification marks on
four ballots and these ballots are, therefore, void ballots and the
second ground was that the present petitioner/successful candidate has
managed to get support of Councillors of opposite political party i.e.
INC and therefore, it is to be inferred that she has employed illegal
resources that amounts to corrupt practices. The Election Tribunal has
allowed the election petition by holding that various ballots had
identification marks and also that since the support of Councillors of
opposite political party was taken, therefore, there is inference of
corrupt practice and it is further held that since two of such
Councillors have been appointed as Presiding Officers of the
Municipal Council, therefore, it is clear that their votes had been won
over by promising them lucrative posts and positions after election
and, therefore, there is inference of corrupt practice in the election.
33. The learned counsel for the petitioner has argued that in fact
there are no identification marks on the votes which have been found
by the Election Tribunal to be proved, and the decision of the Election
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Tribunal in that regard is utterly perverse and contrary to record. The
learned counsel for the petitioner has vehemently argued that all the
votes were duly opened before the Election Tribunal, they were
photocopied and the photocopies of the originals were exhibited. The
exhibits have been placed on record before this Court and by pointing
out to the votes, it was vehemently argued that the questioned votes
which have been held to be votes containing identification marks of
the voters are not in fact containing any identification marks and the
alleged identification marks that have been found to be identification
marks by the Election Tribunal are actually the natural blotting of the
ink on ballot paper or the natural trail left by the pen on the ballot
paper when the pen is lifted and these natural blots and trails of the
pen on the ballot paper have been seen by the Election Tribunal as
dots and dashes. It was argued that such type of dots and dashes are
there on each and every ballot and in fact even on the ballots in favour
of the election petitioner who ultimately lost the election and if such
type of dots and dashes are seen to be identification marks, then it
would be difficult to uphold any election which is conducted on the
basis of ballot paper because no seal/stamp containing “Arrow”
differentiating mark was given to the candidates and each candidate
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was required to tick mark on ballot paper by ball pen or ink pen and
such dots and dashes are natural dots and dashes of blots and pen
trails on the paper and these are there on all the 15 ballots. The
learned counsel for the petitioner by referring to all the ballots has
vehemently argued that if these 15 ballots are seen, then there is no
particular pattern in the dots and dashes so as to identify any of the
voters and it could not be inferred that these dots and dashes are
identification marks and a particular voter can be identified by such
dots and dashes. Therefore, it is argued that the conclusion arrived at
by the Election Tribunal is a far-fetched conclusion and it is not a
legal and valid conclusion but it is only a presumption made by the
Election Tribunal that is founded in fantasy, not in reality.
34. So far as the other ground of corrupt practice is concerned, the
learned counsel for the petitioner has vehemently argued that the
corrupt practice was alleged in the manner that the votes of opposite
political party were secured but the corrupt practice has not been
pleaded in the manner that certain Councillors have thereafter been
appointed as Presiding Officers of the meetings of Councils which is
used in Hindi as सभापित. It is argued that the Election Tribunal has
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held that since two Councillors have been appointed as सभापित at later
stage after the election, therefore, it is to be inferred that their votes
had been procured by illegal resources or assurances which amounts
to corrupt practice. It is argued that there was no such pleading in
election petition and even if it is a fact which occurred during
pendency of election petition, then there is no amendment in the
election petition to that effect and the trial of allegations containing
corrupt practice being a trial requiring strict proof like a criminal trial,
therefore, nothing could be inferred by the Election Tribunal which
was not part of pleadings and, therefore, by going beyond the
pleadings of the election, the learned Tribunal has gravely erred in
passing the impugned order. Therefore, it is argued that the impugned
order passed by the Tribunal be set aside and the election of the
petitioner be upheld.
35. Per contra, learned counsel for the respondent had argued at
length in the matter of non-maintainability of the present civil revision
for want of payment of security deposit at the time of filing of the
present revision and contended that the revision having been filed two
days prior to payment of the security deposit, therefore, the revision is
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not maintainable. This Court has already considered the aforesaid
aspects in the initial part of the order.
36. On merits, learned counsel for the respondent No.1 had argued
that the order of the Election Tribunal is fully valid and proper
because the votes of opposite political party were secured by the
petitioner and it amounts to corrupt practice. It was further argued that
the votes duly had an identification mark and a bare perusal of the
votes would make it clear that as many as 6 votes are having
identification marks out of the total 9 votes polled in favour of the
present petitioner. It is argued that such identification marks render
the votes as invalid and the Election Tribunal has not erred in
declaring these votes as invalid.
37. The learned counsel for the respondent No.1 has argued that two
Councillors were appointed as Presiding Officers of the meetings of
the Municipal Council (सभापित) and once such lucrative position was
offered to Councillors elected from the opposite party, then it amounts
to presumption that there were corrupt practices employed in securing
votes of the Councillors of INC. Therefore, it is argued that nothing
wrong has been done by the Election Tribunal in holding the 6 votes
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to be invalid and secured by Councillors of opposite party to be votes
secured by unlawful means and employment of illegal resources that
amounts to corrupt practices.
38. The counsel for the petitioner as well as the respondent No.1
were at consensus in contending that the petitioner and the respondent
No.1, both were elected as Councillors on the mandate of BJP and,
therefore, both were candidates of Bhartiya Janta Party and none of
the Councillors who were elected on mandate of INC had remained in
the fray and the sole candidate elected from INC mandate who had
filled up the nomination form, namely, Vandana Sahu bowed out of
the fray because she later on withdrew her nomination and, therefore,
only two candidates remained in the fray and both were elected from
BJP mandates.
39. This Court has heard learned counsel for the rival parties at
length and perused the record.
40. This Court first takes up the question of identification marks on
the ballot papers. The Election Tribunal has held that 6 ballot papers
polled in favour of the present petitioner were invalid because they
contained identification marks. The 6 ballots that allegedly contained
the identification marks were Exhibits D-25, D-26, D-27, D-29, D-31
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and D-32. For ready reference, these exhibited ballot papers, in the
position they are part of file of this Revision, are being reproduced in
this order as under:-
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41. From a perusal of Ex.D-25, it is clear that either the pen
malfunctioned or the other line of the cross was too short and
thereafter the pen was again lifted and that line was again extended. In
the ballot paper Ex. D-26, it is clear that the cross does not have any
mark but in the top right corner of the cross, there is a small dot which
can be residual droplet of ink. In the ballot paper Ex.D-27 though
there are certain dots and trails in the left top and bottom corners of
the cross, but these could be blot marks or the pen lifting trail. In the
ballot paper Ex.D-29 also, the dot in top left corner seems to be the
paper blot mark on the ballet. Similar is the position in Ex.D-31 in
which there is a dot apparent at top right corner of the cross but that
could be a blot mark and same situation is in Ex.D-32.
42. Not only that, these ballot papers seem to contain pen trails or
ink droplets or ink blot dots but moreover there is no particular pattern
in these so as to identify the ballots. These cannot be taken to be
identification marks because such type of blots and dots have
appeared even in the ballot papers in favour of the election petitioner
and all the six votes in favour of the election petitioner contain such
type of dots and pen trails. The six ballot papers in favour of the
election petitioner are as under:-
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Civil Revision Nos.464 of 2023,
497 of 2023 & 499 of 2023Signature Not Verified
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Civil Revision Nos.464 of 2023,
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43. Therefore, it appears that the paper of the ballots were such that
the pens left trails or mark of blotting of ink on the paper because
similar type of marks are there even in the ballots of the other
candidate who had contended herself to be the honest candidate. If
these blots and pen trails were there only in the ballots of the returned
candidate, then in such circumstances, some conclusion or inference
could have been drawn, but since similar type of blots and pen trails
are there in the ballots of the other candidate also, therefore, it is to be
inferred that it was something natural. Even if the voters had marked
their marks on the ballots, then at least the contesting candidate was
not required to mark anything because she had no cause to be
identified or to make any identification mark in the ballot but of the
ballot papers that have been reproduced above all the ballots have
such marks which seem to be natural in flow of ink of the pen which
was used for marking the cross sign in the ballots.
44. Therefore, to that extent, the order of the Election Tribunal in
holding that the ballot papers had identification marks, seems to be
contrary to law and it deserves to be and is hereby set aside.
45. Coming to the second ground i.e. corrupt practices of the
present petitioner by employing illegal resources to procure the
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ballots/votes is concerned, what has been found proved by theElection Tribunal is contrary to what was pleaded before the Election
Tribunal. The relevant pleading of corrupt practice before the Election
Tribunal was as under:-
“11. इस सा ी का कहना है क, उ िनदश दये जाने के बाद
िनवाचन अिधकार ने सभी मतदाताओ को मतपेट दखायी जो क
खाली थी, इसके प ात ् उ ह ने उसे सीलबंद कया तथा सीलबंद करने
के प ात ् िनवाचन अिधकार ने सभी पाषदो को उ मतदान करने
के िलए कहा, जस पर सभी मतदाताओं ने अपना-अपना गु
मतदान कर उ सीलबंद पेट म डाला। इस सा ी का कहना है क,
मतदान संप न होने के बाद िनवाचन अिधकार ने मतगणना के
समय सभी क उप थित म मतप क पेट खोली तथा मतप ो क
गणना के बाद िनवाचन अिधकार ने उ ह बताया क, 9 मतप
यथ .1 नीतू परमार के प म हुये तथा 6 मतप उसके प
म हुये है । इस सा ी का कहना है क, मतप ो क िगनती के प ात ्
और कसको, कतने मतप िमले है , इसक घोषणा के प ात ् उ ह
मतप नह ं दखाये गये तथा िनवाचन अिधकार ने उसी समय नीतू
परामर को अ य घो षत कर दया तथा मतगणना के समय उ ह
मतप दखाये बना उ ह सीलबंद कर दया।
12. इस सा ी का कहना है क, जब िनवाचन अिधकार ने यथ
1 नीतू परमार को नगर पािलका मुलताई का अ य घो षत कर
दया, तब उसने तथा भारतीय जनता पाट के 7 अ य पाषदो ने
िनवाचन अिधकार राजन दनी शमा से पुनः सील खोलकर उ ह
मतप दखाये जाने का िनवेदन कया जस पर िनवाचन अिधकार
ने पुनः बंद सील खोलकर उ ह मतप दखाये। इस सा ी का कहना
है क, जब उ ह मतप दखाये गये, तब उसने और अ य पाषदो
ारा मतप ो दे खने पर यह पाया क, यथ .1 नीतू परमार िमले
चार मतप ो म ॉस के अलावा डॉट, ओवर राई टं ग, ॉस के उपरSignature Not Verified
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497 of 2023 & 499 of 2023डबल ॉस तथा ॉस के बाजू म कुछ लाईन जैसे िच ह अं कत थे,
इसिलए उ ह ने उ चार मतप के संबंध म िनवाचन अिधकार से
कहा क, उ चारो मतप उनके ारा चुनाव कया ारं भ होने के
पूव मतप ो के संबंध म दये गये िनदशो का उ लंघन करते हुए
डाले गये, इसिलए उ ह ने उनसे उ चारो मतप ो को िनर त करने
का िनवेदन कया तथा इस संबंध म उसने एवं अ य पाषदो ने दश
ड .33 क एक िल खत आप िनवाचन अिधकार के सामने तुत
क , कंतु िनवाचन अिधकार ने उनके ारा तुत क गयी आप
के पृ भाग पर ह उसका िनराकरण करते हुए उनके ारा क गयी
आप को िनर त कर दया।”
46. The pleading made to press the ground of corrupt practice was
that since votes of the opposite party were procured, therefore, there is
corrupt practice.
47. It is settled in law that corrupt practice is to be proved like
criminal allegation in a criminal trial. Proof of corrupt practice requires
strict proof and no inference as to corrupt practice can be made. The trial of
election petition in allegation of corrupt practice is a quasi-criminal nature
having burden of proof on election petitioner to prove ingredients of
charges. In Manohar Joshi v. Damodar Tatyaba reported in (1991) 2 SCC
342 it has been held as under:-
“20. A reading of all the aforesaid provisions together would
show that the proceedings pursuant to the notice issued by the
High Court under Section 99 of the Act are of a quasi-criminal
nature. It has also been held so by this Court in so many words,
in some of the decision: See D.P. Mishra v. Kamal Narain
Sharma [(1970) 3 SCC 558 : (1971) 3 SCR 257] and RashimSignature Not Verified
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Khan v. Khurshid Ahmed [(1974) 2 SCC 660 : (1975) 1 SCR
643] . Where, therefore, a corrupt practice is alleged, the trial of
an election petition on such charge is of a quasi-criminal nature,
and a heavy burden rests on the person alleging the corrupt
practice to prove strictly all the ingredients of the charge. This is
as it should be, since the naming of a person as having
committed a corrupt practice has a serious consequence of
disqualifying him from being chosen as or from being member of
any House of the Parliament or of the Legislative Assembly or
Council of a State for a period up to 6 years.”
48. In the present case, the election petitioner has invited the Trial
Court/Election Tribunal to draw an inference of corrupt practice only
by pointing out that since the voters of INC had voted for the
petitioner who had been elected on mandate of BJP, therefore, there
was corrupt practice in procuring the votes of opposite party.
49. As already noted above and is an undisputed position, that the
election to the post of Councillor was on party lines and the
candidates were elected as Councillors on party mandates, but the
election to the post of President was not on party lines but was on
individual lines and though there was a letter of support by BJP in
favour of the respondent No.1 but she did not contest election on party
symbol. It was an indirect election wherein only Councillors were the
voters and it was like election of Vice President or election of Rajya
Sabha wherein only the elected members of the Council had the right
to vote. In the present case, it is undisputed that both the petitioner
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and the respondent No.1 were elected on the mandate of BJP asCouncillors and no candidate who was elected on the mandate of INC
was in the fray for the post of President and 6 Councillors had been
selected on the mandate of INC in the election. Once no INC
Councillor was in the fray for the post of President of Municipal
Council, then these six INC Councillors had to vote and they were not
expected to abstain from voting in the election. Once the INC
Councillors had to vote, then their vote had to go in favour of either of
the two candidates. It can be equated to a situation where for the post
of Vice President, no candidate from a particular opposition party is in
the fray, then whether its MPs would be expected to abstain from
voting or whether if the MPs of that party from whom there is no
candidate to the post of Vice President in the election, can the election
of the Vice President be held to be illegal, the answer would be “no”
but the Election Tribunal seems to be ignorant of the basic principles
of parliamentary democracy. Only because the INC Councillors had
voted in the election, then their vote had to be in favour of one or the
other candidate and once there was no Councillor elected from INC
symbol in the fray for the post of President, then if these candidates
had voted for one or the other candidate, then it was something
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between the Party and the Councillor but the votes of these
Councillors are not invalid because they being voters were expected to
vote for one or the other candidate. If they had violated the party
whip, then their party could have taken action against them. As the
election was not on party symbol, there was no question of cross-
voting. Even if there was cross-voting, then it could have been a
ground for INC to take action against their Councillors, but it was
hardly a ground for setting aside the election. Even if the
petitioner/returned candidate had rebelled and contested election as
President, then for that, remedy lay elsewhere, but election as
President could not be set aside.
50. The Election Tribunal seems to have done a moral policing
inasmuch the winning candidate should not have taken the support of
cross-voters. Though as the election was not on party lines, there was
no question of cross voting, but even if there was cross voting, then
also the votes were legal. The Election Tribunal could not stepped into
the shoes of party authority of BJP and tried to remedy if something
was wronged by cross-voting of INC Councillors.
51. That, there was no presumption that which of the Councillors
had voted for the returned candidate. Only because two INC mandated
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Councillors had been nominated as Presiding Officers of Advisory
Committees, inference of corrupt practice has been made.
52. As the election of President is not on party line, the President
could have appointed any of his confidant as member of President-in-
Council (“PIC” for short), and that need not be the Councillor of BJP.
53. The Election Tribunal was not deciding a Public Interest
Litigation against appointment of PIC members, or constitution of
Advisory Committees.
54. Even there is no presumption that which voters have voted for
the petitioner or have voted for respondent No.1, but only this much
was established that they have voted. If the Councillors of that party
have voted in the election to President, no candidate elected on
mandate of that party was there in the fray for President, then they
will not lose their voting rights and the election to the post of
President of Municipality would not be declared illegal only because
INC voters had voted. This was all which was the pleading for
bringing home the allegation of corrupt practice.
55. There was no allegation in the election petition that
subsequently some of the Councillors have been given lucrative
positions of Presiding Officer (सभापित) in the Municipal Council and,
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therefore, there has to be presumption of bribery of these Councillors.
This is a material fact which was required to be pleaded in the election
petition but was not pleaded. Counsel for the respondent No.1 had
argued that this is not a material fact but only material particular
which need not be pleaded. However, this Court is not convinced with
this argument because the fact that two Councillors have been given
lucrative position of Presiding Officer (सभापित) in the Municipal
Council, is something which is a material fact and it was required to
be pleaded but it seems to be raised before the Election Tribunal only
during the course of evidence by putting questions to the elected
candidate that whether two of the INC Councillors have been given
the post of सभापित or not, to which the returned candidate has
answered in affirmative.
56. There is a world of difference in material fact and material
particular. In Anil Vasudev Salgaonkar v. Naresh Kushali Shigaonkar,
(2009) 9 SCC 310, it was held as under :-
“58. There is no definition of “material facts” either in the
Representation of the People Act, 1951 nor in the Code of Civil
Procedure. In a series of judgments, this Court has laid down
that all facts necessary to formulate a complete cause of action
should be termed as “material facts”. All basic and primary
facts which must be proved by a party to establish the existenceSignature Not Verified
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of cause of action or defence are material facts. “Material facts”
in other words mean the entire bundle of facts which would
constitute a complete cause of action. This Court in Harkirat
Singh case [(2005) 13 SCC 511] tried to give various meanings
of “material facts”. The relevant para 48 of the said judgment is
reproduced as under: (SCC pp. 526-27)
“48. The expression ‘material facts’ has neither been
defined in the Act nor in the Code. According to the
dictionary meaning, ‘material’ means ‘fundamental’,
‘vital’, ‘basic’, ‘cardinal’, ‘central’, ‘crucial’,
‘decisive’, ‘essential’, ‘pivotal’, ‘indispensable’,
‘elementary’ or ‘primary’. [Burton’s Legal
Thesaurus (3rd Edn.), p. 349.] The phrase ‘material
facts’, therefore, may be said to be those facts upon
which a party relies for its claim or defence. In other
words, ‘material facts’ are facts upon which the
plaintiff’s cause of action or the defendant’s defence
depends. What particulars could be said to be
‘material facts’ would depend upon the facts of each
case and no rule of universal application can be laid
down. It is, however, absolutely essential that all
basic and primary facts which must be proved at the
trial by the party to establish the existence of a cause
of action or defence are material facts and must be
stated in the pleading by the party.”
59. In the context of a charge of corrupt practice, “material
facts” would mean all basic facts constituting the ingredients of
the particular corrupt practice alleged, which the petitioner (the
respondent herein) is bound to substantiate before he can
succeed on that charge. It is also well settled that if “material
facts” are missing they cannot be supplied after expiry of period
of limitation for filing the election petition and the pleading
becomes deficient”.
57. In M. Chandra Vs. M. Thangamuthu, (2010) 9 SCC 712, it
was held as under :-
“79. It is a settled legal position that an election petition must
clearly and unambiguously set out all the material facts which
the petitioner is to rely upon during the trial, and it must reveal a
clear and complete picture of the circumstances and should
disclose a definite cause of action. In the absence of the above,
an election petition can be summarily dismissed. To see whetherSignature Not Verified
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497 of 2023 & 499 of 2023
material facts have been duly disclosed or whether a cause of
action arises, we need to look at the averment and pleadings
taken up by the party.
81. One cannot file an election petition based on frivolous
grounds. The facts presented must be clear, concise and
unambiguous. All the above cases and provisions, though do not
deal directly with the issues in this case, they go on to emphasise
that an election result, where the people elect their
representatives cannot be taken lightly. For an election result to
be annulled, there must be positive evidence to prove illegality of
the election. The natural corollary is that the person who files an
election petition, must have a clear and definite case, to prove
that the election was illegal. Therefore the burden of proof shall
lie on the petitioner filing the election petition.
82. An election petition challenging the election of a returned
candidate on the grounds of corrupt practices is not a criminal
proceeding; but it is no less than a criminal proceeding with
regard to the proof required to be furnished to the court by the
petitioner (see J. Chandrasekhara Rao v. V. Jagapathi
Rao [1993 Supp (2) SCC 229] ). Though, in the present case, the
charges are not those of corrupt practices, they are not any
lesser in terms of seriousness; hence the burden of proof is on
the election petitioner to prove the charges he has made beyond
reasonable doubt. This is done so that the purity of the election
process is maintained.”
58. In Santosh Yadav v. Narender Singh, (2002) 1 SCC 160, it was held
as under :-
“15. A word about the pleadings. Section 83 of the Act mandates
an election petition to contain a concise statement of the
material facts on which the petitioner relies. The rules of
pleadings enable a civil dispute being adjudicated upon by a fair
trial and reaching a just decision. A civil trial, more so when it
relates to an election dispute, where the fate not only of the
parties arrayed before the court but also of the entire
constituency is at a stake, the game has to be played with open
cards and not like a game of chess or hide and seek. An election
petition must set out all material facts wherefrom inferences vital
to the success of the election petitioner and enabling the court to
grant the relief prayed for by the petitioner can be drawn subject
to the averments being substantiated by cogent evidence.
Concise and specific pleadings setting out all relevant material
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facts, and then cogent affirmative evidence being adduced in
support of such averments, are indispensable to the success of an
election petition. An election petition, if allowed, results in
avoiding an election and nullifying the success of a returned
candidate. It is a serious remedy. Therefore, an election petition
seeking relief on a ground under Section 100(1)(d) of the Act,
must precisely allege all material facts on which the petitioner
relies in support of the plea that the result of the election has
been materially affected. Unfortunately in the present case all
such material facts and circumstances are conspicuous by their
absence”.
59. This Court then put a question to counsel for the rival parties
that there has to be only one Presiding Officer in the Municipal
Council to preside over the meetings of the Municipal Council, who
would be called Presiding Officer/ सभापित as the word “सभापित” has
been used by the Election Tribunal in the entire order. The counsel for
the rival parties agreed to the proposition that there can be only one
Presiding Officer to preside over meetings of the Municipal Council
and there cannot be two Presiding Officers, though there can be one
Presiding Officer and there can be one Deputy Presiding Officer but
there cannot be two Presiding Officers.
60. To clarify the situation, the counsel for the rival parties have
thereafter clarified that in fact these were the Presiding Officers of the
Advisory Committees of the Municipal Council and the counsel for
respondent/election petitioner placed for perusal of this Court, an
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order issued by the Municipal Council appointing various Councillors
as सभापित of Advisory Committees. The said order is as under:-
61. The scheme of the M.P. Municipalities Act, 1961 is that there
would be one elected Council and there would be a smaller body
known as President-in-Council which is constituted under Section 70.
Advisory Committees are constituted under Section 71. Sections 70
and 71 of the M.P. Municipalities Act, 1961 are as under:-
“70. Constitution of President-in-Council.– (1) There shall be a
President-in-Council for every Council which shall be
constituted by the President from amongst the elected
Councillors within seven days from the date of election of Vice-
President under Section 43. (2) The President-in-Council shall
consist of the President and seven members in case of MunicipalSignature Not Verified
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Council and five members in case of Nagar Panchayat. (3) The
members of the President-in-Council shall hold office during the
pleasure of the President. (4) Each Council shall have such
departments as may be prescribed and member of the President-
in-Council shall be made incharge of such departments by the
President. (5) The President shall be the Ex-Officio Chairman of
the President-in-Council and shall over the meeting of the
President-in-Council, if present. In the absence of the President,
the members present in the meeting shall choose one of them to
preside over the meeting. (6) Notwithstanding anything
contained in this Act, the President-in-Council, Chairman and
the members shall exercise such powers and perform such
function, as may be prescribed. (7) The conduct of business of
the President-in-Council shall be such as may be prescribed. In
case the office of the President is declared vacant under the Act,
the Councillors nominated by the Government under sub-section
(2) of Section 37 to perform the duties of the President or a
person who is elected for the office of the President, as the case
may be, either allow the existing members of the President-in-
Council to continue or appoint new members in place of them
from amongst the elected Councillors.
71. Advisory Committees.- After the first meeting of the
Council under section 43 the President shall constitute the
Advisory Committees for every department of the Council from
amongst the elected Councillors other than the Councillors
included as member in the President-in-Council to advise in the
affairs of the department concerned. (2) Each Advisory
Committee shall consist of five members in case of a Municipal
Council and three members in case of a Nagar Paqnchayat. (3)
The member of the President in-Council incharge of the
Department shall convene and preside over the meeting of the
Advisory Committee relating to the department concerned at
least once in every two months. The member of the President-in-
Council incharge of the department may take into consideration
the suggestions made in the meeting of the Advisory Committee.”
62. In the case of Municipal Council, there has to be a President-in-
Council comprising of seven members and then Advisory Committees
have to be constituted in which one member of President-in-Council
would head each of the Advisory Committees. Since there were seven
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members of President-in-Council as per Section 70(2), therefore,
seven Advisory Committees had been constituted and these seven
Advisory Committees have one President-in-Council member as its
Chairman. Therefore, it was not the case of Presiding Officer of the
Council, but case of Presiding Officer of Advisory Committees and
the Act in Section 71(3) mandates that one member of the President-
in-Council shall preside over the meeting of one Advisory Committee,
therefore, this was only as per the statutory mandate that one
President-in-Council member would be Presiding Officer of one
Advisory Committee and this is what has been done by the order
which was placed for perusal of this Court by learned counsel for the
respondent. The two members namely Punjabrao Chikane and Ritesh
Narayan Vishwakarma though might be appointed on mandate of INC
but once were made members of President-in-Council, more so when
the post of office of President is not on party lines, then there cannot
be any inference of corrupt practice in obtaining their votes, unless
corrupt practice was otherwise proved.
63. What has been found proved by the Election Tribunal in holding
that there are corrupt practices, is as under:-
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“69. तुत करण म वयं यथ .1 नीतू परमार अपने
ितपर ण क कं डका 9 म बना कसी संकोच के यह वीकार कया
है क, रतेश व कमा और पंजाबराव िचकाने ने उसे नगर पािलका
अ य बनाने म सहयोग दान कया, इसिलए उसने उ ह सभापित
बनाया। य द वा तव म यथ .1 नीतू परमार ारा म य दे श
िनवाचन अिधिनयम 1961 क धारा 28 म व णत आचरण एवं
अवैधता न क होती तो उसे इस बात क जानकार होना असंभव था
क, नगर पािलका अ य के चुनाव म पंजाबराव िचकाने तथा रतेश
व कमा ने उसे नगर पािलका अ य बनाने म सहयोग कया तथा
वह पंजाबराव िचकाने तथा रतेश व कमा को सभापित नह ं
बनाती।”
64. The definition of “corrupt practice” as per Section 28 of the Act
of 1961 is as under:-
“28. Corrupt practices.- The following shall be deemed to be
corrupt practices for the purpose of this Act:-
(i) Bribery as defined in clause (1) of Section 123 of the
Representation of the People Act, 1951 (43 of 1951);
(ii) Undue influence as defined in clause (2) of Section 123
of the Representation of the People Act, 1951 (43 of
1951);
(iii) The systematic appeal by a candidate or his agent or
by any other person with the consent of a candidate or
his election agent, to vote or refrain from voting on
grounds of caste, race, community or religion or the
use of or appeal to, religious symbols, or the use of or
appeal to, national symbol, such as the national flag or
the national emblem, for the furtherance of the
prospects of that candidate’s election.
(iv) The publication by a candidate or his agent or by any
other person with the consent of the candidate or his
election agent of any statement of fact which is false,
and which he either believers to be false or does not
believe to be true in relation to the personal character
or conduct of any candidate, or in relation to the
candidature, or withdrawal from contest of any
candidate being a statement reasonably calculated to
prejudice the prospects of that candidate’s election.
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(v) The hiring or procuring whether on payment or
otherwise of any vehicle or vessel by a candidate or his
agent or by any other person with the consent of the
candidate or his election agent for the conveyance of
any elector (other than the candidate himself, and the
members of his family or his agent) to or from any
polling station provided in accordance with the rules
made under this Act:
Provided that hiring of a vehicle or vessel by an elector or by
several electors at their joint costs for the purpose of
conveying him or them to or from any such polling
station shall not be deemed to be a corrupt practice
under this clause if the vehicle or vessel so hired is a
vehicle or vessel not propelled by mechanical power:
Provided further that the use of any public transport vehicle
or vessel or any tramcar or railway carriage by an
elector at his own cost for the purpose of going to or
coming from any such polling station shall not be
deemed to be a corrupt practice under this Clause.
Explanation — In this clause the expression ‘vehicle’ means
any vehicle used or capable of being used for the
purpose of road transport whether propelled by
mechanical power or otherwise and whether used for
drawing other vehicle or otherwise.
(vi) The holding of any meeting in which intoxicating
liquors are served.
(vii) The issuing of any circular, placard or poster having a
reference to the election or selection which does not
bear the name and address of the printer and publisher
thereof.
(vii-a) the incurring of authorising of expenditure in
contravention of Section 32-A.
(viii) Any other practice which the State Government may
prescribe by rules to be a corrupt practice.”
65. It is also placed on record before the Election Tribunal that
various Councillors have subsequently resigned from their office.
Once various Councillors have resigned from the Office, then
President-in-Council has to be constituted from the available members
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and as the post of President was not on party line, therefore, the
President could have appointed even from a person elected from either
of the parties or from any of the parties as Councillor. It would have
been a different matter if the post of President had been on party line,
but that is not so.
66. The Election Tribunal seems to be doing moral policing by
holding that once the runner-up candidate had won by a heavy
majority in her Ward, therefore, she should have been made member
of President-in-Council and Presiding Officer of one Advisory
Committee. In parliamentary democracy, a person elected from
majority of votes cannot be expected to appoint his rival contender on
any position in the Council because the person who is having
confidence of the House would only appoint those persons from
whose strength the person is having confidence of the House. He
cannot be expected to appoint his rival contender in the election on
any post of confidence.
67. The Election Tribunal had no business to guide the returned
candidate that whom to appoint as member of President-in-Council
and merely subsequently because some of the INC Councillors have
been appointed members of President-in-Council, there cannot be any
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inference of corrupt practices in the election because President-in-
Council had to be constituted of 7 members and if the President has
the confidence of some INC members, then there cannot be any
presumption of corrupt practice in the election because the President
is not holding the office on party line.
68. This Court is unable to uphold the order of the Election Tribunal
to the extent of corrupt practices also for the reason that there was no
allegation of corrupt practice by making appointment of Ritesh
Narayan Vishwakarma and Punjabrao Chikane as PIC members and
this is something that has been held by the Election Tribunal, is
beyond the pleadings of the parties. Therefore, the findings as to the
corrupt practices, is also set aside.
69. So far as CR No. 497 of 2023 and CR No. 499 of 2023 are
concerned, these are filed by the electors who were voters to the post
of President of the Municipal Council. The petitioners in these cases
were not parties to the election petition. They did not challenge the
election to the post of President by filing any election petition in their
character as electors. They are now before this Court in their capacity
as electors, challenging the order of the Election Tribunal whereby the
election of the returned candidate has been declared void. The law
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gives right to any elector to oppose the election of successful
candidate. However, once the election of successful candidate has
been set aside, then individual elector challenging the order of
Election Tribunal, just to support the returned candidate, is something
that is totally alien to law.
70. For this reason, the petitioners in C.R. Nos.497 of 223 and 499
of 2023 cannot be deemed to be persons aggrieved within the purview
of Section 26 of the M.P. Municipalities Act, 1961. Therefore, CR
Nos.497 of 2023 and 499 of 2023 are dismissed as not maintainable.
71. In conclusion, C.R. No.464/2023 is allowed whereas CR
No.497/2023 and CR No.499/2023 are dismissed as not maintainable.
The impugned order passed by the Election Tribunal dated 13.06.2023
is set aside and the election of the returned candidate is upheld. She
shall be allowed to re-assume charge as President.
(VIVEK JAIN)
JUDGE
psm
Signature Not Verified
Signed by: PREM SHANKAR
MISHRA
Signing time: 06-04-2026
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