1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R Dr. Chiman Singh Parihar v. State of Rajasthan & Ors. S.B.CIVIL WRIT PETITION NO.2247/2007 under Articles 226 and 227 of the Constitution of India. Date of Order :: 27th July, 2010 P R E S E N T HON'BLE MR.JUSTICE GOVIND MATHUR Mr. A.K.Rajvanshy, for the petitioner. Mr. Narendra Rajpurohit for Mr. Ravi Bhansali, for the respondent No.4. Mr. Yashwant Mehta, for the respondent No.7. .... BY THE COURT : This petition for writ is filed against the order dated 15.3.2007 passed by the Regional Assistant Director, Agricultural Produce Marketing Department, Jodhpur (hereinafter referred to as “election tribunal”)in Election Petition No.03/2006, Dr. Chiman Singh Parihar v. Smt. Saroj Gahlot and three others. Briefly stated, facts of the case are that the Commissioner, Nagar Nigam, Jodhpur, in the 2 capacity of the authorised officer, issued a notice to hold elections for Krishi Upaj Mandi Samiti (Fruits & Vegetables) and Krishi Upaj Mandi Samiti (Grains) against the constituency relating to “Local Authority” as per the provisions of Sections 7(1)(a)(vii) and 7 (1)(b)(iv) of the Rajasthan Agricultural Produce Markets Act, 1961 (hereinafter referred to as “the Act of 1961”). The petitioner as well as the respondents No.5 Smt. Saroj Gahlot and No.6 Shri Babulal Acharya submitted nomination papers to contest the election. While submitting the nomination papers the respondents No.5 and 6 did not deposit the nomination fee in a tune of Rs.500/-. As per the petitioner such deposition is a mandatory condition precedent in view of the provisions of Rule 12 of the Rajasthan Agricultural Produce Markets Rules, 1963 (hereinafter referred to as “the Rules of 1963”). The elections in pursuant to the notice referred above were conducted and on 15.5.2006 the respondent No.5 Smt. Saroj Gahlot was declared elected. By way of filing an application under Rule 27-A of the Rules of 1963 the petitioner assailed the election with prayer that returned candidate should be declared disqualified as he had not written the name of the constituency in the nomination paper and also that he had not deposited the nomination fee as required under Rule 12 of the Rules of 1963. 3 Upon service of the notice of the election petition returned candidate respondent No.5 submitted an application as per provision of Order 7 Rule 11 Code of Civil Procedure for rejection of the election petition. In the application it was referred that in view of the Government of Rajasthan circular dated 7.4.2006 and the Agricultural Marketing Directorate circular dated 12.5.2006 there was no need for depositing nomination fee for the candidates contesting election against the local authority constituency. During the course of hearing on the application aforesaid, copies of the circulars dated 12.5.2006 and 28.4.2006 were supplied to the petitioner by the Regional Assistant Director and an impression was given that the Tribunal is abide by the instructions given by the Government of Rajasthan and the Agricultural Produce Marketing Directorate. The petitioner at this juncture preferred a petition for writ before this Court (SBCivil Writ Petition No.3140/2006) challenging the circulars aforesaid. The petition for writ referred above came to be disposed of on 20.7.2006 in following terms:- “Date of Order : 20.07.2006 HON'BLE MR. BHAGWATI PRASAD.J. Mr. A.K.Rajvanshi for the petitioners. .... 4 Heard. In this petition the petitioner has already filed election petition. Here he raises a grievance that the Presiding Officer of the Electoral Tribunal is not conducting himself independent of his administrative superiors. It is not expected from a Tribunal to act under the influence of the administrative superiors. A Tribunal is supposed to function independent of all concerns and as per law. It is expected that the Tribunal will not pass any order getting influence by administrative instruction or otherwise influenced by the administrative superiors, it should exercise lawful jurisdiction independently. With these observations the petition stands disposed of.” As per the petitioner a copy of the judgment dated 20.7.2006 passed by this Court was served upon the election tribunal, however, without taking into consideration the observations made therein the application under Order 7 Rule 11 Code of Civil Procedure was accepted and the election petition stood rejected. It is submitted by counsel for the petitioner that despite the specific instructions of this Court 5 the election tribunal relied upon the administrative instructions and rejected the petition. It is also submitted that while exercising powers under Order 7 Rule 11 Code of Civil Procedure the tribunal could have not examined merits of the case. The tribunal could have rejected the petition, if it failed to disclose any cause of action on its plain look. It is stressed that dismissal on merits could have been made only after adjudicating the election petition. No reply to the writ petition has been filed and as a matter of fact the contents of the petition and the arguments of the petitioner have not been seriously contested by any of the respondents. Precisely the question involves in this petition is that whether the election tribunal was right in dismissing the election petition while considering an application under Order 7 Rule 11 Code of Civil Procedure. The returned candidate (respondent No.5) sought rejection of the election petition under Order 7 Rule 11 Code of Civil Procedure on the count that in view of the circulars of the Government of Rajasthan there was no need to deposit the nomination fee in a tune of Rs.500/- for a contestant against the local authority constituency and as such no cause of action is made out against her. The election tribunal 6 accepted contention of the applicant (respondent No.5) and also examined the Rules of 1963 and interpreted the intention of statute in detail. It is settled position that power to reject the plaint (election petition in instant case) can be exercised at any stage of proceedings and to exercise such power the plaint alone is to be looked into and not the defence. In general, dismissal of a suit or election petition is on account of lack of merit but rejection of a plaint (election petition in present case) is for institutional defects including that on face the plaint fails to disclose any cause of action. For rejecting a plaint under Order 7 Rule 11 Code of Civil Procedure the Court may make inquiry from the plaintiff to ascertain as to whether the averments made in plaint disclose any cause of action, but the plaint only is required to be looked into. A plaint cannot be rejected on the count that it discloses a weak case and there is no likelihood of success. On basis of the averments made in the plaint if the plaintiff succeeds to make out cause of action of any degree, the Court must proceed for adjudication. The cause if exists and adjudication of that is within the jurisdiction of the court concern, then it deserves adjudication and the court may dismiss it, but at the institutional stage rejection by examining the defence is not permissible. 7 In the case in hand the petitioner maintained election petition on two counts those are- (1) the returned candidate failed to make mention of the constituency and (2) he failed to deposit the nomination fee before filing the nomination papers. The tribunal could have examined intention of the statute only after receiving defence and an appropriate order could have been passed by examining all aspects of the matter but not at the institutional stage. The powers under Order 7 Rule 11 Code of Civil Procedure thus in the instant matter have been exercised erroneously. The election tribunal in the instant matter may dismiss the election petition but could have not rejected the same merely by examining the averments contained in the election petition. It is relevant to note that Rule 12 of the Rules of 1963 puts an embargo for depositing the nomination fee and any interpretation of the provision regarding its mandatory application could have been made by adjudication of the dispute only. In such circumstances the order passed by the election tribunal while exercising powers under Order 7 Rule 11 Code of Civil Procedure is apparently bad. The order impugned, therefore, deserves to be quashed. Accordingly, the petition for writ is allowed. The order passed by the election tribunal i.e. the Regional Assistant Director, Agricultural Produce Marketing Department, Jodhpur dated 15.3.2007 8 in Election Petition No.03/2006 is quashed. The application under Order 7 Rule 11 Code of Civil Procedure too is dismissed. The election tribunal is directed to decide the election petition on merits afresh. ( GOVIND MATHUR ),J. kkm/ps.