Election Petition No.01 of 2010(Praveen Kumar & Ors Vs. The Bihar State Bar Council & Ors.)

ORDER

On 05/08/2011 an application on behalf of the returning officer (R.O) respondent no.2 was filed raising preliminary objection about of the maintainability of the election petition with a prayer to dismiss the election petition since the same is not maintainable.

The objections were made on the following grounds:

1. The election petition does not disclose complete cause of action.

1. The statements made in the election petition and the prayer made their in are contradictory which reveal that the election petitioners do not know or are confused about the relief they are seeking.

1. The election tribunal does not have the jurisdiction under rule 49(6) of the Bihar Bar Council Election Rules 1968 to set aside the entire election nor has the jurisdiction to enquire about the conduct of R.O.

The election petitioners opposed the prayer and filed their reply and all the sides were heard at length on the preliminary objection about the maintainability.

The first objection does not appear to be correct since in the election petition the allegation regarding the conduct of the RO is stated in paragraph 1 subparagraphs I,II, iv & vi and paragraphs 5, 6, and 7 while that against the particular candidates stated in paragraph 1(V). The perusal of the above paragraphs would reveal that the election petitioners have incorporated grounds for challenging the validity of the election which are required to be adjudicated after recording of the evidence. Thus, the election petition cannot be dismissed on the ground that there is no cause of action.

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The second objection raised is also not sustainable because in the prayer portion the petitioners have sought to set aside the election of those candidates who have indulged in corrupt practice as well as to set aside the entire election therefore on this ground also the election petition cannot be dismissed at this stage.

The third objection is about the jurisdiction of the tribunal which does not require consideration. The perusal of rule 49(6) of Bihar State Bar Council Election Rules give an impression that the tribunal has got the power only to adjudicate about the corrupt practice committed by any candidates and nothing more. Section 15 (2) (A) of the Advocates Act, 1961, has empowered the State Bar Councils to frame rules for conduct of election. The rules therefore must be in conformity with the Act and not otherwise. In the event large scale irregularity is committed in conducting the election which has materially affected the result of the election it is difficult to hold that an election tribunal cannot consider those facts which would materially affect the result of the election. Under the advocates Act adjudication of the validity of the election is to be made, the rules there under are framed only to facilitate the mandate of the Act. The tribunal therefore has jurisdiction to consider all relevant facts which materially affects the result of the election.

In the result the tribunal finds that the preliminary objections are not sustainable and are fit to be rejected and therefore the preliminary objection filed on behalf of the RO is rejected.

G. Chatarjee(Member)                                  N. Agrawal(Member)

13/10/11                                                        13/10/11