Order
1. Taken on board. Heard the learned Senior Counsel appearing for the appellant as well as Respondent 1. Exemption from filing OT is granted. This is an appeal filed under Section 116-A of the Representation of the People Act, 1951 (hereinafter referred to as “the Act”) against an order Election Petition No. 11 of 2009 passed by the High Court of Madhya Pradesh, Bench at Indore declaring the election of the appellant herein to the Legislative Assembly of the State of Madhya Pradesh as void.
2. Mr P.P Rao, learned Senior Counsel appearing on caveat for Respondent 1, submits that the appeal is not maintainable as the High Court is yet to decide the recrimination petition in the election petition filed by the appellant. He states that Section 98 of the Act contemplates that the High Court, at the conclusion of the trial, may declare the election of the returned candidate void and thereafter, declare any other candidate to have been elected. He further submits that in case, the recrimination petition filed by the appellant is dismissed, there is a likelihood of Respondent 1 being declared as elected. He finally submits that until a composite order is passed by the High Court on the election petition as well as recrimination petition, the present appeal filed by the appellant is not maintainable.
3. Mr K. Krishna Mani, learned Senior Counsel appearing for the appellant, on the other hand, submits that under Section 116-A of the Act, an appeal lies to this Court on any question of law or fact against every order made by the High Court under Section 98 or Section 99 of the Act. He further submits that since the impugned order Election Petition No. 11 of 2009 declaring the election of the appellant as void is an order under Section 98 of the Act, the appeal is maintainable.
4. We agree with Mr Krishna Mani and admit this appeal.
5. With regard to the prayer for stay of operation of the impugned order Election Petition No. 11 of 2009, we pass the interim order that the appellant can participate in the sessions of the Legislative Assembly, but she shall not cast vote nor shall she be entitled to any emoluments as a Member of the Legislative Assembly. We make it clear that we have not stayed the proceedings before the High Court in the election petition and the High Court may proceed to hear and decide the recrimination petition. The interim order we have passed will operate till two weeks after the recrimination petition is decided by the High Court. It is, however, open for the appellant to renew her prayer for further interim order, after the decision of the High Court in the recrimination petition.
Court Masters