Madhya Pradesh High Court
Smt. Jamuna Bai Tiwari vs The State Of Madhya Pradesh on 20 August, 2015
WP-2070-2015
(SMT. JAMUNA BAI TIWARI Vs THE STATE OF MADHYA PRADESH)
20-08-2015
1. The question for determination in this petition is legal one.
Prima facie the controversy involved in this petition is covered by
the judgment of this Court passed in the case of Triyugi Narayan
Shukla vs. State of M.P. and others reported in 2006 (3) MPLJ
89, hence, with the consent of the contesting parties, the petition
is disposed of finally at motion hearing stage.
2. The petitioner has filed this petition against the order dated
24.01.2015 (Annexure-P-10) passed in election petition No.
82/B-121/12-13 by the Commissioner, Sagar Division Sagar. By the
aforesaid order, the authority declared the election of the
petitioner as void and further declared that the respondent No.5
Suryaprakash Mishra, be treated as President of Krishi Upaj Mandi Samiti Tikamgarh.
3. During arguments learned Senior counsel for the petitioner raised a legal objection in regard to procedure adopted by the Commissioner/respondents No.2 in deciding the election petition. He has contended that the Commissioner directed the Additional Collector Tikamgarh-respondent No.3 to send his report in regard to election of President of Krishi Upaj Mandi Samiti Tikamgarh. The respondent No.3 heard the arguments of the parties and also perused the documents and thereafter, he had submitted a report to the Commissioner. In the report, he opined that respondent No.5 is eligible to be declared as President of Krishi Upaj Mandi Samiti. The election of the petitioner is illegal and it is ab-initio void. He further contended that the procedure adopted by the Commissioner is illegal and against the law. The Commissioner had no power and authority to send the matter to the Additional Collector for adjudication. It means that the trial of the election petition is conducted by the additional Collector which is prohibited under the law. In support of his contentions learned Senior counsel relied on the judgment of this Court reported in Triyugi Narayan Shukla vs. State of M.P. and others reported in 2006 (3) MPLJ 89.
4. Contrary to this, learned Senior counsel appearing on behalf of respondent No.5 has contended that the order passed by the Commissioner Sagar Division Sagar is in accordance with law. Right to contest election is not a fundamental right, it is a legal right provided under the statute and the provisions of contesting election and the election petition are being governed by statutory law. In accordance with Section 66-A of Krishi Upaj Mandi Adhiniyam 1972 (hereinafter called the 'Act of 1972'), the election petition shall be enquired into and disposed of according to the procedure prescribed. The procedure has been prescribed under the Rules named as Krishi Upaj Mandi (Mandi Samiti Ka Nirvachan) Rules, 1997 and in accordance with Rule 84-A of the Rules 1997. The Divisional Commissioner has power to send the election petition to any of his subordinate Officer not below the rank of Deputy Collector for enquiry. In support of his contentions, learned Senior counsel relied on the judgments passed by the Supreme Court in the matter of Jyoti Basu and others vs. Debi Ghosal and others reported in AIR 1982 SC 983 and in the matter of Charan Lal Sahu vs. Giani Zail Singh and another reported in AIR 1984 SC 309.
5. The respondent No.5 called in question the election of the petitioner on the post of President, Krishi Upaj Mandi Samiti Tikamgarh on the ground that some votes illegally counted in favour of the petitioner.
5. The Commissioner send the matter to the Additional Collector for his report. The Additional Collector heard the arguments of the petitioner and the respondent No.5 and also perused written arguments. He had also inspected the record and thereafter, he submitted his report. The copy of the report has been filed as Annexure-P-9. In the report, he recorded his findings in para 4 that the election of the petitioner to the post of President be declared to be void and the respondent no.5 be declared as elected candidate in place of the petitioner.
6. On the basis of the report, the Commissioner recorded a finding that the petitioner and respondent No.5 both received unequal votes and due to some illegality, the petitioner was declared as elected candidate, however, the respondent No.5 received six votes and the petitioner received five votes, as per report of the additional Collector. The election of the petitioner on the post of President, Krishi Upaj Mandi was void. It is also observed by the Commissioner that the Additional Collector had given proper opportunity of hearing to the parties. He also perused the record and submitted his opinion. After considering the documents on record, his opinion is proper.
7. From the impugned order it is clear that the Additional Collector heard the matter. He had also heard the oral arguments, perused the written arguments and the record and thereafter, he submitted his opinion to the Commissioner. The aforesaid opinion has been relied upon by the Commissioner. Section 66-A of the Act 1972 prescribes provision of election petition it is as under:-
â [66-A. Election petition.-(1) An election under this act shall be called in question only by a petition presented in the prescribed manner to the Commission of the Division.
(2) No such petition shall be admitted unless it is presented within thirty days from the date on which the election in question was notified.
(3) Such petition shall be enquired into or disposed of according to such procedures as may be prescribed]â From the perusal of aforesaid Section, it is clear that the prescribed authority to decide the election petition is of Commissioner of the Division. Sub-section 66 (3) further prescribes that the election petition shall be enquired into or disposed of according to such procedure as may be prescribed.
8. The procedure has been prescribed under the rules named as Krishi Upaj Mandi (Mandi Samiti Ka Nirvachan) Rules 1997 (hereinafter in short the Rules of 1997) framed by the Government in exercise of powers under the Act 1972. Rule 84-A of Rules 1997 prescribes procedures of election petition. Sub Rule 8 and 9 of the Rules 1997 is important and relevant for the purpose of decision of this petition. The same reads as under:-
â8. laHkkx vk;qDr] ;kfpdk tkap ds fy, mlds v/khuLFk fdlh Hkh ,sls vf/kdkjh dks Hkst ldsxk tks fMIVh dysDVj dh in Js.kh ls fuEu in Js.kh dk u gksA
9. vfiyh; izkf/kdkjh dk fofu'p; vafre gksxk % ijUrq vihyh; izkf/kdkjh }kjk vafre vkns'k ikfjr fd, tkus ds iwoZ lEcfU/kr i{k dks lquokbZ dk ;qfä;qä volj lE;d~ #i ls fn;k tk,xkA^^
9. In accordance with sub-Rule 8 of Rules 84-A of Rules 1997, the Commissioner can send the petition to any subordinate Officer not below the rank of Deputy Collector for enquiry. Section 66-A of the Act 1972 prescribes that the election petition shall be presented in a prescribed manner before the Commissioner of the Division. It means that the Commissioner is the authority, who has to decide the election petition. Similarly sub-rule 8 of 84-A of Rules 1997 gives power to the Commissioner to send the petition to his subordinate for enquiry. The enquiry envisaged under the aforesaid sub-rule is for limited purpose that whether the election petition has been filed in accordance with the procedure or not. The enquiry cannot mean trial of election petition by the subordinate Officer. It would be against the concept of exercise of quasi-judicial powers.
10. The learned Single Bench of this Court in the matter of Triyugi Narayan Shukla (supra) has considered the provision of rule 6-A of Krishi Upal Mandi Adhiniyam. Section 66 of Krishi Upaj Mandi Adhiniyam and provision of rule 43 which are para materia to the present rule of Rule 1974 and held as under:-
â15. In view of aforesaid discussion, it is held that for filing election petition exclusive jurisdiction is vested with the Commissioner of Division and Commissioner of Division shall enquire into and dispose of the election petition as per the procedure envisaged under Rule 43 of the Niyam. Though Rule 43 provides power to send election petition to any of the subordinate officer for enquiry and disposal, but this provision shall not be applicable to the Commissioner, who has been vested with power to enquire and decide the election petition.â
11. If the interpretation offered by the learned senior counsel appearing on behalf of the respondent No.5 is accepted, then there would be an anomaly in deciding the election petition. The trial would be at two stages. One by Additional Collector or Collector authorized Officer by the Commissioner and another stage is by the Commissioner. This is not the intention of the legislature and it is also against the provisions of law and concept of adjudication by quasi-judicial authorities. The adjudication of the case must be one authority. Although, it is an admitted position of law that the right to contest election and the regulation of election is a statutory right and must be in accordance with the procedure under the statute as held by the Supreme Court in the matter of Jyoti Basu and others (supra) and in the matter of Charan Lal Sahu (supra).
13. In the present case, the Additional Collector has considered the record. he had heard the parties and perused the written arguments and thereafter, he submitted his report in the form of judgment. He clearly mentioned in his report that election of the petitioner is void. Thereafter, the Commissioner accepted the report and relied on the findings contained in the report and passed the impugned order. The procedure adopted by the Commissioner is contrary to law and the provisions of Section 66-A of the Act 1972. The enquiry which is provided under proviso rule 8 of 84-A of Rules 1997 is limited one. The authorized Officer can submit some report in regard to facts, however, he cannot hear the arguments of the parties and submit his report as final order has been done in the present case.
14. Consequently, the impugned order dated 24.01.2015 (Annexure-P-10) is hereby quashed. The matter is remitted back to the Commissioner, Sagar Division Sagar to decide the election petition afresh in accordance with law.
15. Learned Senior counsel informed this Court that no confidence motion has already been passed against the petitioner. In such circumstances, the petitioner cannot continue as President of Krishi Upaj Mandi Samiti, Tikamgarh.
16. Looking to the facts of the case, the Commissioner will decide the election petition expeditiously after hearing both the parties preferably within 30 days from the date of receipt of the copy of the order. No order as to the costs.
(S.K. GANGELE) JUDGE