Madhya Pradesh High Court
Bhushan Ramlal Kashyap vs S.D.O. And Ors. on 21 November, 1996
Equivalent citations: 1998(2)MPLJ710
Author: C.K. Prasad
Bench: C.K. Prasad
ORDER C.K. Prasad, J.
1. Election to the office of Sarpanch of Gram Panchayat, Mishta was held on 30th May, 1994. Late Babulal was declared elected as Sarpanch having secured 330 votes. His election as Sarpanch was challenged by respondent No. 2 Durgaram by filing an election petition Under Section 122 of the M. P. Panchayat Raj Act, 1993. Election petition was filed on 14-7-1994 whereas, aforesaid Babulal died on 15-1-1995. Nobody, including the petitioner, who claims to be the election agent of aforesaid Babulal, took any step before the Election Tribunal and ultimately, the Tribunal on recount of votes, found that the votes polled by respondent No. 2 are more than that of the declared candidate Babulal. Accordingly respondent No. 2 was declared elected as Sarpanch.
2. Aggrieved by the aforesaid declaration of respondent No. 2 as Sarpanch, the petitioner, who was not impleaded as a party nor substituted after death of Babulal before the Election Tribunal, has filed this writ petition challenging the order of the Election Tribunal.
3. Shri Agrawal, appearing on behalf of respondent No. 2 raised a preliminary objection that writ petition at the instance of the petitioner who was neither party before the Election Tribunal, nor filed any application before the Tribunal resisting the claim of respondent No. 2, in spite of his assertion that he was the election agent of the returned candidate, cannot maintain the writ petition.
4. Shri Sudhir Rawat however, appearing on behalf of the petitioner submits that the petitioner is voter of the area, was an election agent of respondent No. 2 and he being interested in maintaining the purity of election, the writ petition filed at his instance, is maintainable.
5. From the pleading of the parties what emerges is that the election of Babulal as Sarpanch of the Gram Panchayat was set aside by the election tribunal on an application filed by respondent No. 2 and he was declared as such. Before such a declaration was made Babulal died and the election petition was not resisted by any one.
6. In support of the preliminary objection that the writ petition is not maintainable at the instance of petitioner, Shri Agarwal appearing on behalf of the respondents submits that the election petition is an statutory remedy provided by the statute and the same cannot be allowed to be pursued at the instance of any person.
7. It is common ground that the election petition filed by respondent No. 2 shall be governed by the provisions of M. P. Panchayat (Election Petition Corrupt Practice and Disqualification for Membership) Rules, 1991. Rule 4 of the aforesaid Rules provides that an election petition shall abate only on the death of the petitioner or of the several petitioners. In cases of death of respondent, rule 15 of the aforesaid Rules, contemplates that if before the conclusion of the inquiry the sole respondent dies, the proceedings shall be deemed to have abated. However, the aforesaid rules contemplates of an exception, that in case the relief claimed by the election petitioner is to declare him elected, the election tribunal is required to decide the petition on merits, after making such inquiry as it deems fit. In the present case the election petitioner made a prayer for declaration of his own result and in fact the Election Tribunal decided the case on merits and declared election petitioner to have been elected.
7 A However, Shri Rawat appearing on behalf of the petitioner submits that although writ petitioner was not a party, in view of the fact that he is the voter and was an election agent of the returned candidate, is a person aggrieved and at his instance writ petition is maintainable. In support of the aforesaid submission learned counsel has placed reliance on a Judgment of the Apex Court in the case of Jasbhai Motibhai Desai v. Roshan Kumar Haji Bashir Ahmed and Ors., AIR 1976 SC 578. My attention has been drawn to the following paragraph of the said judgment which reads as under :-
"12. According to most English decisions, in order to have the locus standi to invoke certiorari jurisdiction, the petitioner should be an "aggrieved person" and in a case of defect of jurisdiction such a petitioner will be entitled to a writ of certiorari as a matter of course, but if he does not fulfil that character, and is a "stranger" the court will in its discretion, deny him this extraordinary remedy, save in very special circumstances. This takes us to the further question : who is an "aggrieved person"? And what are the qualifications requisite for such a status? The expression "aggrieved person" denote an elastic, and to an extent an elusive concept. It cannot be confined within the bounds of a rigid, exact and comprehensive definition. At best, its features can be described in a broad tentative manner. Its scope and meaning depends on diverse. Variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioner's interest, and the nature and extent of the prejudice or injury suffered by him. English Courts have sometimes put a restricted and sometimes a wide construction on the expression "aggrieved person". However, some general tests have been devised to ascertain whether an applicant is eligible for this category so as to have the necessary locus standi or 'standing' to invoke certiorari jurisdiction".
In the aforesaid case the question was grant of no objection certificate to rival cinema owner at the instance of the proprietor of the cinema theatre and after explaining the meaning of the expression "aggrieved person" the Apex Court posed the question in the following words :
"44. Having seen that the appellant has no standing to complain of injury actual or potential, to any statutory right or interest, we pass on to consider whether any of his rights or interests, recognised by the general law has been infringed as a result of the grant of No Objection Certificate to the respondents? Here, again, the answer must be in the negative."
The Supreme Court answered the same in the following words which read as under:
"50. The instant case falls welnigh within the ratio of this Court's decision in Nagar Rice and Flour Mills v. N. T. Gowda, (1970) 3 SCR 846 = AIR 1971 SC 246 wherein it was held that a rice mill-owner has no locus standi to challenge under Article 226 the setting up of anew rice mill by another even if such setting up be in contravention of Section 8(3)(c) of the Rice Milling Industry (Regulation) Act, 1958 because no right vested in such an applicant is infringed".
8. In the present case the petitioner is not complaining violation of his individual right but espousing the case of the returned candidate who although died during the trial of the election petition, did not take any step to resist the case of the election petitioner. As such, the authority relied on by the learned counsel for the petitioner, is in no way support his case.
9. Yet another decision on which learned counsel for the petitioner placed reliance is the judgment of the Apex Court in the case of Banglore Medical Trust v. S. Muddappa and Ors., AIR 1991 SC 1902 and my attention has been drawn to the following paragraph which reads as under :-
"36. Locus standi to approach by way of writ petition and refusal to grant relief in equity jurisdiction are two different aspects may be with same result. One relates to maintainability of the petition and other to exercise of discretion. Law on the former has marched much ahead. Many milestones have been covered. The restricted meaning of aggrieved person and narrow outlook of specific injury has yielded in favour of broad and wide construction in wake of public interest litigation. Even in private challenge executive or administrative action having extensive fall out the dividing line between personal injury or loss and injury of a public nature is fast vanishing. Law has veered round from genuine grievance against order affecting prejudicially to sufficient interest in the matter. The rise in exercise of power by the executive and comparative decline in proper and effective administrative guidance is forcing citizens to espouse challenges with public interest flavour. It is too late in the day, therefore, to claim that petition filed by inhabitants of a locality whose park was converted into a nursing home had no cause to invoke equity jurisdiction of the High Court. In fact public spirited citizens having faith in rule of law are rendering great social and legal service by espousing cause of public nature. They cannot be ignored or overlooked on technical or conservative yardstick of the rule of locus standi or absence of personal loss or injury."
In the aforesaid case the locus standi of a person to maintain a public interest litigation was under consideration. Here in the present case, the petitioner has not approached this Court by way of public interest litigation, but he seeks to challenge the order of the election tribunal setting aside election of the returned candidate, declaring the election petitioner elected and the relief is confined to the setting aside of the said order. In my opinion, locus standi or a person to challenge the order on an election petition, passed by the election tribunal stand on a different pedestal than that of public interest litigation. In that view of the matter, the authority relied on by the learned counsel for the petitioner has no bearing on the case in hand.
10. Another decision on which learned counsel has placed reliance is the Constitution Bench decision of the Apex Court in the case of Calcutta Gas Co. v. State of West Bengal and ors., AIR 1962 SC 1044. My pointed attention has been drawn to the following passage from paragraph 5 of the judgment wherein the Apex Court has said as under :-
"5. It is, therefore, clear that person other than those claiming fundamental rights can also approach the Court seeking a relief thereunder. The right that can be enforced under Article 226 also shall ordinarily be the personal or individual right of the petitioner himself, though in the case of some of the writs like habeas corpus or quo warrantto this rule may have to be relaxed or modified."
A close reading of the aforesaid Judgment, instead of supporting the case of the petitioner, goes against him. The Supreme Court in the aforesaid paragraph made it explicit that Article 226 of the Constitution in terms does not describe the classes of person entitled to apply thereunder, but it is implicit in the exercise of the extra ordinary jurisdiction that the relief asked for must be one to enforce a legal right. The Apex Court proceeded to say that the right that can be enforced under Article 226 also shall ordinarily be the personal or individual right of the petitioner himself, though in the case of some of the writs like habeas corpus or quo warranto this rule may have to be relaxed or modified.
11. Here in the instant case, petitioner seeks to invoke jurisdiction of this Court for issuance of writ in the nature of certiorari for quashing the order of the election tribunal and he being not a party in the election petition and has not suffered any personal injury, writ petition at his instance is not maintainable. The judgment relied on by the counsel for the petitioner, does not support his case.
12. Shri Rawat, in support of his submission has also placed reliance on a judgment of the Apex Court in the case of Ram Janam Singh v. State of U. P., AIR 1994 SC 1722 and my attention has been drawn to the following paragraph, which reads as follows :-
"8. Even if this stand is accepted can it be said that persons who have been affected by the Judgment of the High Court in the connected writ application cannot challenge the correctness thereof either by filing a Review Petition before the High Court or by filing a Special Leave Petition before this Court? According to us, the answer is in negative. The appellant has a locus standi to challenge the said judgment, although he was not party to the same and the Special Leave Petition filed on his behalf cannot be rejected on that ground. The delay in filing the Special Leave Petition has also been fully explained in the facts and circumstances of the case, which is condoned."
In the aforesaid case, the locus standi of a person who was affected by the Judgment, was under consideration. Here in the present case, the petitioner is not individually affected by the judgment of the election tribunal, impugned in the writ petition. In that view of the matter the authority relied on by the learned counsel is clearly distinguishable. Thus none of the authorities relied on by the learned counsel for the petitioner supports his case.
13. The meaning of the expression 'person aggrieved' may vary according to the context of the statute and the facts of the case, nevertheless, normally 'person aggrieved must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced, which has wrongfully deprived him of something or wrongfully refused him something, or wrongfully affected his title to something.' Here in the present case no decision against the petitioner has been pronounced and he was not deprived of anything. He was not a candidate in the election. The petitioner did not appear at the trial of the election petition although he claims to be an election agent of the returned candidate and wakes up for the first time by filing this writ petition. In the facts of the present case, I am of the opinion that the petitioner is not a person aggrieved to maintain the writ petition. I find support for the aforesaid view from the Judgment of the Apex Court in the case Thammanna v. K. Veera Reddy and Ors., 1980 (4) SCC 92. Relevant portion of the judgment reads as follows :-
"27. In the instant case, the appellant or any other elector did not make any application or complain at the trial of the election petition in the High Court, that the election petition has abandoned the prosecution of the election petition or withdrawn from it and that the applicant be substituted for the election petitioner to continue the proceedings Under Section 110(3)(c) of the Act. It will bear repetition that the appellant took no interest, whatever, in the controversy in the election petition which was confined only to the election petitioner and respondent No. 1. Conditions 1 and 3, the satisfaction of which is necessary to give locus standi to a person to file an appeal Under Section 116-C, has not been fulfilled in the instant case. The appellant cannot, by any reconing, be said to be 'person aggrieved' by the decision of the High Court, dismissing the election petition."
14. Shri Rawat while assailing the impugned order submits that the Tribunal did not hold any inquiry as required under the proviso to Rule 15 before deciding the petition on merits. Rule 15 of the Rules reads as follows :-
"15. Death of respondent. - If before the conclusion of the inquiry sole respondent dies, proceedings shall be deemed to have been abated as against that respondent:
Provided that whether a relief has been claimed by the petitioner that he or any other persons should be declared as duly elected the Prescribed Authority shall after making such inquiry as he deems fit decide the petition on merits."
I am afraid the submission is devoid of any substance. The expression inquiry in the proviso to Rule 15 does not mean that the Tribunal is required to make inquiry in relation to the death of the elected candidate but the aforesaid inquiry relates to the relief claimed by the election petitioner. This exercise has been done by the tribunal and accordingly, I do not find any substance in the same.
15. I am of the considered opinion that the petitioner is not a person aggrieved and therefore, has no locus standi to maintain the writ petition. Having sustained the preliminary objection raised on behalf of the respondents about the maintainability of the writ petition, it is not necessary to go into the other submissions advanced on behalf of the petitioner.
16. For the reasons mentioned aforesaid, there is no merit in the writ petition and it is dismissed accordingly. However, in the facts and circumstances of the case, there shall be no order as to cost.