Jagannath Singh Vs. State of M.P. and ors. - Court Judgment

Excerpt:
civil - maintainability of writ - article 226 of constitution of india and representation of people act, 1951 - petitioner and respondent no 5 contested election for post of representative of agriculturist - respondent no 5 declared to be elected - allegations of petitioner was that respondent no 5 was not qualified member for contesting election because respondent no 5 had not land in that area for which election was conducted - petitioner filed writ petition under article 226 of constitution invoking extra ordinary jurisdiction - objection was filed by respondent no 5 regarding maintainability of writ petition on ground that if any dispute arises with regard to election, petitioner can approach district magistrate - hence, present petition - whether writ petition filed under article 226 of constitution maintainable? - held, as per precedent laid down in case of ganesh and ors.s v. state of m.p. and ors, petitioner can invoke extra ordinary jurisdiction under article 226 of constitution only in that circumstances where there is violation of mandatory provisions of act or mass rejection of nominations forms - in instant case, matter is related with qualification regarding holding of land which shall be decided in election petition by district magistrate - therefore, writ petition is not maintainable under article 226 of constitution - petition dismissed accordingly - - it could be more effectively decided on the basis of recording of evidence etc. as has been indicated in number of cases, in very exceptional case interference by this court under article 226 may be warranted but in the present batch of cases facts and circumstances do not so warrant and the petitioners can very well agitate their grievances before the registrar of the co-operative societies.orderrajendra menon1. the petitioner by this petition is aggrieved by the action of the respondent nos. 1 to 4 declaring the respondent no. 5 to be elected as representative of agriculturist for the election held to ward no. 4 of krishi upaj mandi samiti, porsa distt. morena. it is the case of the petitioner that he is resident of village mandhata ka pura, tehsil porsa, distt. morena. he was a candidate contesting for election to the office of representative of agriculturist of ward no. 4 of the krishi upaj mandi samiti. his name finds place at sr. no. 479 in the voter list. it is the case of the petitioner that he is qualified to participate in the election. various elections to the krishi upaj mandi samitis are held as per the provisions of madhya pradesh krishi upaj mandi adhiniyam, 1972. the eligibility conditions for election are mentioned in section 11b(2). according to the provisions of this section, a person to be a voter must be recorded as a bhoomiswami in the village land records and he should be originally a resident of that market area. according to the petitioner, the respondent no. 5 was not eligible and qualified as he was not having bhoomiswami rights in the land within the area for which election was to be held. it is stated that in the voter list the name of respondent no. 5 is shown to be a bhoomiswami of survey no. 2373. certain documents annexure p-4 have been filed to show that this survey number belongs to one janved singh who is recorded as bhoomiswami but according to the petitioner the respondent is not eligible to vote and therefore his election is illegal and the petitioner has prayed for a writ of quo-warranto against respondent no. 5 who is elected to the office of representative of agriculturist. the respondents have filed the return and a preliminary objection has been raised with regard to the maintainability of the present petition. it is putforth by the respondents that under the provisions of the krishi upaj mandi samiti adhiniyam, an election petition has to be filed as there is a specific provision of filing the election petition. it is stated that the madhya pradesh krishi upaj mandi (mandi samiti ka nirvachan) niyam, 1997 have been issued and after the elections are over rule 43 provides for filing of an election petition before the collector within 14 days. it is the case of the respondents that a writ petition directly cannot be entertained.2. on merit, respondent no. 5 has filed a separate reply and it has been stated by him that his name has been recorded as bhoomiswami in the relevant khasra and there is some misprinting in the voter list. it is stated by him that his name has been recorded as bhoomiswami and copies of various documents and khatas have been filed by him vide annexure r-5-1 to indicate that he is qualified to be elected and the requisite condition of being a bhoomiswami of the area in question is fulfilled by him.3. in reply to the preliminary objection raised by the respondents with regard to maintainability of the present writ petition, learned counsel for the petitioner has placed heavy reliance on the judgment of supreme court rendered in the case of k. venkatachalam v. a. swamickan and anr., reported in air 1999 sc 1723. placing reliance on the aforesaid judgment it is putforth by the petitioner that when a person elected lacks basic qualification to be nominated or elected, the bar of filing election petition is not applicable and in such matters a writ petition under article 226 can be entertained. it is submitted by the learned counsel that when there are certain statutory disqualifications and the said disqualification is apparent, in such circumstances high court can exercise jurisdiction under article 226 of the constitution declaring the candidate to be not qualified.4. per contra the learned counsel for the respondents have placed reliance in the case of shri sant sadguru janardan swami and anr. v. state of maharashtra and ors., (2001) 8 scc 509, it has been stated that when specific provisions for filing election petition is available, writ petition should not be entertained. apart from the aforesaid judgment, learned counsel for the respondents have also relied upon the judgment of this court in the case of ganesh and ors.s v. state of m.p. and ors., (2001) rn 411. on the basis of the aforesaid judgments it is putforth by the learned counsel for the respondents that the petition is not maintainable.5. i have considered the submissions made by the learned counsel for the parties. in the case of k. venkatachalam (supra) a writ of quo-warranto was held to be maintainable when it is found that the person elected is not at all qualified as per the statutory provisions. the observations made in para 25 of the said judgment are relevant. in this para it has been held that the candidate therein was not an elector in the elector roll in the constituency. it was therefore, held that a person who is not an elector in the constituency could not represent a constituency. it was observed by the supreme court that he lacked basic qualification as required under clause (c) of article 173 of the constitution read with section 5 of the representation of people act, 1951. it was held by the court that in such circumstances the election need not be challenged by filing an election petition. once there is an undisputed finding with regard to the eligibility of the candidate, the writ petition is maintainable and the bar of filing election petition will not be applicable.6. the case in hand is to be viewed in the light of the aforesaid findings. in the instant case the qualification is with regard to having been recorded as a bhoomiswami in the ward in question. in the instant case it is not in admitted position. even though the petitioner submits that the respondent no. 5 is not a bhoomiswami as per the land records, the respondent no. 5 has filed certain records, sworn his own affidavit indicating that he is a bhoomiswami. there is therefore a serious dispute with regard to the aforesaid factual aspect of the matter. this disputed question of fact cannot be decided in a petition under article 226 of the constitution. it could be more effectively decided on the basis of recording of evidence etc., which can be done only in an election petition.7. considered in the light of the aforesaid, the law laid down by the supreme court in the case of shri sant sadguru janardan swami (supra) will apply. the supreme court in the aforesaid case has considered the provisions of law and has held that in election matters party should be directed to approach election tribunal for redressal of their grievances. the observations made by the learned single judge in the case of ganesh and ors. (supra) is very much relevant in this regard. after having referred to the various judgments on the subject, the learned single judge in para 43 has observed as under:--'the tore question is whether this court should entertain the writ petition in view of the language employed under section 64 of the act. true, it is, on certain occasions this court had interfered where there had been violation of the mandatory rules or mass rejection of the nomination forms. the learned counsel for the petitioners endeavoured hard to show that some of the cases are similar to the cases wherein this court had interfered. with regard to valid appointment of returning officer, the cases which have been come before this court at present are quite different than that of thaneshwar shyam bihari mishra (supra). in that case the appointment was vitiated being hit by the principle 'delegatus non potest delegate' and it was manifest on the face of it but the cases at hand require reference to various circulars and can be adjudicated by the registrar. as far as the rejection of the nomination papers in mass scale is concerned, as has been noticed earlier, in some cases singular petitioner has approached this court. quite apart from the above, in all circumstances it cannot be said that mass scale rejection or nomination papers would entitle the aggrieved persons to invoke the extra-ordinary jurisdiction of this court. there may be justification for such rejection. to give a hypothetical example if a declaration is to be given under the act but the same is not given by many a candidate whether fault can be found with the returning officer in law in rejecting the nomination papers. whether opportunity was given to the candidates at the time of scrutiny or not is another aspect altogether and remains in the realm of facts which can be adjudicated by the registrar. thus, in my considered opinion, the decisions where in there was interference are of not much assistance to the petitioners. as has been indicated in number of cases, in very exceptional case interference by this court under article 226 may be warranted but in the present batch of cases facts and circumstances do not so warrant and the petitioners can very well agitate their grievances before the registrar of the co-operative societies.'8. apart from the above, after considering the totality of the facts and circumstances of the case and the observations made by the learned single judge in the case of ganesh (supra), i am inclined to hold that this is also a case wherein the extra-ordinary jurisdiction under article 226 of the constitutioncannot be put into operation for interference in the election matter as disputed questions are to be adjudicated.9. the petition is accordingly held to be not maintainable. the question now is whether the petitioner can be directed to file an election petition. the petition was filed before this court on 13-3-2000 and the election was held on 26-2-2000 and according to the averments made in the petition, the petitioner came to know that respondent no. 5 was not a bhoomiswami in the village only on 6-3-2000 and thereafter he had obtained copies of some khasra entries and filed the petition. considering the fact that petitioner had immediately filed this petition before this court, it is ordered that in case the petitioner presents a proper petition challenging the election of respondent no. 5 within a period of 15 days from the receipt of certified copy of this order the competent authority shall entertain the election petition and shall proceed to dispose off the same in accordance with law.10. with the aforesaid observation, the petition is dismissed.

Judgment:
ORDER

Rajendra Menon

1. The petitioner by this petition is aggrieved by the action of the respondent Nos. 1 to 4 declaring the respondent No. 5 to be elected as Representative of Agriculturist for the election held to Ward No. 4 of Krishi Upaj Mandi Samiti, Porsa Distt. Morena. It is the case of the petitioner that he is resident of Village Mandhata Ka Pura, Tehsil Porsa, Distt. Morena. He was a candidate contesting for election to the Office of Representative of Agriculturist of Ward No. 4 of the Krishi Upaj Mandi Samiti. His name finds place at Sr. No. 479 in the Voter List. It is the case of the petitioner that he is qualified to participate in the election. Various elections to the Krishi Upaj Mandi Samitis are held as per the provisions of Madhya Pradesh Krishi Upaj Mandi Adhiniyam, 1972. The eligibility conditions for election are mentioned in Section 11B(2). According to the provisions of this section, a person to be a voter must be recorded as a Bhoomiswami in the Village Land Records and he should be originally a resident of that market area. According to the petitioner, the respondent No. 5 was not eligible and qualified as he was not having Bhoomiswami rights in the land within the area for which election was to be held. It is stated that in the voter list the name of respondent No. 5 is shown to be a Bhoomiswami of Survey No. 2373. Certain documents Annexure P-4 have been filed to show that this survey number belongs to one Janved Singh who is recorded as Bhoomiswami but according to the petitioner the respondent is not eligible to vote and therefore his election is illegal and the petitioner has prayed for a writ of quo-warranto against respondent No. 5 who is elected to the Office of Representative of Agriculturist. The respondents have filed the return and a preliminary objection has been raised with regard to the maintainability of the present petition. It is putforth by the respondents that under the provisions of the Krishi Upaj Mandi Samiti Adhiniyam, an election petition has to be filed as there is a specific provision of filing the election petition. It is stated that the Madhya Pradesh Krishi Upaj Mandi (Mandi Samiti Ka Nirvachan) Niyam, 1997 have been issued and after the elections are over Rule 43 provides for filing of an election petition before the Collector within 14 days. It is the case of the respondents that a writ petition directly cannot be entertained.

2. On merit, respondent No. 5 has filed a separate reply and it has been stated by him that his name has been recorded as Bhoomiswami in the relevant khasra and there is some misprinting in the voter list. It is stated by him that his name has been recorded as Bhoomiswami and copies of various documents and khatas have been filed by him vide Annexure R-5-1 to indicate that he is qualified to be elected and the requisite condition of being a Bhoomiswami of the area in question is fulfilled by him.

3. In reply to the preliminary objection raised by the respondents with regard to maintainability of the present writ petition, learned Counsel for the petitioner has placed heavy reliance on the judgment of Supreme Court rendered in the case of K. Venkatachalam v. A. Swamickan and Anr., reported in AIR 1999 SC 1723. Placing reliance on the aforesaid judgment it is putforth by the petitioner that when a person elected lacks basic qualification to be nominated or elected, the bar of filing election petition is not applicable and in such matters a writ petition under Article 226 can be entertained. It is submitted by the learned Counsel that when there are certain statutory disqualifications and the said disqualification is apparent, in such circumstances High Court can exercise jurisdiction under Article 226 of the Constitution declaring the candidate to be not qualified.

4. Per contra the learned Counsel for the respondents have placed reliance in the case of Shri Sant Sadguru Janardan Swami and Anr. v. State of Maharashtra and Ors., (2001) 8 SCC 509, it has been stated that when specific provisions for filing election petition is available, writ petition should not be entertained. Apart from the aforesaid judgment, learned Counsel for the respondents have also relied upon the judgment of this Court in the case of Ganesh and Ors.s v. State of M.P. and Ors., (2001) RN 411. On the basis of the aforesaid judgments it is putforth by the learned Counsel for the respondents that the petition is not maintainable.

5. I have considered the submissions made by the learned Counsel for the parties. In the case of K. Venkatachalam (supra) a writ of Quo-warranto was held to be maintainable when it is found that the person elected is not at all qualified as per the Statutory provisions. The observations made in para 25 of the said judgment are relevant. In this para it has been held that the candidate therein was not an elector in the elector roll in the constituency. It was therefore, held that a person who is not an elector in the constituency could not represent a constituency. It was observed by the Supreme Court that he lacked basic qualification as required under clause (c) of Article 173 of the Constitution read with Section 5 of the Representation of People Act, 1951. It was held by the Court that in such circumstances the election need not be challenged by filing an election petition. Once there is an undisputed finding with regard to the eligibility of the candidate, the writ petition is maintainable and the bar of filing election petition will not be applicable.

6. The case in hand is to be viewed in the light of the aforesaid findings. In the instant case the qualification is with regard to having been recorded as a Bhoomiswami in the Ward in question. In the instant case it is not in admitted position. Even though the petitioner submits that the respondent No. 5 is not a Bhoomiswami as per the land records, the respondent No. 5 has filed certain records, sworn his own affidavit indicating that he is a Bhoomiswami. There is therefore a serious dispute with regard to the aforesaid factual aspect of the matter. This disputed question of fact cannot be decided in a petition under Article 226 of the Constitution. It could be more effectively decided on the basis of recording of evidence etc., which can be done only in an election petition.

7. Considered in the light of the aforesaid, the law laid down by the Supreme Court in the case of Shri Sant Sadguru Janardan Swami (supra) will apply. The Supreme Court in the aforesaid case has considered the provisions of law and has held that in election matters party should be directed to approach Election Tribunal for redressal of their grievances. The observations made by the learned Single Judge in the case of Ganesh and Ors. (supra) is very much relevant in this regard. After having referred to the various judgments on the subject, the learned Single Judge in para 43 has observed as under:--

'The tore question is whether this Court should entertain the writ petition in view of the language employed under Section 64 of the Act. True, it is, on certain occasions this Court had interfered where there had been violation of the mandatory rules or mass rejection of the nomination forms. The learned Counsel for the petitioners endeavoured hard to show that some of the cases are similar to the cases wherein this Court had interfered. With regard to valid appointment of Returning Officer, the cases which have been come before this Court at present are quite different than that of Thaneshwar Shyam Bihari Mishra (supra). In that case the appointment was vitiated being hit by the principle 'delegatus non potest delegate' and it was manifest on the face of it but the cases at hand require reference to various circulars and can be adjudicated by the Registrar. As far as the rejection of the nomination papers in mass scale is concerned, as has been noticed earlier, in some cases singular petitioner has approached this Court. Quite apart from the above, in all circumstances it cannot be said that mass scale rejection or nomination papers would entitle the aggrieved persons to invoke the extra-ordinary jurisdiction of this Court. There may be justification for such rejection. To give a hypothetical example if a declaration is to be given under the Act but the same is not given by many a candidate whether fault can be found with the Returning Officer in law in rejecting the nomination papers. Whether opportunity was given to the candidates at the time of scrutiny or not is another aspect altogether and remains in the realm of facts which can be adjudicated by the Registrar. Thus, in my considered opinion, the decisions where in there was interference are of not much assistance to the petitioners. As has been indicated in number of cases, in very exceptional case interference by this Court under Article 226 may be warranted but in the present batch of cases facts and circumstances do not so warrant and the petitioners can very well agitate their grievances before the Registrar of the Co-operative Societies.'

8. Apart from the above, after considering the totality of the facts and circumstances of the case and the observations made by the learned Single Judge in the case of Ganesh (supra), I am inclined to hold that this is also a case wherein the extra-ordinary jurisdiction under Article 226 of the Constitutioncannot be put into operation for interference in the election matter as disputed questions are to be adjudicated.

9. The petition is accordingly held to be not maintainable. The question now is whether the petitioner can be directed to file an election petition. The petition was filed before this Court on 13-3-2000 and the election was held on 26-2-2000 and according to the averments made in the petition, the petitioner came to know that respondent No. 5 was not a Bhoomiswami in the village only on 6-3-2000 and thereafter he had obtained copies of some khasra entries and filed the petition. Considering the fact that petitioner had immediately filed this petition before this Court, it is ordered that in case the petitioner presents a proper petition challenging the election of respondent No. 5 within a period of 15 days from the receipt of certified copy of this order the competent authority shall entertain the election petition and shall proceed to dispose off the same in accordance with law.

10. With the aforesaid observation, the petition is dismissed.