Ashok Kumar Jain v. Neetu Kathoria And Others

Order

1. Leave granted.

2. By means of this appeal, the appellant has challenged the order passed by the Division Bench of the Madhya Pradesh High Court setting aside the judgment and order of the learned Single Judge allowing the writ petition setting aside the election of Respondent 1 to the office of the Chairman of Krishi Upaj Mandi Samiti, Bina, District Sagar on the ground that she was not qualified to hold the aforesaid office.

3. The appellant challenged the election of Respondent 1 on the ground that she lacks the qualification of being a bhuswami in the area of Krishi Upaj Mandi on the relevant date as required under sub-section (1)(a) of Section 11-B of the Madhya Pradesh Krishi Upaj Mandi Adhiniyam, 1972. The other qualification which is essential so as to be elected to any office of the Krishi Mandi is as prescribed in clause (2)(a) which requires that the name of the candidate should be included in the list of the voters of the market area and under clause (2)(b) one has to be an agriculturist. The case of the appellant was that Respondent 1 lacked all the abovenoted qualifications as the cut-off date relevant for the purpose of reckoning the abovenoted qualifications was 1-1-1999, which has been held to be so both by the learned Single Judge as well as by the Division Bench.

4. The appellant's case, however, is that Respondent 1 has purchased a small piece of land within the area of the Krishi Upaj Mandi concerned on 16-3-1999 which was mutated in her name on 21-3-1999 in violation of the rules and her name was included in the voters' list on 27-3-1999. The election in fact has taken place in February 2000 since there has been some interim order by the Court against holding of the election. It also appears to be the case of the appellant that the voters' list could not be revised after the first day of January, 1999 and that too on the limited grounds as provided under Section 12 but those grounds did not exist in the present case.

5. Respondent 1 contested the writ petition and apart from resisting the ground of attack indicated above one of the objections was that the writ petition was not maintainable as the election was liable to be challenged only by means of an election petition. The appellant, instead of availing of that remedy challenged the election about one year and ten months after the election when the limitation for filing an election petition had already run out. The learned Single Judge held that though a provision for filing an election petition was there but no procedure for its presentation was prescribed as a result of which the election petition could not be filed. Hence, the writ petition was entertained and allowed issuing writ of quo warranto declaring that the respondent is not qualified to hold the office of Chairperson of Krishi Upaj Mandi Samiti, Bina, District Sagar.

6. Aggrieved by the order of the learned Single Judge, Respondent 1 herein filed a writ appeal in the High Court which has been heard and allowed by the Division Bench of the High Court. On the first question regarding the maintainability of the writ petition, the Division Bench has held that the learned Single Judge was wrong in holding that an election petition could not be filed in the absence of rules prescribing for the purpose of filing of an election petition. In that view of the matter, namely, availability of the remedy of the election petition, the Division Bench found that the writ petition would not be maintainable, however, at the same time it also entertained the points raised in the appeal on merits. The other findings recorded by the learned Single Judge, against the present respondent holding that she was not qualified to hold the office of the Chairperson have been held to be erroneous by the Division Bench. As a matter of fact, the Division Bench has allowed the appeal on both grounds, namely, the election petition was an alternative remedy available to the appellant to challenge the election, hence writ petition was not the appropriate remedy to entertain the grievance as well as on the merits. We would like to observe that once it was found that an election petition was maintainable to challenge the election, there was no occasion nor could any such extraordinary circumstances be indicated by reason of which it was necessary for the Court to have entertained the points raised on merits regarding qualifications and disqualifications of the respondent. We would, therefore, first like to examine the question about the maintainability of the election petition.

7. The learned counsel for the appellant submits that Section 66-A of the Madhya Pradesh Krishi Upaj Mandi Adhiniyam, 1972 provides for the election petition which we quote as follows:

“66-A. (1) An election under this Act shall be called in question only by a petition presented in the prescribed manner to the Commissioner 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.”

8. It is submitted that since no manner was prescribed for presenting an election petition to the Commissioner, it was not possible to file the same and in that regard findings of the learned Single Judge, it is submitted, are correct. It has been submitted on behalf of the respondent that prior to insertion of Section 66-A of the Act, the election to the offices of the Vice-Chairman and Chairman of a Krishi Upaj Mandi was from amongst the members and not by direct election by the voters of the area. At that time election of Vice-Chairman and Chairman used to be challenged under Rule 13-A of the 1974 Rules according to which if any dispute arose as to the validity of the election to the office of Chairman or Vice-Chairman, it was to be referred to the Collector for decision within a period of fifteen days from the date of meeting concerned. An appeal was provided against an order of the Collector to the Commissioner; however, after insertion of Section 66-A and change in the mode of election of Vice-Chairman and Chairman, having become direct, the difference as it used to be earlier for challenging the election of Vice-Chairman and Chairman and other members, obliterated. Section 66-A provides that an election held under the Act shall be called in question only by way of a petition presented to the Commissioner in the prescribed manner. The machinery to challenge the election, to whatever office it may be, has been made uniform in the sense that any election under the Act is only to be challenged by filing a petition to the Commissioner. Sub-section (2) of Section 66-A also prescribes the period of limitation of thirty days. It is thus evident that now no different manner or period of limitation is provided for challenging the elections to different offices under the Act. New rules also came into force in 1997. Rule 90 of the M.P Krishi Upaj Mandi (Mandi Samiti Ka Nirvachan) Rules, 1997 provides as follows:

“90. Repeal and savings.—On and from the date on which these rules come into force so much of the provisions of the Madhya Pradesh Krishi Upaj Mandi (Adhisuchana Prakashan Riti, Bharsadhak Samiti Tatha Mandi Samiti Ka Gathan) Rules, 1974, as relate to the matters covered by these rules stand repealed:

Provided that anything done or any action taken under any of the provisions so repealed unless such thing or action is inconsistent with the provisions of these rules, be deemed to have been done or taken under the corresponding provisions of the rules.”

9. According to the abovequoted rule, such of the 1974 Rules which are covered by the 1997 Rules, would stand repealed. It is thus clear that the 1974 Rules shall still hold good in respect of the matter for which no provision has been made in the Rules of 1997.

10. At this juncture, it may be indicated that the power to frame rules is vested in Section 79 of the Act. All the rules have been framed in exercise of the power conferred by the aforesaid provision. We may then peruse Rule 44 of the 1974 Rules which provides the manner in which and the grounds on which an election could be challenged. Whatever manner for presenting an election petition is provided under the Rules of 1974, which is not covered by the Rules of 1997, would continue to be operative but for the changes effected by Section 66-A, that is to say, the forum for challenging the election would be the Commissioner and the period of limitation would be thirty days for any election under the Act. The rest of the manner of filing/presenting an election petition if not provided under the 1997 Rules shall continue to be same as provided under the Rules of 1974. That being the position, we uphold the finding recorded by the Division Bench that an election petition was maintainable and could be filed challenging the election of the Chairman of the Krishi Upaj Samiti.

11. Section 66-A of the Act is clear in terms while providing that an election under the Act would be challenged only by presenting an election petition. Except in some exceptionally extraordinary circumstances, normally remedy under Article 226 of the Constitution, challenging the election by filing a writ petition would not be available to the petitioner. It is necessary to mention here that the respondent was elected as Chairperson in February 2000 and the writ petition was filed in October 2001. The period of limitation as prescribed under Section 66-A of the Act for presenting an election petition had expired much before, say, sometime in March 2000. In the absence of there being any exceptionally extraordinary circumstances, exercise of powers under Article 226 of the Constitution by the learned Single Judge was uncalled for. In our view, the Division Bench was right in recording such a finding, but thereafter it was not necessary to deal with other questions on merits. It is a different matter that the Division Bench has also not accepted the findings on merits as recorded by the learned Single Judge. Be that as it may, we feel it not necessary to go into the merits of those points any more, once we accept the ground that the writ petition was not entertainable.

12. In view of the discussion held above, we find no good reason to interfere in the order passed by the Division Bench. The appeal, therefore, is dismissed. There would, however, be no order as to costs.