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Pancham Ramcharan Vs. the Collector, Dist. Bhind and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 77 of 1970
Judge
Reported inAIR1971MP97; 1971MPLJ50
ActsConstitution of India - Article 226; Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1962 - Rule 22(1); Limitation Act, 1963 - Sections 5
AppellantPancham Ramcharan
RespondentThe Collector, Dist. Bhind and ors.
Appellant AdvocateR.K. Sharma, Adv.
Respondent AdvocateR.S. Bajpai, Addl. Govt. Adv. and ;A.B. Mishra, Adv.
DispositionWrit petition dismissed
Cases ReferredIdandas v. Election Officer
Excerpt:
- - however, we are clearly of the view that these facts would perhaps be a good ground for delay within the meaning of section 5 of the limitation act, 1963, which section is now applicable to all appeals and applications, which expression would include an election petition also......list was not prepared as required by the rules, framed under section 5, of the election and co-option rules, 1963. (2) the voters list became final when it was published in the gazette dated march 30, 1970, but 8 names were added in the voters list 'after 1-5-70.' in the petition, the significance of that date is not stated but before us it is said that on that date nomination papers were filed and scrutinised. addition of names after the date of nomination was not permissible under the rules. (3) nathuram was disqualified inasmuch as he was a defaulter in respect of arrears of taxes of the panchayat after notice of demand. (4) the presiding officer, who presided, was not appointed specifically under rule 63 of the panchayat election and co-option rules, 1963, although he was.....
Judgment:

Shiv Dayal, J.

1. This is a petition under Article 226 of the Constitution challenging the election of a Panch for the Gram Panchayat, Barathara.

2. It is stated in the petition that the last general election of the Panchayat was held on May 23, 1970. Nathuram (respondent No. 4) and Laxminarayan (respondent No. 5) were candidates from ward No. 2. The said Nathuram was declared elected.

3. The petitioner is a voter. His contentions are: (1) The voters list was not prepared as required by the rules, framed under Section 5, of the Election and Co-option Rules, 1963. (2) The voters list became final when it was published in the Gazette dated March 30, 1970, but 8 names were added in the voters list 'after 1-5-70.' In the petition, the significance of that date is not stated but before us it is said that on that date nomination papers were filed and scrutinised. Addition of names after the date of nomination was not permissible under the rules. (3) Nathuram was disqualified inasmuch as he was a defaulter in respect of arrears of taxes of the Panchayat after notice of demand. (4) The Presiding Officer, who presided, was not appointed specifically under Rule 63 of the Panchayat Election and Co-option Rules, 1963, although he was appointed by the Nirwachan Adhikari under Rule 18 of the Rules. (5) Laxminarayan should have been given the Symbol of bullock, but it was not given to him although Nathuram had not demanded that symbol.

4. The first question before us is whether this Court would issue a writ under Article 226 of the Constitution. All the objections, which the petitioner has taken, can be made grounds for declaring the election void by filing an election petition under Section 357 of the Act. That section reads thus:--

'357. Election petition. (1) No election, or co-option notified under Sections 20, 113, 170 and 216 shall be called into question except by a petition presented to the prescribed authority.

(2) No such petition shall be admitted unless it is presented within fourteen days from the date on which the election or co-option was notified.

(3) Such petition shall be enquired into and disposed of according to such summary procedure as may be prescribed.'

Under that section, the Madhya Pradesh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1962, have been framed. Rule 22 reads as follows:--

'22. Grounds for declaring election or co-option to be void.-- (1) Subject to the provisions of Sub-rule (2) if the prescribed authority is of opinion--

(a) that on the date of election or co-option a returned candidate was not qualified or was disqualified to be chosen to fill the seat under the Act; or

(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or

(c) that any nomination paper has been improperly rejected; or

(d) that the result of the election or co-option in so far as it concerns returned candidate, has been materially affected--

(i) by the improper acceptance of any nomination; or by the improper reception, refusal or rejection of any vote or the reception of any vote which is void; or

(ii) by any non-compliance with the provisions of the Act or of any rules or orders made thereunder, the prescribed authority shall declare the election or co-option of the returned candidate to be void.' All the grounds taken by the petitioner fall under Rule 22 (1) (d) (iii), quoted above. The petitioner having an appropriate and efficacious remedy, which is provided in emphatic terms, this Court would not interfere by a writ under Article 226 of the Constitution save for compelling reasons in very special circumstances. This was held in Thakurprasad v. V. S. Mehta, 1965 MPLJ 480 = (AIR 1965 Madh Pra 258 FB).

5. Learned counsel for the petitioner relies on Kabul Singh v. Kundan Singh, AIR 1970 SC 340. In that case, it was held by reference to Section 30 of the Representation of the People Act, 1950, that the finality of electoral roll cannot be challenged in a proceeding challenging validity of an election. The view taken by their Lordships in B. M. Ramaswamy v. B.M. Krishnamurthy, (1963) 3 SCR 479 = (AIR 1963 SC 458), was followed. It is evident enough that that case is not in point, having regard to the provisions of Section 30 of the 1950 Act.

6. Learned counsel for the petitioner then relied on Hafiz Mohd. Anwar Khan v. State of M.P., 1967 Jab LJ 559 = (AIR 1967 Madh Pra 257). In that case the election of certain persons and the selection of another person to a Municipal Council were quashed and a writ of mandamus was issued to the Collector requiring him to hold a fresh election according to law after drawing up proper electoral rolls in conformitywith the requirements of law bearing on the point. That decision must be restricted to Section 22 of the Municipalities Act, 1961. The language of Section 22 (1) (d)

(iii) of the Municipalities Act is not the same as that of Rule 22 (1) (d) (iii) of the Rule framed under Section 357 of the M.P. Panchayats Act. The provisions may be reproduced side by side:--

Municipalities Act (S. 22)

Pachayats Act (R. 22)

'22 (1) Subject to the provisions of sub-section (2) if the Judge is ofthe opinion -

'22 (1) Subject to the provision of sub-rule (2) ifthe prescribed authority is of opinion -

X X X X X X

X X X X X X

(d) that the result of the election or selection, in sofar as it concerns a returned candidate has been materially affected -

(d) that the result of the election, or co-option in sofar as if concerns returned candidate has been materially affected -

X X X X X X

X X X X X X

(iii) by the non-compliance with the provisions of thisAct or of any rules or orders made thereunder save the rules framed under S.29 in so far as they relate to preparation and revision of list of voters:

(iii) by any non-compliance withthe provisions of the Act or of any rules or orders made thereunder

he shall declare the election or selection of thereturned candidate to be void.'

the prescribed authority shall declare the election orco-option of the returned candidate to be void.'

The words underlined above in Section 22 of the Municipalities Act are not to be found in Rule 22 of the Panchayats Act. Now, the M.P. Municipalities (Preparation, Revision, and Publication of Electoral Rolls, Election and Selection of Councilors) Rules, 1962, have been framed under Section 29 of the Municipalities Act. Therefore, no election petition can lie on that ground, because of the saving clause (underlined above) in the Municipalities Act.

7. Learned counsel for the petitioner then relied on Idandas v. Election Officer (Gram Panchayat) East Nimar, 1966 Jab LJ 434. That case is distinguishable on facts.

8. When a special right is created by a special law and that special law also provides for a machinery for redress, the party complaining that his rights under the special law have been violated must resort to the remedy provided by the special law and this Court will not interfere in exercise of its writ jurisdiction, except for compelling reasons. We do not say that this Court has no jurisdiction to entertain a petition under Article 226 of the Constitution just because an alternative remedy is provided in the Act. We say that this Court will not constitute itself into an election tribunal so as to ascertain facts by recording evidence. For the grounds enumerated in Rule 22 of the rules framed under Section 357 of the Act, an election petition is the appropriate remedy and the special Act lays emphasis on this in the first subsection of Section 357. It is true that anenactment, by providing an exclusive remedy, cannot take away the extraordinary powers conferred on this Court by the Constitution, yet this Court will not exercise those powers when there is an efficacious and speedy remedy provided in the Act, save when there is a flagrant or manifest violation of the law or excessive exercise of jurisdiction for which this Court feels compelled to interfere When there are disputed questions of fact, this Court will ordinarily leave the parties to take recourse to the ordinary remedy, that is, by way of an election petition.

9. In the present case, contentions 1, 3 and 5, as we have enumerated above, are disputed questions of fact. As regards the second ground, the petitioner vaguely stated that names of 8 voters were added in the voters list after 1-5-1970, but the copy of the order which is filed with the petition shows that that order was passed on April 27, 1970. There is no allegation in the petition that the order was passed on the 1st May but was antedated, which would have been a serious matter. It is denied in the return filed by the successful candidate that those names were added after the publication of the nomination papers. It is a matter of regret that orders of responsible authorities are challenged vaguely and not categorically. Responsibility must be felt while making such allegations. Ground No. 4 is wholly vague. It is not stated in the petition who counted the votes and whether the officer under whose supervision and direction voteswere counted was himself the returning officer and if he was not himself the returning officer whether he had been duly authorised by the returning officer in that behalf. However that ground can be taken under Rule 22 (1) (d) (iii) quoted above.

10. Learned counsel for the petitioner urged that the rules and the section being not clear and the relevant notification, particularly in respect of the amendment of Rule 80 of the Rule framed under Sections 12, 21 etc., being not easily available, the petitioner was misled and was advised to file this petition. If he is now driven to file an election petition, the prescribed period of limitation may have already run out. This Court should, therefore, interfere in its writ jurisdiction. We appreciate that the petitioner came to this Court on an assumption that the result of the election had not been duly notified as required by the aforesaid Rule 80 (unamended). We take notice of the fact that a large number of petitions were filed on the assumption that the notification by which clause (a) of Rule 80 of the said rules was deleted, was not published in the M.P. Gazette, which is necessary having regard to the provisions of the M.P. General Clauses Act. It was argued before us at the initial stage in all such cases that the amendment was made merely by writing a letter to all the Collectors. We are also aware of the fact that learned counsel went on searching for a notification, if any, and it was after about 10 days search that the notification No. 380-20-XVIII-P. Rule 67, published in the M. P. Rajpatra dated October 6, 1967, Part II, page 535, became available. By the above Gazette notification clause (a) of Rule 80 was deleted. However, we are clearly of the view that these facts would perhaps be a good ground for delay within the meaning of Section 5 of the Limitation Act, 1963, which section is now applicable to all appeals and applications, which expression would include an election petition also. It will be for the petitioner, if so advised, to file an application under Section 5 of the Limitation Act, along with the election petition.

11. This petition is, therefore, dismissed. Parties shall bear their own costs. The outstanding amount of security deposit shall be refunded to the petitioner.


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