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2002 DIGILAW 846 (MP)

Rekha Bai v. State of M. P.

2002-09-09

DIPAK MISRA

body2002
ORDER : 1. By this writ petition preferred under Articles 226 and 227 of the Constitution of India the petitioner has prayed for issue of a writ of certiorari for quashment of the order dated 9-7-2001, Annexure-P/8, passed by the Commissioner, Hoshangabad Division, Hoshangabad, respondent No. 1 herein and to pass such other order/orders as may be deemed fit and proper in the facts and circumstances of the case. 2. The facts as have been uncurtained in the writ petition are that the petitioner is a resident of Village, Jinvaniya, Tahsil, Khirkiya, District, Harda. Her father-in-law, Hargovind, submitted an application before the Tahsildar, Khirkiya for mutation of the petitioner's name in the revenue record and the Tahsildar after due enquiry by order dated 5-2-1999 directed the name of the petitioner to be mutated in the revenue record. On the basis of the aforesaid entry her name got incorporated in the final voters' list, which was published on 25-3-1999. The last date for filing of the nomination was 20-4-1999. On 21-4-1999 an objection was filed by one Natthi Bai indicating that the name of the petitioner had been wrongly included in the voters' list. By order dated 21-4-1999 the said objection was rejected. An appeal was preferred by the said Nathi Bai which faced dismissal by order dated 2-2-2000. In the meantime, the Collector in exercise of suo motu revision set aside the order by which the mutation was directed to be made in favour of the petitioner. 3. It has been averred that against the order passed by the Collector, Harda, a revision-petition has been filed before the Additional Commissioner, Hoshangabad, which is pending for adjudication. 4. According to the writ petitioner election for the post of Chairman, Krishi Upaj Mandi, was held on 26-2-2002 in accordance with the Krishi Upaj Mandi Niyam, 1997 (for brevity ‘the Rules’). After the petitioner was declared elected an election petition under section 66-A of the M.P. Krishi Upaj Mandi Adhiniyam, 1972 (hereinafter referred to as ‘the Act’) was filed on the ground that the name of the petitioner had wrongly been included in the voters' list. The prescribed authority fixed the date for final hearing on 9-7-2001. On that date the petitioner and her counsel could not appear on time and the matter was finally decided by an ex-parte order whereby the election of the petitioner was declared to be null and void. The prescribed authority fixed the date for final hearing on 9-7-2001. On that date the petitioner and her counsel could not appear on time and the matter was finally decided by an ex-parte order whereby the election of the petitioner was declared to be null and void. The said order has been brought on record as Annexure-P/8. 5. It is averred in the petition that the Election Tribunal has erred in ignoring the most vital aspect that on the date of the election the name of the petitioner was included in the voters' list. It is urged that the prescribed authority has committed gross illegality by taking cognizance of the order dated 18-2-2000 passed by the Collector, Harda, whereby he has set aside the order dated 5-2-1999 passed by the Tahsildar, though the said document had not been brought on record proving it by adducing evidence. It is also putforth that no evidence had been recorded and, therefore, the procedure adopted by the Commissioner is unjust and improper. It is setforth in the petition that once the voters' list had become final and no objection was filed in that regard, it was not open to the election petitioner, respondent No. 2 herein, to question the same by way of an election petition. 6. A return has been filed by the contesting respondent No. 2, contending, inter-alia, that the petitioner was not a Bhumiswami at the relevant point of time and, therefore, she was ineligible in terms of the provisions of section 11-B(1)(a) read with section 12(1) of the Act. Filing of the nomination by the petitioner was objected to, but the same was not paid heed to. It has been brought on record that the name of the petitioner was included as Bhumiswami in the revenue records along with her father-in-law but the Collector by taking recourse to the provision enumerated under the M.P. Land Revenue Code, 1959 (in short ‘the Code’) reversed the order as a result of which there had been a change in the status of the petitioner and hence, the conclusion of the Election Tribunal was absolutely justified in taking cognizance of this facet and annulling the election on the ground that the petitioner was not eligible to be a voter and hence, was also ineligible to be elected as a representative of the agriculturists. It is stated that the father-in-law of the petitioner filed an application for addition of her name as a joint land-holder bearing Nos. 24, 25 in respect of Khasra No. 135/1, though such a transfer could not have given effect to. It is pleaded in the counter affidavit that erroneous inclusion of the name of the petitioner in the voters' list does not confer any right on her. It is also put-forth that the direction has been given by the Election Tribunal declaring the suitable person as Chairman. 7. An application for intervention has been filed by one Ramkrishna. It has been pleaded therein that he is the Vice Chairman of the Mandi Committee, Khirkiya and in case, the Chairman is held ineligible to retain the post, in that event, the Vice-Chairman is entitled to take over the charge of the Chairman, till fresh elections are held. But in the case at hand, the Commissioner has declared the losing candidate to be the Chairman of the Mandi Committee and, therefore, this order is totally illegal. 8. An application for amendment was filed by the petitioner forming the subject-matter of I.A. No. 1978-W/2001 for deleting the stand taken in paragraph No. 3 of the writ petition that no issues were framed and seeking substitution of paragraph 5.12 of the writ petition to the effect that the Election Tribunal did not give an opportunity to record the evidence and the matter was straightway fixed for final hearing. It has also been highlighted in the amendment that without recording of evidence the Tribunal proceeded ex parte and when the petitioner could not appear in time the matter was finalised. 9. I have heard Mr. Kishore Shrivastava, learned counsel for the petitioner and Mr. N. C. Jain, learned Senior Counsel along with Mr. Rakesh Jain for the respondent No. 2. 10. To appreciate the rival contentions raised at the Bar, I have bestowed my anxious consideration to appreciate the order passed by the Commissioner, Annexure-P/8. The Commissioner in the impugned order has taken note of the contentions raised by the learned counsel for the parties and addressed himself to the gravamen of the contention of the election petitioner that the respondent No. 1 therein, Smt. Rekha Bai was neither a voter nor a Bhumiswami as on 1-1-1999. In paragraph 5 he has observed that he proceeded ex parte against the respondent No. 1. In paragraph 5 he has observed that he proceeded ex parte against the respondent No. 1. The stand of the present petitioner, respondent No. 1 therein, before the Election Tribunal was that her name was entered as a Bhumiswami and hence, she was entitled to contest in the election. The Election Tribunal took note of the order passed by the Collector under section 50 of the Code and also took note of the fact that as on 1-1-1999 the petitioner was not recorded as a Bhumiswami, she was not entitled to contest in the election. It is apposite to mention here that a stand was taken by the present petitioner that the election petition was barred by limitation having not been filed within a period of 30 days but the same was negatived by the Election Tribunal. He has referred to section 11-B(2)(a) and section 12(1) of the Act and arrived at the conclusion that the elected candidate was ineligible to contest in the election and accordingly, set aside the election and further held that the election petitioner was entitled to be declared elected. 11. First of all I shall deal with the issue of limitation. The election was held on 26-2-2000 and the result was published on 8-3-2000 in the gazette. The election petition was presented on 16-3-2000. Thus, by no stretch of imagination it can be held that the election petition was barred by time. 12. The next aspect that arises for consideration is whether the present petitioner was debarred to contest the election. In this regard it is apposite to refer section 11-B of the Act. The same reads as under: “11-B. Qualification to vote and to be a representative of agriculturists: (1) Every person: (a) whose name is entered as Bhumiswami in the village land records. (b) who ordinarily resides in the market area. (c) who has completed the age of 18 years. (d) whose name is included in the voters' list prepared under the provisions of this Act and the rules made thereunder: Shall be qualified to vote at the election of representative of agriculturists. Provided that no person shall be eligible to vote in more than one constituency. Explanation - The word “Bhumiswami” shall have the same meaning as assigned to it in the Madhya Pradesh Land Revenue Code, 1959 (No. 20 of 1959). Provided that no person shall be eligible to vote in more than one constituency. Explanation - The word “Bhumiswami” shall have the same meaning as assigned to it in the Madhya Pradesh Land Revenue Code, 1959 (No. 20 of 1959). (2) No person shall be qualified to be elected as a representative of agriculturists unless: (a) his name is included in the list of voters of the market area. (b) he is an agriculturist. (c) he is otherwise not disqualified for being so elected. (cc) he has not more than two living children one of whom is born on or after 26th January, 2001 (No. 21/2000). Provided that any elected representative of agriculturists shall become disqualified to hold such office if one or after 26th January 2001 a child is born which increases the number of his children to more than two. (3) A person shall be disqualified for being a representative of agriculturist if he is disqualified for being an office bearer of a Panchayat under section 36 of the Madhya Pradesh Panchayat Raj Adhiniyam, 1993 (No. 1 of 1994). (4) No person shall be eligible for election from more than one market committee or constituency as the case may be.” 13. Submission of Mr. Kishore Shrivastava, learned counsel for the petitioner is that a person who is an aspirant to contest the election need not be a Bhumiswami and if he is an agriculturist that would itself suffice to meet the eligibility criteria. In this contest we may profitably refer to the decision rendered in the case of Smt. Neetu Kathoria vs. State of M.P. and Others (L.P.A. No. 416/2002) wherein the Division Bench of this Court has held as under: “22. Mr. Agrawal, learned counsel for the appellant endeavoured hard to make distinction between section 11-B(1) and 11-B(2) to highlight that there is a major distinction between a person who would be a voter and a person who can be elected as representative of an agriculturist. There is some distinction as the some more riders have been given in respect of a person who is qualified to be elected. However, two aspects remain common, he must be a person his name has been entered as Bhumiswami in the village land record and whose name is included in the voters' list prepared under the provisions of the Act and the rules made therein. It is submitted by Mr. However, two aspects remain common, he must be a person his name has been entered as Bhumiswami in the village land record and whose name is included in the voters' list prepared under the provisions of the Act and the rules made therein. It is submitted by Mr. Agrawal that a person who is an agriculturist alone can contest in the election. The learned Single Judge has held that section 11-B(2) should be read together. It is apposite to mention here that requirement of qualification to vote to be a representative of an agriculturist one has to be a Bhumiswami and must also be included in the voters' list. It is inconceivable that a man who will be in the voters' list but not a Bhumiswami will be allowed to contest for the simple reason if his name is not entered as a Bhumiswami in the village land record, he will not be entitled to vote and if he is not entitled to cast his vote it would be absurd to think that he will be qualified to be elected. Thus, we are of the considered opinion that the learned Single Judge has rightly held that both provisions are to be read together and to achieve harmony.” In view of the aforesaid a person who intends to contest in the election has to meet the twin criteria that he or she must be included as a voter in the voters' list and his or her name ought to have been recorded as a Bhumiswami in the land revenue records. 14. The next facet that requires to be adjudicated is whether the Election Tribunal was justified in holding that the petitioner was not eligible to contest the election. Her nomination was not objected to by the election petitioner but by one Nathhu Bai but that does not merit consideration. The question that arises for consideration is whether on the date of filing of the nomination paper the petitioner was entitled to contest the election. Submission of Mr. Kishore Shirvastava is that once voters' list was prepared and the same had become final, it was not subject to assail. In this context it is apposite to refer to the rules in vogue: “7. Submission of Mr. Kishore Shirvastava is that once voters' list was prepared and the same had become final, it was not subject to assail. In this context it is apposite to refer to the rules in vogue: “7. Preparation of Voter List - (1) The Collector shall subject to the provisions of sections 11, 11-B and 12 cause to be prepared voter list in Form-I separately for each agriculturist and a list of voters for electing a trader's representatives in Hindi written in Devnagri Script for each Market Committee. (2) The Collector shall appoint a Registration Officer for Market Committees in a district and such number of Assistant Registration Officers as may be found necessary to assist the Registration Officer in the preparation of Voters list for Market Committees. (3) Every Assistant Registration Officer shall subject to the control of the Registration Officer perform all or any of the functions of the Registration Officer. 8. Publication of Voters' List for inviting claims and objections: (1)(i) After the preparation of voters list, under rule 7, the Registration Officer shall give a public notice in Form-2, inviting claims for inclusion of names in the list and objections to any entry therein, by exhibiting the notice at: (a) Notice board in the office of concerned Market Committee. (b) Notice board in the office of Janpad Panchayat. (ii) The notice shall specify the period during which and the officer with whom an objection or claim may be lodged and the date, time and place for hearing of such objections and claims, if any, by Registration Officer. (2) Simultaneously with the publication of notice under sub-rule (1), the voters' list shall be made available by the Registration Officer for inspection, by keeping a copy thereof at his office and at the office of the concerned Market Committee. 9. (2) Simultaneously with the publication of notice under sub-rule (1), the voters' list shall be made available by the Registration Officer for inspection, by keeping a copy thereof at his office and at the office of the concerned Market Committee. 9. Claims and objections: (1) Any person, whose name is not entered in the voters' list or is entered at an incorrect place or with incorrect particulars or any person whose name is entered in the list and who objects to the inclusion of his own name or the name of any person in that list, may prefer a claim or objection by delivering to the Registration Officer an application in writing duly signed not later than 3 O'clock in the afternoon of the last specified day from the date of the notice under rule 8 and no claim or objection received thereafter shall be entertained. (2) Every claims or objections shall be presented to the Registration Officer or to such other Officer as may be nominated by him in this behalf. (3) A claim or objection may be accompanied by any documents on which the claimant or objector relies. 10. Disposal of Claims and Objections: (1) The Registration Officer shall, after holding such summary inquiry into the claims or objections as he thinks fit, record his decision in writing and shall make available on demand copy of such decision to the objector free of charge forthwith. (2) No person shall be represented by any legal practitioner in any proceeding under this rule. (3) The Registration Officer shall amend the voters' list in accordance with the decision. (4) The voters' list so amended shall subject to the decision in appeal, if any, be final and a copy thereof duly signed by the Registration Officer shall be kept in his office and another copy deposited in the office of District Election Officer. (5) Any person aggrieved by the decision of the Registration Officer may prefer an appeal to the Appellate Authority within seven days of such decision. Every appeal shall be presented, in writing, to the Appellate Authority accompanied with a copy of the decision of the Registration Officer. (5) Any person aggrieved by the decision of the Registration Officer may prefer an appeal to the Appellate Authority within seven days of such decision. Every appeal shall be presented, in writing, to the Appellate Authority accompanied with a copy of the decision of the Registration Officer. The Appellate Authority, after giving the appellant an opportunity of hearing and making such enquiry as it deems fit, shall pass suitable orders expeditiously and in the event of succeeding, direct the Registration Officer to amend the voters' list to give effect to its decision. The decision of the Appellate Authority shall be final: Provided that no amendment shall be carried out in the voters' list according to the decision of the Appellate Authority after the last date and time fixed for filing of nomination and before the completion of election. 11. Inspection and Issue of Certified Copies: (1) Every member of the public shall have the right to inspect the voters' list on payment of a fee of rupees five and certified copies of the same may be issued by the Registration Officer to an applicant on payment of a fee of rupee one per page. 12. Duration of Voters' List: (1) The Voters' List referred to in sub-rule (4) of rule 10 shall remain in force until it is revised. (2) Every such list shall be revised and brought up-to-date whenever a by-election or general election are due to take place or whenever any change in the limits of a constituency of Market Committee takes place, the provision of Rules 8, 9 and 10 shall apply to such revision. 13. Finalisation of Voters List - No correction, inclusion or exclusion in the voters' list shall be made after finalisation under Rule 10: Provided that clerical, technical or printing error or omission, apparent on the face of record, may be corrected by the Registration Officer at any time before the last date and time fixed for nominations.” 15. Relying on the aforesaid rules it is contended by Mr. Shrivastava, learned counsel for the petitioner that a complete Code is provided and when the registration in the voters' list was not assailed the same had attained finality. Relying on the aforesaid rules it is contended by Mr. Shrivastava, learned counsel for the petitioner that a complete Code is provided and when the registration in the voters' list was not assailed the same had attained finality. He has placed reliance on the decisions rendered in the cases of Vidya Charan Shukla vs. Purshottam Lal Kaushik, AIR 1981 SC 547 , State of Kerala vs. M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (dead) and Others, (1996) 1 SCC 435 and Smt. Ram Rati vs. Saroj Devi and Others, AIR 1997 SC 3072 . Proponement of the learned counsel for the petitioner is that unless the voters' list is declared null and void same cannot be gone into in the election petition. It is also canvassed by him that crucial date of deciding the eligibility criterion is the date of nomination. It is urged by him that in the case at hand, name of the petitioner was there in the voters' list on the date of nomination and, therefore, acceptance of nomination cannot be assailed. Mr. Shrivastava has also submitted that suo motu order passed by the Collector is absolutely unjust. It is also putforth by him that when the matter is subjudice before the Commissioner, the Election Tribunal should not have abruptly closed the matter. The learned counsel has also seriously criticised the procedure adopted by the Election Tribunal by not recording evidence and proceeding to decide the matter. 16. To appreciate the controversy in issue, it is apposite to refer to the order-sheet dated 9-7-2001 which has been brought on record. On a perusal of the order-sheet dated 5-6-2000 it transpires that the respondent No. 2 remained absent on that date and accordingly the matter was proceeded ex-parte against him. As far as the respondent No. 1 is concerned, a written statement was filed. In paragraph 5 the Election Tribunal posted the case to 19-6-2000 for argument. On 19-6-2000 the case was not taken up as there was death of a young member of the Bar and the matter stood adjourned to 3-7-2000 for argument. On 3-7-2000 the matter was again adjourned to 7-8-2000. On 7-8-2000 an application for amendment was filed by the petitioner and the date was again fixed to 4-9-2000. On the said date the amendment sought for by the election petitioner was allowed and the matter was fixed to 25-9-2000 for argument. On 3-7-2000 the matter was again adjourned to 7-8-2000. On 7-8-2000 an application for amendment was filed by the petitioner and the date was again fixed to 4-9-2000. On the said date the amendment sought for by the election petitioner was allowed and the matter was fixed to 25-9-2000 for argument. On the same date the matter was adjourned to 6-11-2000. On 6-11-2000 after hearing the learned counsel for the parties the Tribunal framed three issues and fixed the matter to 4-12-2000 for recording of evidence. On 4-12-2000 the election petitioner made a statement that she was not inclined to adduce any evidence. The matter was fixed for evidence of the respondent No. 1 and adjourned to 15-1-2001. On the next day the respondent No. 1 prayed for adjournment, which was granted subject to payment of costs. Thereafter, the matter was taken up on 9-4-2001. The respondent No. 1 did not adduce any evidence and the matter was closed for orders and the order was reserved. 17. From the aforesaid narration of the proceedings, it is manifest that at the instance of the election petitioner no evidence was adduced. The question that falls for consideration is whether the Election Tribunal was justified in dealing with the matter in this manner. An election petition is a serious matter. An election held is not to be lightly set aside. The procedure prescribed by law has to be adhered to. In an election case notices are required to be issued. Written statements or objections are to be filed. Issues are required to be framed and evidence is to be adduced. In the case at hand, it is clear as noon day on a perusal of the order-sheets in entirety that no evidence was recorded. The learned counsel for the election petitioner conceded before the Election Tribunal that the she was not inclined to adduce any evidence. Thereafter the Election Tribunal gave an opportunity to the respondent No. 1, which was not availed by her. It is well settled in law that in an election case he who makes an allegation has to prove the same. The proof has to be brought on record as per law. In the absence of recording of evidence unless consent of both sides is given, evidence is required to be recorded. It is well settled in law that in an election case he who makes an allegation has to prove the same. The proof has to be brought on record as per law. In the absence of recording of evidence unless consent of both sides is given, evidence is required to be recorded. On a perusal of the order-sheet, it does not flow that both the parties had conceded in respect of a particular issue or all issues, not to adduce any evidence and to argue the matter on the basis of the averments brought on record. In the absence of that, I am of the considered opinion, recording of evidence was absolutely necessary. As the same has not been done that has penetrated into basic marrows of the procedure and creates an incurable dent which makes the order passed by the Election Tribunal sensitively susceptible and it cannot be regarded either impeccable or presentable. Thus, the order passed vide Annexure-P/8 is quashed and the matter is remitted to the Tribunal to record evidence and proceed in accordance with law. It is hereby made clear that no opinion is expressed with regard to any issue except the point which has been decided relying upon the Division Bench decision of this Court in interpretation of section 11-B of the Act. It is hereby made clear that other issues are kept open. 18. As the order passed vide Annexure-P/8 is quashed the petitioner shall reap all the benefits and shall assume charge. It is further directed that the Tribunal shall dispose of the matter within a period of three months from the date of receipt of the order passed today. 19. In the result, the writ petition is allowed to the extent indicated above. There shall be no order as to costs.