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Rajasthan High Court · body

2011 DIGILAW 2044 (RAJ)

Laxmi Lal v. State of Rajasthan

2011-09-21

GOPAL KRISHAN VYAS

body2011
Hon'ble VYAS, J.—This writ petition has been filed by a resident agriculturist of village Uttarwada (Patwar Circle Mahuwa) Tehsil Bari Sadari (District Chittorgarh) said to be joint khatedar of land measuring 13 bigha 13 biswa comprised in khasra No. 28, 82, 153/2, 161, 162, 163 and 165 of Patwar Circle Mahuwa, Tehsil Bari Sadari. In this writ petition, the petitioner has prayed for the following relief: "(i) The election certificate of respondent No. 4 (Annexure-5) may kindly be quashed and set aside and the respondent No. 4 may be restrained from working as member of the Krishi Upaj Mandi Samiti, Badi Sadri from Agriculture Constituency No. 2. (ii) The respondent No. 4 may further be restrained from contesting the election of the post of Chairperson of Krishi Upaj Mandi Samiti, Badi Sadri as an agriculturist scheduled to be held on 26.9.2011. (iii) any other relief/reliefs, which this Hon'ble Court may deem just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner in the interest of justice." 2. The main contention of learned counsel for the petitioner is that being agriculturist of the area the petitioner has every right to protect the interest of the agriculturists of the area, therefore, a writ petition was earlier preferred by him for the same relief as prayed for in this writ petition. Said writ petition was registered as S.B. Civil Writ Petition No. 8539/2011, in which, co-ordinate Bench of this Court passed an order on 16.9.2011 whereby the petitioner was given liberty to fifle representation to the authorities concerned immediately stating his view-point and grievances with the request to the authorities concerned for taking decision on such representation before any further proceeding is taken for constitution of the marketing committee. 3. In pursuance of the above order, counsel for the petitioner at Jaipur Shri Suresh Charan went to the office of the Director ad filed application under Sec. 2(1)(ii) and Sec.2(2) of the Rajasthan Krishi Upaj Mandi Act, 1961 but the Director Shri J.P. Shukla, after reading the application, refused to accept the application filed by the counsel for the petitioner, therefore, the petitioner has again filed this writ petition for redressal of his grievance. 4. 4. Learned counsel for the petitioner Shri Vijay Bishnoi vehemently argued that respondent No. 4 cannot be defined as agriculturist in view of the definition of agriculturist under Section 2(1)(ii) of the Act of 1961 because she purchased the agricultural land in village Dungala measuring about 9 bigha on 16.6.2011 from one Ganesh s/o Veeram and her name was entered on 4.7.2011. Thereafter, she contested election for member of Krishi Upaj Mandi Samiti, Bari Sadari from the Agriculture Constituency No. 2 and she was declared elected. 5. It is further pointed out that in fact the husband of the petitioner Utsav Kumar Bhanawat, father-in-law Roshan Lal Bhanawat, brothers-in-law Nakshatra Mal, Shokeen Kumar and Anil Kumar are voters in the voter-list of Traders and Brokers of Krishi Upaj Mandi Samiti, Bari Sadari. All the above persons are traders and brokers, therefore, they cannot be defined as agriculturists as defined under Section 2(1)(ii) of the Act of 1961. 6. According to learned counsel for the petitioner, respondent No. 4 who is wife of Utsav Kumar, whose name appears at S.No. 89 of the voter-list pertaining to brokers and traders purchased the piece of land situated at village. Doongla on 16.6.2011 from one Ganesh and got her name entered in the revenue record and mutation was also made in her name on 4.7.2011; meaning thereby, respondent No. 4 purchased the land on 16.6.2011 only to acquire qualification to contest the election for member of the Krishi Upaj Mandi Samiti, Bari Sadari in which she is declared elected. 7. In aforesaid circumstances the election of respondent No. 4 as member of the Krishi Upaj Mandi Samiti, Bari Sadari is illegal and against the provisions of law because she cannot be termed as agriculturist in as much as all her family members are traders and brokers which is evident from the fact that names of her husband, father-in-law and brothers-in-law are appearing in the voter-list of traders and brokers. The petitioner has preferred this writ petition to watch the interest of the agriculturists of the area and to save them from the intention of brokers and traders. 8. The petitioner has preferred this writ petition to watch the interest of the agriculturists of the area and to save them from the intention of brokers and traders. 8. While inviting attention of the Court towards Section 2(1)(ii) of the Act of 1961, it is pointed out by learned counsel for the petitioner that if a question arises whether any person is or is not an agriculturist for the purpose of this Act, the decision of the Director on such question shall be final. Therefore, the petitioner being agriculturist and citizen of the area made efforts after passing order dated 16.9.2011 by the co-ordinate Bench of this Court and filed application before the Director for the purpose of taking decision whether respondent No. 4 is agriculturist or not; but, the Director refused to accept the application of the petitioner which is evident from the fact that Advocate Shri Suresh Charan filed an affidavit Annex. 7 in this writ petition, in which, he has stated on oath that the Director has refused to accept the application of the petitioner. Therefore, it is prayed that the so-called election of respondent No. 4 for the Agriculture Constituency No. 2 is illegal because respondent No. 4 cannot be termed as "agriculturist" upon documentary evidence produced on record, in which, it emerges that she contested election at the behest of brokers and traders of her family members including her husband, father-in-law and brothers-in-law, therefore, her election may be quashed and set aside. 9. In support of the prayer made by the petitioner in the writ petition, learned counsel for the petitioner has invited my attention towards judgment of this Court in the case of Narayan Hari Shanker vs. Stated, reported in 1997 WLC 430 and judgment of Hon'ble Supreme Court reported in AIR 1980 SC 1008 and submits that Hon'ble Supreme Court, after considering the provisions of the Act of 1961, held in the aforesaid reported case that the whole object of the Act is the supervision and control of the transactions of purchase by the traders from the agriculturists in order to prevent exploitation of the latter by the former. Therefore, it is duty of the respondents to watch the interest of the agriculturists. 10. Therefore, it is duty of the respondents to watch the interest of the agriculturists. 10. Further, it is submitted that the aim and object of the spirit of the Act of 1961 is to protect the interests of the agriculturists and stop the exploitation of the agriculturists at the hands of the middlemen and traders. Learned counsel for the petitioner further invited my attention towards judgments reported in 2004(3) CDR and AIR 2000 Rajasthan 407 and submits that the petitioner can challenge the election directly before this Court if any disqualified candidates is elected for the post. While inviting attention towards above judgments it is further submitted by learned counsel for the petitioner that in both the above cases the election of Sarpanch was in question and this Court interfered while entertaining the writ of quo warranto under Articles 226 and 227 of the Constitution of India. It is, therefore, payed that this writ petition may be allowed and prayer may be granted in toto. 11. After hearing learned counsel for the petitioner, first of all, it emerges from the facts that petitioner was not candidate in the election of the Samiti and being agriculturist and resident of the area he has filed this writ petition before this Court in which petitioner is challenging the election of respondent No. 4. Before proceeding further, I have perused Rule 27A of the Rajasthan Agriculture Produce Market Rules 1963, in which, it is provided that any person qualified either to be elected or to vote at the election to which such question refers, such person may, within 7 days after the date of declaration of the result of the election, apply in writing to the Regional Assistant Director to challenge the validity of any election of member of the marketing committee. Rule 27A is as follows: "27-A. Determination of validity of Election.-(1) If the validity of any election of a member of the market committee is brought in question by any person qualified either to be elected or to vote at the election to which such question refers, such person may, within seven days after the date of declaration of the result of the election, apply in writing to the Regional Assistant Director. (2) On receipt of an application under sub rule (1), the Regional Assistant Director shall after giving an opportunity to the applicant to be heard after making such enquiry as he deems fit, pass an order confirming or amending the declared result of the election setting the election aside. If the Regional Assistant Director set aside the election, a date shall be forthwith fixed and the necessary steps be taken for holding afresh election. (3) An appeal against the order of Regional Assistant Director passed under sub-rule (2) may be preferred before the Director within fifteen days of such order and the decision of the Director shall be final. (4) All cases pending before the Director before the notification No. F.10(191) Agri./Gr.II/74 dated 4th July, 1975, whether partly heard or are to be heard by the Director, shall be heard and decided by the Secretary of the Board in accordance with sub-rule (1) and (2)." 12. The Division Bench of this Court recently decided D.B. Civil Writ Petition No. 7632/2011 vide judgment dated 18.8.2011, in which, it is held that the remedy is available under Rule 27A of the Rajasthan Agricultural Produce Market Rules, 1963, therefore, the Division Bench refused to interfere in the matter. Upon perusal of Rule 27A of the Rules of 1963 it is revealed that it gives right to any person qualified either to be elected or to vote at the election to which such question refers. Here, in this case, being citizen and agriculturist of the area the petitioner has preferred this writ petition to quash her election on the ground that respondent No. 4 is not agriculturist, therefore, she was disqualified even to contest the election. 13. Contention of learned counsel for the petitioner is that in view of Section 2(1)(ii) of the Act of 1961, in relation to the jurisdiction to decide the question whether any person is or is not an agriculturist for the purpose of this Act, the decision of the Director on such question shall be final, therefore, the question whether respondent No. 4 is agriculturist or not cannot be decided in election petition and as such the petitioner is entitled to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. 14. 14. In my opinion, there is complete fallacy in the argument of learned counsel for the petitioner that he cannot raise such question in the election petition or such question cannot be decided at the time of adjudication of the election petition by the concerned authority, therefore, this writ petition is not maintainable because statutory remedy for challenging the election is provided under Rule 27-A of the Rules of 1963. I am in full agreement with the petitioner's contention that Hon'ble Supreme Court laid down proposition in Kewal Krishan Puri's case, reported in AIR 1980 SC 1008 , in which, it has been held by the Hon'ble Apex Court that the whole object of the Act is the supervision and control of the transactions of purchase by the traders from the agriculturists in order to prevent exploitation of the latter by the former. But here, in this case, the question is whether the issue with regard to disqualification of respondent No. 4 is required to be decided under Articles 226 and 227 of the Constitution of India to quash the election of respondent No. 4. In my opinion, it cannot be done because alternate remedy by way of filing election petition under Rule 27-A of the Rules of 1963 is available to the petitioner even if he has not contested the election. 15. In the election petition the petitioner can raise issue of disqualification of respondent No. 4 that she is not agriculturist and to prove the fact can lead any evidence for the purpose of declaring respondent No. 4 as disqualified for contesting the said election. Therefore, the petitioner for the grievance with regard to election of respondent No. 4 as member of the respondent Samiti is required to take recourse to invoke remedy available under the Rules of 1963 by way of challenging election of respondent No. 4 under Rule 27-A of the Rules of 1963. 16. Therefore, the petitioner for the grievance with regard to election of respondent No. 4 as member of the respondent Samiti is required to take recourse to invoke remedy available under the Rules of 1963 by way of challenging election of respondent No. 4 under Rule 27-A of the Rules of 1963. 16. With regard to contention of learned counsel for the petitioner that the Director has refused to accept the application of the petitioner for contesting the question whether respondent No. 4 is agriculturist or not, in my opinion, if the application of the petitioner is not accepted by the Director, then, obviously he can raise his ground in the election petition itself but in view of the judgment passed by the Division Bench of this Court in D.B. Civil Writ Petition No. 7632/2011, decided on 18.8.2011, this writ petition is not maintainable in circumvention of the alternate statutory remedy for quashing the election of respondent No. 4 only on the ground that the Director has refused to accept the application. 17. In view of the aforesaid discussion, no case is made out in this writ petition for interference under Arts.226 and 227 of the Constitution of India. 18. Hence, this writ petition is hereby dismissed. However, the petitioner will be at liberty to take recourse to the remedy available to him under the law.