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2011 DIGILAW 323 (MP)

Pradeep Kumar Tiwari v. State of M. P.

2011-03-09

R.S.JHA, S.R.ALAM

body2011
ORDER 1. This is an application for condonation of delay in filing the appeal. Learned counsel appearing for the respondent does not propose to give reply to the same, he, however, opposed the prayer by making oral submissions. 2. Having heard the learned counsel for the parties, we are of the view that the delay has been explained satisfactorily and the same has not been caused on account of deliberate latches on the part of the appellant. We are, therefore, inclined to condone the same. 3. The application is accordingly allowed and the delay in filing the appeal is hereby condoned. 4. With the consent of the learned counsel for both the parties, the appeal is taken up for hearing on the question of admission. 5. This Intra-Court Appeal under Section 2(1) Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 arises out of the orders dated 1.7.2010 and 10.9.2010 passed by learned Single Judge in WP No. 12727/2009 and Review Petition No. 528/2010 respectively. 6. It appears that the appellant contested the election of Chairman of Sewa Sahkari Samiti, Maryadit, Bhathiya. The aforesaid election was held on 21.2.2007, however, the said election was assailed by the respondent No.6 on the ground that the appellant had three living children, therefore, he was not eligible to contest the election in view of section 50-A (1-A) of the M.P. Cooperative Societies Act, 1960 which provides that no person shall be qualified to be a candidate for election as member of the committee, Representative or delegate who has more than two living children, one of whom is born on or after 26th January, 2001. 7. The writ petition was allowed by the learned Single Judge vide order dated 1.7.2010. The appellant preferred a Writ Appeal No. 681/2010 before this Court which was permitted to he withdrawn after arguments with liberty of this Court to the appellant to apply for review before the learned Single Judge since the only contention raised by the appellant was that at no point he was served with the notice in the petition and, therefore, the order was passed in the writ petition behind the back of the appellant. Pursuant to the order of the Division Bench dated 16.8.2010 in WA No.681/2010 the appellant filed a review petition which was registered as Review Petition No. 528/2010 which has also been dismissed by the learned Single Judge vide the order under challenge in this appeal. 8. Shri Ghildiyal, the learned counsel appearing for the appellant vehemently contended that section 50-A (1-A) of the M.P. Cooperative Societies Act, 1960 was subsequently deleted with effect from May, 2007 and, therefore, after deletion of the aforesaid section, the appellant was qualified to contest the election and on that ground the election could not have been set aside by the learned Single Judge. 9. We do not find any force in the contention of the learned counsel for the appellant for the reason that the election took place on 21.2.2007 and the nomination was filed by the appellant on 2.2.2007 and admittedly on that date section 50-A (1-A) was very much in the statute book and was in force, hence the appellant was not qualified to contest the election on that date and the nomination of the appellant could not have been accepted. The deletion of section 50-A (1-A) subsequently would have no impact on the disqualification of the appellant because the amendment has not been given effect from a retrospective date. It is well settled law that an Act or the statute operates prospectively unless it is expressly provided in the Act itself that it shall be operative from a retrospective date. It is also not in dispute that the appellant had more than two living children on the date when the nomination was filed, though one of whom was an adopted child and, therefore, we do not find any reason to differ with the decision taken by the learned Single Judge. 10. In view of the aforesaid, the appeal being without any merit is dismissed.