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2012 DIGILAW 1030 (MP)

Manoj Pal Singh v. State of MP

2012-10-09

SUJOY PAUL

body2012
Judgment Sujoy Paul, J;- 1. By invoking the jurisdiction of this Court under Article 226 of the Constitution, the petitioner has prayed for setting aside the notice dated 3.10.2012 (Annexure P-1), whereby the election for the post of Vice President is scheduled on 10.10.2012. Although prayer in para 7(ii) of the petition was also made, it was not pressed during the course of argument by learned counsel for the petitioner. In nutshell, learned counsel for the petitioner submits that a "no-confidence motion" was issued against the erstwhile Vice President Smt. Sheela A.S. Kushwaha and, accordingly, on success of the said "no-confidence motion" the post became vacant. Thereafter, new elections were decided to be conducted, for which a meeting was convened on 1.10.2012. It is the case of the petitioner that on 1.10.2012 there was a quarrel in the meeting. The meeting was very tensed and certain persons threatened the petitioner. The petitioner intimated the same to the police and administrative authorities. The petitioner then preferred yet another representation to the authorities (Annexure P-11) on 6.10.2012 stating that one Shri Virendra Singh Harshana wrongfully detained District Panchayat members Smt. Sheela Jatav and Rajkumari. On the strength of that, it is stated that free and fair elections are not possible on 10.10.2012, the date for which it was adjourned after 1.10.2012. It is also requested to defer the date so that free and fair elections may be conducted. 2. To elaborate the said contention, Shri Yogesh Chaturvedi, learned counsel for the petitioner submits that it is the minimum requirement in a democratic system that election should be conducted in free and fair manner. Since two members have been wrongfully detained by Shri Virendra Singh Harshana, free elections cannot be conducted on the said date. 3. The next contention of Shri Yogesh Chaturvedi is based on sections 32, 35, 38 and 42-A of Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (for brevity, the "Adhiniyam"). By placing reliance on these provisions, it is stated that it is the Election Commission, which is required to supervise the election and get the election conducted. He argued that the Collector has not been authorized by the Election Commission to conduct the election and he is not the District Election Officer. By placing reliance on these provisions, it is stated that it is the Election Commission, which is required to supervise the election and get the election conducted. He argued that the Collector has not been authorized by the Election Commission to conduct the election and he is not the District Election Officer. By placing reliance on Rules 6, 7 and 21 of Madhya Pradesh Panchayat (Up-Sarpanch, President and Vice President) Nirvachan Niyam, 1995 (for brevity, the "1995 Nirvachan Niyam"), it is stated that the authorities are required to conduct election in the manner prescribed in 1995 Nirvachan Niyam. He heavily placed reliance on rule 21 of the 1995 Nirvachan Niyam. By placing reliance on (2006) 8 SCC 200 (Jairajbhai Jayantibhai Patel vs. Anilbhai Nathubhai Patel and others), it is stated that this matter is squarely covered by the judgment of Supreme Court and, therefore, interference is warranted. He also relied on ILR (2010) 2 (MP) 1517 (Ghanshyam Tiwari vs. State of MP) and 2007 (3) JLJ 187 (Arvind Kumar Jain and others vs. State of MP and others) to submit that this Court while exercising writ jurisdiction under Article 226 of the Constitution, needs to exercise its power withstanding alternative remedy. When right to contest the election or a right of like nature is taken away, this Court is not precluded to exercise its extraordinary jurisdiction. 4. In this petition it is further stated that a Habeas Corpus Writ Petition No. 7486/2012 (Cr.) is already filed by Ramveer Singh with a prayer to produce the corpus before this Court. In the said Habeas Corpus petition it is stated by the brother of the corpus Rajveer Singh that they are wrongfully and illegally detained by Virendra Singh Harshana. 5. Per Contra, Shri A.S. Rathore, learned Panel Lawyer and Shri D.K. Katare, learned counsel appearing for the intervenor, heavily opposed the said relief. 6. The bone of contention of the petitioner is that two persons are unavailable and they are wrongfully detailed by said Shri Virendra Singh Harshana. On the strength of that, it is stated that this matter is squarely covered even on facts by the judgment of Supreme Court in Jairajbhai Jayantibhai Patel's case (supra). 7. This matter was heard today by this Court analogously, on the prayer of learned counsel for the parties, with the Habeas Corpus Petition aforesaid. On the strength of that, it is stated that this matter is squarely covered even on facts by the judgment of Supreme Court in Jairajbhai Jayantibhai Patel's case (supra). 7. This matter was heard today by this Court analogously, on the prayer of learned counsel for the parties, with the Habeas Corpus Petition aforesaid. In the said petition, IA No. 7355/2012, an application for change of date for presence of corpus is filed. The said IA is supported by the affidavits of the corpus Smt. Rampyari Singh and Rajveer Singh. They have stated that they are not in illegal confinement and they intend to cast their votes on 10.10.2012. In detail, it is stated that they want to cast their votes and, therefore, they be exempted by this Court from appearance on 10.10.2012 and any other date may be fixed. 8. In Jairajbhai Jayantibhai Patel's case (supra) two councilors were unable to attend the meeting, as they had been arrested by police at about 12.30 PM on the date of meeting. Hence, they could not cast their votes. The election was ultimately challenged. It was found that in the manner they were arrested it was not proper and, therefore, interference was made in election by the High Court. In the present case, as per the affidavit of the corpus in Habeas Corpus Petition, prima facie, it appears that they are not in any wrongful or illegal confinement of Shri Virendra Singh Harshana. Thus, the facts in the present case are totally different. In addition thereto, said two persons/corpus have shown their intention to cast their votes on 10.10.2012. Thus, the bone of contention of the petitioner that if elections are permitted to be conducted on 10.10.2012, the said two persons will not be able to cast their votes appears to be without any basis. In view of these facts, this case is not similar to that of Jairajbhai Jayantibhai Patel (supra). 9. Apart from this, election of Vice President was notified vide Annexure P-5 dated 25.9.2012. This notification is not called in question in this petition. The next meeting by the notice dated 3.10.2012 is called in question. The election is in its full swing. At this stage interference by writ court is not warranted. The Punjab & Haryana High Court in Civil Writ Petition No. 4012/2011 (Dr. This notification is not called in question in this petition. The next meeting by the notice dated 3.10.2012 is called in question. The election is in its full swing. At this stage interference by writ court is not warranted. The Punjab & Haryana High Court in Civil Writ Petition No. 4012/2011 (Dr. Harjot Kamal Singh vs. Union of India) has held as under:- The consistent string of authorities is only that after the election gets under way through a notification, it cannot be stalled and the actual election of various office-bearers could be challenged only through election petitions. Supreme Court in (2001) 8 SCC 509 (Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and another) in para 12 held as under:- 12. In view of our finding that preparation of the electoral roll being an intermediate stage in the process of election of the Managing Committee of a specified society and the election process having been set in motion, it is well settled that the High Court should not stay the continuation of the election process even though there may be some alleged illegality or breach of rules while preparing the electoral roll. Same view is taken by Supreme Court in (2011) 13 SCC 774 (Supreme Court Bar Association vs. B.D. Kaushik). This Court has also consistently taken this view in various petitions where election was called in question midway including Writ Petition No. 5730/2012, decided on 13.8.2012. 10. Apart from this, Article 243-K of the Constitution makes it clear that election of a Panchayat can be called in question by way of filing election petition. The Adhiniyam contains a provision, by which the ultimate election can be questioned. 11. So far the contention of Shri Yogesh Chaturvedi that the respondent No. 3/District Election Officer is not competent is concerned, in my view there is no pleading in the petition that the respondent No. 3 is not authorised by the said Election Commission to conduct the election. On the forehead of the document, Annexure P-1, it is clear that the said authority has described itself as the District Election Officer. The burden to atleast prima facie show that the said authority is not authorized by the Election Commissioner was on the shoulder of the petitioner. I am unable to agree with Shri Yogesh Chaturvedi, learned counsel for the petitioner that this is a pure question of law. The burden to atleast prima facie show that the said authority is not authorized by the Election Commissioner was on the shoulder of the petitioner. I am unable to agree with Shri Yogesh Chaturvedi, learned counsel for the petitioner that this is a pure question of law. The law can be made applicable provided there is basic pleading that the said authority is not authorized by the Election Commissioner. The Division Bench of this Court in 2007 (3) MPHT 309 (Nagda Municipality, Nagda) vs. ITC Limited) held that a point not pleaded cannot be urged during arguments before the High Court. In a recent judgment of this Court in (Gomti Bai Tamrakar & Ors. vs. State of M.P.& Ors., reported in 2008 (4) MPLJ 536 , it was held in para 15 as under:- 15. The learned counsel for the petitioners has also argued that the order for invoking the urgency clause was passed subsequent to section 6 declaration dated 15-5-2008. A perusal of the writ petition indicates that no such ground has been raised by the petitioners in the writ petition questioning the legality and correctness of the invocation of the urgency clause. Therefore, such an argument raised at the time of final hearing cannot be considered since State had no opportunity to respond to the same. 12. Apart from this, Rule 21 of 1995 Nirvachan Niyam reads as under:- 21. Adjournment of election in emergency.-(1) If at a meeting, the proceedings of election are interrupted or obstructed by any riot or open violence or any sufficient cause, the Presiding Officer shall announce an adjournment of election to a date later and where the election is so adjourned by Presiding Officer, he shall forthwith inform the District Collector. (2) Where an Election is adjourned under sub-rule (1), the District Collector shall immediately report the circumstance to the Director, Panchayat and Social Welfare. (3) In every such case as aforesaid, the District Collector shall fix a new date for fresh election and the provisions of chapter IV mutatis apply to the fresh election taken under this rule. A microscopic reading of this rule will make it crystal clear that the power is vested with the Presiding Officer to decide whether election is to be adjourned. This power needs to be exercised by the said authority only at the meeting. The meeting is scheduled for tomorrow (10.10.2012). A microscopic reading of this rule will make it crystal clear that the power is vested with the Presiding Officer to decide whether election is to be adjourned. This power needs to be exercised by the said authority only at the meeting. The meeting is scheduled for tomorrow (10.10.2012). There is no occasion for this Court to preconceive any situation on the basis of apprehension and assume the role of the said authority. The petitioner has already preferred a representation (Annexure P-11) and it will be open for the said authority to exercise its power under rule 21 of 995 Nirvachan Niyam in accordance with law. There is no occasion for this Court at this stage to interfere. At the costs of repetition, I am of the view that in view of the affidavits of the corpus in the Habeas Corpus Petition, there is no prima facie material to establish that the corpus/members are wrongfully detained by somebody and which will hamper the free and fair election. On the contrary, the affidavits filed by the corpus/members show their intention to participate in the election. Accordingly, I find no reason to interfere in this matter. Petition is accordingly dismissed. However, it is made clear that the competent authority is free to exercise its power on the date of meeting as per rule 21 of 1995 Nirvachan Niyam. No costs.