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2014 DIGILAW 307 (MP)

Prem Narayan Yadav v. State of M. P.

2014-03-20

A.M.KHANWILKAR, K.K.TRIVEDI

body2014
ORDER Khanwilkar, C. J. : -- 1. By this petition, the petitioner has challenged nomination of respondents No.3 to 8 as Alderman in Municipal Corporation, Sagar. This petition has been filed as Public Interest Litigation by a resident of Krishnagunj Ward, Sagar. 2. Preliminary objection regarding the maintainability of this petition has been raised by respondents No.3 to 8. According to the said respondents nomination of respondents No.3 to 8 made in exercise of powers under section 9(1)(c) by the State Government could be challenged only by way of election petition, as prescribed by section 441of the M.P. Municipal Corporation Act, 1956. Indeed, this preliminary objection is loosely worded. The objection can only be to persuade the Court to decline to exercise discretionary jurisdiction. The remedy of Article 226 cannot be circumscribed by any statutory provision. Nevertheless, we would examine the purport of section 441 of the M.P. Municipal Corporation Act, 1956. The same reads thus :- “441. Election Petitions. - (1) No election or nomination under this Act shall be called into question except by a petition presented in accordance with the provisions of this section. (2) Such petition may be presented on one more of the grounds specified in section 441B - (a) by any candidate at such election or nomination; or (b) (i) in the case of an election of a Councillor, by any voter of the ward concerned; (ii) in the case of nomination of a Councillor, by any Councillor, (iii) in the case of election of Mayor, by any voter of the Municipal area to the Principal Civil Court of original jurisdiction (hereinafter referred as ‘the Court’) within the local limits of whose jurisdiction the election or nomination was held. (3) No petition presented under sub-section (2) shall be admitted unless - (i) it is presented within thirty days from the date on which the result of such election or nomination was notified in the Gazette; and (ii) it is accompanied by a Government treasury receipt showing a deposit of two hundred and fifty rupees. (3) No petition presented under sub-section (2) shall be admitted unless - (i) it is presented within thirty days from the date on which the result of such election or nomination was notified in the Gazette; and (ii) it is accompanied by a Government treasury receipt showing a deposit of two hundred and fifty rupees. (4) A petitioner shall join as respondents to his petition - (a) where the petitioner, in addition to claiming a declaration that the election or nomination, as the case may be, of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected or nominated, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; (b) any other candidate against whom allegations of any corrupt practices are made in the petition. (5) An election petition shall - (a) contain a concise statement of the material facts on which the petitioner relies; (b) with sufficient particulars, set forth the ground or grounds on which the election or nomination is called in question; (c) be signed by the petitioner and verified in the manner prescribed in the Code of Civil Procedure, 1908 (V of 1908), for the verification of pleadings.” (emphasis supplied.) 3. On plain language of sub-section (1), it is evident that the nomination made by the State Government under section 9(1)(c), being under the Act, can be called into question only by way of election petition presented in accordance with the scheme specified in section 441. This provision is a self contained code. Sub-section (2) of section 441 postulates that the petition filed under section 441 can be presented on one or more of the grounds specified in section 441B. For that, we may usefully refer to section 441B, in particular clause (a) thereof, which is applicable to the fact situation of this case. The same reads thus :- “441B. Grounds for declaring elections or nomination to be void. - (1) Subject to the provisions of sub-section (2), if the Court is of the opinion - (a) that on the date of his election or nomination a returned candidate was not qualified or was disqualified, to be chosen as a Mayor or a Councillor; or *** *** *** *** the Court shall declare the election of the returned candidate to be void. *** *** *** *** (Emphasis supplied) In other words the Act of 1956 not only expressly provides for the remedy against the nomination made by the State under section 9(1)(c) of the Act, but also prescribes the manner in which the same can be invoked. Sub-clause (ii) of clause (b) of sub-section (2) of section 441 of the Act stipulates that in the case of nomination of a Concillor, the election petition can be filed only by any Councillor. If the petition such as this filed in the garb of Public Interest Litigation by the voter or resident in the constituency is to be entertained, it would result in circumventing the express provision contained in section 441 read with section 441B and section 9(1)(c) of the Act. That ought to be eschewed. 4. In our opinion, even though the remedy under section 226 is very wide and can be invoked by anyone, when the law requires the nomination to be challenged in a particular manner, the Public Interest Litigation cannot be resorted to, to challenge the nomination so made, and in particular, when the Act provides for ground of eligibility or non-qualification as one of the grounds for challenging the nomination made under section 9(1)(c). A priori, we are not inclined to entertain this writ petition filed in the form of Public Interest Litigation challenging the nomination of respondents No.3 to 8. 5. Our attention was invited to the decision of the learned Single Judge of this Court in the case of Syed Habib Ahmad v. State of M.P. 2000(2) MPHT 166 . No doubt, in that case, the Court considered the question of locus of the petitioner but has not ruled on the question that arise for our consideration and, more particularly, in the context of amendment of 2003 facilitating challenge to the nomination made under section 9(1)(c) of the Act by resorting to an election petition by the Councillor and no-one-else. Even the unreported decision of the Division Bench in the case of Sachchidanand Sheketkar v. State of M.P., IN W.P. No.8815/2011, decided on 15.1.2014 will be of no avail to the petitioner as the point in issue has not been considered in the said decision. 6. Even the unreported decision of the Division Bench in the case of Sachchidanand Sheketkar v. State of M.P., IN W.P. No.8815/2011, decided on 15.1.2014 will be of no avail to the petitioner as the point in issue has not been considered in the said decision. 6. To get over this position, it is argued by the learned Counsel for the petitioner that the natural meaning of expression “nomination” occurring in section 441 is to the nomination form of the candidate who participates in election. We are not impressed by this submission. The same deserves to be rejected. Inasmuch as the expression “nomination” occurring in section 441(1), is, indubitably, with reference to the Councillor nominated inter alia under section 9(1)(c) of the Act. No other meaning can be assigned to that expression. 7. Suffice it to hold that no interference is warranted in this Public Interest Litigation for the reasons already recorded hitherto. Petition disposed of accordingly.