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2017 DIGILAW 311 (MP)

Suryaprakash Mishra v. State of Madhya Pradesh

2017-03-01

ANJULI PALO, RAJENDRA MENON

body2017
ORDER : Smt. Anjuli Palo, J. 1. This writ appeal has been filed under Section 2(1) of the Madhya Pradesh Uchcha Nayalaya (Khand Nayayapeeth Ko Appeal) Adhiniyam, 2005 against the order dated 20.8.2015 passed by the Writ Court in W.P. No.2070/2015 (Annexure-P/1). 2. Admitted facts are that appellant/S.P. Mishra and respondent no.5/ Smt. Jamuna Bai were contesting candidates for the post of President, Krishi Upaj Mandi Samiti, 186 Tikamgarh. Election was conducted on 7.1.2013. The appellant/S.P. Mishra and respondent no.5/Smt. Jamuna Bai both secured equal number of votes i.e. six votes each. Therefore, the Returning Officer/respondent no.4 by adopting lottery system declared the respondent no.5/Smt. Jamuna Bai as elected President of Krishi Upaj Mandi Samiti, Tikamgarh. 3. Thereafter, the appellant/S.P. Mishra filed the Election Petition No. 82/B-121/12-13 on 22.1.2015 before the Commissioner for setting aside the election of Smt. Jamuna Bai (respondent no.5), on the grounds that some votes were counted illegally in favour of the respondent no. 5/Smt. Jamuna Bai. The respondent no. 5/Smt. Jamuna Bai submitted her reply to the Commissioner, denying the averments made in the election petition. She further contended that there was no illegality committed in conducting the election and prayed that election petition be dismissed. 4. Then, the Commissioner/respondent no.2 sent the matter to the respondent no.3/Additional Collector, Tikamgarh to submit his report. The Additional Collector/respondent no. 3 on 28.4.2014 submitted his report mentioning that the lottery system should not have been adopted. It gave undue benefit to the respondent no. 5/Smt. Jamuna Bai. The Additional Collector/respondent no.3 further submitted that one voter had marked with bold letter 'X' which indicates the identity of the voter, hence such vote has to be rejected. The Additional Collector after hearing the parties submitted his report that the election of the respondent no.5/Smt. Jamuna Bai as President of Krishi Upaj Mandi Samiti, Tikamgarh is void. 5. The Commissioner/respondent no.2 after accepting the report of the respondent no.3/Additional Collector, allowed the election petition on 24.1.2015. Accordingly, rejected the vote, which indicated bold letter 'X'. The Commissioner/respondent no.2 declared the election of the respondent no.5/Smt. Jamuna Bai void and further declared the appellant/S.P. Mishra as the President of Krishi Upaj Mandi Samiti, 186, Tikamgarh. 6. The respondent no. The Commissioner/respondent no.2 after accepting the report of the respondent no.3/Additional Collector, allowed the election petition on 24.1.2015. Accordingly, rejected the vote, which indicated bold letter 'X'. The Commissioner/respondent no.2 declared the election of the respondent no.5/Smt. Jamuna Bai void and further declared the appellant/S.P. Mishra as the President of Krishi Upaj Mandi Samiti, 186, Tikamgarh. 6. The respondent no. 5/Smt. Jamuna Bai aggrieved by the same preferred W.P. No.2070/2015 against the order dated 24.1.2015 passed by the respondent No.2/Commissioner on the ground that the Commissioner/respondent no.2 did not apply his mind and did not take his decision independently. The Commissioner/respondent no.2 has considered the report of Additional Collector/respondent no.3 as it is, which was arbitrary, perverse and illegal. Hence, the Commissioner/respondent no.2 has reached to a wrong conclusion. In the Writ Petition, the respondent no.5/Smt. Jamuna Bai has also submitted that the Commissioner/respondent no.2 had no power and authority to send the petition to the Additional Collector/respondent no.3 for only enquiry. 7. Learned counsel for the respondent no. 5/Smt. Jamuna Bai has relied upon the judgment passed by this Court in the case of "Triyugi Narayan Shukla v. State of Madhya Pradesh and others, reported in 2006 (3) M.P.L.J. 89" and contended that procedure adopted by the Commissioner/respondent no.2 is illegal and against law. Therefore, the trial conducted by the Additional Collector/respondent no.3 is illegal. The respondent no.5/Jamuna Bai has prayed to set aside the order dated 24.1.2015 passed by the Commissioner/respondent no.2 in Election Petition No.82/B-121/12-13. 8. The learned Writ Court has found that the Additional Collector/respondent no.3 has submitted his report, after considering the record, heard the parties and on perusal of the written arguments, in the form of judgment. The Additional Collector/respondent no.3 has clearly given his finding as report (Annexure-P/9). The findings of Additional Collector/respondent no.3 was accepted by the Commissioner/respondent no.2 as it is in the impugned order (Annexure-P/10) dated 24.1.2015. Consequently, the learned Writ Court has found that procedure adopted by the Commissioner/respondent no.2 is contrary to law and the Provisions of Section 66-A of the Krishi Upaj Mandi Adhiniyam, 1972 (in short 'the Act'). 9. The learned Writ Court opined that as per the principle laid down by this Court in the matter of Triyugi Narayan Shukla (supra) that there would be an anomaly in deciding the election petition, if the procedure followed in this case is applied. 9. The learned Writ Court opined that as per the principle laid down by this Court in the matter of Triyugi Narayan Shukla (supra) that there would be an anomaly in deciding the election petition, if the procedure followed in this case is applied. The trial would be of two stages. One by Additional Collector/or Collector authorised Officer by the Commissioner and another is by the Commissioner. This is not the intention of the Legislature and it is also against the provisions of law and concept of adjudication by quasi-judicial authorities. Although, it is an admitted position of law that the right to contest election and the regulation of election is a statutory right and must be in accordance with the procedure under the statute as held by the Hon'ble Supreme Court in the case of "Jyoti Basu and others v. Debi Ghosal and others, reported in AIR 1982 SC 983 " and in the case of "Charan Lal Sahu v. Gyanijail Singh and others, reported in AIR 1984 SC 309 ". Therefore, the learned Writ Court has held that the authorised officer can only submit a report in with regard to the certain facts, but he had no authority to hear the arguments of the parties and submit his report as give opinion for passing of a final order. Hence, the Writ Court quashed the order dated 24.1.2015 passed by the Commissioner/respondent no.2 and matter has been remitted back to the Commissioner, Sagar to decide the election petition afresh in accordance with law, within 30 days from the date of receipt of certified copy of order of learned Writ Court. 10. Against the aforesaid order, this writ appeal has been preferred by the appellant/S.P. Mishra on the grounds that the learned writ Court has not considered Rule 84-B of Krishi Upaj (Mandi Samiti Ka Nirvachan) Niyam, 1997 while declaring the Commissioner's order null and void. The language of Rule 84-B of Krishi Upaj (Mandi Samiti Ka Nirvachan) Niyam, 1997 fulfils the mandate of adjudication of cases by the Commissioner. Therefore, the Commissioner has validly passed the impugned order on 24.1.2015. The appellant/S.P. Mishra has further submitted that the learned Writ Court has overlooked this aspect and restricted to rule 43 of the Mandi Samiti, Election Rules 1974 (Mandi Samiti Ka Nirvachan), Niyam 1997 of Rule (3) because at that time, the provision of Rule like 84-B of 1997. Therefore, the Commissioner has validly passed the impugned order on 24.1.2015. The appellant/S.P. Mishra has further submitted that the learned Writ Court has overlooked this aspect and restricted to rule 43 of the Mandi Samiti, Election Rules 1974 (Mandi Samiti Ka Nirvachan), Niyam 1997 of Rule (3) because at that time, the provision of Rule like 84-B of 1997. Election Rule was not there. Hence, the principle laid down in the case of Triyugi Narayan (supra) is not applicable in this case. 11. On behalf of the appellant it was further submitted that it is the Commissioner who is authorised to deal with the election dispute and the authorised officer conducting inquiry under Rule 84-A(8) of the Krishi Upaj Mandi (Mandi Samiti Ka Nirvachan) Niyam, 1997, cannot usurp the power of an Election Tribunal and in fact decide the election dispute. 12. In reply, learned counsel for the respondents has submitted that M.P. Krishi Upaj Mandi (Adhisuchna Prakashan Riti, Bhar Sadhak Samiti Tatha Mandi Samiti Gathan) Niyam, 1974 stood completely repealed by promulgation to M.P. Mandi (Mandi Samiti Ka Nirvachan), Niyam 1997, Rule 43 of repealed Rules, sub-rule (8), thereof authorize the Collector either to entertain and decide an election petition by himself or to send the petition to any of his subordinate officer not below the rank of Deputy Collector for enquiry and disposal. Such decision of the Collector or his subordinate officer shall be final. 13. Learned counsel for the respondents has also submitted that after repeal, there was no provision under the Rules of 1997 prescribing procedure dealing with the election petition, as there was no forum for election petition was created in the Principal Act. Section 66-A creating the forum of election petition which was incorporated in the Principal Act by Notification No.14 of 1999 w.e.f. 6.5.1999. Even after incorporation of Section 66-A, there was no corresponding Rules providing procedure to meet out the sub-section (3) in the Rules of 1997, which cropped up a controversy, which dealt with in the case of "Triyugi Narayan Shukla" (supra) observing inter-alia with the Rule of 1974. 14. Having been repealed by Rules of 1997 and in absence of any rule corresponding to Section 66-A therein, exclusive jurisdiction is vested with the Divisional Commissioner to enquire into dispose of the election petition. 14. Having been repealed by Rules of 1997 and in absence of any rule corresponding to Section 66-A therein, exclusive jurisdiction is vested with the Divisional Commissioner to enquire into dispose of the election petition. Keeping in mind the intent of Legislature, as reflected from Rule 43 of the Repealed Rules and Sub-rule (8) of Rules 84-A of the existing Rules. The Divisional Commissioner has power to send the election petition to any of his subordinate officer not below the rank of Deputy Collector only for an enquiry and not for complete trial of the petition. Sub-rule 9 thereof further clearly mandates that the decision of the appellate authority shall be final. 15. Pointing out the distinction between the amendment to the Rules made and the mandate of Section 66-A and the Principle Act, it was argued that the Divisional Commissioner can only send the matter to the Additional Collector for inquiry with regard to certain aspects of the matter, but cannot delegate the power to decide the entire election petition by recording evidence, hearing the arguments and giving his opinion on the merits of the dispute. This, if done by the Additional Collector, would be contrary to the Rule and in excess of the powers available to him. 16. Heard the learned counsel for the parties and perused the record. 17. In this writ appeal, interpretation and reconciliation of the provisions of Rule 66-A of the M.P. Krishi Upaj Mandi Adhiniyam 1972 and Rule 84-A sub-Rule 8 of the Rules 84-B of the Krishi Upaj Mandi (Mandi Samiti Ka Nirvachan) Rules, 1997 is involved. Section 66-A of the Krishi Upaj Mandi Adhiniyam, 1972 was amended by Notification No.14 of 1999 w.e.f. 6.5.1999. This provision provides that election petition shall be presented in the prescribed manner to the Commissioner of Division. Section 66-A provides that such petition shall be inquired or disposed of according to such procedure as may be prescribed. Section 66-A of the Krishi Upaj Mandi Adhiniyam, 1972 was amended by Notification No.14 of 1999 w.e.f. 6.5.1999. This provision provides that election petition shall be presented in the prescribed manner to the Commissioner of Division. Section 66-A provides that such petition shall be inquired or disposed of according to such procedure as may be prescribed. After the decision in the case of "Triyugi Narayan (Supra)" on 13.2.2006, the State Government observed the lacuna in Rules and had inserted Rules 84-A and 84-B vide Notification dated 31.3.2006 making appropriate provisions corresponding to Section 66-A. Rule 84-A, which is relevant for adjudication is reproduced herein below:- "[84-A. Election Petition.-- (1) No election of a Chairman or Member shall be called into question except by a petition in writing for determining the validity of the election and claiming any or both of the following reliefs, namely: (a) a declaration that the election of all or any of the elected candidates is void; (b) a declaration that he himself or any other candidate has been duly elected. (2) No such petition shall be admitted, unless it is presented to the Divisional Commissioner within thirty days from the date on which the election in question was notified. (3) The petition shall be accompanied by a deposit of five hundred rupees as security for the costs of petition. (4) The petition shall (a) contain a concise statement of the material facts, on which the petitioner relies; (b) set forth with sufficient particulars, the ground or grounds, on which the election is called in question; (c) be signed by the petitioner and verified in the manner prescribed in Code of Civil Procedure, 1908 (5 of 1908), for verification of pleadings. (5) Such petitions may be presented by any candidate at such election or by a voter of the constituency concerned. (6) A petition filed by any person other than those specified in sub-rule (5) shall not be accepted and it shall forthwith be dismissed. (7) No petition shall be deemed to have been duly made unless such deposit as referred to in sub-rule (3) has been made and the Divisional Commissioner shall dismiss such petitions, as are not accompanied by such deposit. (8) The Divisional Commissioner may send the petition to any of his subordinate officer, not below the rank of Deputy Collector, for enquiry. (8) The Divisional Commissioner may send the petition to any of his subordinate officer, not below the rank of Deputy Collector, for enquiry. (9) The decision of the appellate authority shall be final : Provided that before passing final orders by the appellate authority, reasonable opportunity to be heard shall duly be given to the party concerned. (10) If a petition filed by any person is rejected after being heard, the deposit, referred to in sub-rule (3) shall be forfeited and credited to the market committee fund. (11) The election petition shall be disposed off within six months from the date of presentation thereof." In the aforesaid Section 84-A the intention of the Legislature is clear that if a particular authority is vested with the jurisdiction to deal with the election petition then, the matter cannot be delegated to any subordinate authority for the purpose of taking final decision in the matter. The authority can authorize any subordinate authority to hold such an enquiry and submit its report in accordance to sub-rule (8) of Rules 84-A of Rules 1997. The Commissioner can send the election petition to any subordinate officer not below the rank of Deputy Collector only for enquiry. The enquiry envisaged under the aforesaid sub-rule (8) is for limited purpose that whether the election petition has been filed with the procedure or not. The enquiry cannot be conducted as a trial of the election petition itself by the subordinate officer. It would be against the concept of exercising of quasi-judicial power. 18. Sub-rule 9 of Rule 84-A clearly provides that the decision of the Commissioner/respondent no. 2 shall be final which indicates that the Commissioner/respondent no. 2 shall take a final decision after due application of mind. The Commissioner/respondent no.2 himself is duty bound to consider the legal and factual aspect of the matter independently. The law is that the right of contest election and the regulation of election is a statutory right and must be in accordance with the procedure under the statute as held by the Hon'ble Supreme Court in the case of Jyoti Basu (supra) and Charan Lal (supra). 19. In the instance case, the Additional Collector/respondent no.3 has considered the record, heard arguments of the parties. He prepared the report in the form of judgment on the basis of his own findings. 19. In the instance case, the Additional Collector/respondent no.3 has considered the record, heard arguments of the parties. He prepared the report in the form of judgment on the basis of his own findings. He has mentioned in his report that election of the respondent no.5/Smt. Jamuna Bai is void. Thereafter, same findings has been given by the Commissioner/respondent no. 2 in the impugned order dated 24.1.2015 (Annexure-P/10). The Commissioner/respondent no. 2 is only the officer in the election petition who has exclusive jurisdiction to enquire the matter and dispose of the election petition as per statute. As per the law laid down in case of Triyugi Narayan Shukla (Supra), he had no power to send the election petition to his subordinate officer for enquiry and disposal according to such procedure as may be prescribed. 20. It is a well settled principle of law that a Rule framed has to be in accordance to the statutory provision under which it is framed. In the present case, the MP Krishi Upaj Mandi Adhiniyam, 1972 provides for filing of an election dispute under section 66-A; and, under section 66-A the Commissioner of the Division is nominated as the statutory authority to constitute the Election Tribunal. Once exclusive jurisdiction to deal with the election dispute or election petition is conferred on the Divisional Commissioner, then by a Rule formulated under the Act of 1972, a further Election Tribunal cannot be created. If we accept the arguments advanced by the learned Senior Advocate, we would be creating a further Election Tribunal headed by the Additional Collector or the Dy. Collector as contemplated under Rule 84-A(8), which would run contrary to the requirement of the main provision i.e... Section 66-A. In that view of the matter also, the learned writ Court has not committed any error in as much as the power available to the Deputy Collector or the Collector to conduct inquiry under section 84-A(8) is only a limited inquiry, as indicated herein above, but not a trial of the entire election petition. The learned writ Court in our view has considered all these aspects correctly and we see no reason to interfere into the same. 21. Looking to the facts and circumstances of the case, on the aforesaid reasons as discussed by us, the findings of the learned Writ Court is based on proper appreciation of the facts and according to the law. 21. Looking to the facts and circumstances of the case, on the aforesaid reasons as discussed by us, the findings of the learned Writ Court is based on proper appreciation of the facts and according to the law. Therefore, no interference is required in the impugned order. Accordingly, this appeal is dismissed.