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2018 DIGILAW 524 (MP)

Abhishek Kumar Jain v. State of M. P.

2018-05-25

G.S.AHLUWALIA

body2018
JUDGMENT : G.S. Ahluwalia, J. 1. Heard on I.A. No. 2506/2018. This is an application for hearing during summer vacation. 2. For the reasons mentioned in the application, the same is allowed. 3. This petition under Article 226 of the Constitution of India has been filed challenging rejection of the nomination paper of the petitioner for the post of Director, Vyavsayik Avam Audhogik Sahkari Bank Ltd. Morena on the ground that the petitioner is holding the post of "Office of Profit" in the Society. 4. It is submitted by the counsel for the petitioner that although the petitioner can raise a dispute under Section 64 of the Cooperative Societies Act, but the alternative remedy is not an absolute bar. It is further submitted that the nomination paper of the petitioner has been wrongly rejected on the ground that he is holding the post of "Office of Profit." To buttress his contentions, the counsel for the petitioner has relied upon the judgments passed by this Court in the case of Ghanshyam Tiwari and Another vs. State of M.P. 2010 RN 290 , Rekha Mishra vs. Jila Sahkari Kendriya Bank Ltd. Sahdol, 2013 RN 247 as well as the judgment passed by the Supreme Court in the case of Gajanan Samadhan Lande vs. Sanjay Shyamrao Dhotre, (2012) 2 SCC 64 , U.C. Raman vs. P.T.A. Rahim and Others, (2014) 8 SCC 934 and Jaya Bachchan vs. Union of India, (2006) 5 SCC 266 . 5. Per contra, it is submitted by the counsel for the State as well as the counsel for the respondent No. 6 that rejection of a nomination paper can also be one of the ground for challenging the election and thus, the petitioner has an efficacious and alternative remedy of raising a dispute under Section 64 of M.P. Cooperative Societies Act. To buttress his contentions, the counsel for the respondent No. 6 has relied upon the judgment passed by this Court in the case of Nathuram Sharma vs. State of M.P. and Others, 2016 (1) MPLJ 325 . Heard the learned counsel for the parties. 6. The Supreme Court in the case of Gajanan Krishnaji Bapat and Another vs. Dattaji Raghobaji Meghe and Others, 1995 (5) SCC 347 has held as under:- "12. The right to elect and the right to be elected are statutory rights. Heard the learned counsel for the parties. 6. The Supreme Court in the case of Gajanan Krishnaji Bapat and Another vs. Dattaji Raghobaji Meghe and Others, 1995 (5) SCC 347 has held as under:- "12. The right to elect and the right to be elected are statutory rights. These rights do not inhere in a citizen as such and in order to exercise the right certain formalities as provided by the Act and the Rules made thereunder are required to be strictly complied with. The statutory requirements of election law are to be strictly observed because the election contest is not an action at law or a suit in equity but it is a purely statutory proceeding unknown to the common law. The Act is a complete code in itself for challenging an election and an election must be challenged only in the manner provided for by the Act. In Jyoti Basu vs. Debi Ghosal, 1982 (3) SCR 318 , this Court observed: (SCC pp. 696-97, para 8) "A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An Election petition is not an action at Common Law, nor in equity. It is a statutory proceeding to which neither the Common Law nor the principles of Equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied. A Court has no right to resort to them on considerations of alleged policy because policy in such matters as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, Court is put in a strait-jacket." 7. A Court has no right to resort to them on considerations of alleged policy because policy in such matters as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, Court is put in a strait-jacket." 7. Since the M.P. Cooperative Societies Act is a complete Code itself for challenging an election and an improper rejection of nomination paper is also one of the ground for challenging the election, therefore, this Court is of the considered opinion that the petitioner has an alternative and efficacious remedy of raising a dispute under Section 64 of M.P. Cooperative Societies Act. 8. Accordingly, this petition is dismissed on the ground of availability of efficacious and alternative remedy as provided under the M.P. Cooperative Societies Act. 9. The petition fails and is accordingly dismissed.