LAWS(CHH)-2008-11-19

GOPAL PRASAD KAUSHIK Vs. STATE OF CHHATTISGARH

Decided On November 12, 2008
GOPAL PRASAD KAUSHIK Appellant
V/S
STATE OF CHHATTISGARH Respondents

JUDGEMENT

(1.) THE facts, in nutshell, are that the respondent No. 5 was duly elected as President of the Krishi Upaj Mandi Samiti, District Bilaspur (for short 'the Mandi Samiti') in the election held on 20-1-2006 and on 24-1-2006. THE petitioner is a permanent resident of Village Parsada, District Bilaspur, and voter in the Mandi Samiti. THE respondent No. 5, despite having disqualification under Section 36 (m) of the Chhattisgarh Panchayat Raj Adhiniyam, 1993, i.e., the respondent No. 5 was having five living children out of which two were born after 26th January, 2001, filed nomination on 4-1-2006. THE petitioner raised objection at the time of filing of nomination. THE same was rejected. Thus, after election, this writ petition for declaring election of respondent No. 5 as void on the ground of having disqualification at the time of filing nomination. Shri B.L. Dembra, learned Counsel appearing for the petitioner submits that the issue as to whether the respondent No. 5 was disqualified on the date of filing of nomination for election to the post of President, Krishi Upaj Mandi Samiti, District Bilaspur, cannot be examined in the election petition which is prescribed under Section 66-A of the Chhattisgarh Krishi Upaj Mandi Adhiniyam, 1972.

(2.) LEARNED Counsel appearing for the respondents, per contra, submit that the disqualification of a candidate in the election is one of the principal grounds to challenge the election petition and as such, contention of the petitioner that the question of disqualification of a candidate or a member who has filed nomination paper cannot be decided in election petition, may be rejected.

(3.) THE rule laid down in this passage was approved by the House of Lords in Nevile v. London Express Newspaper Ltd. (1919) AC 368, and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tabago v. Gordon Grant & Co. 1935 AC 532 and Secretary of State of Mask & Co. 44 Cal. W.N. 709; and it has also been held to be equally applicable to enforcement or rights (See Hurdutrai v. Off. Assignee of Calcutta 52 Cal. W.N. 343, at p. 349. That being so, I think it will be a fair inference from the provisions of the Representation of the People Act to state that the Act provides for only one remedy, that remedy being by an election petition to be presented after the election is over, and there is no remedy provided at any intermediate stage. In the matter of Mohinder Singh Gill and Anr. v. THE Chief Election Commissioner, New Delhi and Ors. : [1978]2SCR272 , the Hon'ble Supreme Court held that High Court has no jurisdiction to entertain a writ petition under Article 226 of the Constitution when appropriate forum of filing election petition is provided under the statute as the election petition requires a full trial.