NEETU KATHORIA Vs. STATE OF M P

JUDGEMENT

(1.) IN this appeal defensibility of the order dated 26.6.2002 passed in W.P. No. 5664/2001 by the learned Single Judge is called in question by invoking Clause 10 of the Letters Patent.

(2.) THE facts as have been uncurtained are that the respondents No. 5 and 6 herein invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India for issue of a writ of 'quo warranto' on the bedrock that the present appellant, who was respondent No. 5 therein (hereinafter referred to as 'the appellant') has usurped a public office, the post of Chairman, Krishi Upaj Mandi Samiti, Bina, District, Sagar. Edifice was built on the base that the appellant was not qualified to hold the post of the Chairman inasmuch as she was neither registered as a voter as on 1.1.1999 nor was she recorded as an agriculturist in the land records which are prerequisites for contesting in the election. The writ petitioners who claimed themselves to be the registered voter and participated in the election urged in the petition that they were person interested and as the office of the Chairman is a public office and it has been held by a person not qualified to hold such office they were entitled to the relief prayed for. It was putforth that under the M.P. Krishi Upaj Mandi Adhiniyam, 1972 (hereinafter referred to as 'the Act') there is provision for establishing of market committee under section

(3.) A counter affidavit was filed by the appellant in the writ petition contending, inter alia, that proper remedy for the petitioner was to file an election petition but they have chosen not to do so. It was also putforth that the writ petition having been instituted in the month of October, 2001 after expiry of more than one and half years, the same deserved to be dismissed on the ground of delay and laches. It was also setforth in the return that she was an agriculturist and Bhumiswami but as her name was left out from the list she applied for inclusion and the same was included before the finalisation of the electoral roll. Allegations in regard to manipulation and commission of fraud were categorically controverted. The election rules which were framed in the year 1997 were amended on 6.3.1999 and, therefore, the cut off date provided to be 1.1.1999 has lost its significance solemnity and the term 'schedule' would include rescheduling. An effort was made to distinguish between a voter and the contestant by scanning the rules. It was putforth by the appellant that she had purchased0.04 hectares of land situated at Khasra No. 257/3 in village Muhasa from the recorded Bhumiswami for valid consideration of Rs. 8,000/- on 16.3.1999 by a registered sale deed and her name was entered in the revenue record and she was given the Bhu Adhikar and the Rin Pustika as Bhumiswami of land. Certain allegations of mala fide were made against the writ petitioner No. 1.