JAGANNATH SINGH Vs. STATE OF M P

JUDGEMENT

(1.) The petitioner by this petition is aggrieved by the action of the respondent Nos. 1 to 4 declaring the respondent No.5 to be elected as Representative of Agriculturist for the election held to Ward No. 4 of Krishi Upaj Mandi Samiti, Porsa Distt. Morena. It is the case of the Petitioner that he is resident of village Mandhata Ka Pura, Tehsil Porsa, Distt. Morena. He was a candidate contesting for election to the Office of Representative of Agriculturist of Ward No. 4 of the Krishi Upaj Mandi Samiti. His name finds place at Sr. No. 479 in the Voter List. It is the case of the Petitioner that he is qualified to participate in the election. Various elections to the Krishi Upaj Mandi Samitis are held as per the provisions of Madhya Pradesh Krishi Upaj Mandi Samiti Adhiniyam 1972. The eligibility conditions for election are mentioned in Section 11-B(2). According to the provisions of this section, a person to be a voter must be recorded as a Bhoomi Swami in the Village Land Records and he should be originally a resident of that market area. According to the petitioner, the Respondent No. 5 was not eligible and qualified as he was not having Bhoomi Swami rights in the land within the area for which election was to be held. It is stated that in the voter list the name of Respondent No. 5 is shown to be a Bhoomi Swami of Survey No. 2373. Certain documents Annexure P-4 have been filed to show that this Survey Number belongs to one Janved Singh who is recorded as Bhoomi Swami but according to the petitioner the respondent is not eligible to vote and therefore his election is illegal and the petitioner has prayed for a writ of quowarranto against respondent No. 5 who is elected to the Office of Representative of Agriculturist. The respondents have filed the return and a preliminary objection has been raised with regard to the maintainability of the present petition. It is put forth by the respondents that under the provisions of the Krishi Upaj Mandi Samiti Adhiniyam, an election petition has to be filed as there is a specific provision of filing the election petition. It is stated that the Madhya Pradesh Krishi Upaj Mandi Samiti (Mandi Samiti Ka Nirwachan) Niyam, 1997 have been issued and after the elections are over Rule ,43 provides for filing of an election petition before the Collector within 14 days. It is the case of the respondents that a writ petition directly cannot be entertained.

(2.) On merit, respondent No. 5'has filed a separate reply and it has been stated by him that his name has been recorded as Bhoomi Swami in the relevant Khasra and there is some misprinting in the voter list. It is stated by him that his name has been recorded as Bhoomi Swami and copies of various documents and Khatas have been filed by him vide Annexure R-5-1 to indicate that he is qualified to be elected and the requisite condition of being a Bhoomi Swami of the area in question is fulfilled by him.

(3.) In reply to the preliminary objection raised by the respondents with regard to maintainability of the present writ petition, learned counsel for the petitioner has placed heavy reliance on the judgment of Supreme Court rendered in the case of K. Venkatachalam v. A. Swamickan and another. Placing reliance on the aforesaid judgment it is putforth by the petitioner that when a person elected lacks basic qualification to be nominated or elected, the bar of filing election petition is not applicable and in such matters a writ petition under Article 226 can be entertained. It is submitted by the learned counsel that when there are certain statutory disqualifications and the said disqualification is apparent, in such circumstances High Court can exercise jurisdiction under Article 226 of the Constitution declaring the candidate to be not qualified.