BAPUSINGH Vs. ADDITIONAL COLLECTOR, INDORE

JUDGEMENT

(1.) BAPUSINGH , the petitioner, Chhogalal - Respondent No.2. Hemsingb -Respondent No.3 and Kesharsingh -Respondent No.4 were candidates for the election of a member to the Market Committee of Krishi Upaj Mandi Samiti, Laxmibai Nagar, Indore which was scheduled to take place on December 30. 1975. The nomination of Chhogalal, Respondent No. 2 was rejected by the Returning Officer on December 30, 1975 on the ground that he was not an agriculturist. Respondent Nos. 3 and 4 withdrew their nominations on December 16, 1975. when the petitioner Bapusingh was declared elected unopposed by the Returning Officer under sub -rule (2) of rule 20 of the Madhya Pradesh Krishi Upaj Mandi (Adhisuchana Prakashan Riti, Bharsadhak Samiti Tatha Mandi Samiti Gathan) Niyam, 1973 (hereinafter called the Rules). The appeal preferred by Chhogalal respondent No.2 against the rejection of his nomination by the Returning Officer was summarily rejected by the appellate authority under sub -rule (5) of rule 17 of the Rules. Thereafter Chhogalal respondent No.2 preferred an election petition under rule 43 accompanied by a deposit of Rs.250/ - towards the security for costs before the District Collector. Indore questioning the validity of the orders passed by the Returning Officer and the appellate authority rejecting his nomination on December 30, 1975. The Collector in exercise of his powers under sub -rule (8) of rule 43 of the Rules transferred the election petition to the Additional Collector respondent No.1 herein, for enquiry and disposal according to law. The election petition was adjourned from time to time by the Additional Collector -respondent No.1 who fixed the case for evidence of some witnesses to 15 -6 -1976. As the witnesses Siddhu, Kanhaiyalal and Narayan were not present although notices had been served upon them the case was ordered to be fixed for evidence on July 2, 1976 at 11A.M. Chhogalal -respondent No.2 was not present at 11 -30 A.M. on 2.7.1976 when the case was taken. At the instance of the counsel for the petitioner herein, the election petition was dismissed for default. However Chhogalal, respondent No.2 and his counsel appeared before the first respondent at 3 P.M. on 2.7.1976 with the witnesses and applied for restoration of the election petition. The notice of the restoration application was served on the petitioner Bapusingh on 22.7.1976 and the same was restored by the Additional Collector on 23.7.1976 holding that the witnesses for the petitioner therein were not present at 11:30 A.M. on 2.7.1976 when the case was taken up and they were present only in the afternoon and that no prejudice or loss was caused to the petitioner and restored the case rejecting the contention of the counsel for the petitioner that evidence should be taken before the case was restored. Hence this petition by the petitioner is flied under Articles 226 and 227 of the Constitution or India to quash the orders of the Additional Collector -respondent No. 1, restoring the election petition flied by Chhogalal respondent No.2 against the order passed by the Returning Officer rejecting his nomination paper which was affirmed by the appellate authority.

(2.) SHRI G.S. Solanki. the learned counsel for the petitioner contended that the Additional Collector respondent No.1, has no jurisdiction to restore the election petition, which was dismissed for default and in any event the election petition cannot be disposed of as the six months period prescribed therefore under rule 43 (10) or the Rules has expired on 29 -6 -1976. Shri D.R. Parihar, counsel for respondents Nos. 3 and 4 supported the stand taken by the writ petitioner on an additional ground that the orders passed by the appellate authority under rule 17 (5) has become final and conclusive and the election petition itself is not maintainable under rule 43 of the Rules. The learned Deputy Government Advocate Shri G.S. Solanki. appearing for respondents 1 and 5 opposed the writ petition contending inter alia that the election petition is maintainable and the respondent No. 1 has ample power and jurisdiction to restore the election petition of respondent No. 2 which was dismissed for default and the restoration is just, proper and valid and the period of six months provided in rule 43 (10) is only directory but not mandatory and there is no merit in this writ petition. Shri R.C. Chandel. learned counsel appearing for respondent No.2 reiterated the stand taken by respondents Nos. 1 and 5 and further raised a preliminary objection that the plea based upon rule 17 (5) cannot be raised without amending the writ petition, that rule 43 is not controlled by rule 17 (5) and his right to have the election petition disposed of in accordance with law on merits cannot be denied or taken away for no fault of his and such construction would not only be oppressive but would lead to anomalies and injustice to the detriment of the applicant in the election petition.

(3.) WE shall first take up question No. 1. The answer to this question depends upon sub -rules (4) and (5) of rule 17 and rules 43 and 44 of the Rule. The Rules prescribed by the State Government in exercise of its powers under section 79 (1) and (2) of the M.P. Krishi Upaj Mandi Adhiniyam, 1972 (hereinafter referred to as the Act) are divided into 14 Chapters. Chapter VIII consisting of rules 15 to 19 deals with nomination of candidates. Rule 15 provides for nomination paper and deposit, whereas rule 16 requires publication of list of nominations. Rule 17 provides for scrutiny of nominations. The election authority after examining the nomination papers shall decide all objections raised by the parties after due and proper enquiry and If the nomination is found to be in order, it will be declared accordingly. If it is defective on any of the grounds specified in clauses (i) to (v) indicated in sub -rule (2) of rule 19 the election authority may after such summary enquiry, if any as it thinks necessary, reject any nomination. Sub -rule (4) of rule 17 provides for an appeal to the Collector or the Sub -Divisional Officer, as the case may be, against the order of election authority rejecting the nomination paper. The appellate authority is required under sub -rule (5) there of to pass orders on the same day and if the nomination is declared to be valid a certified copy of the order shall be sent to the election authority in the quickest possible manner. The latter part of sub -rule (5) of Rule 17 reads thus: