1987 Supreme(MP) 578

IN THE HIGH COURT OF MADHYA PRADESH
T.N. Singh, Ram Murti Rustogi, JJ.
Amar Singh – Petitioner
Versus
Mandi Committee, Gohad – Respondent
M.P. No. 660 of 1985 (G)
Decided On : 04-12-1987

Headnote:(1) Constitution of India – Articles 226 and 227 – election matter – remedy of election petition provided – writ jurisdiction cannot be invoked.

       (2) Krishi Upaj Mandi (Adhisuchana Prakashan Riti, Bharsadhak Samiti Tatha Mandi Samiti Gathan) Niyam, 1974 (M.P.) – R. 13 (3), 2 (d) (iv) 43 and 44 (2) (d) (iv) – decision under R. 13 – finality remains during election process – voter has right of election petition after election if his name is deleted illegally.

        Short Note

       1. The merit of the case which would disclose the reasons why we think that we must today stay our hands and leave the matter open to take its normal course. We have looked at the relevant statutory provisions brought to our notice by counsel for the parties. Shri Singhal has laid great stress on the provisions of sub – rule (3) of Rule 13 of the Madhya Pradesh Krishi Upaj Mandi (Adhisuchana Prakashan Riti, Bharsadhak Samiti Tatha Mandi Samiti Gathan) Niyam, 1974, for short, the Niyam. Counsel's submission is that the preliminary objection of Shri Lahoti to the maintainability of the petition at this stage is not sustainable and he has accordingly relied on the said provision. Counsel submits, that none else, but this Court only has jurisdiction and, therefore, it has to decide the question as to whether the petitioner could be a voter or, for that matter, his name was rightly deleted from the existing voters list. Indeed, it is not disputed that his name appeared at Serial No. 181 of the voter's list and he was a voter of the constituency of traders of the Mandi Samiti in question.

       2. We are, however, of the clear opinion that the provision of Rule 13 deals merely with the preparation of voter's list and, therefore, when a voter's list is prepared and in the course of the preparation of the voter's list, if any name is deleted or added, finality of that decision would enure only during the period of continuation of the election process and not beyond that. The remedy, therefore, against an illegal decision rendered in terms of sub – rule (3) would be available as soon as the election is over. Indeed, the finality contemplated is not absolute in so far as the right of an elector to prefer election petition under Rule 43 is concerned. We are not at all satisfied that the election tribunal in deciding the election petition would not have the jurisdiction to decide the question whether the petitioner was unjustly denied the right to vote by reason of his name being deleted from the voter's list.

       3. Sub – rule (2) (d) (iv) of Rule 44 of the Niyam is very clear that one of the grounds on which an election can be declared void is non – compliance with the provisions of the Act or any rules or orders made thereunder. Under Rule 43, the provision exists for an election petition to be filed by a voter which term would include an ex – voter, namely a person who is aggrieved because of being denied illegally the right to vote as a consequence of his name being deleted from the voter's list in violation of any of the provisions of the Niyam. Before every election of the Mandi Samiti revision of the Voter's List is done in accordance with the detailed procedure prescribed in Rule 13. If in the course of such revision name of any person on the existing Voter's List is deleted in violation of the prescribed procedure, a cause of action in respect thereof would accrue to him under Rule 44 (2) (d) (iv). Indeed, law is well – settled that any decision which ignores statutory injunction, negative or positive is not considered a "real" decision but a "purported" decision only and statutory "finality" would not attach to such a decision. (See: Ram Sharan, 1987 JLJ 115).

       4. In the instant case, however, there is another reason why we say, the instant petition is not maintainable. That is because the petitioner has always cast his vote pursuant to the order passed by this Court and if after the result is declared and his vote is rejected, then there cannot be any dispute or ambiguity about his right to challenge the election in terms of Rule 44 (2) (d) (iii) contemplating rejection of a vote as a "ground" of challenge of the election.

       5. In this case, the election has been held in all the constituencies of the Mandi Samiti concerned and that happened as far back as on 28.10.1985. Still, the administrator is running the affairs of the Mandi Samiti. That is very unfortunate. Results of other constituencies have been declared and only for the constituency of traders, of which the petitioner claims to be a voter, result remains undeclared because of the pendency of this petition. We, therefore, see no reason why this state of affairs should be allowed to continue any further. This view we have taken for the reason that the petitioner, if on the result being declared, finds that his vote has been rejected wrongly, he has remedy to challenge the election of the trades constituency by way of election petition under Rule 43.

       6. We do not think if we have to say anything more as law is well – settled when a statutory remedy in an election matter is provided, this Court would not interfere on the writ side. 1987 JLJ 115 relied on. Petition dismissed.