1 [PRECEDENT] Gwalior, 13.11.2017 Shri [ENTITY], learned counsel for the appellant. Shri [ENTITY], learned Government Advocate for respondents No. 2 and 3/State.
Shri [ENTITY], learned counsel for respondent No.4.
With consent of learned counsel for the parties, the matter is finally heard.
The question which arises for consideration in this appeal under Section 2 (1) of Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005, directed against the order dated 11/0[SECTION]/2017 in [CASE NUMBER], is as to whether a candidate having lost an election can file petition under [SECTION] of the [ACT] for a writ of quo warranto, by-passing the statutory remedy of Election Petition for quashment of election.
Election for the Counsellor, Municipal Corporation Morena for ward No. 26 was notified with the last date of filling the nomination being 27/07/2015. The election was held on 12/08/2015. Results were declared on 16/08/2015. Respondent No. 1 lost the election by a margin of one vote. Whereas, respondent No. 1 got 76[SECTION] votes, the winner had 770 votes.
The election was challenged vide writ petition under [SECTION] of the [ACT] on the ground that the returned candidate was below 21 years of [PRECEDENT] age as her date of birth is 17/05/1[SECTION][SECTION]6 and not 17/06/1[SECTION][SECTION]3 as claimed by her. Reliance was placed on the High School marksheet, which recorded the date, month and year of birth as 17/05/1[SECTION][SECTION]6. The present appellant contested the claim. She denied the allegation of giving incorrect date of birth. The date in the marksheet was disputed by placing reliance on the voter ID card issued by the Election Commission of India.
Learned Single Judge observing that the Voter ID card cannot be treated as a superior documentary evidence to prove age than high school examination; and further observing that the present appellant has played fraud on the provisions of the [ACT], interfered with the election of the present appellant by setting it aside and a further direction to the Authorities to take criminal action. Be it noted that no statutory provision was adverted at by the learned Single Judge in holding that the high school examination marksheet is superior document than the voter ID card. Learned Single Judge also glossed over the contentions stand of the returned candidate, present Appellant that the voter ID card records correct date of birth and there is incorrect entry in the marksheet. Be that as it may. The fact is whether it was within the jurisdiction of the Writ Court to have entertained a writ petition under [SECTION] of the [ACT] in the given facts of the case at hand.
[PRECEDENT] Article 243ZG of the [ACT] mandates :
"243ZG. Bar to interference by Courts in electoral matters.- Notwithstanding anything in this [ACT],
(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 243ZA shall not be called in question in any court;
(b) no election to any Municipality shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State."
In C. Subrahmanyam vs. K.Ramanjaneyullu :
(1[SECTION][SECTION]8) 8 SCC 703, it is held :
"2. The impugned order was made by the High Court in a writ petition under [SECTION] of the [ACT] filed to challenge an order directing repoll made during the process of election. The first question was whether the writ petition should have been entertained in view of the remedy of election petition under the Act. The High Court took the view that the main point for decision was whether the order directing repoll is in violation of [SECTION] of the [ACT] Act, 1[SECTION][SECTION]4. Having taken this view, the High Court proceeded to say that a reference was made to a provision of the [ACT] in that order and, therefore, the writ petition would lie and the impugned order was quashed for violation of [SECTION] of the Act.
3. In our opinion, the main question for decision being the non-compliance of a provision of the Act which is a ground for an election petition in [SECTION] framed under the Act, the writ petition under [SECTION] of the [ACT] should not have been entertained for this purpose. Accordingly, the appeal is allowed. The impugned order of the High Court is set aside [PRECEDENT] resulting in dismissal of the writ petition. No costs."
In P. Manjula vs. State of Andhra Pradesh :
(2007) 15 SCC 766, it is held :
"6. The learned counsel appearing on behalf of the appellant submitted that in view of [SECTION] of the [ACT], the High Court has committed a patent error in entertaining the petition.
7. In our view, the contention raised by the learned counsel for the appellant requires to be accepted for the following reasons: Admittedly in the present case, [ACT] were notified on 20- 4-2001. On the basis of the said Rules, the Revenue Divisional Officer and the Deputy Election Authority issued a notification determining the number of members for the office of MPTC in all categories, namely, ST, SC, BC, women and unreserved in all mandals of Kothagudem Division. Thereafter, election was notified on 25-6-2001. It took place on 12-7- 2001. Election results were declared on 28-7- 2001. The writ petition was filed before the High Court on 12-[SECTION]-2001. Admittedly, [SECTION] of the [ACT] (Election Tribunals in respect of Gram Panchayats, Mandal Parishads and Zila Parishads) Rules, 1[SECTION][SECTION]5 applies and the election petition ought to have been filed within 30 days from the date of declaration of the result. Therefore, on the date the petition before the High Court under [SECTION] was filed, the appellant could not have approached the Tribunal for redressal of his grievance by way of election petition.
8. Apart from the delay in approaching the High Court it is settled law that election dispute could not have been raised in a petition under [SECTION] of the [ACT]. This Court in Boddula Krishnaiah v. State Election Commr., A.P., (1[SECTION][SECTION]6) 3 SCC 416 held that in case of an [PRECEDENT] election dispute, remedy is available at law for its redressal. Therefore, the High Court was not correct in law in giving directions not to declare the result of election or to conduct fresh poll.
The Court relied (at SCC pp. 420-21, para 10) upon the following observations of this Court in State of U.P. v. Pradhan Sangh Kshettra Samiti, (1[SECTION][SECTION]5) Supp (2) SCC 305:
"10. 'What is more objectionable in the approach of the High Court is that although [SECTION] of the [ACT] enacts a bar on the interference by the courts in electoral matters including the questioning of the validity of any law relating to the delimitation of the constituencies or the allotment of seats to such constituencies made or purported to be made under [SECTION] and the election to any panchayat, the High Court has gone into the question of the validity of the delimitation of the constituencies and also the allotment of seats to them. We may, in this connection, refer to a decision of this Court in Meghraj Kothari v. Delimitation Commission, AIR 1[SECTION]67 SC 66[SECTION]. In that case, a notification of the Delimitation Commission whereby a city which had been a general constituency was notified as reserved for the Scheduled Castes. This was challenged on the ground that the petitioner had a right to be a candidate for Parliament from the said constituency which had been taken away. This Court held that the impugned notification was a law relating to the delimitation of the constituencies or the allotment of seats to such constituencies made under [SECTION] of the [ACT], and that an examination of [SECTION] and [SECTION] of the [ACT] showed that the matters therein dealt with were not subject to the scrutiny of any court of law. There was a very good reason for such a provision because if the orders made under [SECTION] and [SECTION] were not to be treated as final, the result would be that any voter, if he so wished, could hold up an election indefinitely by questioning the delimitation of the constituencies [PRECEDENT] from court to court. Although an order under [SECTION] or [SECTION] of the [ACT] and published under [SECTION] of that Act is not part of an Act of Parliament, its effect is the same. [SECTION] of that Act puts such an order in the same position as a law made by Parliament itself which could only be made by it under [SECTION]. If we read [SECTION], [SECTION] and [SECTION] in place of [SECTION] and [SECTION], [SECTION] and [SECTION] of the Act in place of [SECTION] and [SECTION] of the [ACT], 1[SECTION]52, it will be obvious that neither the delimitation of the panchayat area nor of the constituencies in the said areas and the allotments of seats to the constituencies could have been challenged nor the court could have entertained such challenge except on the ground that before the delimitation, no objections were invited and no hearing was given. Even this challenge could not have been entertained after the notification for holding the elections was issued. The High Court not only entertained the challenge but has also gone into the merits of the alleged grievances although the challenge was made after the notification for the election was issued on 31-8-1[SECTION][SECTION]4.
The petitioner/ respondent No. 1 though has relied upon the decision in [PRECEDENT] Vs. A. [ENTITY] and another [AIR 1[SECTION][SECTION][SECTION] SC 1723] on paragraph 20 and 21 wherein it is held:
"20. In all these cases there is a common message that when the poll or repoll process is on for election to the Parliament or Legislative Assembly, High Court cannot exercise its jurisdiction under [SECTION] of the [ACT] and that remedy of the aggrieved parties is under the Act read with [SECTION] [ACT]. The Act provides for challenge to an election by filing the election petition under [SECTION] one or more grounds specified in [SECTION] of [ACT]. There cannot be any dispute that there [PRECEDENT] could be a challenge to the election of the appellant by filing an election petition on the ground improper acceptance of his nomination inasmuch as the appellant was not an elector on the electoral roll of Lalgudi Assembly Constituency and for that matter also by any non-compliance with the provisions of the [ACT] or of the Act. If an election petition had been filed under [SECTION]of the Act High Court would have certainly declared the election of the appellant void. It was, therefore, submitted that respondent could not invoke the jurisdiction of the High Court under [SECTION] of the [ACT] in view of [SECTION] of the [ACT] read with [SECTION] and [SECTION] of the Act and only an election petition was maintainable to challenge the election of the appellant. That right the respondent certainly had to challenge the election of the appellant. Election petition under [SECTION]of the Act had to be filed within forty-five days from the date of election of the returned candidate, that is the appellant in the present case. This was not done. There is no provision under the Act that an election petition could be filed beyond the period of limitation prescribed under [SECTION] of the Act. That being so the question arises if the respondent is without any remedy particularly when it is established that the appellant did not have the qualification to be elected to the Tamil Nadu Legislative Assembly from Lalgudi Assembly Constituency.
21. Mr [ENTITY], learned counsel for the first respondent submitted that in such circumstances where the appellant lacked basic and fundamental qualification to be elected as required by the [ACT], it could not be said that a petition under [SECTION] of the [ACT] was not maintainable. Here jurisdiction under [SECTION] is sought to be exercised after declaration of the election of the appellant. He referred to [SECTION] of the [ACT] which provides for penalty for sitting and voting when a person is not qualified to be a member of the Legislative Assembly."
[PRECEDENT] The decision in [PRECEDENT] (supra) came up for consideration in Kurapati Maria Das Vs. Dr. Ambedkar Seva Samajan and others [(200[SECTION]) 7 SCC 387] wherein while recording the facts in [PRECEDENT] (supra) which was of impersonation distinguished the same and held:
"26. Shri [ENTITY] further points out that the factual scenario in [ENTITY] case was different. That was a case where admittedly the name of the elected candidate was not in the voters' list and the elected candidate had tried to use similar name in the voters' list which was admittedly not that of the elected candidate. There was no necessity of any proof, as a voters' list was an admitted document and it clearly displayed that the name of the legislator was not included in the list. Therefore, the Court observed in that case in para 27 which we have quoted above to the effect:
"27 In circumstances like the present one the bar of [SECTION] will not come into play when the case falls under [SECTION] and [SECTION] and the whole of the election process is over."
(emphasis supplied)
33. There is yet another distinguishing feature in case of [PRECEDENT] Vs. A. [ENTITY]. In that case there is a clear finding that the elected person therein played a fraud with the [ACT] inasmuch as that he knew that his name was not in the electoral roll of that constituency and he impersonated for some other person taking the advantage of the similarity of names. The appellant herein asserts on the basis of his Caste Certificate that he still belongs to Scheduled Caste. We are, therefore, of the clear opinion that [PRECEDENT] v. A [ENTITY] & Anr. [1[SECTION][SECTION][SECTION] (4) SCC 526] is not applicable to the present case and the High Court erred in relying upon that decision.
34. Once it is held that the aforementioned case was of no help to the respondents, the only other necessary inference which emerges is that the bar [PRECEDENT] under [SECTION] would spring into action."
In the case at hand, admittedly, the present appellant has raised a dispute in respect of correctness of date of birth recorded in the marksheet issued to her and as a result of which voter ID card was issued by Election Commission of India. Thus, there was a dispute as to which is the correct date, whether recorded in the marksheet or in the voter ID card. No statutory provision has been adverted at by the respondents to establish that it is only the date of birth recorded in the marksheet is to be treated as a primary evidence.
In view whereof, we are of considered opinion that the learned Single Judge erred in entertaining a writ petition under [SECTION] of the [ACT]. Consequently while setting aside the impugned order, writ petition filed by respondent No. 1 is dismissed.
Appeal is allowed to the extent above. No costs.
([ENTITY]) ([ENTITY]) Judge Judge shubh*
[ENTITY] Digitally signed by [ENTITY] DN: c=IN, o=HIGH COURT OF M.P. BENCH GWALIOR, ou=HIGH COURT OF M.P. BENCH GWALIOR, postalCode=474011, st=Madhya Pradesh, MISHRA 2.5.4.20=e1f45241b0d8e47d03567[SECTION]42a7e835e2631b7c3ff747e[SECTION]7afd68 40fdaafb8d3a, cn=[ENTITY] Date: 2017.11.16 17:55:5[SECTION] +05'30'