\iwmmm‘mlm§%W \ r N THE HIGH COURT OF JUDICATURE ATBILASPUR WP. [C] No. 63 /20g§ Harpal Singh Garewal S/o Late Shri Balak Singh Garewai, Aged about 50 years, R/o Village — Khartuli, Tehsil & District - Dhamtari (C.G.) Petitioner Versus 1/. State of Chhattisgarh — Through the “ Secretary, Agricuiture Department, DKS Bhawan, Mantralaya, Raipur (C.G.) Resgondents .a’W 2. The Collector-cum District Eiection n / Officer (Mandi Election), District— Dhamtari, (C.G.) The Sub Divisional Officer (Revenue) — cum -Retuming Officer, (Mandi, Election) Dhamtari, District - Dhamtari (C.G.) 4. Dinesh Chandrakar, aged about 35 \s» ./“ years s/o Shri Bhagwandhan Chandrakar, r/o Village — Bodachapar, Tehsil & District - Dhamtari (C.G.) WRIT PETITION UNDER ARTICLE 226 OF THE CONSTlTUTlON OF lNDlA ‘ »1.7. l w.p.(cp No.09 (2007 Harpal Singh Garewal Versus State of Chhattisgarh & Ors. PETITIONER N RESPONDENTS Shri Sunil Sahu, counsel for respondent No.4. x ORAL- ORDER (Passed on 2 1 .01 .201 l) .= 3 4. Learned counsel for the petitioner érgued that the election petitioner in the petition had very specifically pleaded that respondent No.4 is disqualified to contest the election and his nomination was liable to be rejected. In his pleadings, it was categorically pleaded that Smt. Poornim‘a Chandrakar is real sister of the father of respondent No.4 and her two sons Ashok ' Kumar & Lalit Kumar are licence holder of Krishi Upaj Mandi, therefore, respondent No.4 is disqualified as provided under Section 11 (1) (b) of. the Chhattisgarh Krishi Upaj Mandi Adhiniyam, 1972 (hereinafter referred to as “the Act of J 972”). 5. Learned counsel for the petitioner submits that after the election petition was filed, notices were issued to the returned candidate, who filed his reply and raised preliminary objection with regard to the maintainability of theelection petition. On 24.8.2006, the Collector heard the arguments on the preliminary objection and it was reserved for orders and thereafter, the Collector proceeded to - pass order on merits of the case dismissing the election petition without allowing the petitioner to lead evidence and prove his case. Learned counsel for the petitioner contended that the election petition has been dismissed by the Collector in a very slipshod manner acting upon the denial made by the respondent No.4 and by holding that the petitioner has failed to place any documentary evidence on record nor submitted affidavit of independent person. In the submission of learned counsel for the \ \ petitioner, the election petition was liable . to be tried and the . _\ \ petitioner ought to be allowed to lead evidence oral and documentary, upon framing of proper issues. Therefore,‘ it is submitted that the impugned order is illegal and unsustainable in law. .On the other hand, learned counsel for the respondents submitted that‘the election petition itself was not maintainable before the Collector in Viewrof the provision contained in Section 66-A of the Act of 1972, inasmuch as, the prescribed authority to hear election petitions is the State Government, Whereas the election petition was filed before the Collector, who, once upon a time, in view of the provision contained in the Chhattisgarh Krishi Upaj Mandi (Adhisuchana Prakashan Riti, Bharsadhak Samiti Tatha Mandi Samiti Ka Gathan) Rules, 1974 (hereinafter referred to as “the Rules of 1974”), was the prescribed authority and Tribunal to hear the election petition. Further submission of learned counsel for the respondents is that even assuming that the Collector had the jurisdiction to entertain election petition, it is submitted that the order is in accordance with law as the Collector, from the pleadings and affidavit and document filed by the parties in the lection petition, came to the conclusion that there is no material basis to come to the conclusion that the relationship of respondent No.4 with Lalit Kumar 8L Ashok Kumar is of such degree as to disqualify him, in the light of the provision contained in Section ll (1) (b) of the Act of 1972. - \ 2 \ \ 7. Learned counsel for the petitioner submitted that the issue with regard to jurisdiction of the Collector to hear the election petition with reference to the provision contained in Section 66 A of the Act of 1972 has not been specifically raised in the return and on the contrary, it has been stated that there was a remedy of appeal before the‘State Government against the order of the Collector in View of the petition contained in Section 66 A of the Act of 1972. Therefore, he submits, this cannot be raised for the first time during the course of argument. I am not inclined to accept this submission. The issue as to who is the competent authority to hear the election petition is purely a question of law and it goes to the root of the matter. Therefore, even if it has not been specifically raised as an objection in the return, nothing prevents this Court from considering that legal issue. In the case of B.C. Goswami Vs. Delhi Administrationl, the Supreme Court while dealing with a similar argument, held as under— “8 ....... No doubt, this point was not raised in the courts below and it also escaped the attention both of the Special Judge and the High Court. The decision in R.C. Mehta V. State of Punjab was apparently not brought to the notice of the courts below. But being a question of pure law which goes to the root of the matter relating to the appellant’s conviction under Section 5(l)(d) and Section 5(2) of the Prevention of Corruption Act, this Court would be fully justified in taking notice of this argument.” ........ 'AIR 1973 sc 1457 gtl 9$ 8. Section 66 A of the Act of 1972, as amended vide Chhattisgarh Krishi Upaj Mandi (Sanshodhan) Adhiniyam, 2004 (No.6 of Year 2004), published in Chhattisgarh Rajpatra (Asadharan) dated 13th April, 2004, provides that an election under the Act shall be called in question only by a petition presented in the prescribed manner to the State Government. Prior to amendment of 2004, the Divisional Commissioner was the constituted competent authority to hear the election petition. .In exercise of rule making power, earlier, rules were framed known as Chhattisgarh Krishi Upaj Mandi (Adhisuchana Prakashan Riti, Bharsadhak Samiti Tatha Mandi Samiti Ka Gathan) Rules, 1974 which held the field until they were repealed ‘by the Rules framed in the year 1997 known as Chhattisgarh Krishi Upaj Mandi (Mandi Samiti ka Nirvachan) Rules, 1997 (hereinafter refereed to as “the Rules of 1997”). However, Rule 90 of the Rules of 1997 related to repeal and savings which provided that on and from the date on which these rules come into force, so much of the provisions of the Rules of 1974, as relate to the matters covered by these rules, stand repealed. The effect of such repealing provision was that in respect of the matters in which specific provision were made in the Rules of 1997, Rules of 1974 stood repealed. However, in the Rules of 1997, no specific provision was made with regard to the authority who will hear the election petition or the procedure for trial of election petition, so much of the Rules of 1974, which provided for election petitions \ \3 .\‘ ‘M; were saved. That is also the View which has been taken by the High Court of Madhya Pradesh in the case of Dayaprasad Vs.- Nirvachan Adhikari (1983 MPLJ 713). Therefqfe, the provision contained in Chapeter-ll of the Rules of 1974, in so’far as election petitions are concerned, continue to remain in force and applicable in the matter of election petitions. Though, Rule 43 of the Rules of 1974 provide that the election petition shall lie before the Collector, however, the legal position has changed in View of the amendment in the Act itself, whereby, a new provision of Section 66 —A was introduced which provided that the election petition shall lie before the Divisional Commissioner. Once the statute itself prescribed the authority competent to hear election petition, so much of the provision contained in Rule 43 of the Act of 1974, which provided that the Collector shall be the competent authority, became inconsistent with the statutory provision and therefore, became inoperative. That legal position still continues, though, by virtue of amendments in the year 2004, in the place of Divisional Commissioner, now it is the State Government who is the competent authority to hear election petitions. There is nothing on record nor it has been brought to the notice of this Court that the State Government has delegated its power under Section 66—A in exercise of power under Section 57 of the Act of 1972. 10. Though this Court is of the considered opinion that the manner in which the Collector proceeded with the matter was wholly (\3 accordingly dismissed. Sd/— ’Kw , Manindra Mohan Shrivasta Judge va;