Mangeshrao vs Collector Gwalior

Khan J.

The facts giving rise to this petition under Article 227 of the Constitution of India, are that Mangesh Rao, the applicant, Narainsingh and Niranjan Singh (the last two are non-applicants), filed their nomination papers for the election of Up-Sarpanch of Mandal Panchayat, Gwalior, before Shri V. M Khandekar the Nirwachan Adhikari. After the scrutiny of the nomination papers, the Nirwachan Adhikari, accepted the nomination paper of Mangesh Rao, the applicant, and rejected the nomination papers of the other two. In these circumstances, Mangesh R o, applicant, was declared elected (unopposed) and his name was put up on the Notice-Board of the Nirwachan Adhikari. On the very day the name of the applicant was put up on the Board as a successful candidate, one of the non-applicants Niranjan Singh filed an application before the Collector, Gwalior, protesting against the rejection of his nomination paper by the Nirwachan Adhikari, It is said that the Collector, without issuing any notice to the applicant (Mangesh Rao) not only allowed the application of the non-applicant but passed an omnibus order that all the nomination papers which have been rejected on the ground in the particular case should be accepted. As a result of this, the rejection of the nomination paper of non-applicant No. 2 before us (and who never filed any petition before the Collector against the rejection of his nomination paper) was also set aside. Against this order, the present petition is filed.

It is contended by the applicant that the application which the Collector allowed was not in accordance with Section 41 of the Rules made under the Madhya Bharat Panchayat Act (Act No. 26 of 1951) and that in not giving notice to the applicants, before the decision of the applicants, the Collector acted not only against the principles of natural justice but he also acted in derogation of the provisions of Section 42 of the Rules referred to above, It is submitted that the Collector had no jurisdiction to entertain the application of Niranjan Singh in the manner in which he did, and that order passed by him is, therefore, invalid.

The Rules made under the Madhya Bharat Panchayat Act of 1951 contain a complete scheme embodying all necessary provisions as to the manner in which an election under the Act shall be conducted. The remedy open to an aggrieved party is provided in Section 41 of the Rules. The aggrieved person is to move in the matter by way of an election-petition and such a petition should be presented to the Collector within 8 days after the publication of the result of the election. Section 41 runs thus:--

This remedy having provided it is obvious that no aggrieved person can have recourse to any procedure other than the one provided in Section 41. In the instant case, the aggrieved party without filing any election petition adopted a course which for want of a better word can be described as a short-cut. Where the law has clearly provided a remedy no person can resort to a method different from the one the law has laid down. In this view of the matter, the application filed by Niranjan Singh before the Collector was not in accordance with the law and as such was untenable and the Collector had no jurisdiction to entertain it.

The learned Counsel for the non-applicants concedes that the procedure adopted by Niranjan Singh was slip-shod, but he submits that the application may be looked upon as an election-petition. But the difficulty in treating it as such is that an election-petition is to be filed within 8 days after the publication of the result of the election. In the instant case no such publication was done and therefore this application cannot be treated as an election-petition,

Another aspect of the matter which is to be considered in this case is that the Collector according to Section 42 of the Rules should have given a notice to the petitioner before us. But it seems that due to an oversight, he did not do so. This is obviously against Section 42 of the Rules.

The Deputy Government Advocate, who appeared on behalf of the Collector, submits that in an application under Article 227 of the Constitution, the Collector has wrongly been made a party and he invites our attention to a decision on the point reported in 1954 M.B.L.J. 91 (Dhulilal vs. Jagdish Prasad Bhatnagar and others). It is no doubt true that in proceedings under Article 227 of the Constitution in which the correctness of a decision of a Court or Tribunal is challenged it is not necessary to make the Court or Tribunal a party. The counsel for the non-petitioner concedes the point and is sorry that the Collector was made a party in these proceedings.

For reasons stated above, we allow the petition and hold that the present order of the Collector is without jurisdiction and therefore invalid. No opinion is expressed on the merits of the Collector''s order.