Shailendra Tiwari vs State Of Madhya Pradesh And Others

Sushrut Arvind Dharmadhikari, J

In this petition filed under Article 226 of the Constitution of India, the petitioner is seeking direction to the respondent No.3 to take suitable and appropriate action on the representation filed by him against the person who have violated the model code of conduct.

I t is mentioned in the petition that the petitioner has preferred a representation (Annexure P/2) to the Election Officer to take appropriate action against the respondents with regard to violation of model code of conduct but no action whatsoever has been taken by the respondents to decide the representation. In these circumstances, direction may be issued to respondents to decide the same in accordance with the law at the earliest.

Per contra, Shri Pandey opposed the aforesaid contention and submitted that various disputed questions of fact are involved in the present case, which can only be done in the election petition. He further submitted that the present writ petition is not maintainable in view of the fact that the election has already been notified on 27.05.2022 and thereafter results are also declared on 14.7.2022. In support of his contention he has placed reliance on the judgment o f the Apex court in the case of Laxmibai Vs. Collector, Nanded and others, reported in (2020)12 SCC 186 and S.K.Mahaboob Bee (Smt.) and others Vs. State Election Commissioner and others, reported in (2000)10 SCC 512 to contend that the writ petition is not maintainable after the elections have been notified. However, he fairly stated that the petitioner has alternative remedy of filing election petition under Section 122 of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter shall be referred to as "the Adhiniyam") after the election is over.

Constitutional amendment has been brought in the Constitution incorporating Section 243-O of the Constitution of India, relevant provisions whereof reads as under:-

"243-O. Bar to interference by courts in electoral matters.-Notwithstanding anything in this Constitution -

(a) xxx xxx xxx

(b) no election to any Panchayat 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."

I n the light of the substantive provisions for filing of election petition under Section 122 of the Adhiniyam and in view of the aforesaid pronunciation of law and keeping in view the Division Bench judgment of this Court passed in W.A. No.809/2022 (Gwalior Bench) dated 11.07.2022 so also looking to the fact that disputed questions of fact are involved in this case which cannot be adjudicated in the writ petition under Article 226 of the Constitution of India, this Court is not inclined to entertain this writ petition at this stage.

Accordingly, the petition stands dismissed. However, the petitioner would be at liberty to avail the remedy as available to him under Section 122 of the Adhiniyam at the appropriate time.

Certified copy today.