Madhya Pradesh High Court

Brij Kishore Tiwari vs Abdul Gaffar @ Pappu Malik on 25 January, 2023

Author: Maninder S. Bhatti

1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 25 th OF JANUARY, 2023
WRIT PETITION No. 27665 of 2022

BETWEEN:-
BRIJ KISHORE TIWARI S/O SHRI TULSIDAS TIWARI,
AGED ABOUT 46 YEARS, OCCUPATION: PRIVATE WORK
R/O BADAPURA KURYANA, WARD NO. 3 TIKAMGARH
(M.P.)

.....PETITIONER
(BY SHRI MANOHAR LAL SHARMA - ADVOCATE WITH SHRI S.P. MISHRA -
ADVOCATE )

AND
1. ABDUL GAFFAR @ PAPPU MALIK S/O ABDUL
SATTAR MALIK R/O MAU CHUNGI WARD NO. 21
TIKAMGARH DISTRICT TIKAMGARH (MADHYA
PRADESH)

2. MADHYA PRADESH STATE ELECTION
COMMISSION THROUGH THE CHIEF ELECTION
OFFICER NIRVACHAN SADAN, 17 ARERA HILLS
BHOPAL (MADHYA PRADESH)

3. DISTRICT ELECTION OFFICER CUM COLLECTOR
TIKAM GARH DISTRICT TIKAMGARH (MADHYA
PRADESH)

4. RETURNING OFFICER MUNICIPAL COUNCIL
DISTRICT TIKAMGARH (MADHYA PRADESH)

5. JAIVARDHAN SINGH S/O DIGVIJAY SINGH R/O
H.NO. 25 KILA AABADI, WARD NO. 6 TEHSIL
RADHOGARH DISTRICT GUNA (MADHYA
PRADESH)

6. SHASWAT SINGH S/O SHRI YADVENDRA SINGH
R/O WARD NO. 3 TIKAMGARH (MADHYA
PRADESH)

Signature Not Verified
Signed by: SAVITRI PATEL
Signing time: 1/31/2023
2:02:35 PM
2
.....RESPONDENTS
(BY SHRI SIDDHARTH SETH - ADVOCATE FOR THE RESPONDENT. 2
AND SHRI SANJEEV KU. SINGH - PANEL LAWYER FOR
RESPONDENT/STATE)

This petition coming on for admission this day, th e court passed the
following:
ORDER

This is a petition filed by the petitioner for the direction to the respondent No.2 to 4 to register complaint/FIR against the respondent No.1 under Section 171-B, 171-C, 420 and 120-B of IPC as well as Section 123(1) of Representation of People Act and also under Section 22 (B) and Section 28 of M.P. Municipalities Act. It is further prayed in the petition

that the election of the respondent No.1 as Chairman of Nagar Palika, Tikamgarh be quashed. It is further prayed in the petition that the respondent No.1 be also declared disqualified for a period of 5 years in terms of Section 27 of M.P. Municipalities Act, 1961. Counsel for the petitioner contends that the election of Chairman of Nagar Palika ,Tikamgarh was held on 10.08.2022, in which the respondent No.1 was elected and declared Chairman of Nagar Palika and, a certificate was issued in favour of the respondent No.1. It is contended by the counsel that in public meeting on 08.09.2022 respondent No.1, 5 and 6 openly declared that they purchased all the members of the opposite party in the process of election and, this declaration made by the respondent No.1 and 6 was circulated by them on social media i.e. Facebook, Web portal etc. It is contended by the Counsel that the declaration made by the respondents concerned on 08.09.2022 amounts to extra-judicial confession of the

Signature Not Verified respondent No.1 as regards the election conducted on 10.08.2022. It is Signed by: SAVITRI PATEL Signing time: 1/31/2023 2:02:35 PM

contended by the counsel that no further scrutiny or, prolong process of adducing evidence is required, inasmuch as, the respondent No.1 and 6 have released their video of their aforesaid declaration in the Facebook. It is further contended by the counsel that on 11.11.2022 the petitioner filed a complaint as well before the respondent No.2, 3 and 4 for cancellation of Election Certificate issued in favour of respondent No.1 and when no action has been taken by the authorities this petition has been filed by the petitioner. It is further contended by the counsel that the declaration made by the respondent No.1 in the meeting in Dhikoni village Tehsil Ishagarh Distt. Ashoknagar on 08.09.2022 speaks volumes about the mal-practice as well as misconduct, therefore, the election of respondent No.1 as Chairman of Municipal Council Tikamgarh be quashed. The counsel has placed reliance on the decision of the Apex Court in 2003 Volume 8 SCC 192 , 2010 volume 10 SCC 64, Shiva Karam Payaswami Tewari v. State of Maharashtra (2009) 11 SCC 262 and also Mohd. Azad v. State of W.B. (2008) 15 SCC 499. On the strength of the said decisions, it is submitted by the counsel that extra-judicial confession is an admissible piece of evidence and in the present case, since there exist an extra-judicial confession in the form of declaration made by the respondent No.1 on

08.09.2022, the petitioner herein is entitled for the relief as prayed for.

Per contra, counsel for the respondent No.2 Shri Siddharth Seth submits that it is undisputed in the present case, the election has already taken place and respondent No.1 has declared Chairman of Municipal Council, Tikamgarh, therefore, no interference in this petition is warranted Signature Not Verified Signed by: SAVITRI PATEL Signing time: 1/31/2023 2:02:35 PM

inasmuch as there is a remedy of assailing the election of respondent No.1 by way of election petition. Shri Seth while taking this court to Section 20 of Municipalities Act, 1961 submits that in view of the remedy of election petition, inasmuch as there is a statutory bar under the provisions of Section 20, election dispute can only be dealt with by the Election Tribunal in terms of Section 20 of the M.P. Municipalities Act, 1961.

Counsel for the State, Shri Sanjeev Singh submits that the present petition is not maintainable as, the disputed questions of fact are involved. It is further contended by Shri Singh that the contention of the petitioner that declaration made on 08.09.2022 amounts to extra-judicial confession is also misconceived inasmuch as, such disputes are required to be adjudicated upon framing of issue and adducing evidence, thus, no interference is warranted.

Heard the rival submissions and perused the record. A perusal of the relief clause makes it abundantly clear that there is challenge in to the election of respondent No.1 against the post of Chairman, Municipal Council Tikamgarh. The election of Chairman is indirect election and, election can be disputed by filing an election petition in terms of Section 20 of the Municipalities Act which is reproduced herein:-

"20. Election petitions.- (1) No election or nomination under this Act shall be called into question except by a petition presented in accordance with the provisions of this section.

(2) Such petition may be presented on one or more of the grounds specified in section 22

(a) by any candidate at such election or nomination; or Signature Not Verified Signed by: SAVITRI PATEL Signing time: 1/31/2023 2:02:35 PM

(b) (i) in the case of an election of a councillor, by any voter of the ward concerned;

(ii) in the case of a nomination of Councillor, by any Councillor;

(iii) in the case of election of President by any voter of the Municipal area;

to the District Judge, where such election or nomination is held within the revenue district in which the Court of the District Judge is situate, and in any other case, to the Additional District Judge having the permanent seat of his Court within the revenue district in which such election or nomination is held and if there be more than one such Additional District Judge within the said revenue district, to such one of them as the District Judge may specify for the purpose(herein after such district Judge or Additional District Judge referred to as judge.

(3) No petition presented under sub-section (2), shall be admitted unless-

(i) it is presented within thirty days from the date on which the result of such election or nomination was notified in the Gazette; and

(ii) it is accompanied by a Government Treasury receipt showing a deposit of two hundred rupees, in the case of election or nomination to Municipal Council and one hundred rupees, in the case of election or nomination to Nagar Parishads.

(4) A petitioner shall join as respondents to his petition-

(a) where the petitioner, in addition to claiming a declaration that the election or nomination, as the case may be, of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected or nominated, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; and

(b) any other candidate against whom allegations of any corrupt practice are made in the petition. (5) an election petition shall-

Signature Not Verified Signed by: SAVITRI PATEL Signing time: 1/31/2023 2:02:35 PM

(a) contain a concise statement of the material facts on which the petitioner relies;

(b) set forthwith sufficient particulars, the ground or grounds on which the election or nomination is called in question;

(c) be signed by the petitioner and verified in the manner prescribed in the Code of Civil procedure,1908 (V of 1908), for the verification of pleadings."

A perusal of Section 20 of the Act, reflects that no election under the Municipalities Act shall be called in question except by a petition presented in accordance with the provisions of this Section. Meaning thereby, an election dispute can only be raised in a election petition in terms of Section 20 of the Act, and, no writ petition before this Court is directly maintainable.

The Apex Court in the case of Anugrah Naraian Singh 1996 Volume 6 SCC 303, has held that no election to municipalities can be questioned except by an election petition. The Apex Court, further held that the Court

should not interfere with the election process and held as follows:- "

The answer must be emphatically in the affirmative. The bar imposed by Article 243-ZG is two-fold. Validity of laws relating to delimitation and allotment of seats made under Article 243-ZA cannot be questioned in any Court. No election to a Municipality can be questioned except by an election petition. Moreover, it is well settled by now that if the election is imminent or well underway, the Court should not intervene to stop the election process. If this is allowed to be done, no election will ever take place because someone or the other will always find some excuse to move the Court and stall the elections. There were ten petitioners in the main writ petition and several others in Signature Not Verified connected writ petitions, who had questioned the fairness Signed by: SAVITRI PATEL Signing time: 1/31/2023 2:02:35 PM

of the action of the authorities concerned in publication of the notifications dated 11th October, 1995 and 13th October, 1995 pursuant to which the elections to the Municipal Corporations throughout the State of U.P. were to be held. The State Government and also the Election Commission took the stand before the High Court that after the publication of the notification for holding Municipal Elections, the High Court under Article 226 of the Constitution could not interfere with the election process. On the other hand, the writ-petitioners' contention was that the election was being held in a farcical manner and the confidence of the people has been shaken in the electoral process and the constitutional guarantee regarding constitution and composition of the municipalities had been thrown to the winds. In this situation, Article 243-ZG could not be treated as an absolute bar to doing justice under Article 226 of the Constitution. "

Thus, in view of the aforesaid law laid down by the Apex Court in the case of Anugrah Naraian Singh (Supra), this petition, is not maintainable inasmuch as the remedy lies within the ambit of Section 20 of the M.P. Municipalities Act, 1961.

The judgment as relied upon by the petitioner be distinguishable as none of the decision deals with maintainability of election dispute in a writ petition.

Accordingly, the present petition stands dismissed. No order as to cost.

(MANINDER S. BHATTI) JUDGE Signature Not Verified Signed by: SAVITRI PATEL Signing time: 1/31/2023 2:02:35 PM

VPA

Signature Not Verified Signed by: SAVITRI PATEL Signing time: 1/31/2023 2:02:35 PM