ASHOK Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) This petition has been filed by the petitioner who had filed a nomination paper for election to Ward No. 16 of the Ujjain Municipal Corporation. His nomination paper was scrutinized and ultimately accepted. According to the petitioner, the date fixed for withdrawal by the Collector, Ujjain, was 16th Oct. 1978 up to 3-0 P.M. The petitioner alleges that he went to the Supervising Officer respondent No. 3 at 2 minutes past 3-0 P.M. but his withdrawal was not accepted as it was not done up to 3-0 P.M. on 16th Oct., 1978. According to the petitioner, under Rule 17 of the Madhya Pradesh Municipal Corporation (Preparation, Revision and Publication of Electoral Rolls and Selection of Councillors) Rules 1963 (hereinafter called "the Rules") a candidate should have been permitted to withdraw his nomination up to 23rd Oct. as what is provided in Rule 17 is that withdrawal is permissible up to a date which is fourteen days before the date of election. According to the petitioner, by refusal to accept the withdrawal the petitioner has been shown as a contesting candidate although the petitioner had decided to withdraw and consequently he has been declared as a defeated candidate and as a consequence of it, according to the petitioner, he cannot stand as a candidate for selection under S. 9 of the Madhya Pradesh Municipal Corporation Act, 1956 (hereinafter referred to as "the Act").

(2.) It is not disputed that the Collector Ujjain had fixed 16th Oct. 1978, 3-0 P.M. as the last date of withdrawal. In the return an attempt has been made to justify the fixing of this date on the ground that Rule 17 of the Rules does not fix the time, that is, the limit prescribed and it was within the powers of the Collector to fix a date. It is also contended in the return that 16th Oct., 1978 was fixed because sufficient time was necessary to get the ballot papers printed. As regards the fact about the petitioner having gone and submitted his withdrawal a few minutes after 3-0 P.M., the reply in the return is that the petitioner did not submit the withdrawal in time as required by law. It is significant that the assertion made by the petitioner that he went and submitted his withdrawal a few minutes after 3-0 P.M. has not been categorically denied as a fact in the return. In support of the return the affidavit of an officer-incharge is filed; but the affidavit of the person who was the supervising officer was not filed along with the return. Now ultimately when the case is listed for hearing an application has been filed wherein an amendment of the return is sought denying the fact that the petitioner went to the Supervising Officer for submitting his withdrawal and also an affidavit is filed of the Supervising Officer, himself. It is rather strange that in face of the positive allegation made in the petition, in the return filed initially this factual position was not challenged, and at the time of filing of the return no affidavit of the Supervising Officer was filed. It is also significant that this petition was filed even before the elections were held wherein this allegation was made by the petitioner.

(3.) It is not disputed that when the Collector notified the programme of elections he fixed 16-10-78, 3-0 P. M., as the last date of withdrawal. It is contended on behalf of the petitioner that under Rule 12 of the Rules the Collector was not expected to fix a date for withdrawal. It was also contended that under Rule 17 a candidate who has been duly nominated can withdraw his nomination by giving a communication in Form XII to the Supervising Officer not less than fourteen clear days before the date fixed for election. It is not disputed that 6th Nov., 1978 was fixed as the date of election. According to the petitioner, fourteen days before the date of election will be 23-10-78 whereas according to the return it will be 22-10-78. In any event, it could not be 16th Oct., 1978 as admittedly was notified as the last date of withdrawal by the Collector respondent No. 2. It is also contended by the petitioner that although as a fact it is asserted by the petitioner that he went to submit his withdrawal in the prescribed form a few minutes after 3-0 P.M. on 16-10-78 itself and the Supervising Officer refused to accept it and this fact was not disputed but now at the last stage an attempt has been made to deny it; and therefore, according to learned counsel for the petitioner this denial which has come as an afterthought clearly deserves to be rejected. Apart from it, it is also contended that when the Collector notified the last date of withdrawal as 16-10-78, 3-0 P.M., ordinarily no candidate could imagine that his withdrawal will be accepted after that hour and even that is not the stand taken in the return that although the date notified was 16-10-78, yet the respondent would have accepted the withdrawal if it was done within the time as contemplated in Rule 17. It is therefore contended that by notifying 16-10-78 as the last date the Collector prevented the petitioner from withdrawing his nomination which he could otherwise do up to 22nd or 23rd Oct., 1978. And this contravention of law (Rule) by the Collector, according to the petitioner, has resulted in his being declared defeated losing the security amount and also incurring a disqualification under Section 9 of the Act even for selection because Section 9 Sub-section (1) Sub-clause (b) of the first Proviso lays down,--