W. A. No. 1115 / 2010
(Pradeep Kumar Tiwari v. State of M.P. & five others)
09-03-2011
Shri K.C.Ghildiyal, learned counsel for the appellant.
Shri R.S.Verma, learned counsel for the respondent No. 6.
I.A.No. 12554/2010 :-
This is an application for condonation of delay in filing the appeal.
Learned counsel appearing for the respondent does not propose to give
reply to the same, he, however, opposed the prayer by making oral
submissions.
Having heard the learned counsel for the parties, we are of the
view that the delay has been explained satisfactorily and the same has
not been caused on account of deliberate latches on the part of the
appellant. We are, therefore, inclined to condone the same.
The application is accordingly allowed and the delay in filing the
appeal is hereby condoned.
With the consent of the learned counsel for both the parties, the
appeal is taken up for hearing on the question of admission.
This Intra-Court Appeal under Section 2 (1) Madhya Pradesh
Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005
arises out of the orders dated 1-7-2010 and 10-9-2010 passed by
learned Single Judge in W.P.No. 12727/2009 and Review Petition
No. 528/2010 respectively.
It appears that the appellant contested the election of
Chairman of Sewa Sahkari Samiti, Maryadit, Bhathiya. The aforesaid
election was held on 21-2-2007, however, the said election was
assailed by the respondent No. 6 on the ground that the appellant
had three living children, therefore, he was not eligible to contest the
election in view of Section 50-A (1-A) of the M.P. Cooperative
Societies Act, 1960 which provides that no person shall be qualified
to be a candidate for election as member of the committee,
representative or delegate who has more than two living children
children, one of whom is born on or after 26th January, 2001.
The writ petition was allowed by the learned Single Judge vide
order dated 1-7-2010. The appellant preferred a Writ Appeal No.
681/2010 before this Court which was permitted to be withdrawn
after arguments with liberty of this Court to the appellant to apply for
review before the learned Single Judge since the only contention
raised by the appellant was that at no point he was served with the
notice in the petition and, therefore, the order was passed in the writ
petition behind the back of the appellant. Pursuant to the order of the
Division Bench dated 16-8-2010 in W.A.No. 681/2010 the appellant
filed a review petition which was registered as Review Petition No.
528/2010 which has also been dismissed by the learned Single
Judge vide the order under challenge in this appeal.
Shri Ghildiyal, the learned counsel appearing for the appellant
vehemently contended that Section 50-A (1-A) of the M.P.
Cooperative Societies Act, 1960 was subsequently deleted with
effect from May, 2007 and, therefore, after deletion of the aforesaid
section, the appellant was qualified to contest the election and on
that ground the election could not have been set aside by the
learned Single judge.
We do not find any force in the contention of the learned
counsel for the appellant for the reason that the election took place
on 21-2-2007 and the nomination was filed by the appellant on
2-2-2007 and admittedly on that date Section 50-A (1-A) was very
much in the statute book and was in force, hence the appellant was
not qualified to contest the election on that date and the nomination
of the appellant could not have been accepted. The deletion of
Section 50-A(1-A) subsequently would have no impact on the
disqualification of the appellant because the amendment has not
been given effect from a retrospective date. It is well settled law that
an Act or the statute operates prospectively unless it is expressly
provided in the Act itself that it shall be operative from a retrospective
date. It is also not in dispute that the appellant had more than two
living children on the date when the nomination was filed, though one
of whom was an adopted child and, therefore, we do not find any
reason to differ with the decision taken by the learned Single Judge.
In view of the aforesaid, the appeal being without any merit is
dismissed.
(S.R.Alam) (R.S.Jha)
Chief Justice Judge
mct