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Madhya Pradesh High Court · body

1987 DIGILAW 400 (MP)

JAGDISH PRASAD v. OMKAR SINGH

1987-11-30

B.C.VARMA, RAMPAL SINGH

body1987
JUDGMENT : ( 1. ) THE petitioner was elected Sarpanch of Gram Panchayat sonai in Sagar district. By order dated 31-12-1984 (Annexure P/2) passed by the Sub-Divisional Officer, Khurai, on an election petition filed by the respondent No. 1 Omkar singh, his election has been set aside on the ground that he was not entitled to contest the election of Panch or Sarpanch since he was convicted for an offence under Sections 323 and 148, Indian Penal Code, and has incurred a disqualification in terms of Section 30 (l) (a) (ii) of the Madhya Pradesh Panchayat Act, 1981 (No. 35 of 1981 ). The petitioner challenges this order Annexure P/2 setting aside his election as Sarpanch in this petition under Article 226 of the Constitution of India. ( 2. ) RELEVANT facts may be noted. Between 1-6-1983 and 5-6-1983 nomination papers were accepted for election of Panchas of Gram Panchayat, Sonai. Scrutiny was held on 6-6-1983. The petitioner filed his nomination paper for office of Panch. Respondent Halkai objected to the petitioners nomination on the ground that the petitioner was convicted for an offence under Sections 323 and 148, Indian Penal Code, and was sentenced to two and half years rigorous imprisonment by Additional Sessions judge, Khurai on 12-10-1979. This sentence was affirmed by the High Court on 29-1-1980. On 4-1-1981, the petitioner was released from jail after serving out the sentence. This objection was rejected and the petitioner was elected a Panch. Then he also contested for election as Sarpanch. Respondent Omkar Singh was the other contesting candidate to that office. Again an objection was raised, of course orally, that since a period of five years has not lapsed after the petitioners conviction as aforesaid, he was not qualified to contest the election, to the office of either the Panch or Sarpanch. The objection was overruled and the petitioner was elected Sarpanch. Respondent then filed the election petition under Section 117 of the Panchayat Act. The Sub-Divisional officer (respondent No. 3) by the impugned order Annexure P/2, upheld the objection to the petitioners candidature and set aside his election. It may be mentioned that in support of his candidature, the petitioner submitted that the State Government by order dated 21-9-1984 (Annexure P/1) has reduced this period of five years to a period of two years in exercise of powers under Section 30 (l) (a) (ii) of the Panchayat Act. It may be mentioned that in support of his candidature, the petitioner submitted that the State Government by order dated 21-9-1984 (Annexure P/1) has reduced this period of five years to a period of two years in exercise of powers under Section 30 (l) (a) (ii) of the Panchayat Act. According to this order, the period of his disqualification on account of conviction was fixed at two years after petitioners release from jail after serving out the sentence. The aforesaid facts have not been disputed before us. ( 3. ) SECTION 30 (l) (a) (ii) of the M. P. Panchayat Act, 1981 is as follows :-"30. Disqualification for being office-bearer of Panchayat.- (1) No person shall be eligible to be an office-bearer of a Panchayat who - (a) has, whether before or after the commencement of this Act, been convicted - (i ). . . . . . . . . . . . . . . (ii) of any other offence and been sentenced to imprisonment for not less than six months, unless a period of five years or such lesser period as the State government may allow in any particular case, has elapsed since his release or". Further rule 22 of the Rules framed under Section 357 of repealed Gram Panchayat Act (No. 7 of 1962) which Rules in absence of the Rules framed under the Panchayat Act, 1981 are still in force (See Daya Prasad vs. Election Officer, 1983 MPLJ 713 ), provides that the "prescribed authority shall declare the election or co-option of the returned candidate to be void if on the date of his election or co-option the returned candidate was not qualified to be chosen to fill the seat under the Act. " A person who suffers from any of the disqualifications mentioned in sub-section (1) of Section 30 shall not be legally qualified to hold any office of the Panchayat including that of a Panch or Sarpanch. If, therefore, in accordance with rule 22 (1) (a), the person declared elected suffers from this disqualification on the date of his election, his election has to be declared void. The words "eligible to be" as used in Section 30 (1) of the Act also found place in Section 17 (1) of the MP. If, therefore, in accordance with rule 22 (1) (a), the person declared elected suffers from this disqualification on the date of his election, his election has to be declared void. The words "eligible to be" as used in Section 30 (1) of the Act also found place in Section 17 (1) of the MP. Panchayat Act, 1962 (No. 7 of 1962) (since repealed) and were interpreted in the similar context by a Division Bench of this Court in Halke Mahate vs. H. C. Kamthan, 1970 MPLJ 346, to mean that no person who suffers from such disqualifications shall be legally qualified to hold an office of a Panch, Sarpanch or upsarpanch. Thus, from the date when the petitioner was declared elected on 18-7-1983, he was not eligible to hold the office of Panch or Sarpanch. ( 4. ) EVEN otherwise we find that on the date of his election the petitioner was disqualified to be chosen to fill the seat of Panch or Sarpanch because five years had till then not lapsed after his conviction. The phraseology of clause (a) of sub-rule (1) of Rule 22 of the Rules, 1962 is similar to that of Section 100 as now stands after amendment, of the Representation of the People Act, 1951. Clause (a) of sub-section (1) of Section 100 of the Representation of the People Act, 1951 is as follows : "100. Grounds for declaring election to be void -Subject to the provisions of sub-section (2) if the High Court is of opinion (a) that on the date of his election a returned candidate was not qualified or was disqualified, to be chosen to fill the seat under the Constitution or this act or the Government of Union Territories Act, 1963, or" in Vidya Charon Shukla vs. Purshottam Lal Kaushik, AIR 1981 SC 547 , after referring to the definition of term "disqualified" as defined in Section 7 (b) of the Representation of the People Act, it was pointed out that the "disqualified for being chosen" has to be restricted to the "date of his election", i. e. , declaration of the result of the election. This, according to the decision in Vidya Charan Shuklas case is "to be the focal point of time in an inquiry under this clause. This, according to the decision in Vidya Charan Shuklas case is "to be the focal point of time in an inquiry under this clause. " Interpreted in this light, the disqualification as mentioned in Section 30 of the Panchayat Act for declaring the election or co-option of a returned candidate as void in terms of rule 22 of the Rules must exist "on the date of his election or co-option", i. e. , the declaration of his result. ( 5. ) IN the present case, the petitioner was declared elected as Sarpanch on 18-7-1983. On that date a period of five years had not lapsed after the petitioners conviction. The petitioner was, therefore, disqualified for being elected as Sarpanch on the date of declaration of his result. His election, therefore, has been rightly set aside. ( 6. ) THERE is no substance in the argument that the order Annexure P/1 passed on 21-7-984, i. e. , subsequent to the declaration of result of election, has the effect of curing the disqualification. What clause (ii) of sub-section (a) of Section 30 of the Act permits the State Government is to reduce the duration of five years during which a disqalification may attach to a person of being office-bearer of a Panchayat upon his being sentenced to imprisonment not less than six months for offence other than the one specified in clause (i) of that sub-section. The reduction shall be out of such period during which the disqualification is still to continue after the State Government takes action under this provision. The period during which the person so sentenced has already suffered the disqualification cannot in exercise of this power be reduced by the state Government. The power is not one of rectification but is one allowing the government to reduce the period during which the disqualification is still to operate when the State Government takes action under this provision. The order to be passed under this provision by the State Government is intended to cause secession of disqualification in future. Under this provision a person, sentenced for an offence not less than six months is disqualified for being office-bearer of the Panchayat for five years after his release. The order to be passed under this provision by the State Government is intended to cause secession of disqualification in future. Under this provision a person, sentenced for an offence not less than six months is disqualified for being office-bearer of the Panchayat for five years after his release. Suppose a period of two years had passed from the date of release of such person but the Government does not pass any order reducing the period of disqualification from five years to any shorter period till then the Government makes thereafter an order reducing that period of five years to one year. Can such an order have the effect of removing the disqualification at any time during these two years which have lapsed after such release of that person ? In our opinion, the answer to this question would be in the negative. The order to be passed by the Government in exercise of this power shall only operate in future and may have the effect of reducing the time limit in future but does not have the effect of removing the disqualification for a period during which no such order was passed. It would only mean that after the issuance of that order by the State Government under this provision, for the rest of the period the disqualification shall not attach to such person. We are, therefore, clearly of opinion that the order issued under this provision by the State Government shall not have the effect of curing the disqualification for any period prior to the issue of that order. This view of the provision so taken by us shall also have the effect of preventing the abuse of this discretionary power. We, therefore, hold that in absence of any action by the State Government under this clause on the date of declaration of the result of petitioners election as Sarpanch, the disqualification existed and the petitioner could not have been elected as Sarpanch. ( 7. ) FOR what we have said above, we are of opinion that the Sub-Divisional Officer, khurai (respondent No. 3) rightly declared the petitioners election as Sarpanch void. Since there were only two contesting candidates to the office of Sarpanch and the petitioner has been held disqualified to be declared elected to that office, the respondent No. 1 Omkar Singh has been rightly declared as duly elected Sarpanch. Since there were only two contesting candidates to the office of Sarpanch and the petitioner has been held disqualified to be declared elected to that office, the respondent No. 1 Omkar Singh has been rightly declared as duly elected Sarpanch. This course is permissible in terms of rule 24 of the Rules which permits the prescribed authority to declare the election or co-option of all or any returned candidate to be void and the petitioner or any other candidate to have been duly elected. ( 8. ) FOR the reasons aforesaid, the petition is dismissed with costs. Counsels fee Rs. 100/ -. Balance of security amount be refunded to the petitioner. Petition dismissed.