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Madhya Pradesh High Court · body

2001 DIGILAW 328 (MP)

Hukum Singh Rajput v. Collector, Panna

2001-04-12

DIPAK MISRA

body2001
ORDER 1. Invoking the extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for issue of a writ in the nature of certiorari for quashment of the order dated 12.6.2000, Annexure P-7, passed by the Sub-Divisional Officer (Revenue)-cum-Specified Officer, the respondent No.2 herein. 2. The facts as have been unfurled are that the State Government declared the Panchayat Election to be held in the month of January, 2000 and as a consequence thereof, ward wise voters list was prepared. In the voter list of the Gram Panchayat, Imaliya of ward No.9, the petitioner's name appeared at serial No. 524 in which it was mentioned that his age was 19 years. The petitioner submitted his nomination form for the post of 'Panch' of the Ward No.9 of the aforesaid Gram Panchayat. As his age was mentioned to be 19 years in the voters' list he, with bona fide belief, mentioned his age to be 19 years in the nomination form. At that time he was very much aware that he was 25 years of age but under the impression that the age mentioned in the voters, list should be mentioned in the nomination form, he filled up the form mentioning the age as per the voters list. The Returning Officer, at the time of scrutiny, had decided to reject the form of the petitioner and at that juncture, he was called upon by the Returning Officer to explain about his age. As averred, the petitioner submitted his mark sheet and School Leaving Certificate before the Returning Officer and satisfied him that his age was 25 years as on that date. The Returning Officer found it to be a clerical error and not substantial one and accordingly accepted the nomination form of the petitioner. As the petitioner was the only candidate, he was declared elected as 'Panch' of the aforesaid ward. Thereafter he was elected as 'Up-sarpanch' of the Gram Panchayat. At that stage the respondent No.4 filed an election petition forming the subject-matter of case No. 5/A-89/1999-2000 before the respondent No.2 alleging that the petitioner was 19 years of age and his nomination form had been erroneously accepted and, therefore, his election was invalid in the eye of law. Thereafter he was elected as 'Up-sarpanch' of the Gram Panchayat. At that stage the respondent No.4 filed an election petition forming the subject-matter of case No. 5/A-89/1999-2000 before the respondent No.2 alleging that the petitioner was 19 years of age and his nomination form had been erroneously accepted and, therefore, his election was invalid in the eye of law. After receiving the notice, the petitioner submitted a detailed reply before the respondent No.2 contending, inter alia that his age was wrongly mentioned in the voters' list as 19 years and, in fact, he was 25 years of age. Along with his written statement he filed copies of the mark sheet and School Leaving Certificate. The respondent No.2 without framing any issue and recording any evidence, declared that the election of the petitioner was void as the petitioner was not entitled in law to adduce any evidence contrary to the declaration given by him in the nomination form. It is urged in the petition that the Specified Officer has committed gross and grave error by not affording an opportunity to the petitioner to adduce evidence in support of his age, more so when his mark sheet was accepted and he was elected as 'Panch'. It is further put forth that when the Returning Officer had accepted the nomination form of the petitioner being satisfied with regard to the his age, the Specified Officer could not have set aside the election solely on the basis of the declaration in the nomination form inasmuch as the petitioner is entitled in law to substantiate his case to show that the acceptance of his nomination form was valid in law. It is further put forth that the respondent No. 4 could not have challenged the election of the petitioner as he did not have the locus standi inasmuch as the rules do not permit such challenge by him more so when he belongs to a different ward. 3. A return has been filed by the answering respondent No.4 disputing some of the documents, namely, School Leaving Certificate and the mark sheet which have been annexed to the petition. The age of the petitioner has also been disputed by the said respondent. 3. A return has been filed by the answering respondent No.4 disputing some of the documents, namely, School Leaving Certificate and the mark sheet which have been annexed to the petition. The age of the petitioner has also been disputed by the said respondent. It has been stated that when the petitioner had admitted his age to be 19 years, the Returning Officer was duty bound to reject the same and could not have accepted the same as valid. It has been highlighted that the Returning Officer had rejected the nomination form of other persons from other wards on the ground of underage. It has also been put forth that the petitioner had not produced any document before the Returning Officer to satisfy that he was 25 years old. It has been asserted that the Returning Officer had no authority to accept the nomination paper which had already been rejected by him. It has been set forth that the petitioner has got himself elected unopposed in collusion with the Returning Officer and thereafter, became 'Up sarpanch' of the village. It is further stated that as the factual matrix was self-revelatory, there was no necessity for framing of issues or adducing of evidence. The Returning Officer had committed gross illegality by accepting the nomination form of the petitioner and as such an action is totally impermissible, the Specified Officer is justified in setting aside the election. As far as the locus standi is concerned, it has been put forth by the respondent No.4 that he had the locus standi to challenge the election of the petitioner as he was a person aggrieved. 4. This Court by order dated 9.1.2001 had directed the learned Deputy Advocate General for the State to produce the file and he has produced the same. 5. I have heard Mr. Vivek Rusia, learned counsel for the petitioner, Mr. R.S. Jha, learned Deputy Advocate General for the respondents No. 1 and 2, Mr. Sanjay K. Agrawal, learned counsel for the respondent No.3 and Mr. P.L. Pandey, learned counsel for the respondent No.4. It is submitted by Mr. Rusia that the election petition at the instance of the respondent No.4 was not tenable inasmuch as he was neither a candidate in the election nor had he filed any nomination form which was rejected. Sanjay K. Agrawal, learned counsel for the respondent No.3 and Mr. P.L. Pandey, learned counsel for the respondent No.4. It is submitted by Mr. Rusia that the election petition at the instance of the respondent No.4 was not tenable inasmuch as he was neither a candidate in the election nor had he filed any nomination form which was rejected. It is his further submission that no voter is entitled to file an election petition inasmuch as such a provision is conspicuously absent in the M.P. Panchayat Raj Adhiniyam, 1993 (hereinafter referred to as 'the Act'), M.P. Panchayat Nirvachan Niyam, 1995 (for brevity 'the Niyam') and the Madhya Pradesh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 (in short 'the 1995 Rules'), unlike the provisions in the M.P. Municipalities Act 1961 and the M.P. Municipal Corporation Act, 1956. It is also urged by him that the respondent No.4 was a voter in respect of ward No.4 whereas the petitioner was elected in respect of the Ward No.9 and, therefore, the said respondent could not have had any grievance as far as the election of the petitioner is concerned. Criticising the impugned order, the learned counsel has canvassed that the Specified Officer has fallen into gross error by opining that the petitioner could not have adduced any evidence in support of his acceptance of nomination form by the Returning Officer and that alone makes the order vulnerable in law. Mr. R.S. Jha, learned Deputy Advocate General for the State has submitted that the respondent No. 4 had locus standi to challenge the election of the petitioner as he was a person aggrieved. With regard to the other findings, learned counsel for the State has supported the same. Mr. Sanjay K. Agrawal, learned counsel for the Gram Panchayat has submitted that the Gram Panchayat had nothing to do with the• election petition and it has been unnecessarily dragged into the litigation. Mr. With regard to the other findings, learned counsel for the State has supported the same. Mr. Sanjay K. Agrawal, learned counsel for the Gram Panchayat has submitted that the Gram Panchayat had nothing to do with the• election petition and it has been unnecessarily dragged into the litigation. Mr. P.L. Pandey, learned counsel appearing for the respondent No.4, in his turn, has contended that the Act does not stipulate the categories of persons who can file an election petition, and the 1995 Rules use the word 'person' and that would engulf in its ambit and sweep 'person aggrieved' and the respondent No.4 is a person aggrieved inasmuch as the petitioner was not only elected as Panch from the Ward No.9, but eventually became Up-sarpanch of the Gram Panchayat which he could not have become if the nomination form would have been rejected and the petitioner being a voter of the Gram Panchayat has the locus standi to challenge the election of the petitioner. The learned counsel has further submitted that the petitioner having admitted his age in the nomination form is estopped in law to adduce any evidence contrary to the same and, therefore, the Specified Officer is justified in not considering the material brought on record by the petitioner. 6. I shall advert to the first contention first. It relates to the locus standi of the respondent No.4 to file the election proceeding. Section 122 of the Act deals with election petition. It reads as under: "122. Election petition – (1) An election under this Act shall be called in question only by a petition presented in the prescribed manner: (i) in case of Gram Panchayat to the Sub-Divisional Officer (Revenue); (ii) incase of Janpad Panchayat to the Collector; and (iii) in case of Zila Panchayat to the Divisional Commissioner and not otherwise. (2) No such petition shall be admitted unless it is presented within thirty days from the date on which the election in question was notified. (3) Such petition shall be enquired into or disposed of according to such procedures as may be prescribed." The 1995 Rules have been framed by the State Government in exercise of power conferred on it under section 95(1) read with sub-sections (1) and (3) of section 122 of the Act. Rule 3 of the 1995 Rules provides for presentation of election petition. It reads as under: "3. Presentation of election petition. Rule 3 of the 1995 Rules provides for presentation of election petition. It reads as under: "3. Presentation of election petition. – (1) An election petition shall be presented to the Specified Officer during the office hours by the person making the petition, or by a person authorised in writing in this behalf by the person making the petition. (2) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition." (underlining is mine) Rule 4 of the 1995 rules deals with the parties to the petition. It is relevant to reproduce the same: "4. Parties to the petition- Where the petitioner, in addition to claiming a declaration that the election 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 he shall join as respondents to his petition all the contesting candidates at the election." Rule 5 provides what an election petition should contain and Rule 6 provides what reliefs may be claimed by the petitioner. Rule 21 stipulates the ground for declaring the election to be void. 7. On a fair reading of the aforesaid Rules it is apparent that there is no provision in regard to the aspect who can call in question the validity of an election of a returned candidate. At this juncture, learned counsel for the petitioner has drawn the attention of this Court to section 20 of the M.P. Municipalities Act, 1961 and section 441 of the M.P. Municipal Corporation Act, 1956. Sub-sections (1) and (2) of section 20 of the Municipalities Act, 1961 read as under: "20. Election petitions.-- (1) No election or [nomination] under this Act 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 . Election petitions.-- (1) No election or [nomination] under this Act 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; (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 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 (hereinafter such District Judge or Additional District Judge referred to as Judge)." Sub-section (2) of section 441 of the M.P. Municipal Corporation Act, 1956 reads as under: "441(2). Such petition may be presented on one more of the grounds specified in section 441-B. (a) by any candidate at such election or [nomination]; or (b)(i) in the case of an election of a Councillor, by any voter of the ward concerned; (ii) in the case of [nomination] of a Councillor, by any Councillor; (iii) in the case of election of Mayor, by any voter of the Municipal area] to the principal civil Court of original juisdiction (hereinafter referred to as the Court) within the local limits of whose jurisdiction the election or [nomination] was held." Submission of Mr. Rusia, learned counsel for the petitioner is that in absence of such a provision in the Act or the relevant Rules any person cannot file an election petition. In the case at hand the petitioner was elected unopposed from Ward No.9. By virtue of the said election he was elected as the Up-sarpanch. An Up-sarpanch is elected under Sub-section (5) of section 17 of the Act. It reads as under: "17(5). In the case at hand the petitioner was elected unopposed from Ward No.9. By virtue of the said election he was elected as the Up-sarpanch. An Up-sarpanch is elected under Sub-section (5) of section 17 of the Act. It reads as under: "17(5). The Prescribed Authority shall as soon as may be after every election call a meeting of the elected Panchas and Sarpanch for the purpose of election of Up-sarpanch and subject to the provisions of sub-section (7) the Gram Panchayat shall, in the meeting, so called elect from amongst its elected members an Up-sarpanch." The matter possibly would have been different if the petitioner would not have been elected as Up-sarpanch. In any case, I do not intend to dilate on that issue. By becoming Up-sarpanch, he comes to hold a responsible post in the Gram Panchayat. In that event, the concept of wards melts into insignificance and his election becomes a cause of grievance for any person who belongs to the Gram Panchayat. It is to be borne in mind that in absence of any categorisation as to who can file an election petition and the only provision that throws some light being rule 3 of the 1995 Rules, the same has to be purposively interpreted. The said provision enshrines that an election petition is to be presented to the Specified Officer during office hours by the person making a petition or by a person authorised in writing in that behalf by the person making the petition. If the said provision is read conjointly with the other rules, it is apparent that a relief can be claimed declaring the election of the returned candidate to be void in addition to further declaration. Thus, a person may not claim that he himself or other candidate has been duly elected but may seek a relief for declaration simpliciter that the election of the elected candidate is void. Thus, the keyword is 'person'. Though the word 'person' has been mentioned, it would not engulf in its ambit or sweep a person from anywhere. He must have some connection or nexus with the election. He must be a person aggrieved' . 8. Thus, the keyword is 'person'. Though the word 'person' has been mentioned, it would not engulf in its ambit or sweep a person from anywhere. He must have some connection or nexus with the election. He must be a person aggrieved' . 8. In this context, I may profitably refer to a Division Bench decision of this Court rendered in the case of Chandi Bai (Smt.) v. Smt. Gulabkali and others, [ 1999 (1) JLJ 96 ], wherein the Bench referred to a decision rendered III the case of S. Govind Menon v. K. Madhvan Nair and others (AIR 1964 Kerala 235), where in reference had been made to a decision of Chancery Division rendered in the case of Sidebotham [(1880) 14 Ch D 458] and Corpus Juris Secundum and dealt with the concept of 'person aggrieved'. It is apposite to state here, in the aforesaid case, the Division Bench was dealing with the rights of a councillor to prefer a Letters Patent Appeal though she was not a party before the learned Single Judge. The Hon'ble Chief Justice speaking for the Court expressed thus: "7. In the present case, the appellant is elected as councillor of the Nagar Panchayat and she is interested to see that a person who is to be elected to the office of the President should be duly elected and should have confidence of the majority. In the democracy, the rule of law is supreme, therefore, a person who has majority with him alone can be entrusted the right to govern. In the present case, we are satisfied that the appellant has the legitimate right to ventilate her grievance that the petitioner/respondent has no right in law to continue as a President as he has lost confidence of the majority of voters. Therefore, the expression 'person aggrieved' has to be given an extended meaning and specially in the present context, we are of the opinion that the appellant is a person aggrieved as she being a Councillor of the Nagar Panchayat has a right to be governed by a person who proves the majority in the house. Thus, in our view, the appellant is an aggrieved person and we accordingly overrule the objection of the respondent/petitioner and permit the appellant to prosecute this appeal though she was not a party in the writ petition before the learned Single Judge." 9. Thus, in our view, the appellant is an aggrieved person and we accordingly overrule the objection of the respondent/petitioner and permit the appellant to prosecute this appeal though she was not a party in the writ petition before the learned Single Judge." 9. The present factual matrix has to be tested on the anvil of the aforesaid enunciation of law. The election petitioner though belongs to a different ward but was assailing the election of the present writ petitioner, who ~lad been elected as Up-sarpanch. In that event he has a legitimate right to challenge the election of the elected candidate whose first step was to become a panch. Hence, I am of the considered view that he was a person aggrieved and the election petition at his instance was maintainable. Thus, the first submission of Mr. Rusia, learned counsel for the petitioner is not accepted. 10. The second limb of submission of the learned counsel is that the Specified Officer has grossly erred in not considering the material produced by the petitioner before him on the ground that once he had declared his age to be 19. years in the nomination form, that was binding on him and he was not entitled in law to adduce any evidence. The present case has its own peculiarity. It is worth stating here that the petitioner had pleaded that he had satisfied the Returning Officer by production of documents with regard to his age. True it is, the said documents are not on record but there is no reason to disbelieve the petitioner. In any case, the Returning Officer considering the factual matrix allowed the nomination form to remain valid and the petitioner was elected unopposed. Under these circumstances, he can justify the action of the Returning Officer in accepting his nomination form. 11. At this juncture it is apposite to refer to the decision rendered in the case of Harcharan Singh v. Mohinder Singh ( AIR 1968 SC 1500 ), wherein their Lordships expressed thus: "The statutory requirements of election law must be strictly observed. An election dispute is a statutory proceeding unknown to the common law; it is not an action at law or in equity. As a copy of the relevant entries from the electoral roll relating to the appellant, it was indisputably defective. An election dispute is a statutory proceeding unknown to the common law; it is not an action at law or in equity. As a copy of the relevant entries from the electoral roll relating to the appellant, it was indisputably defective. But under section 36(4), the returning Officer is entitled to accept the nomination paper even if it be defective, if the defect is not of a substantial character; indeed he is enjoined not to reject the nomination paper unless the defect is of a substantial character. The details for identifying the appellant as an elector were duly furnished. His age was mentioned in the nomination paper, though it was not to be found in the certified copy produced by the appellant. No objection was raised to the acceptance of the nomination paper on behalf of the contesting candidate and his agents present at the scrutiny. The Returning Officer satisfied himself by personal inquiry that the appellant was above the age of twenty-five and therefore competent to stand for election. It is true that he did not apply his mind to the absence of house number entered in the electoral register. But he did not come to the conclusion that even though the copy produced was defective, the defect was of a substantial character. The decision of the Returning Officer in the matter is not final and in appropriate cases it is open to the Court to reach a different conclusion in an election petition." In this context, I may profitably refer to the decision rendered in the case of J.H Patel v. Subhan Khan (1996) 5 SCC 312 wherein the Apex Court held as under: An election petition, being original proceedings and not appellate proceedings, the High Court's jurisdiction cannot be confined to the grounds on which the Returning Officer rejected the nomination. The High Court is not precluded from considering any other ground or fresh material bearing on the question of the rejection of the nomination paper." On the basis of the aforesaid principles laid down by the Apex Court, it becomes luminously clear that a candidate may file fresh material to show that the Returning Officer's order rejecting the nomination paper was improper and the Election Tribunal can reach at a different conclusion in an election petition. Similar reasonings can be adopted to support the order passed by the Returning Officer. Similar reasonings can be adopted to support the order passed by the Returning Officer. In the instant case the petitioner has categorically stated that he had filed documents to show that he was eligible to contest the election as he was aged about 25 years and the Returning Officer on that basis accepted his nomination form. It needs no special emphasis to state that at that time of scrutiny, a candidate can satisfy the Returning Officer with regard to his eligibility quite apart from the above, there was no opposition with regard to the age of the petitioner. Under these circumstances, I am of the considered view that the petitioner is entitled in law to file material to satisfy the Election Tribunal that the order passed by the Returning Officer in accepting his nomination form is just, proper and supportable in law. On a scrutiny of the impugned order it transpires that the Specified Officer has not considered the material produced by him solely on the ground that such material was not to be considered in view of the mention of age in the nomination form. This finding is absolutely erroneous and does not deserve to be given the stamp approval by this Court. Accordingly, I am inclined to 'quash the impugned order and direct that the Specified Officer shall consider the material put forth by the petitioner in support of his age and to substantiate from all aspects the order passed by the Returning officer was valid in law and accordingly it is so directed. 12. Resultantly, the writ petition is allowed and the matter is remitted to the Specified Officer for reconsideration of material brought on record by the petitioner. It would also be open to the petitioner to adduce further evidence, if circumstances so warrant. The Specified Officer shall frame appropriate issues and proceed in accordance with law. It is hereby made clear that the petitioner shall reap all the consequences of the quashment of the order contained in the Annexure P/7. There shall be no order as to costs.