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Madhya Pradesh High Court · body

2001 DIGILAW 626 (MP)

Krishnanand Gautam v. State of M. P.

2001-08-24

DIPAK MISRA

body2001
ORDER 1. Invoking the extraordinary jurisdiction of this Court, the petitioner has prayed for issue of a writ of certiorari for quashment of the order dated 25.9.2000 contained in Annexure P-7 and further to command the respondent Nos. 1 and 2 to allow the petitioner to continue in the post of Sarpanch of the Gram Panchayat, namely, Kathwariya, District, Panna. 2. The facts as have been uncurtained are that the petitioner was elected as Sarpanch of the Gram Panchayat, Kathwariya, and to that effect, the Returning Officer, Janpad Panchayat Gunour, District Panna issued an election certificate on 30.1.2000. The petitioner at that time was holding the post of the President, Jila Sahakari Sangh Maryadit, Panna and before filing the nomination papers for the post of Sarpanch, he had sent a resignation letter to the Assistant Registrar, Co-operative Societies on 3.1.2000, vide Annexure P-2. The letter of resignation of the petitioner was accepted' in a meeting convened by the Assistant Registrar on 6.3.2000. He was communicated about the acceptance of resignation vide Annexure P-5, dated 8.3.2000. 3. The respondent No.3 preferred an election petition before the Sub-Divisional Officer-cum-Specified Officer and the said application was registered as Case No. 12/A/89-99-2000. After the petitioner received the notice of the election petition he filed his objection contending, inter alia; that there has been non-compliance of the mandatory provision as envisaged under Rule 3(2) of the Madhya Pradesh Panchayats (Election petitions, corrupt practices and disqualifications for membership) Rules, 1995 [hereinafter referred to as 'the 1995 Rules']. The Specified Officer did not consider the objection raised by the petitioner and allowed the election petition by order dated 25.9.2000, contained in Annexure P-7. 4. It is pleaded in the writ petition that as there has been non-compliance of the mandatory provisions, the elechon petition filed by the respondent No.3 was not maintainable. It has also been pleaded that before assuming the charges for the post of Sarpanch the petitioner had submitted his resignation from the post of President, Jila Sahakari Sangh Maryadit, Panna and hence, he had complied with the requirement as en grafted under section 17(7) of the M.P. Panchayat Raj Adhiniyam, 1993 (hereinafter referred to as 'the Act') and, therefore, the order passed by the respondent No.3 is unsustainable. 5. This Court by order dated 4.1.2001 had asked Mr. A.S. Raizada, learned Government Advocate for the State to produce the record of the election case. 5. This Court by order dated 4.1.2001 had asked Mr. A.S. Raizada, learned Government Advocate for the State to produce the record of the election case. Eventually the record was produced before this Court. 6. A return has been filed by the respondent No.3 and 4 contending, inter alia, that the impugned order passed by the Specified Officer is absolutely legal and valid and no fault can be found with it. It is further putforth that the petitioner did not take any objection in relation to the alleged violation of the Sub-rule (2) of Rule 3 of the 1995 Rules and hence, the petitioner cannot agitate any contention in that regard. It is further putforth that there has been no violation of the aforesaid Rules .and hence, the stand taken in the writ petition is unsustainable. According to the answering respondent No.4 the petitioner was holding the post of the President of Zila Sahakari Seva Sangh Maryadit, Panna, even at that time of the election of the Gram Panchayat for the post of Sarpanch. It has been stated that he had actually filed his nomination paper on 10.5.1999 and has pleaded that he had given resignation on 3.1.2000 which clearly goes to show that at the time of submission of the nomination papers the petitioner was admittedly the President of the District Co-operative Sangh Maryadit, Panna. It has also been pleaded that the procedure for resignation from the post of President can be made applicable only when the resignation is also made from the post of the Director, but the petitioner has not explained anything in relation to the resignation from the post of Director in any of the document filed by him and, therefore, the resignation could not have been considered in relation to the post of Director. A reference has been made to section 17 of the Act to show that the petitioner was the President, Co-operative Society and, therefore, his election to the post of Sarpanch is illegal as he was incompetent to participate in the election. It has been reiterated in the counter affidavit that there has been total compliance of Rule 3 of the 1995 Rules and the petitioner has not raised any objection before the Prescribed Officer and, therefore, such objection is to be ignored at this juncture. It has been reiterated in the counter affidavit that there has been total compliance of Rule 3 of the 1995 Rules and the petitioner has not raised any objection before the Prescribed Officer and, therefore, such objection is to be ignored at this juncture. It has been further setforth, the Annexure P-8 which has been brought on record is a false and concocted one inasmuch as earlier Mr. S.K. Mishra was engaged as counsel on behalf of the respondent No.3, who filed the election case and signed all the copies of the petition. However, some spare copies of the petition were got typed by Shri S.K. Mishra for keeping the same on record on which no signatures of the respondent No.3 were obtained by assuring that the copy was not to be deposited before the Sub-Divisional Officer. But later on the case was pleaded by the other counsel as Mr. Mishra joined hands with the present petitioner. It has been putforth that all had received true copies of the petition duly signed by the answering respondent No.3 and the petitioner has frivolously made an attempt to agitate the plea that the Rule 3 of the 1995 Rules has not been complied with. It is further putforth that as there was no resignation of the petitioner from the post of Chairman of the Society concerned, he was not competent to contest the election for the post of Sarpanch. 7. I have heard Mr. S.N. Tiwari, learned counsel for the petitioner, Mr. Sanjay K. Agrawal learned Panel Lawyer for the respondent No.2 and Mr. S.K. Dwivedi and Mr. R.B. Singh, learned counsel for the respondent No.5. 8. It is submitted by Mr. Tiwari, learned counsel for the petitioner that when the rules which are mandatory have not been complied with it goes to the very root of the matter, he can raise the said objection before this Court. It is further putforth by him that when the petitioner had submitted his resignation, the disqualification which has been provided under section 17 of the Act get extinguished and, therefore, the finding on that score by the Election Tribunal is totally unwarranted. Mr. Sanjay K. Agrawal, learned Panel Lawyer for the State has supported the order passed by the Specified Officer. Mr. S.K. Dwivedi and Mr. Mr. Sanjay K. Agrawal, learned Panel Lawyer for the State has supported the order passed by the Specified Officer. Mr. S.K. Dwivedi and Mr. R.B. Singh, learned counsel appearing for the respondents No. 3 and 4 have submitted that as the plea with regard to requirement of the Rules was not raised before the Election Tribunal the petitioner is not entitled to raise such a contention in the present writ petition. It is also putforth by them that in any case there had been compliance of the Rule in question and, therefore, the Tribunal's entertainment of the election petition cannot be found fault with. As far as resignation part of the petitioner is concerned it has been vehemently urged by the learned counsel that the resignation of the election petitioner did not erase or efface the disqualification as he was continuing in the post and hence, he was not entitled to participate in the election. 9. To appreciate the rival submissions raised at the Bar it is apposite to refer to Rule 3 of the 1995 Rules. 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." In this context, I may reproduce to Rule 8 of the 1995 Rules. It reads as under : "8. Procedure on receiving petition – If the provisions of rule 3 or rule 4 or rule 7 have not been complied with the petition, shall be dismissed by the Specified Officers. Mr. Tiwari has submitted that there has been non-compliance of sub-rule (2) of the rule 3 of 1995 Rules inasmuch as the election petition was not accompanied by true copies of the petition and every such petition was not attested by the petitioner. To substantiate the aforesaid stand he has referred to annexure p/8 to show that the petitioner had not signed the document. 10. To substantiate the aforesaid stand he has referred to annexure p/8 to show that the petitioner had not signed the document. 10. I have perused the written statement filed by the petitioner before the Specified Officer and on a close scrutiny of the same, it is noticeable that there is no objection with regard to non-compliance of the provision of rule 3(2) of the 1995 Rules. To prove non-compliance of the said rule, the present petitioner is required to show that the election petitioner had not attested the copy as the true copy under his signature to be a true copy of the petition. True it is, if there has been such a non-compliance, the election petition has to be dismissed. But the fact remains when such an objection was not raised and the notice which was served on the petitioner was not brought on record being marked as an exhibit, such a contention cannot be appreciated at this juncture. Quite apart from the above, this was also not brought in evidence before the Specified Officer and hence, I repel this contention of Mr. Tiwari. 11. The next contention of the learned counsel for the petitioner is that there has been no disqualification as envisaged under section 17(7) of the Act and, therefore, the finding on that score is unsustainable. Before I advert to the fact situation it is apposite to refer to section 17(1) (iii) and (7) of the Act. It reads as under: " 17. Election of Sarpanch and Up-Sarpanch – (1) In every Gram Panchayat there shall be a Sarpanch and an Up-Sarpanch. A person who - xxx xxx xxx xxx (iii) is not Chairman or Vice Chairman of Co-operative Society: shall be elected as a Sarpanch, subject to provisions of sub-sections (2), (3) and (4), by persons whose names are included in the list of voters of the Gram Panchayat area in such manner as may be prescribed. A person who - xxx xxx xxx xxx (iii) is not Chairman or Vice Chairman of Co-operative Society: shall be elected as a Sarpanch, subject to provisions of sub-sections (2), (3) and (4), by persons whose names are included in the list of voters of the Gram Panchayat area in such manner as may be prescribed. xxx xxx xxx (7) If the Sarpanch or the Up.-Sarpanch becomes the member of either House of Parliament or a member of the State Legislative Assembly or Chairman or Vice-Chairman of a Co-operative Society he shall be deemed to have vacated his office as Sarpanch or Up-Sarpanch, as the case may be, with effect from the date of becoming such member or Chairman or Vice-Chairman and a casual vacancy shall be deemed to have accrued in such office for the purpose of section 38." On a bare reading of the aforesaid provision, it is quite clear that if a Sarpanch becomes a Chairman or Vice-Chairman of a Co-operative Society, he shall be deemed to have vacated his office with effect from the date of his becoming the Chairman. It has been pleaded in the petition that before participating in the election of Gram Panchayat the petitioner was holding the post of President of Jila Sewa Sahkari Sangh Maryadit and he sent his resignation letter to the Assistant Registrar, Co-operative Societies on 3.1.2000 and after he was declared a Sarpanch he sent a reminder to the said authority for giving charge of the post to another person. As has been pleaded, his resignation was accepted on 6.3.2000. On a perusal of the order of the Specified Officer it transpires that the Tribunal had framed three issues, namely; whether at the time of filing of the nomination papers the petitioner was the President of the Society in question; whether the returned candidate by virtue of acceptance of his resignation was entitled to contest in the election for the post of Sarpanch or not; and whether on the date of scrutiny of nomination papers the petitioner was eligible to contest in the election or not. The fact situation as emerges from the order of the Tribunal a notification was issued for election on 6.5.1999 and the nomination forms were to be filed on 13.5.1999 and the last date for withdrawal was 17.5.1999. The fact situation as emerges from the order of the Tribunal a notification was issued for election on 6.5.1999 and the nomination forms were to be filed on 13.5.1999 and the last date for withdrawal was 17.5.1999. The date of counting was 4.6.1999 and the date of declaration of the result was 6.6.1999. In accordance with the aforesaid notification nomination forms were filed. This notification was challenged in a writ petition before this Court as a consequence of which the election could not take place pursuant to the aforesaid notification. After the writ petition was disposed of a further notification was issued fixing various dates. As per the second notification the date of scrutiny was extended up to 3.1.2000 and the date of withdrawal was fixed on 5.1.2000. Accordingly the date of counting and declaration of result were changed. However, there was a change in the situation. Appointment of the Returning Officer was set aside by the Election Commission as a result of which dates were refixed. The date for scrutiny of the nomination papers was extended till 13.1.2000. In this backdrop the Tribunal has come to hold that the returned candidate functioned as the Chairman till 3.1.2000. He has also recorded a finding that the present petitioner functioned till his resignation was accepted. With regard to issue No.2 the Tribunal has taken the view that though the returned candidate had sent his resignation from the post of Director but only resigned from the post of Chairman. That apart, the Tribunal has observed that the Board of Directors had no authority to accept the letter of resignation sent by the returned candidate and in any case, he was holding the post during the period of election and hence, he was not entitled to contest. In regard to Issue No.3 the Specified Officer has held that the returned candidates was functioning as Chairman as on 18.2.2000 as per evidence of Jogesh Pandey, the Secretary of the Society inasmuch as the petitioner had signed the Cheque No. 070004 for a sum of Rs. 6,000/- which has also been admitted by the respondent therein. The Tribunal has also held that the respondent to the election petition has admitted that he has signed the cheque on 18.2.2000 in the capacity of acting Chairman. 6,000/- which has also been admitted by the respondent therein. The Tribunal has also held that the respondent to the election petition has admitted that he has signed the cheque on 18.2.2000 in the capacity of acting Chairman. Though he had clarified that he had done the same in the capacity of working Chairman, the Tribunal has come to hold that from the conduct of the returned candidate it was apparent that he had not actually submitted his resignation letter. The Specified Officer has also observed that the intention of the returned candidate is to be seen; whether he actually intended to resign or hold his post. Another facet which has been discussed by the Tribunal is that after sending the letter of resignation dated 3.1.2000 he continued to hold the post. He had also sent a reminder on 24.2.2000. 12. The two moot questions that arise for consideration are whether the petitioner could have been allowed to contest in the election while he was holding the post of Chairman of a Society; and whether his resignation had extinguished the disqualification. Section 17(1) (iii) of the Act stipulates the Sarpanch would not be a Chairman or a Vice-Chairman of a co-operative society. It is not disputed that the petitioner submitted his resignation on 3.1.2000 vide Annexure P-2. It is submitted by Mr. Tiwari that though nomination paper was filed on 10.5.1999 due to filing of a writ petition, the election was not held and eventually the scrutiny was done on 13.1.2000 by the date he submitted his resignation. The learned counsel has submitted that the resignation is a unilateral act and therefore, it should be deemed to have been accepted from the date of its submission. It is worthnoting here that Tribunal has dealt with various aspects like the petitioner had submitted his resignation from the post of Chairman but not that of the Director and further he had submitted to an authority who has no jurisdiction to accept. I need not advert to the aforesaid aspects for the simple reason another important factor which has emerged and on the basis of which issue can be clinched. It has come as a matter of fact that the petitioner I had signed a cheque in the capacity of a Chairman on 18.2.2000. It is the submission of Mr. Tiwari that he had signed the cheque as a working Chairman. It has come as a matter of fact that the petitioner I had signed a cheque in the capacity of a Chairman on 18.2.2000. It is the submission of Mr. Tiwari that he had signed the cheque as a working Chairman. The heart of the matter is that when the petitioner sent his resignation did he unequivocally desire not to function as a Chairman? In this context I may profitably refer to a decision rendered in the case of Dharm Das v. Sub-Divisional Officer and another (W.P. No. 2741/1995) where in R.S. Garg, 1. after referring to the decisions rendered in the cases of Moti Ram v. Param Dev AIR 1993 SC 1662 , Bansilal v. Collector West Nimar, 1975 MPLJ-SN 3 and Mangoo v. Nirwachan Adhikari, 1973 JLJ-SN 16 and taking stock of the fact situation therein came to hold as under: "8. Section 17 of the M.P. Panchayat Raj Adhiniyam, 1993, provides that a person who is qualified to be elected as panch, is not a member of either House of Parliament of Member of State Legislative Assembly, and is not Chairman or Vice-Chairman of Co-operative Society, may be elected as Sarpanch, subject to provisions of sub-sections (2), (3) and (4), by persons whose names are included in the list of voters of the Gram Panchayat area in such manner as may be prescribed, sub-section (1) certainly provides disqualification and c1earl y provides that a particular person cannot be elected as Sarpanch. Section 122 provides for filing of election petition. It states that an election under the Act shall be called in question only by a petition presented in the prescribed manner. The State Government has framed M.P. Panchayat (Election Petitions, Corrupt Practices and Disqualification for membership) Rules, 1995 in exercise of its powers under section 95(1) read with sub-sections (1) and (3) of section 122. Rule 21 of the 1995 rules suggests the grounds for declaring an election to be void. The State Government has framed M.P. Panchayat (Election Petitions, Corrupt Practices and Disqualification for membership) Rules, 1995 in exercise of its powers under section 95(1) read with sub-sections (1) and (3) of section 122. Rule 21 of the 1995 rules suggests the grounds for declaring an election to be void. Rule 21(a) provides that an election petitioner is entitled to raise the ground that on the date of his election, the returned candidate was not qualified to be chosen to fill the seat under the Act, if the specified officer, i.e. the Election Tribunal is of the opinion that on the date of his election, the returned candidate was not qualified or was disqualified to be chosen to fill the seat under the Act, the Specified Officer shall declare the election of the returned candidate to be void. In view of the specific provision made in sections 17 and 122 of the Act, read with section 121, it cannot be held that if the question of disqualification was not raised before the prescribed officer/returning officer, the election petitioner would not be permitted to raise the said question in the election petition. 9. Reliance was also placed on 1975 MPLJ Short Note (3), Bansilal v. Collector West Nimar, (M.P. No. 60172, Indore, decided on 31.7.74) to contend that the resignation takes effect immediately after it is received by the President. Learned counsel contends that it is not dependent on acceptance of resignation. The facts of the said case were different. I have already found that the petitioner, even after tendering his resignation, from his conduct could not show that he really intended to submit his resignation or was not inclined to work or refused to work as Chairman of the society. The learned Sub-Divisional Officer was justified in holding that on the date of the election, the petitioner was holding the office of Chairman of the co-operative Society and as such, he was disqualified from being elected." I have referred to the aforesaid decision in extenso because in the said case the elected Sarpanch was working as a Chairman of the Society. In the present case it is plain as noon day that the petitioner functioned as Chairmain after he was elected. Indubitably on the date of election, he was holding the post and hence, he was disqualified from being elected. 13. In the present case it is plain as noon day that the petitioner functioned as Chairmain after he was elected. Indubitably on the date of election, he was holding the post and hence, he was disqualified from being elected. 13. In view of my preceding analysis, I do not find any substance and writ petition, being sans merits stands, dismissed. However in the peculiar facts and circumstances of the case there shall be no order as to costs.