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2001 DIGILAW 668 (MP)

Uttam Singh v. Bharat Lal Yadav

2001-09-07

DIPAK MISRA

body2001
ORDER Dipak Misra, J. 1. By this writ petition the petitioner, the returned candidate of Gram Panchayat, Sanai Dongri, Tahsil Lakhanadon, District Seoni, has called in question the defensibility of the order dated 15-6-2001 contained in Annexure-P-2 passed by the Specified Officer under section 122 of the Madhya Pradesh Panchayat Raj Adhiniyam, 1993 (hereinafter referred to as 'the Act'). 2. The facts lie in a narrow compass. The respondent No. 1 instituted an election proceeding forming the subject-matter of Case No. 4/89A-21/99-2000 before the respondent No. 3 praying for setting aside the election of the petitioner on the ground that his nomination papers which were rejected by the returning officer could not have been rejected and that as he had been deprived to contest in the election, the election of the returned candidate is vitiated. It is note worthy to state here that the nomination papers of the respondent No. 1 was rejected on the ground that he was disqualified under section 92 of the Act. 3. The present petitioner entered contest and filed his objection contending, inter alia, that the election petition was not maintainable as there had been non-compliance of Rule 2 of the Madhya Pradesh Panchayats (Election petitions, Corrupt Practices and Disqualification for Membership), Rules 1995 (hereinafter referred to as 'the Rules'). The Specified Officer by order dated 22-12-2000 negatived the said contention and proceeded to hear the election petition on merits. The Specified Officer on consideration of the material brought on record came to hold that the election petitioner was not disqualified and his nomination papers should not have been rejected by the returning officer. On the basis of the aforesaid conclusion he set aside the election of the petitioner. 4. I have heard Mr. L. S. Baghel, learned senior counsel with Mr. P. K. Jain, for the petitioner, Mr. R. S. Tiwari, learned counsel for respondent No. 1., and Mr. R. S. Jha, learned Deputy Advocate General. 5. It is submitted by Mr. Baghel, learned senior counsel, that the election petition should have been rejected in limine as there was non-compliance of Rule 3 of the Rules. It is further submitted by him that if the facts are appreciated in proper perspective there was justification to reject the nomination papers of the election petitioner. Mr. 5. It is submitted by Mr. Baghel, learned senior counsel, that the election petition should have been rejected in limine as there was non-compliance of Rule 3 of the Rules. It is further submitted by him that if the facts are appreciated in proper perspective there was justification to reject the nomination papers of the election petitioner. Mr. R. S. Tiwari, learned counsel, for respondent No. 1, submitted that on the date of scrutiny i.e. 3-1-2000 no order was passed against the election petitioner as envisaged under Section 92 of the Act and hence, the nomination paper could not have been rejected. The further contention of Mr. Tiwari is that as the petitioner did not challenge the order passed by the Specified Officer on 22-12-2000, he cannot call the same in question in the present writ petition. Mr. R. S. Jha, learned Dy. Advocate General, has submitted that the date of scrutiny of the nomination papers is the relevant date and not the date of filing of nomination papers and keeping the said aspect in view Section 92 of the Act has to be interpreted. 6. Before I advert to the rival submission raised at the Bar, it is apposite to state that the notification was issued for holding of election sometime in the year 1999 but as number of writ petitions were filed before this Court the election process was stayed, and thereafter rescheduled. The date of scrutiny was fixed to 3-1-2000 and the date of election was fixed on 28-1-2000. In view of this factual backdrop the question that arises for consideration is whether the election petitioner was disqualified under Section 92 of the Act on the date of scrutiny. At this juncture I must state that though Mr. Baghel had raised the contention with regard to the non-compliance of Rule 3 of the aforesaid Rules, he did not persue the same and gave more emphasis on disqualification as contemplated under Section 92 of the Act. In view of this I do not want to dwell upon the preliminary objection filed by the returned candidate. 7. The moot question that falls for consideration is whether the nomination papers of the election petitioner could have been rejected in view of the language employed under Section 92 of the Act. Section 92 of the Act reads as under:- 92. 7. The moot question that falls for consideration is whether the nomination papers of the election petitioner could have been rejected in view of the language employed under Section 92 of the Act. Section 92 of the Act reads as under:- 92. Power to recover records, articles and money.- (1) Where the prescribed authority is of the opinion that any person has unauthorisedly in his custody any record or article or money belonging to the Panchayat, he may, by a written order, require that the record of article or money be delivered or paid forthwith to the Panchayat, in the presence of such officer as may be appointed by the prescribed authority in this behalf. (2) If any person fails or refuses to deliver the record or article or pay the money as directed under sub-section (1) the prescribed authority may cause him to be apprehended and may send him with a warrant in such form as may be prescribed, to be confined in a Civil Jail for a period not longer than thirty days. (3) The prescribed authority may- (a) for recovering any such money direct that such money be recovered as an arrear of land revenue; and (b) for recovering any such record or articles issue a search warrant and exercise all such powers with respect thereto as may lawfully be exercised by a Magistrate under the provisions of Chapter VII of the Code of Criminal Procedure, 1973 (No. 2 of 1974). (4) No action under sub-section (1) or (2) or (3) shall be taken unless a reasonable opportunity has been given to the person concerned to show cause why such action should not be taken against him. (5) A person against whom an action is taken under this section shall be disqualified to be member of any Panchayat for a period of six years commencing from the initiation of such action. On an objective and purposeful reading of the aforesaid section it becomes quite vivid that a person against whom an action is taken under this section shall be disqualified to be a member of any Panchayat for a period of six years. It needs no special emphasis to state that if a person is disqualified by virtue of section 92 of the Act he cannot be allowed to contest in the election and as a logical corollary his nomination papers cannot be accepted. It needs no special emphasis to state that if a person is disqualified by virtue of section 92 of the Act he cannot be allowed to contest in the election and as a logical corollary his nomination papers cannot be accepted. Now the heart of the matter is whether on the date of scrutiny of the nomination paper there was an order under Section 92 of the Act against the respondent No. 1. To substantiate the aforesaid submission Mr. Baghel, learned senior counsel for the petitioner, has drawn the attention of this Court to the orders passed by the competent authority on 30-9-1999 and 11-10-1999. They read as under:- 8. On a perusal of the order dated 30-9-1999 it becomes crystal clear that the competent authority had directed the respondent therein to deposit the amount in question. But he chose not to do so. By order dated 11-10-1999 it was observed that though ten days time was given to the respondents to deposit the amount, he failed to deposit the same. It was also directed that appropriate action be taken under Section 92(3) of the Act. In view of the aforesaid orders Section 92 of the Act has the full play and no other kind of interpretation warrants acceptance. When all these things happened before the scrutiny had taken place and when this fact was brought to the notice of the returning officer he had no option but to take into consideration the mandate engrafted under section 92(5) and reject the nomination paper of the election petitioner. 9. In view of the aforesaid premises the finding recorded by the returning officer to the effect that the nomination papers of the election petitioner could not have been rejected is not correct and justified and, in fact, sensitively susceptible. Accordingly, the order contained in Annexure-P-2 is quashed and it is directed that the petitioner shall reap all the consequential benefits. 10. The writ petition is allowed without any order as to costs.