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Madhya Pradesh High Court · body

2002 DIGILAW 643 (MP)

Shambhoo Singh v. State of M. P.

2002-07-10

DIPAK MISRA

body2002
ORDER 1. Invoking the extraordinary and inherent jurisdiction of this Court under Articles 226 and 227 of the Constitution of India, the petitioner, an elected Sarpanch of Gram Panchayat, Vangaon in District Shahdol, has prayed for calling for the entire records from the possession of the Sub-Divisional Officer, Anuppur and upon perusal of the same, to issue a writ of certiorari for quashment of order dated 2.3.2001, Annexure P-S, passed by the said authority whereby in exercise of powers under section 40 of the Madhya Pradesh Panchayat and Gram Swaraj Adhiniyam, 1993 (for brevity 'the Act'), he has removed him from his post. There is a further prayer to issue a writ of mandamus commanding the respondents to allow him to continue in the post of Sarpanch. 2. The factual expose is that the petitioner was elected to the post of Sarpanch of Vangaon Gram Panchayat in the election held in the year 1999-2000. The said seat was reserved for the Scheduled Tribe candidate and as the petitioner belongs to 'Gond' community, he contested the election and was declared elected on 5.1.2000 as per Annexure P-1. The petitioner had submitted a certificate regarding his date of birth and caste issued by the Primary School Rajnagar, Colliery, District Shahdol, dated 25.11.2000, Annexure P-2, wherein there is mention that he belongs to the Gond community and was a student of Class 2 of the said educational institution in the year 1960-61. Naib Tahsildar, Kotma issued a letter dated 22.12.2000 requiring' him to appear on 23.12.2000 and to submit his documents relating to his caste. In pursuance of the said letter, the petitioner appeared on the date fixed and submitted the caste certificate granted in his favour on 27.10.1997 by the Naib Tahsildar, Kotma. Naib Tahsildar, Kotma issued a letter dated 22.12.2000 requiring' him to appear on 23.12.2000 and to submit his documents relating to his caste. In pursuance of the said letter, the petitioner appeared on the date fixed and submitted the caste certificate granted in his favour on 27.10.1997 by the Naib Tahsildar, Kotma. In the meantime, the respondent No.2, the Sub-Divisional Officer, Anuppur, on 3.2.2001 issued a notice to show cause to the petitioner requiring him to explain that in an enquiry held against him, it had been found that he had admitted that he was essentially a person belonging to village Devnandpur, District Gajipur in the State of Uttar Pradesh and hence, he was not a member of the Scheduled Tribe, and, therefore, he could not have contested in the election for the post of Sarpanch of the Gram Panchayat, Vangaon as the said seat was reserved for the Scheduled Tribes and why he should not be removed from the post of Sarpanch. He was given a fortnight's time to file his show cause in that regard. 3. According to the writ petitioner, at the top of the letter the date was mentioned as 14.2.2001 but the authority concerned had given the date 3.2.200l"underneath his signature. It is put forth by him that at the time of issuance of Annexure P-5, the notice to show cause, the petitioner was not furnished with a copy of the charge-sheet. The petitioner, as pleaded, submitted the show cause on 28.2.2001 indicating that he was elected as Sarpanch of the Gram Panchayat, Vangaon in the year 1979-80 and at that juncture, the said Gram Panchayat was also reserved for the Scheduled Tribes candidate. In the year 1993-94, he was elected as a Member of Janpad Sabha from the reserved seat. The certificate issued by the competent authority on 5.5.1994 has been brought on record as Annexure P-4. In this backdrop, the petitioner refuted the allegations that he does not belong to the Scheduled Tribe or is not a resident of the State of Madhya Pradesh. It is alleged, without considering the reply of the petitioner the respondent No. 2 passed the impugned order on 2.3.2001. 4. In this backdrop, the petitioner refuted the allegations that he does not belong to the Scheduled Tribe or is not a resident of the State of Madhya Pradesh. It is alleged, without considering the reply of the petitioner the respondent No. 2 passed the impugned order on 2.3.2001. 4. It is averred in the petition that the petitioner belongs to Scheduled Tribe as he is a member of 'Gond' community and no question was raised with regard to the same from 1979 to 1994 and there are certificates issued in his favour in that regard and without cancellation of the said certificates, such drastic action was totally unwarranted. It is also put forth by him that the petitioner is a member of the State of Madhya Pradesh for last 30 years and to consider him a resident of Uttar Pradesh is highly inappropriate and unjust. It is also put forth that the order has been passed without proper consideration of material on record and on the basis of an enquiry conducted behind his back. It is also highlighted that though the petitioner had filed a detailed show cause, same has not been considered. It is also put forth that the action taken is not covered under any of the facets enumerated under section 40 of the Act. 5. This Court by order dated 16.4.2001 had directed the learned counsel for the State to produce the relevant record. It is apposite to mention here that though time was taken for filing of the return but the same was not filed and the learned Government Advocate for the State argued the matter as a pure question of law arises. It is noteworthy to mention a written note has been filed by the learned counsel for the petitioner, a copy of which has been duly served on the respondents. 6. Mr. R.K. Gupta, learned counsel for the petitioner has raised the following submissions : (i) Initiation of proceeding by the respondent No.2 under section 40 of the Act is misconceived inasmuch as the allegations made against the petitioner do not come within the ambit and sweep of the said provision, even if a broad view is taken. 6. Mr. R.K. Gupta, learned counsel for the petitioner has raised the following submissions : (i) Initiation of proceeding by the respondent No.2 under section 40 of the Act is misconceived inasmuch as the allegations made against the petitioner do not come within the ambit and sweep of the said provision, even if a broad view is taken. (ii) The disqualification, if any, incurred by the petitioner would come within the spectrum of section 36(2) of the Act and the said provision empowers the Collector of the 'District to initiate a proceeding and, therefore, the whole proceeding initiated by the respondent No.2 is ab initio void as a logical corollary it makes the impugned order a nullity. (iii) The certificate granted/issued in favour of the petitioner on the basis of which he contested the election having not been cancelled by the competent authority or the authority who had issued the certificate, the same is still legally valid and hence, it could not have been frowned upon by the respondent No.2. 7. Mr. B.N. Mishra, learned Government Advocate for the State, sounding a contra note, contended that on the basis of allegations received against the petitioner an enquiry was conducted against him and he was asked to show cause and when he failed to avail the opportunity the order was passed and, therefore, the sufficiency of the material cannot be gone into in this writ petition. It is urged by him that if section 40 of the Act is read in a purposive manner, there remains no trace of doubt that the conduct of the petitioner does attract the concept of misconduct as has been defined and understood under the said provision. It is canvassed by Mr. Mishra that the petitioner had got himself examined in course of enquiry and therefore, the stand put forth by him is an afterthought and in any way, does not render much assistance to him. 8. The undisputed facts are that post of Sarpanch of the Gram Panchayat, Vangaon is reserved for the Scheduled Tribes and the petitioner contested the election and was elected on his saying that he belongs to 'Gond' community. It is not disputed that his nomination paper was accepted by the Returning Officer and he was permitted to contest the election. The file which has been produced before this Court clearly shows that proceeding was initiated by the Sub-Divisional Officer, Anuppur. It is not disputed that his nomination paper was accepted by the Returning Officer and he was permitted to contest the election. The file which has been produced before this Court clearly shows that proceeding was initiated by the Sub-Divisional Officer, Anuppur. The order-sheet shows that the petitioner had not filed his show cause. By a separate order the Sub-Divisional Officer after referring to certain documents had arrived at the conclusion that the petitioner does not belong to the Scheduled Tribes and he had failed to substantiate his stand. 9. On a scrutiny of the record it also transpires that the Collector, Shahdol on 12.2.2001 had directed the Sub-Divisional officer, Anuppur to cancel the certificate of the petitioner and to declare the post of Sarpanch of the Gram Panchayat, Vangaon as vacant. In pursuance of the aforesaid order the Sub-Divisional Officer passed the order on 2.3.2001 declaring the said seat as vacant. 10. Though I have noted the submissions of the learned counsel for the parties relating to various aspects, I am not inclined to dwell upon each aspect as the hub of the matter is whether the order could have peen passed by the Sub-Divisional Officer. Submission of Mr. Gupta is that no election petition was filed by any person under section 122 of the Act and certificates having not been cancelled, the petitioner could not have been dislodged or unseated from his post and in any case, the Sub-Divisional Officer has no jurisdiction to pass an order adversely affecting the petitioner in exercise of jurisdiction under section 40 of the Act inasmuch as contesting an election on production of a caste certificate is not covered within the ambit and sweep of section 40 of the Act, but is in the realm of section 36 and the said provision confers power on the Collector to take appropriate action. Thus, it is to be seen whether the conduct of the petitioner could be covered by section 40 of the Act. Section 40 of the Act reads as under: "40. Thus, it is to be seen whether the conduct of the petitioner could be covered by section 40 of the Act. Section 40 of the Act reads as under: "40. Removal of office bearers of Panchayat -- (1) The State Government or the prescribed authority may after such enquiry as it may deem fit to make at any time, remove an office bearer- (a) if he has been guilty of misconduct in the discharge of his duties; or (b) if his continuance in office is undesirable in the interest of the public; Provided that no person shall be removed unless he has been given an opportunity to show cause why he should not be removed from his office. Explanation -- For the purpose of this sub-section 'Misconduct' shall include – (a) any action adversely affecting – (i) the sovereignty, unity and integrity of India; or (ii) the harmony and the spirit of common brotherhood amongst all the people of State transcending religious, linguistic, regional, caste or sectional diversities; or (iii) the dignity of women; or (b) gross negligence in the discharging of the duties under this Act. (c) the use of position or influence directly or indirectly to secure employment for any relative in the Panchayat or any action for extending any pecuniary benefits to any relative, such as giving out any type of lease, getting any work done through them in the Panchayat by an office bearer of Panchayat. Explanation -- For the purpose of this clause the expression 'relative' shall mean father, mother, brother, sister, husband, wife, son, daughter, mother-in-law, father-in-law, brother-in-law, sister-in-law, son-in-law or daughter-in-law : Provided that the final order in the enquiry shall as far as possible be passed within 90 days from the date of issue of show cause notice to the concerned office bearer. (2) A person who has been removed under sub-section (1) shall forthwith cease to be a member of any other Panchayat of which he is a member, such person shall also be disqualified for a period of six years to be elected under this Act." On a bare reading of the aforesaid provision, it is crystal clear that an office bearer incurs the liability of removal if he has been guilty of misconduct in discharge of his duties and if his continuance in the post is undesirable in the interest of public. Misconduct has been defined in the explanation to the provision and if anatomy of the said definition is scanned, in my considered opinion, conduct of the petitioner, even if accepted, does not come within the mischief of the said provision. Submission of Mr. Mishra, learned State Counsel is that the petitioner's case would be covered under section 40(1) (b) of the Act. The said provision, undoubtedly, has been couched in a different manner and it covers a broader spectrum but an allegation of public interest has to form the foundation. At this juncture it is apposite to refer to section 36 of the Act. The said provision stipulates disqualifications for being office bearers of Panchayats. I need not state in detail in regard to section 36(1) of the Act. In the instant case, sub-section (2) of section 36 of the Act is relevant. The said provision is quoted hereunder: "36. xx xx xx (1) xx xx xx xx (2) If any person having been elected as an office bearer of Panchayat: (a) subsequently becomes subject to any of the disqualification mentioned in sub-section (1) and such disqualification is not removable or being removable is not removed for becomes office bearer concealing his disqualification for it which has not been questioned and decided by any election petition under section 122] : (b) accepts employment as legal practitioner against the Panchayat; (c) absents himself from three consecutive meetings of the Panchayat or its Committee or does not attend half the number of meetings held during the period of six months without the leave of the Panchayat; He shall, subject to the provisions of sub-section (3), cease to be such office bearer and his office shall become vacant: Provided that where an application is made by an office bearer to the Panchayat for leave to absent himself under clause (c) and the Panchayat fails to inform the applicant of its decision on the application within a period of one month from the date of receipt of• the application, the leave applied for, shall be deemed to have been granted by the Panchayat." 11. It is canvassed by Mr. Gupta, learned counsel for the petitioner that sub-section (2) (a) of section 36 of the Act can be divided into two compartments and the case of the petitioner, even if accepted, would come within the second compartment. To elucidate, proponement of Mr. It is canvassed by Mr. Gupta, learned counsel for the petitioner that sub-section (2) (a) of section 36 of the Act can be divided into two compartments and the case of the petitioner, even if accepted, would come within the second compartment. To elucidate, proponement of Mr. Gupta is that even if a wrong certificate had been produced it would amount to concealment of disqualification arid the same having not been questioned and decided in an election petition under section 122 of the Act the petitioner, if permissible, could be proceeded under that score. As has been stated earlier, there had been no adjudication under section 122 of the Act by way of an election petition. If there would have been an initial objection the nomination paper of the petitioner would have been scrutinised and may have been rejected. The concealment, in my considered opinion, would also include to produce a document in one's favour knowing very well .that though he is disqualified he is availing the opportunity to contest the election by concealing the real factual position. Quite apart from the above, Article 243-0(b) of the Constitution stipulates that no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State. The Legislature has provided the provision under• section 122 of the Act. The petitioner was elected as his nomination was accepted. In a given case where a candidate files a document indicating wrong age and no election dispute is raised, the said situation may be covered under section 36(2) (a) of the Act. It is apposite to mention here the second part of section 36(2) (a) of the Act was added by M.P. Act No.5 of 1999 with effect from 5.4.1999. This, in fact, is a safeguard so that a person who takes recourse to this kind of activity can always be proceeded against though no one has instituted a proceeding under section 122 of the Act. Sub-section (2) of the aforesaid section enumerates the names of the authorities who are competent to decide. The proviso to the said Sub-section (3) requires the competent authority to afford reasonable opportunity of being heard to the person concerned. As far as a Gram Panchayat is concerned, the competent authority is the Collector. Sub-section (2) of the aforesaid section enumerates the names of the authorities who are competent to decide. The proviso to the said Sub-section (3) requires the competent authority to afford reasonable opportunity of being heard to the person concerned. As far as a Gram Panchayat is concerned, the competent authority is the Collector. The Collector of the district is under obligation to proceed in accordance with law to declare the holder of the office as disqualified and thereafter to declare that his office has' fallen vacant. Reasonable opportunity of being heard is to be followed by the competent authority. He has also been given suo motu power to take action against an office holder. Sub-section (4) provides an appeal against the order of the competent authority. If the canvas as frescoed in the said provision is understood appropriately and purposively, there remains no iota of doubt that a case of this nature would come within the purview of section 36(2) (a) of the Act and not under section 40. Section 40 of the Act deals with "a different arena altogether and to hold that section 40 of the Act would cover the said situation, would be an anathema to the basic concept of democracy and also it would make section 36(2) (a) of the Act redundant. It is to be borne in mind that when section 36(2) (a) of the Act specifically deals with a case of this nature and confers power on a different authority, the said power cannot be exercised by any other authority. Thus, the Sub-Divisional Officer could not have initiated a proceeding under section 40 of the Act. It is to be kept in mind that the Collector has not conducted an inquiry and heard the petitioner but only had directed the Sub-Divisional Officer to pass an order after conducting an enquiry. The provision has conferred power on the Collector and there is no provision for delegating it to the Sub-Divisional Officer. The Sub-Divisional Officer has been authorised to proceed under section 40 of the Act and to pass an order. It is well settled in law, if Statute requires a certain act is to be done in a certain manner the same is to be done in that manner or not at all. The Sub-Divisional Officer has been authorised to proceed under section 40 of the Act and to pass an order. It is well settled in law, if Statute requires a certain act is to be done in a certain manner the same is to be done in that manner or not at all. Section 36(2) (a) and sub-sections (3) and (4) of the said section make it abundantly clear that the Collector is the Competent Authority and he alone has the power. Hence, I experience no difficulty in holding that the entire proceeding initiated by the Sub-Divisional Officer is null and void and resultantly ultimate order passed by him is a nullity. 12. Consequently, the writ petition succeeds and the order passed by the respondent No. 2 is quashed. The petitioner shall reap all consequential benefits. Needless to emphasise, it will be open to the competent authority to proceed against the petitioner, if advised. However, in the peculiar facts and circumstances of the case, there shall be no order as to costs.