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2004 DIGILAW 589 (MP)

Shivprasad Nagar v. Subhash Chandra

2004-07-28

A.M.SAPRE

body2004
ORDER 1. By filing this writ under Article 227 of the Constitution of India, the petitioner seeks to challenge the order dated 29.11.2003 (Annexure P-5) passed by respondent No.4, i.e., competent authority in exercise of powers conferred u/s 122 of the Panchayat Raj Adhiniyam (for short called 'Adhiniyam'). By impugned order, the election petition filed by respondent No. 1 against the petitioner u/s 122 ibid was allowed resulting in declaring the election of petitioner for the post of Panch to be void. As a consequence thereof, the directions were issued to initiate process of holding fresh election for the post of Panch of the concerned ward. 2. The facts of the case lie in narrow compass, however, they be taken note of as follows. 3. Election of ward No.8 called Khoriya Ema in Tahsil Badodia in District Shajapur for the post of Panch under the provisions of Adhiniyam was announced by the competent authority. Petitioner, as also the respondent No.1, were the candidates who filed their respective nomination for contesting the election for the post of Panch. The petitioner, however, raised an objection to the nomination form submitted by respondent No. 1 and contended that since the respondent is holding the office of profit in the employment of State on the date of submission of his nomination form, hence he is disqualified from contesting the election for the post of Panch as per the provisions contained in section 36 (l) (d) of the Adhiniyam. According to the petitioner, the respondent No. 1 was working as observer in some educational scheme enacted by the State of M.P. and was receiving honorarium by way of salary and hence falls within the meaning of words 'office of profit' u/s 36 (1) (d) of the Adhiniyam rendering him disqualified from contesting the election. 4. This objection raised by the petitioner found acceptance with the Returning Officer, the form submitted by respondent No. 1 was rejected on 3.1.2000. As a consequence thereof, the petitioner, who alone was in the fray, was elected for the post of Panch. It is this action of the Returning Officer rejecting form of respondent No.1, gave rise to filing of election petition by respondent No.1 u/s 122 of the Adhiniyam against the petitioner before the competent authority specified under the Adhiniyam (Sub-Divisional Officer). As a consequence thereof, the petitioner, who alone was in the fray, was elected for the post of Panch. It is this action of the Returning Officer rejecting form of respondent No.1, gave rise to filing of election petition by respondent No.1 u/s 122 of the Adhiniyam against the petitioner before the competent authority specified under the Adhiniyam (Sub-Divisional Officer). The only ground on which the election petition was filed by respondent No.1 was that his nomination form was wrongly rejected by the Returning Officer and, secondly, respondent No. 1 was not holding any office of profit so as to disqualify him from contesting the election of Panch by placing reliance on section 36 (1) (d) ibid. This election petition was dismissed by the SDO by order dated 18.11.2002. The respondent No. 1 then filed writ petition being WP No. 30212002. This Court remanded the case to the competent authority (SDO) and directed him to decide the election petition on merits. As a result of this direction, the election petition was again placed before the SDO for its disposal on merits in accordance with law. 5. By impugned order (Annexure P-5) the competent authority allowed the election petition and declared the election of the petitioner to be void. The learned competent authority, placing reliance on law laid down by the Division Bench of this Court reported in the case of Atarsingh v. State of M.P. [ 1984 JLJ 604 ], held that respondent No. 1 was not holding any office of profit so as to render him disqualified from contesting the election of Panch. He held that Returning Officer was wrong in rejecting the nomination form of respondent No. 1. In his opinion, the respondent did not incur any disqualification within the meaning of section 36 (1) (d) of the Adhiniyam and hence he held respondent No. 1 to be eligible candidate for contesting the election of office bearer of Panchayat. As a result of this declaration, a direction was issued for holding a fresh election by allowing the respondent No. 1 to contest the election as one of the eligible candidate for the post of Panch. It is against this order, the petitioner (winning candidate) has filed this writ petition. Notice of this petition was issued to the respondent No.1. He is served and represented. It is against this order, the petitioner (winning candidate) has filed this writ petition. Notice of this petition was issued to the respondent No.1. He is served and represented. He has opposed the petition and defended the impugned order which, according to him, is justified on facts of the case and in law. 6. Heard Shri Paresh Saraf, LIC of petitioner and Shri A.K. Shrivastava, LIC for respondent No.1. 7. Having heard learned counsel for parties and having perused record of the case, I find no substance in the writ petition, which deserves dismissal. As a consequence, impugned order results in its upholding. 8. The controversy involved in this writ centres around section 36 (1) (d) of the Adhiniyam. This section provides for disqualification to a candidate from contesting the election to any office bearer which reads as under: "36. Disqualification for being office bearer of Panchayat -- (1) No person shall be eligible to be an office-bearer of Panchayat who -- (a) ......... (i) .......... (ii) ......... (b) ......... (c) ......... (d) holds an office of profit under any Panchayat or is in the service of any other local authority or Cooperative Society or the State Government or Central Government or any Public Sector Undertaking under the control of the Central Government or the State Government: Provided that no person shall be deemed to have incurred disqualification under this clause by reason of being appointed as a Patel under the Madhya Pradesh Land Revenue Code, 1959 (No. 20 of 1959): or" 9. Perusal of section 36 (1) (d) quoted supra would indicate that in order to incur disqualification from contesting the election for office bearer of any Panchayat, the candidate must be holding an office of profit under any: 1. Panchayat or 2. Must be in service of (i) Local Authority or (ii) Cooperative Society or (iii) State Government or (iv) Central Government or (v) Public sector under the control of State/Central Government. 10. The provisos to clauses (d), (e), (f), (g) to (n) provide for exception to the main sub-section (1). In other words, provisos and other clauses mentioned supra provide the grounds which are not regarded as a ground for disqualification for contesting an election of an office• bearer of any Panchayat. 11. 10. The provisos to clauses (d), (e), (f), (g) to (n) provide for exception to the main sub-section (1). In other words, provisos and other clauses mentioned supra provide the grounds which are not regarded as a ground for disqualification for contesting an election of an office• bearer of any Panchayat. 11. The question as to what is the meaning of the words 'office of profit' enumerated in section 30 (1) (d) of Panchayat Raj Adhiniyam (since repealed and now replaced by present Adhiniyam) and which is now the counterpart of section 36 (1) (d) of the present Adhiniyam, came up for consideration before the Division Bench of this Court in the case of Atar Singh v. State [ 1984 JLJ 604 ]. Placing reliance on two decisions of Supreme Court rendered in Ravanna Subanna v. G.S. Kaggeerappa [ AIR 1954 SC 653 ] and Biharilal Dobray v. Roshan Lal Dobray [ AIR 1984 SC 385 ], their Lordships of this Court interpreted the word 'office of profit' occurring in section 30 (l)(d) in following words: "4. In regard to the meaning of the term 'office of profit', reference may usefully be invited to the following observations of the Supreme Court in the case of Ravanna Subanna v. G.S. Kaggeerappa : 'The plain meaning of the expression seems to be that an office must be held under Government to which any pay, salary, emoluments or allowance is attached. The word 'profit' connotes the idea of pecuniary gain. If there is really a gain, its quantum or amount would not be material; but the amount of money receivable by a person in connection with the office he holds may be material in deciding whether the office really carries any profit.' 5. The latest case on the point appears to be that of Biharilal v. Roshanlal, wherein it has been observed that: 'An office of profit involves two elements, namely, that there should be an office and that it should carry some remuneration. The latest case on the point appears to be that of Biharilal v. Roshanlal, wherein it has been observed that: 'An office of profit involves two elements, namely, that there should be an office and that it should carry some remuneration. In order to determine whether a person holds an office of profit under the Government, several tests are ordinarily applied such as whether the Government makes the appointment, whether the Government has the right to remove, dismiss the holder of the office, whether the Government pays the remuneration, whether the functions performed by the holder are carried on by him for the Government and whether the Government has control over the duties and functions of the holder. Whether an office in order to be characterized as an office of profit under the Government should satisfy all these tests or whether anyone or more of them may be decisive of its true nature, has been the subject matter of several cases decided by this Court but no decision appears to lay down conclusively the characteristics of an office of profit under the Government although the Court has no doubt determined in each case whether the particular office involved in it was such an office or not having regard to its features." 12. The Division Bench in Afar Singh's case (supra) noted that the candidate in that case was found working as a Health Guide on a payment of honorarium of Rs.200/in one village pursuant to some scheme enacted by the State of M.P. called Village Guide. Their Lordships, placing reliance on the authority of Supreme Court, held that candidate cannot be said to be a person holding an office of profit within the meaning of section 30 (l)(d) of the Adhiniyam. In other words, their Lordships held that if a person is found to be working pursuant to some scheme on payment of some honorarium then he cannot be said to be a person in the employment of the State Government so as to incur any disqualification contained in section 30 (1) (d) ibid. 13. Coming to the facts of this case, it was found as a fact that respondent No. 1 was serving in one scheme enacted by the State Government known as Opchariketar Shiksha Scheme. It was found that respondent No. 1 was being paid some honorarium for rendering these services. 13. Coming to the facts of this case, it was found as a fact that respondent No. 1 was serving in one scheme enacted by the State Government known as Opchariketar Shiksha Scheme. It was found that respondent No. 1 was being paid some honorarium for rendering these services. Indeed this is discernible from the certificate filed by the petitioner as Annexure P-l to the petition. 14. In my considered opinion, keeping in view the facts found in Atar Singh's case and the tests laid down therein for deciding whether a person is holding the office of profit, when applied to the facts of this case, then I have no hesitation in holding that competent authority in this case was perfectly justified in allowing the election petition filed by respondent No. 1. In the considered opinion of this Court, one can easily record a finding in favour of respondent No.1 that he cannot be said to be a person holding an office of profit on the date when he submitted nomination form for contesting election of Panch from ward No.8. Indeed the facts of the present case and that of the one which fell for consideration before the Division Bench in Atar Singh's case are identical. In other words, it is difficult for this Court to hold on the strength of Annexure P-l that case of respondent falls in any of the categories enumerated in section 36 (1) (d) of the Adhiniyam so as to disqualify him from contesting election of Panch. The very fact that respondent No.1 was being paid only an honorarium by way of salary pursuant to some scheme enacted by the State, does not confer him the status of an employee of a State Government so as to attract the rigor of section 36 (1) (d) of the Adhiniyam. 15. I, therefore, find no case to reverse the view taken by the competent authority when he allowed the election petition in favour of respondent No.1 and against the petitioner. 16. As a consequence of foregoing discussion, the petition fails and is hereby dismissed. All the interim orders passed in the writ petition are hereby recalled and vacated. As a consequence, the direction contained in the impugned order passed by the competent authority be given effect to for holding fresh elections for ward No.8 of Khoriya Ema, Tahsil Badodia, District Shajapur. No cost.