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2004 DIGILAW 985 (MP)

Roshanlal Maravi v. Shambhoo Singh

2004-12-07

R.V.RAVEENDRAN, SHANTANU KEMKAR

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Judgment ( 1. ) THE post of Sarpanch of Gram Panchayat, Bangawan (Shahdol) was reserved for a Scheduled Tribe candidate in 1999-2000 elections. The first respondent, claiming that he belongs to Gond community, contested the election and was declared elected as Sarpanch on 5-1-2000. ( 2. ) THE Naib Tehsildar, Kotma issued a letter dated 22-12-2000 requiring the first respondent to submit documents in proof of his caste on 23-12-2000. In pursuance of it, he produced a caste certificate dated 27-10-1997 issued by the Naib Tehsildar, Kotma showing that he belonged to gond caste. In the meanwhile, it would appear that one Leeladhar Sharma (fourth respondent) filed a complaint that the first respondent did not belong to a Scheduled Tribe. After a preliminary enquiry, the Sub-Divisional Magistrate, Anuppur (third respondent herein), issued a notice dated 23-2-2001 to first respondent alleging that his enquiry revealed that the first respondent belonged to Village Devnandpur, District Gajipur, Uttar Pradesh and he was not a member of Scheduled Tribe and, therefore, he could not have contested the election for the post of Sarpanch of Bangawan Gram Panchayat, which was reserved for a Scheduled Tribe. The notice called upon him to show cause why he should not be removed from the post of Sarpanch. The first respondent gave his reply on 28-2-2001 stating that he belongs to gond caste which is a Scheduled Tribe, that he had earlier also been elected as Sarpanch of the said Gram Panchayat in the year 1979-80 when the said Gram Panchayat had been reserved for Scheduled Tribes, and that again in the year 1993-94, he was elected as Member of Janapad Sabha from a scat reserved for Scheduled Tribe. He also reiterated that he was a resident of Madhya Pradesh. Thereafter, the Sub-Divisional Magistrate passed an order dated 2-3-2001 in exercise of power under Section 40 of the M. P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (act for short) removing him from the post of Sarpanch. ( 3. ) FEELING aggrieved, the first respondent filed W. P. No. 1196 of 2001. He contended that the facts alleged, even if true, would only become a ground for disqualification enabling the District Magistrate to initiate action under Section 36 (2) of the Act and did not entitle the Sub-Divisional Magistrate to exercise power of removal under Section 40 of the Act. He contended that the facts alleged, even if true, would only become a ground for disqualification enabling the District Magistrate to initiate action under Section 36 (2) of the Act and did not entitle the Sub-Divisional Magistrate to exercise power of removal under Section 40 of the Act. He also contended that there was no ground to hold that he did not belong to Scheduled Tribe. Accepting the contention, the learned Single Judge allowed the writ petition by order dated 10-7-2002. He held that on the facts and circumstances, the Sub-Divisional Magistrate could not have initiated action under Section 40 of the Act and, therefore, his order dated 2-3-2001 was null and void. He, therefore, quashed the order dated 2-3-2001 passed by the Sub-Divisional Magistrate, Anuppur reserving, however, liberty to the competent authority to proceed against the first respondent, if so advised, in accordance with law. ( 4. ) IN the meanwhile, as a result of the election of the first respondent being declared null and void by order dated 2-3-2001, fresh election to the office of Sarpanch of Gram Panchayat, Bangawan, was held on 7-6-2001 and the appellant (Roshanlal Maravi) was declared elected as a Sarpanch. The appellant was not made a party to W. P. No. 1196 of 2001 filed by the first respondent and he became aware of the order of the learned Single Judge dated 10-7-2002 only when he received memo dated 28-9-2002 from the Chief Executive Officer, Janapad Panchayat, Anuppur directing him to hand over the charge of the post of Sarpanch to the first respondent on the ground that the order dated 2-3-2001 invalidating the election of the first respondent has been quashed by this Court. Feeling aggrieved, the appellant filed this appeal challenging the order of the learned Single Judge in W. P. No. 1196 of 2001. ( 5. Feeling aggrieved, the appellant filed this appeal challenging the order of the learned Single Judge in W. P. No. 1196 of 2001. ( 5. ) THE appellant challenges the order of the Single Judge on the following grounds:- (i) The order of the learned Single Judge is liable to be set aside as it was passed without notice to him, (ii) Once a fresh election was held after unseating the first respondent and a new Sarpanch was elected, the first respondent hat} to challenge the election of the new Sarpanch, as there could not be two Sarpanchas, (iii) The case against the first respondent related to claiming a caste falsely, it was not covered by Section 36 (2) of the Act, but by Section 40 of the Act. On the contentions urged, the following point arises for consideration:when a candidate contests a reserved seat (reserved for ST) by claiming caste falsely or erroneously, whether he can be removed from office by the prescribed authority under Section 40 (1) of the Act. ( 6. ) SECTION 40 of the Act deals with removal of office bearers of Panchayat. Sub-section (1) thereof reads thus: "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 is guilty of misconduct in the discharge of his duties; or (b) if his continuance in the office is undesirable in the interest of public : Provided that no person shall be removed unless he has 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 discharge 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. . (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. . . . . " Assuming that the first respondent had falsely or incorrectly claimed to belong to a Scheduled Tribe, let us examine whether it will enable the prescribed authority under Section 40 to take action for his removal from the office of Sarpanch. The prescribed authority can pass an order after enquiry removing the office bearer of a Panchayat under Section 40, only on two grounds. The first is that he has been guilty of misconduct in the discharge of his duties. This clearly refers to any action taken or act done after being elected as an office bearer, as the words used are "misconduct in the discharge of duties". Production of a false caste certificate or claiming to belong to a Scheduled Tribe can not certainly be construed as an act in the discharge of his duties and, therefore, the ground under clause (a) of sub-section (1) of Section 40 of the Act is not available. The second ground for removal of an office-bearer is when continuance in office is undesirable in the interest of the public. The term undesirable in the context of continuance in office, means objectionable or not desirable and refers to his continuance in office being of negative value to the society, or being against the interest of the public. Therefore, use of the words undesirable in the interest of the public refers to some conduct after election, which is unbecoming of an office bearer, whether or not such conduct relates to discharge of his duties. The exercise of power under clause (b) of sub-section (1) of Section 40 would also therefore, arise only with reference to any act or omission of the office bearer after being elected to such office. ( 7. ) THE question then is what would be the remedy if a person is elected by claiming to belong to a reserved category, either falsely or wrongly. ( 7. ) THE question then is what would be the remedy if a person is elected by claiming to belong to a reserved category, either falsely or wrongly. The learned Single Judge has held that any irregularity in the caste certificate can give rise to an election petition raising a dispute regarding election under Section 122 of the Act. Claiming a caste falsely or producing a false certificate would also amount to concealing the disqualification for becoming an office bearer. Section 36 (2) of the Act provides that if any person having been elected as an office bearer of a Panchayat, becomes such office bearer by concealing his disqualification for it and such disqualification had not been questioned and decided by any election petition under Section 122, he shall cease to be such office bearer and his office shall become vacant, subject to the provisions of sub-section (3 ). Sub-section (3) of Section 36 provides that the Collector shall be the authority competent to decide whether a vacancy has occurred under sub-section (2) in regard to a Gram Panchayat and he may give his decision either on an application made to him by any person or on his own motion. Sub-section (3) of Section 36 also makes it clear that until the Collector decides that a vacancy has occurred, the person shall not cease to be an office bearer. Proviso to sub-section (3) provides that no order shall be passed under sub-section (3) without giving him a reasonable opportunity of being heard. The grounds of disqualification are enumerated in clauses (a) to (m) of sub- section (1) of Section 36. The concealment of the caste and making a representation that he belongs to Scheduled Caste or Scheduled Tribe, is a disqualification under clause (k) or (1 ). If a particular seat is reserved for a Scheduled Tribe, it follows that the person who does not belong to Scheduled Tribe is disqualified by law made by the State Legislature to be elected to such seat. Therefore, there can be no doubt that a case relating to false caste certificate or false caste claim with reference to a reserved seat would fall under Section 36 (2) and/or Section 122 of the Act. Therefore, there can be no doubt that a case relating to false caste certificate or false caste claim with reference to a reserved seat would fall under Section 36 (2) and/or Section 122 of the Act. Any act amounting to concealment of a disqualification, that is, a non-Scheduled Tribe person contesting for an election to a seat reserved for a Scheduled Tribe can be challenged either under Section 122 or by an application under Section 36 (3) of the Act. ( 8. ) WE, therefore, find that the order of the learned Single Judge is proper and does not call for interference. The appeal is consequently dismissed.