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2006 DIGILAW 293 (MP)

Pradeep Kumar Tiwari v. State of M. P.

2006-02-22

DIPAK MISRA

body2006
ORDER 1. Invoking the extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India, the petitioner has called in question the legal propriety and sustainability of the order dated 11.3 .2005 passed by the Collector, Satna, respondent No. 2 herein as per Annexure P-7 in an election proceeding initiated under section 122 of the Madhya Pradesh Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (for brevity "the Act") where by the said prescribed authority has rejected the election petition. 2. The facts which are essential to be adumbrated are that the petitioner submitted a nomination form for election of a member of Janpad Panchayat of Ward No. 17, Gobari, Tahsil Maihar in the District Satna to the Sub-Divisional Officer-cum-Returning Officer, respondent No.3 herein, on 24.12.2004. His nomination was objected to by certain persons filing an affidavit that the petitioner had more than two children after 26.1.2001 and hence, he was not entitled to contest in the election being disqualified as per the postulate contained under section 36 (1) (m) of the Act. According to the writ petitioner the election programme was issued by the Collector on 13.10.2004 and in pursuance thereof, he submitted his nomination form with all requisite documents. The respondent No. 3 being persuaded by a complaint and affidavit filed by some persons, without affording an opportunity of being heard, acted on the complaint and rejected the nomination form. It is set forth that the petitioner had submitted a deed of adoption and the certificate issued by the Principal of concerned school highlighting the factum that he had given one of his daughters, namely, Priya, to his younger brother, Chandra Bhushan Tiwari on 22.12.2000 on adoption by executing a registered deed as per the provisions of the Hindu Adoption and Maintenance Act, 1956 (in short "the 1956 Act") but the same was not taken note of and an adverse order came to be passed on 30.12.2004 as contained in Annexure P-1. It is urged in the petition, the certificate granted by the Principal would go a long way to show that the name of Chandra Bhushan finds mention as the father and the petitioner is ceased to be the father of the daughter who had been given in adoption and hence, the disqualification was not attracted. It is urged in the petition, the certificate granted by the Principal would go a long way to show that the name of Chandra Bhushan finds mention as the father and the petitioner is ceased to be the father of the daughter who had been given in adoption and hence, the disqualification was not attracted. After the rejection of nomination paper the petitioner filed W.P. No. 29/2005 wherein this Court by order dated 7.1.2005 directed that if the petitioner filed an election petition agitating his grievance the prescribed authority would expedite the hearing of the election petition. In pursuance of the aforesaid order the petitioner filed an application before the prescribed authority for setting aside the election of the returned candidate. The Election Tribunal as per Annexure P- 7, dated 11.3.2005 rejected the election petition. 3. It is pleaded that rejection of nomination form by the respondent No.3 is totally illegal and unjustified since the petitioner had submitted the adoption-deed and certificate issued by the Principal of the school highlighting how his daughter, Priya, aged about 12 years was given in adoption to his brother, Chandra Bhushan Tiwari on 22.12.2000 as he had no daughter. A copy of the adoption deed has been brought on record as per Annexure-P- 2 and the certificate of the Principal as Annexure-P-4. It is urged that after one child was given in adoption he had only two children and, therefore, the rigour of section 36 (1)(m) of the Act would not be attracted. It is put forth that after the direction of this Court in the writ petition the petitioner initiated the election proceeding but the prescribed authority by the impugned order rejected the same on the grounds that the second daughter Priyanka was born on 12.12.2001; that the f third child was born on 11.12.2003; that the factum of adoption had not been proved as per 1956 Act; that the third child was born after the cut off date provided under section 36 (1)(m) of the Act and hence, the rejection of the nomination form of the petitioner by the Returning Officer cannot be found fault with. 4. I have heard Mr. A.G. Dhande, learned senior counsel with Mr. Sudeep Chaterjee for the petitioner and Mr. Harish Agnihotri, learned Government Advocate for the State. 5. Submission of Mr. 4. I have heard Mr. A.G. Dhande, learned senior counsel with Mr. Sudeep Chaterjee for the petitioner and Mr. Harish Agnihotri, learned Government Advocate for the State. 5. Submission of Mr. Dhande, learned senior counsel, is that the Tribunal has committed gross illegality by expressing the view that the adoption was not done in accordance with the provisions contained under the 1956 Act though the registered deed of adoption was produced before the prescribed authority. The learned senior counsel further submitted that adoption had taken effect before section 36 (1) (m) of the Act came into force and hence the embargo contained therein would not affect or impair the right of the petitioner to contest the election as he does not incur any disqualification for being an office bearer of the Panchayat. It is further propounded by him that once adoption takes place, section 12 of the 1956 Act comes into play in its entirety and, therefore, by no stretch of imagination, the disqualification provided under section 36 (1)(m) of the Act would get attracted to the case of the petitioner. 6. Mr. Harish Agnihotri, learned Government Advocate for the State, submitted that the provision of disqualification under section 36 (1)(m) of the Act stipulates that a person shall not be eligible to be an office bearer of the Panchayat if he has more than two living children one of whom is born on or after the 26th day of January, 2001 and the said provision has been held to be a Constitutionally valid by extending the cut -off date to 30.4.2001 by this Court in Ojhilal Gond v. The State of M.P. and others W P No. 5069/2002. It is canvassed by him that the deed of adoption as per Annexure P-2 is dated 29.11.2004, though there is reflection that the adoption had taken place on 22.12.2000. It is contended by him that the whole thing appears to fiustrate the provisions of the Act and hence, the rejection of nomination form of the petitioner is absolutely impeccable. 7. The centripodal issue that arises for consideration is whether in the case at hand the petitioner had incurred the disqualification to contest the election or not. On a reading of the order passed by the Election Tribunal it transpires that the Tribunal has recorded a finding that the proper procedure for adoption as per Hindu rites had not been followed. The centripodal issue that arises for consideration is whether in the case at hand the petitioner had incurred the disqualification to contest the election or not. On a reading of the order passed by the Election Tribunal it transpires that the Tribunal has recorded a finding that the proper procedure for adoption as per Hindu rites had not been followed. Presuming for a moment that the assertion made by the election petitioner is correct it is to be seen whether the same had any impact. In this context, I may refer with profit to the decision rendered in Javed and others v. State of Haryana and others [ 2003 (2) JLJ 334 = (2003) 8 SCC 369 ]. In the said case their Lordships were considering the vires of the provision of section 175 (1) (q) of Haryana Panchayati Raj Act, 1994 (Act No. 11 of 1994). While dealing with the said provision, their Lordships expressed the view that the disqualification does not suffer from any arbitrariness inasmuch as number of children remained to two is based on legislative wisdom; that the said provision is neither arbitrary nor unreasonable nor discriminatory; that the right to contest in an election is neither a fundamental right nor a common law right but a right conferred by the Statute. In the aforesaid decision in para 62 it has been held as under: "62. It was submitted that the enactment has created serious problems in the rural population as couples desirous of contesting an election but having living children more than two, are feeling compelled to give them in adoption. Subject to what has already been stated hereinabove, we may add that disqualification is attracted no sooner a third child is born and is living after two living children. Merely because the couple has parted with one child by giving the child away in adoption, the disqualification does not come to an end. While interpreting the scope of disqualification we shall have to keep in view the evil sought to be cured and purpose sought to be achieved by the enactment. If the person sought to be disqualified is responsible for or has given birth to children more than two who are living then merely because one or more of them are given in adoption the disqualification is not wiped out." 8. Submission of Mr. If the person sought to be disqualified is responsible for or has given birth to children more than two who are living then merely because one or more of them are given in adoption the disqualification is not wiped out." 8. Submission of Mr. Agnihotri, learned Government Advocate for the State is that even if the adoption is accepted the same would be hit by the ratio as perceptible from the aforesaid paragraphs. It is also contended by him that the deed of adoption though stipulates that the adoption had taken place on 22.12.2000 the same would not also save the petitioner from being disqualified. It is noticeable that the amendment was added to sub-section (1) of section 36 of the Act and the said provision was published in M.P. Rajpatra (Extraordinary) dated 23.5.2000. In Ojhilal Gond (supra) this Court expressed the view that as the provision was published in the M.P. Gazette (Extraordinary) on 23.5.2000 it could safely be stated that the law was made know to the public at large on that date. The amendment made it clear that it would come into force on 26.1.2001. This Court took note of the fact that the cut-off date was not correct inasmuch as it creates a situation which borders on the principles of impossibility. It was observed that it was a matter of accepted jurisprudence that law does not require any person to do an impossible act. Keeping in view the purpose of legislation and the period of gap provided in the statute this Court expressed the view that the provision should be allowed to stand by creating a logical, proper and workable situation and accordingly taking note of the fact of gestation period fixed the cut off date as 30.4.2001 and treated the provision to be valid. The purpose of referring to the aforesaid decision is that law was known to the people at large when the notification was published. There might have been an adoption on 22.12.2000. As has been seen, a registered deed of adoption was executed in 2004 indicating that the adoption had taken place on 22.12.2000. Be it noted that by that time the provision had already been published though it was brought on the statute book on 26.1.2001, the original cut-off date. There might have been an adoption on 22.12.2000. As has been seen, a registered deed of adoption was executed in 2004 indicating that the adoption had taken place on 22.12.2000. Be it noted that by that time the provision had already been published though it was brought on the statute book on 26.1.2001, the original cut-off date. If the date of registration is taken into consideration definitely it would be disqualification as per law laid down in Javed (supra). Even if it is assumed that adoption had taken place on 22.12.2000, the same, in my considered opinion, also would amount to frustrating the provisions of the Act. In addition in allow myself to say so, the keywords used in the provision are "born" and "two living children", the apex Court has laid emphasis on the concept of born and living. Judged from that angle also the petitioner was disqualified. 9. In view of the aforesaid premises, I am of the considered opinion, the rejection of nomination form of the petitioner was justified and non-interference by the Election Tribunal is sound and does not warrant interference. However, it is hereby made clear that the finding recorded by the Election Tribunal that the adoption was not done under the provisions of the 1956 Act would not affect the factum of adoption if otherwise it is proved a in any other proceeding inasmuch as I have not expressed any opinion with regard to the adoption itself. 10. Resultantly, with the aforesaid observations the writ petition is dismissed. There shall be no order as to costs.