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2006 DIGILAW 634 (MP)

Muneer Khan v. Jaswant Singh

2006-05-03

NISHITH KUMAR MODY

body2006
ORDER 1. Being aggrieved by the order dated 25.10.2005, passed by respondent No.4, in Case No.14/C-144/2004-2005, whereby the election petition filed by respondent No.1 under section 122 of M.P. Panchayat Raj Adhiniyam, 1993 (which shall be referred hereinafter as 'Act') was allowed and the petitioner was removed from the post of Sarpanch of village Payakhedi, Sitamau, district Mandsaur, and the post was declared vacant, the present petition has been filed. 2. Short facts of the case are that election of Gram Panchayat village Payakhedi, Sitamau for the post of Sarpanch took place, in which the petitioner and respondent No.1 were candidates. In the said election, petitioner was declared as Sarpanch as petitioner was elected by 327 votes from the nearest contestant respondent No.1. Respondent No.2 and 3 were also the candidates for the said election. After the election respondent No.1 filed election petition under section 122 of the Act before respondent No.4 wherein it was alleged that petitioner has encroached the Government land, therefore, petitioner was not eligible to contest the election. In the said election petition it was prayed that the petitioner be removed from the post of Sarpanch. 3. In the election petition it was alleged that in the nomination form submitted by the petitioner the column relating the encroachment over the Government property was left blank by the petitioner, while the petitioner was encroacher on the land measuring 0.15 hect., bearing Survey No. 615 at village Payakhedi in the year 2002-2003. It was further alleged that in Case No. 233, the petitioner confessed the charge of encroachment and deposited penalty of Rs. 75/-. It was further alleged that in the year 2004-2005 also the encroachment continued. It was prayed that the election of the petitioner as Sarpanch be declared void and petitioner be removed from the post of Sarpanch as the petitioner is disqualified. 4. After service of the notice the petitioner appeared and submitted the reply, wherein it was specifically alleged that petitioner was never in occupation of the land bearing Survey No. 615 as encroacher at any point of time, therefore column relating to encroachment was kept blank by the petitioner in the nomination form. It was also alleged that petitioner never received any notice from the village Court relating to encroachment. Petitioner never appeared before the village Court and also never confessed the charge of encroachment. It was also alleged that petitioner never received any notice from the village Court relating to encroachment. Petitioner never appeared before the village Court and also never confessed the charge of encroachment. It was also denied that petitioner deposited any amount as fine. In the reply it was alleged that forged record has been prepared in collusion with Patwari and the village Court. It is submitted that there is no typewriter in the village Court, while all the proceedings are duly typed. It was also alleged that there is overwriting in the record and the year 2003-2004 has been converted as 2002-2003. Copies of revenue papers does not bear the date of issuance, while copy of revenue record cannot be issued unless the requisite fee is deposited. It is also submitted that at the time of submission of nomination paper the nomination forms were scrutinized and objections were invited, but no objection was made to the effect that petitioner is encroacher. Apart from this on various other grounds it was alleged that election petition filed by respondent No.1 deserves to be dismissed. 5. After filing of the reply the case was fixed for evidence on 6.5.2005. On this date none of the witnesses of respondent No. 1 was present, hence the case was adjourned for 24.5.2005. On this date the respondent No.4 passed an order to call the record relating to encroachment from the village Court and adjourned the case for 24.6.2005. Again the case was adjourned for 1.7.2005, 9.8.2005 and on this date it was directed that Patwari and Record Keeper be summoned. On 12.9.2005, the evidence of Patwari was recorded. Further case was adjourned for 19.9.2005 and the evidence of Gram Sahayak adduced by respondent No. 1 was recorded. Thereafter case was adjourned for recording of the evidence of petitioner on 27.9.2005. On this date application was filed by the petitioner for examining the handwriting expert to prove the signature, this application was dismissed. After recording of the evidence adduced by the petitioner case was closed and by the order dated 25.10.2005, the petition filed by respondent No.1 was allowed and the election of petitioner as Sarpanch was set aside. Learned counsel for the petitioner submits that the order impugned herein is illegal and deserves to be dismissed. 6. After recording of the evidence adduced by the petitioner case was closed and by the order dated 25.10.2005, the petition filed by respondent No.1 was allowed and the election of petitioner as Sarpanch was set aside. Learned counsel for the petitioner submits that the order impugned herein is illegal and deserves to be dismissed. 6. Learned counsel submits that section 36 of the Panchayat Act lays down the disqualifications for being office bearer of Panchayat. It is submitted that as per section 36, no person shall be eligible to be an office bearer of Panchayat who has any of the disqualifications as laid down in the said section. It is submitted that new ground has been introduced by way of Amendment Act No. 16/2004, which has been published vide Notification dated 15.12.2004, whereby clause (cc) has been introduced in section 36 of the Act, which reads as under: "(cc) has encroached upon any land or buildings of the Panchayat and Government; or." 7. Learned counsel submits that rule 21 of the M.P. Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995, which shall be referred herein after as 'Rules', lays down the grounds for declaring election to be void. According to clause (a) of sub rule (1) of rule 21 : "If the Specified Officer is of the opinion that on the date of his election the returned candidate, who was not qualified or was disqualified to be chosen to fill the seat under the Act, the Specified Officer shall declare the election of the returned candidate to be void". 8. It is submitted that the allegation made against the petitioner regarding the encroachment were specifically denied by the petitioner in the reply at length, inspite of that the record of the village Court was not produced before the respondent No.4. From perusal of Exhinbit P-4 and P-5, which is order dated 23.4.2004 and also from perusal of D-1 and D-2, it is evident that some notice have been served on the petitioner for appearance before the village Court. 9. From perusal of Exhibit P-4 and P-5, it is evident that Gram Nyayalay issued notice for appearance of petitioner on 24.3.2004. On this date in the order sheet it is mentioned that petitioner is present/absent inspite of notice. Further in the order it is mentioned that petitioner has confessed the encroachment on the Government land. 9. From perusal of Exhibit P-4 and P-5, it is evident that Gram Nyayalay issued notice for appearance of petitioner on 24.3.2004. On this date in the order sheet it is mentioned that petitioner is present/absent inspite of notice. Further in the order it is mentioned that petitioner has confessed the encroachment on the Government land. It is also mentioned that case shall proceed ex-party against the petitioner. Thereafter in the order it is mentioned that after hearing the Patwari it is proved that petitioner has encroached on the Government land. Hence fine was imposed. The fine was also deposited on the same day. Further from perusal of the evidence it is evident that notice for 2002-2003 does not bear the date of issuance. It also does not bear that it is for he year 2003-2004. 10. From perusal of Exhibit P-4 and P-5, it is not clear that the petitioner was present before the Gram Nyayalay or not. It is also not clear whether case proceeded in ex -parte against the petitioner or petitioner confessed the encroachment. From perusal of the statement of Ghanshayam Kumariya, who was Panchayat Karmi, it is evident that record of Gram Nyayalay was not exhibited in evidence. It is also not evident that who has deposited the amount of penalty. However, it is clear that all the proceedings have completed is one day, which creates the doubt. 11. After taking into consideration all the evidence on record and surrounding circumstances, it appears that the respondent No.4 committed error in holding that petitioner is encroacher and is not eligible to be an officer bearer under section 36 of Panchayat Act. In view of this the present petition is allowed. Impugned order dated 25.10.2005, passed by respondent No.4 is set aside. Election petition filed by respondent No.1 is dismissed. No order as to costs.