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2006 DIGILAW 760 (MP)

Santosh Sarnagat v. State of M. P.

2006-05-20

KRISHNA KUMAR LAHOTI

body2006
ORDER 1. This petition is directed against order dated 3.9.2005 passed by Sub-Divisional Officer, Revenue-cum- Prescribed Authority (Election Tribunal) Waraseoni in Election Petition No.23-A/89/2004-05 by which the election petition filed by respondent No.5 Dilip Singh was allowed and the election of the petitioner has been set aside. The election has been set aside mainly on the ground that the petitioner was disqualified under section 92 (5) of M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as 'Panchayat Act') and during the period of disqualification, he filed nomination and contested the election. 2. Learned counsel appearing for the petitioner challenged the aforesaid order on following grounds: (a) That in fact no action under section 92 of Panchayat Act was initiated against the petitioner and the petitioner has been wrongly found disqualified under section 92 (5) of the Panchayat Act. (b) That the order Annexure P-2, which has been relied on by the election tribunal, is void ab initio and the finding recorded in the aforesaid order cannot be relied on against the petitioner while deciding the present election petition. 3. In support of his contention, learned counsel for the petitioner relied on the judgment passed by apex Court in Ashak Leyland Ltd. v. State of Tamil Nadu [ AIR 2004 SC 2836 ]. 4. Learned counsel appearing for respondents supported the order passed by the election tribunal and submitted that the findings recorded by the election Tribunal are based on previous judgment in election petition No.11A-89/93-94 decided on 31.3.2000 in which a finding has been recorded under section 92 and he has been declared disqualified for a period of six years by the aforesaid order. The aforesaid findings has attained finality mid has the affect of resjudicata against the petitioner, and relying on the aforesaid finding the election tribunal has rightly set aside the election of the petitioner. 5. In respect of this learned counsel for the petitioner submitted that in fact no proceedings under section 92 of Panchayat Act were initiated against the petitioner and the findings recorded in the previous election petition can be re-considered in this matter. When no such proceedings were initiated against the petitioner, petitioner cannot be penalized in respect of penalty which was never imposed on the petitioner. When no such proceedings were initiated against the petitioner, petitioner cannot be penalized in respect of penalty which was never imposed on the petitioner. At the time of filing of nomination paper, some objections was raised by the respondent No.5 before the Returning Officer which was turned down by the Returning Officer on the ground that infact no such proceedings were initiated against the petitioner. When this objection was raised and decided by the returning officer, there is no question for re-agitating the question at subsequent stage, nor in the election petition. 6. To appreciate the rival contentions of the parties, it will be appropriate if some facts of the present case are stated. 7. The petitioner Santosh Sharnagat was an elected Sarpanch of Gram Saliwada in the election held on 23.5.1994. This election was challenged by one Rajesh Madavi by filing an election petition before the Election Tribunal, Waraseoni. This matter was decided vide order Annexure P-2 dated 31.3.2000 in which the election tribunal found that on 31.8.1991, petitioner Santosh was removed from the office of Sarpanch under section 40 of the Panchayat Act. Thereafter on 22.11.1991 an order was passed incase No.132B-121/91 in which the petitioner was found a culprit of embezzlement of Rs. 1,000/-. Again on 24.3.1998 he was removed under section 40 of Panchayat Act. Against this order Santosh filed an appeal before the Collector, Balaghat who stayed the order on 19.5.1998. During pendency of this appeal the term of Santosh as Sarpanch expired and new election were held and another women Sarpanch was elected. But against Santosh Sharnagat, recovery proceedings for the recovery of Rs.56,290.31 were pending in which the tractor of Santosh was attached. The Election Tribunal further found that the aforesaid proceedings are under section 92 and under section 92 (5) of Panchayat Act, such person is disqualified to remain an Office Bearer of Panchayat. As the aforesaid recovery proceedings are continuing and the petitioner's period of Sarpanch has expired so no action under section 40 (1) of the Act is warranted but against Santosh, a recovery of Government money is going on so he was declared as disqualified for a period of 6 years under section 92 (5) of Panchayat Act. This order was passed on 31.3.2000, against this order no appeal or writ petition was filed and this order has attained finality. This order was passed on 31.3.2000, against this order no appeal or writ petition was filed and this order has attained finality. Thereafter petitioner contested the election for the office of Sarpanch Gram Panchayat, Jhaliwada which was held on 23.1.2005 and the petitioner was declared as elected Sarpanch of Gram Panchayat, Jhaliwada. Though during the course of election process an objection was filed by Rajesh and Ram Chandra on the nomination papers of the petitioner that he is disqualified for a period of six years but the election officer rejected the aforesaid objection and the nomination paper of the petitioner was accepted. After the election, the respondent Dilip Singh challenged the election of the petitioner by filing an election petition under section 122 of Panchayat Act and the Election Tribunal by the impugned order has allowed the aforesaid election petition mainly on the ground that on 31.3.2000 vide order Annexure P-2, petitioner was declared disqualified for a period of six years and the aforesaid period is up to 31.3.2006 and during this period of disqualification if the petitioner contested the election when he was disqualified and his election has been declared void. Now as per the contentions of the parties following question arises: (i) whether any finding was recorded against the petitioner under section 92 of Panchayat Act and whether he was declared as disqualified under section 92 (5) of the Act. (ii) Whether the findings recorded in previous election petition are having effect of resjudicata in the present case. (iii) Whether the Election Tribunal rightly declared the election of the petitioner as void. 8. In this regard the findings recorded vide order Annexure P-2 dated 31.3.2000 may been seen. This order has been passed by the Sub-Divisional Officer considering the fact that the recovery proceedings against the petitioner are pending before the Tahsildar and this recovery is in respect of Government money belonging to the Panchayat. The aforesaid amount relates to a scheme Jawahar Rojgar Yojna which was implemented by the petitioner in the capacity of Sarpanch. As the petitioner had not paid the money belonging to the Panchayat and proceedings are pending against him, he was declared disqualified by the SDO. The aforesaid amount relates to a scheme Jawahar Rojgar Yojna which was implemented by the petitioner in the capacity of Sarpanch. As the petitioner had not paid the money belonging to the Panchayat and proceedings are pending against him, he was declared disqualified by the SDO. Though there is substance in the contention of the petitioner that no proper proceedings under section 92 of the Panchayat Act were initiated against the petitioner and in fact he is not disqualified under section 92 of the Act. But in subsequent proceedings whether these findings may be considered ? is a question to be decided. The apex Court in Mohanlal Goenka v. Benoy Kishna Mukherjee [ AIR 1953 SC 65 ], considering the question whether an erroneous decision may be treated as resjudicata. The apex Court held that an erroneous decision will be as much resjudicata as a correct decision. For ready reference paragraph 23 of the aforesaid judgment is quoted as under: "There is ample authority for the proposition that even an erroneous decision on a question of law operates as 'resjudicata' between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as 'resjudicata'. A decision in the previous execution case between the parties that the matter was not within the competence of the executing Court even though erroneous is binding on the parties." The apex Court in Supreme Court Employees Welfare Assodation v. Union of India [ AIR 1990 SC 334 ] considering a similar question held that if the question of law is related to the fact in issue, an erroneous decision on such a question of law may operate as resjudicata between the parties in a subsequent suit or proceedings, if the cause of action is the same. In this case, the previous election petition was filed against the petitioner on certain allegations. The SDO is the competent authority to decide the election petition and also the question under section 92 of the Panchayat Act. In this case, the previous election petition was filed against the petitioner on certain allegations. The SDO is the competent authority to decide the election petition and also the question under section 92 of the Panchayat Act. In the previous proceedings, if the SDO after considering the material found that a proceeding against the petitioner in respect of recovery of Panchayat fund is pending and found that the petitioner is a disqualified person under section 92 (5) of the Act and declared the petitioner as disqualified, then this decision ought to have been challenged by the petitioner immediately. But once the petitioner accepted the aforesaid decision, now on subsequent occasions petitioner cannot say that the aforesaid decision is void ab initio and is not binding on the petitioner. The question whether any proceedings initiated under section 92 of the Panchayat Act or the petitioner was rightly declared disqualified under section 92 (5) of the Act or not, could have been challenged by the petitioner immediately after passing of the aforesaid order before the appropriate forum. Now it is not permissible to permit virtually reopening of previous order or going behind the previous order, passed by a competent Court. The principle of resjudicata would bar such re-opening of the matter. It is not a case where the Election Tribunal in previous round has proceeded either on wrong assumption or without any material but considered the material facts has passed the aforesaid order for which SDO was competent. In such a circumstance, until and unless the earlier decision is shown to be without jurisdiction or without any basis, the aforesaid order is binding on the petitioner. The petitioner was having opportunity to contest the matter in previous round, contested the matter and has permitted an adverse order against him which has attained finality, the aforesaid order cannot be reconsidered in subsequent proceedings. The rule of resjudicata is applicable even to election petition. The apex Court in Bagmal v. Prabhuram [ AIR 1985 SC 150 = 1985 (1) SCC 61 ] considering the question held thus: "We agree with Mr. The rule of resjudicata is applicable even to election petition. The apex Court in Bagmal v. Prabhuram [ AIR 1985 SC 150 = 1985 (1) SCC 61 ] considering the question held thus: "We agree with Mr. Sibal that the order directing recount of the rejected ballot papers in so far as it is not in excess of the jurisdiction of the Tribunal has become final and that it is not open to the appellant to reagitate that question in this appeal which is no doubt under S. 116 of the Act, as the principle of constructive resjudicata applies. We do not agree with Mr. Shanti Bhushan that it can be reagitated in this appeal." 9. The previous judgment is binding on the petitioner. Vide order dated 31.3.2000 Annexure P-2, petitioner was declared disqualified for a period of six years and on the date of filing of the nomination for the present election on 29.12.2004, he was disqualified and was not entitled to contest the election for the office of Sarpanch. The authority has rightly declared the election of the petitioner as void. In the aforesaid order there is no jurisdictional error warranting interference by this Court. This petition is without merit and is dismissed with cost.