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Madhya Pradesh High Court · body

2007 DIGILAW 1234 (MP)

RAJARAM AHIRWAR v. STATE OF M P.

2007-11-30

ABHAY M.NAIK

body2007
Judgment Abhay M.Naik, J. ( 1. ) This petition has been preferred for issuance of writ of quo warranto mainly with the allegations that the petitioner is a voter enrolled in Shivaji ward, Bina, District Sagar. Election of Janpad Panchayat, Sagar took place in the year 1999. Name of respondent No.3 was entered in the voter list of Gram Panchayat Lakhahar as revealed in the supplementary voter list marked as Annexure/P-2. He contested election for Janpad Panchayat, Sagar and was elected from Village Lakhahar. Copy of voter list was issued by the Election Officer, Sagar on 9.2.2000 wherein the name of respondent No.3 appears at serial no.17 of the voter list of Shivaji ward, Bina. ( 2. ) On declaration of election of Nagar Parishad, Bina, respondent No.3 submitted his resignation to the Zila Panchayat, Sagar on 24.9.2004 whose copy is on record as Annexure/P-4. At the time of submission of nomination form for election of Nagar Parishad, Bina, respondent No. 3 submitted his nomination form disclosing his name as Mahesh Kumar S/b Ram Lal, R/O Shivaji Ward, Bina. This was submitted alongwith affidavit, copy thereof is Annexure/P-7. An objection was taken by one Sunil Kumar Sahu on 6.11.2004 to the effect that the name of father of respondent No.3 is Panna Lal Rai and his name was not recorded in the voter list of Shivaji Ward within the Nagar Parishad limits of Bina. An objection was also raised that the name of respondent No.3 is already entered in the voter list of Gram Panchayat and therefore his name could not have been entered in the voter list of Nagar Parishad, Bina. This objection was not accepted. It is stated in the writ petition that respondent No.3 was elected as President of Nagar Parishad, Bina despite absence of his name in the voter list. Mahesh Rai S/o Panna Lal is different from Mahesh Kumar S/o Ram Lal recorded in the voter list of Nagar Parishad, Bina at serial no.54 (Annexure/P-3). To substantiate the aforesaid, marksheet of Pre Secondary School Examination has been placed on record as Annexure/P-10 which reveals that fathers name of respondent no.3 is Panna Lal Khangar. Respondent No.3 is scheduled caste person and he submitted a Caste Certificate to the aforesaid effect as Contained in Annexure/P-12. To substantiate the aforesaid, marksheet of Pre Secondary School Examination has been placed on record as Annexure/P-10 which reveals that fathers name of respondent no.3 is Panna Lal Khangar. Respondent No.3 is scheduled caste person and he submitted a Caste Certificate to the aforesaid effect as Contained in Annexure/P-12. Accordingly, it is stated that Mahesh S/o Ram Lal was elected as President of Nagar Parishad, Bina and not respondent No.3 with his fathers name as Pannalal. Accordingly, it is Mahesh S/o Ram Lal and not the respondent No.3 with fathers name as Panna Lal who was elected as President of Nagar Parishad, Bina. Thus, it is contended that he is occupying the office of President, without any entitlement and is liable to quit the said office usurped by him unauthorisedly. ( 3. ) In sum and substance, the contention of the learned counsel for the petitioner is that the name of respondent no. 3 was entered in the electoral roll of Gram Panchayat Lakhahar and he was not entitled to get enrolled as voter in the electoral roll of Shivaji Ward within the limits of Municipal Council, Bina. Further, fathers name of respondent no. 3 being Pannalal and not Ramlal, he has no right to occupy the office of President of Municipal Council, Bina. On the basis of aforesaid main contention this petition has been preferred for the following relief: - "7.1. That by issuance of writ in the nature of quo warranto this Honble Court may kindly be pleased to direct the respondent no. 3 to show his entitlement and legal authority to hold the office of President, Nagar Parishad, Bina, District Sagar." ( 4. ) In the return, it has been contended as a preliminary objection that the election of respondent No.3 can be questioned only through an election petition and a writ petition for issuance of writ of quo warranto cannot be legally entertained. This apart the allegations contained in the writ petition have been denied in toto. ( 5. ) Shri Vivek Rusia, learned counsel for the petitioner, Shri A.P. Shroti, learned counsel for respondent no. 2, Shri N.S. Kale, learned Sr. counsel for respondent no. 3 and Shri Pranay Verma, learned counsel for intervenor argued at length and their arguments have been duly considered in the light of the legal provisions applicable to the present case. ( 6. ) Shri Vivek Rusia, learned counsel for the petitioner, Shri A.P. Shroti, learned counsel for respondent no. 2, Shri N.S. Kale, learned Sr. counsel for respondent no. 3 and Shri Pranay Verma, learned counsel for intervenor argued at length and their arguments have been duly considered in the light of the legal provisions applicable to the present case. ( 6. ) Shri Vivek Rusia, learned counsel for the petitioner contended that the name of the petitioner was already entered in the voter list of Janpad Panchayat, Sagar which took place in the year 1999. Election was contested by respondent no. 3 who was elected as member from village Lakhahar. After the elections of Municipal Council, Bina were declared in the year 2004, respondent no. 3 submitted his nomination form with his fathers name as Ramlal. It is stated that Mahesh Rai S/o Pannalal is different from Mahesh Kumar S/O Ramlal and accordingly, respondent no. 3 is different than the person who submitted his nomination form for contesting the election for the post of member of Municipal Council from Shivaji Ward, Bina District Sagar. This point may not detain this court any longer because a criminal case bearing S.T. No. 112/97 was filed against the brother of respondent no. 3 as revealed in Annexures R/3 and R/4 which ex facie goes to show that Pannalal was also known as Ramlal. Government of M.P. had registered a case after a due police investigation against brother of respondent no. 3 describing him as son of Pannalal alias Ramlal. Thus, the contention that Pannalal and Ramlal were two persons is not ex facie acceptable. This could have been established only in the election petition wherein an opportunity for evidence and cross examination is permitted. ( 7. ) Though learned counsel for the parties have argued at length about the maintainability of writ of quo warranto in the matter yet I do not feel it necessary to discuss the same in the light of succeeding paragraphs. ( 8. ) According to the petitioners contention the name of respondent no. 3 was entered into the electoral roll of village Lakhahar in 1999 and, thereafter, he made an application for entering his name into the electoral roll of Shivaji Ward within the limits of Municipal Council, Bina. ( 8. ) According to the petitioners contention the name of respondent no. 3 was entered into the electoral roll of village Lakhahar in 1999 and, thereafter, he made an application for entering his name into the electoral roll of Shivaji Ward within the limits of Municipal Council, Bina. Placing reliance of Section 5 of M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as "the Panchayat Act" for brevity), it is contended that the petitioner was disqualified from getting his name entered in the voter list of Shivaji Ward. Before appreciating this contention, it is necessary to examine section 5 which reads as under: - "5. Registration of voters of a village- Every person who is qualified to be registered in the Assembly roll relatable to a village or whose name is entered therein and is ordinarily resident within village shall be entitled to be registered in the list of voters of that village: Provided that- (a) no person shall be entitled to be registered in the list of voters for more than one village; (b) no person shall be entitled to be registered in the list of voters if he is registered in the electoral roll relating to any other local authority. Explanation- 1. The expression "ordinarily resident" shall have the meaning assigned to it in Section 20 of the Representation of the People Act, 1950 (No. 43 of 1950) subject to the modification that reference to "Constituency" therein will be construed as a reference to "village". 2. A person shall be disqualified for registration in the list of voters of a village if he is disqualified for registration in the Assembly roll. Perusal of the aforesaid section makes it clear that a person whose name is entered into the electoral roll relating to any other local authority is not entitled to be registered in the list of voters of the village. It nowhere provides for vice versa position. It means that by virtue of this provision a person is not prevented from getting his name entered in the electoral roll of Municipal Council, if his name is already registered in the electoral roll of the village. Therefore, by virtue of aforesaid provision, election of respondent no. 3 as a member of Municipal council, Bina is not affected at all. ( 9. Therefore, by virtue of aforesaid provision, election of respondent no. 3 as a member of Municipal council, Bina is not affected at all. ( 9. ) Petitioner has prayed for writ of quo warranto with regard to election of the respondent no. 3 as councilor of Municipal Council, Bina and this being so, latters rights will be examined in the light of M.P. Municipalities Act, 1961. Section 30 of the said Act prescribes qualifications of voters and registration as follows:- 30. Qualification of voters and their registration:- Subject to the provisions of Section 31, every person who- (a) is not less than eighteen years of age on the 1 st day of January of the year in which the electoral roll for a ward is prepared or revised; (b) is ordinarily resident in the ward within the meaning of Section 20 of the Representation of People Act, 1950 (No. 43 of 1950) subject to the modification that reference "area comprised in ward"; and (c) is otherwise qualified to be registered in the Assembly roll relatable to the ward; shall be entitled to be registered in the electoral roll of that ward: Provided that- (i) no person shall be entitled to be registered in the electoral roll for more than one ward; (ii) no person shall be entitled to be registered in the electoral roll for any ward more than one; It does not contain a restriction that if the name of intending voter is already entered in the electoral roll of village such a person would not be entitled to seek enrollment as voter in the election of Municipal Council. Proviso to this section prohibits a person from getting registered in electoral roll for more than one ward or for any ward more than one. It is not the case of the petitioner that the name of respondent no. 3 was already entered in the voter list of Shivaji Ward or any other ward. This being so, the petitioner did not incur disqualification from getting his name entered in the voter list of Shivaji Ward. Section 31 of the Municipalities Act lays down disqualification of voters. 3 was already entered in the voter list of Shivaji Ward or any other ward. This being so, the petitioner did not incur disqualification from getting his name entered in the voter list of Shivaji Ward. Section 31 of the Municipalities Act lays down disqualification of voters. It nowhere provides that a person whose name is not already entered in the voter list of any of the wards of Municipal Council would stand disqualified from contesting municipal election on the ground that his name is already entered in the voter list of the village. Petitioner did not choose to prefer objections regarding the aforesaid. This being so, it cannot be said that respondent no. 3 had incurred any kind of disqualification and was not consequently competent to hold the office. Section 20 of the Municipalities Act provides for election petition. State Government has also made election rules for the purpose of Municipal Council which are known as the Madhya Pradesh Nagarpalika Nirvachan Niyam, 1994. Further, M.P. Municipalities (Election petition) Rules, 1962 have also been framed. They clearly go to show that the election of respondent no. 3 may be challenged under the provisions of M.P. Nagarpalika Nirvachan Niyam, 1994 and M.P: Municipalities (Election petition) Rules, 1962. ( 10. ) Considering these rules and other relevant provisions of law it may safely be held that it is not contemplated under law that a person entered in the name of voter list of village, is disqualified from contesting the election of councilor in due manner. The petitioner, if, so advised, may indeed file an election petition in the matter in accordance with law. ( 11. ) Learned counsel for both the parties have taken much pains in citing various authorities but none of them deals with the specific provision in issue. So, I do not wish to burden this order with those citations. ( 12. ) Since, I have not found substance and merits in the writ petition, this court is not required to decide about the maintainability of the writ petition for issuance of writ of quo warranto in the facts and circumstance of the case. ( 13. ) Writ petition, accordingly stands dismissed. No order as to costs. Petition dismissed.