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2007 DIGILAW 851 (PAT)

Shailendra Pratap Singh & Anr. v. State Of Bihar

2007-04-30

NAVIN SINHA

body2007
Judgment 1. The petitioners are residents of Village Kulharia under the territorial jurisdiction of the Kulharia Gram Panchayat. Respondent No. 7 is a resident of Village Kuberchak, Dhandiha Gram Panchayat. The petitioners are voters of Kulharia Gram Panchayat while respondent no. 7 is a votes of Dhandiha Gram Panchayat. Both Gram Panchayats are under the Koilwar Block, District Bhojpur. Petitioner No. 1 and Respondent No. 7 filed nominations for the post of Mukhiya of the Kulharia Gram Panchayat. The petitioner filed objection to the nomination filed by respondent No. 7 on the ground that he was not a voter of the Kulharia Gram Panchayat and therefore ineligible to file such nomination. The objection was rejected on 21.3.2007 by the Returning Officer. The elections took place and results were declared on 17.6.2006. Respondent No. 7 was elected as Mukhiya. 2. The issue for determination is, if a voter of one Gram Panchayat is eligible to contest for the post of Mukhiya from another Gram Panchayat under the same Block. 3. Learned Counsel for the petitioner submitted that Clause 4(xvi) of the Commissions direction dated 25.2.2006 at Annexure-1, in so far as it permitted the voter of one Gram Panchayat to contest for the post of Mukhiya from any other Gram Panchayat in the same Block as being contrary to Sec.135 of the Bihar Panchayat Raj Act, 2006 , (hereinafter referred to as the Panchayat Act) read with Rule 41(5) of the Bihar Panchayat Election Regulations, 2006 (hereinafter referred to as the Regulations). To be a candidate for the post of Mukhiya from a Gram Panchayat it was mandatory to be a voter of the same Gram Panchayat. Reliance in this regard was also placed on Article 243C(2) of the Constitution. Reliance was then placed on an earlier direction of the Commission dated 3.2.2001 in clause 4(vi) to submit that the Commission itself had earlier directed that to be a candidate for the post of Mukhiya from a Gram Panchayat it was mandatory that he must be a voter of the same Gram Panchayat. He lastly relied upon an order by a Bench of this Court dated 8.3.2001 in CWJC No. 2695 of 2001 in support of his submissions. 4. Learned Counsel appearing on behalf of the respondent no. 7 submitted that the petitioner had filed his objection to his nomination on the aforesaid ground. The same was rejected. He lastly relied upon an order by a Bench of this Court dated 8.3.2001 in CWJC No. 2695 of 2001 in support of his submissions. 4. Learned Counsel appearing on behalf of the respondent no. 7 submitted that the petitioner had filed his objection to his nomination on the aforesaid ground. The same was rejected. The petitioner accepted the rejection and contested the election. Having lost, he now seeks to challenge the very rules of the game to which he found no objection earlier. By his conduct, he is estopped from doing so. Article 243-O(b) specifically provides that a challenge such as the present can only be laid out in an election petition. The writ petition was therefore not maintainable. Article 243(d) defines Panchayat as an Institution (by whatever name called) of self-Government constituted under Article 243B. Article 243B contemplates a Panchayat at the village, Intermediate and District levels. Gram Panchayats, Panchayat Samiti and Zila Parishads were the three separate levels of the Panchayat. Sec.2(w) of the Panchayat Raj Act defines a Panchayat as an Institution of self-Government constituted under Article 243B of the Constitution. There was no illegality in the respondent no. 7 having filed his nomination for the post of Mukhiya of a Gram Panchayat when he was a voter of another Gram Panchayat under the same Block. Article 135 of the Panchayat Raj Act only required that a person whose name figured in the voters list of any Panchayat Constituency, unless otherwise disqualified, was qualified to be elected as a member/office bearer of the Panchayat. The word Panchayat had therefore to be construed in its generic sense under Article 243(d) of the Constitution read with Article 243B and 2(w) of the Act. The contentions raised herein do not appear to have been raised before the Court when the order dated 8.3.2001 in CWJC No. 2695 of 2001 was passed and therefore there was no occasion for the Court to apply its mind to the issues as presently urged. 5. Learned Counsel for the Commission and the State adopted the arguments made on behalf of respondent no. 7. 6. The 73rd amendment to the Constitution introduced chapter 9A. It envisages the Gram Panchayat as the foundation of the three tier Panchayat structure. The Gram Sabha means a Body consisting of persons registered in the electoral rolls comprised within the area of the Gram Panchayat. 7. 6. The 73rd amendment to the Constitution introduced chapter 9A. It envisages the Gram Panchayat as the foundation of the three tier Panchayat structure. The Gram Sabha means a Body consisting of persons registered in the electoral rolls comprised within the area of the Gram Panchayat. The three tier Panchayat Institutions consists of a Gram Panchayat at the lower level, Panchayat Samiti at the Block level and Zila Parishad at the district level. The Chairman of the Gram Panchayat is called the Mukhiya. The Chairperson of the Panchayat Samiti is called the Pramukh and the chairperson of the Zila Parishad is called Adhyaksh. Article 243(d) defines Panchayat as an institution constituted under Article 243B. Article 243B provides that in every State there shall be a Panchayat at the village, intermediate and the district levels. Article 243C(2) provides that all seats in a Panchayat shall be filled by persons chosen by direct election from territorial constituencies in the Panchayat area. Each Panchayat shall be divided into territorial constituency and the number of seats allotted to it so far as practical shall be the same throughout the Panchayat area. Article 243C(5) provides that the Chairperson (Mukhiya) of the Panchayat at the village level shall be elected in such manner as the Legislature of a State may by law provide. Sub-clause (b) thereof provides that the Chairperson of the Panchayat at the intermediate or district level shall be elected by and from amongst the elected members thereof. 7. It is therefore apparent that even while the word Panchayat has been used as a generic term, the distinction in its composition at each of the three levels and the manner of election to it has been preserved. In pursuance of the aforesaid constitutional provisions, the State of Bihar framed the Bihar Panchayat Raj Act, 2006 (as amended from time to time). Sec.2(w) maintains the mandate of Article 243B of the Constitution that the Panchayat shall be an institution of self-Government. Sec.2(x) defines Panchayat area as the territorial area of the Panchayat. Sec.2(y) defines Panchayat Samiti as one constituted for every block. Sec.11 of the Act deals with the declaration of Gram Panchayat area. Sec.2(w) maintains the mandate of Article 243B of the Constitution that the Panchayat shall be an institution of self-Government. Sec.2(x) defines Panchayat area as the territorial area of the Panchayat. Sec.2(y) defines Panchayat Samiti as one constituted for every block. Sec.11 of the Act deals with the declaration of Gram Panchayat area. Sub-clause (3) provides that the every Gram Panchayat shall be a body corporate with a perpetual seal, capable of suing and being sued and to hold and transfer movable or immovable property, enter into contracts and doing all things necessary, proper and expedient for the purpose for which it is constituted. Sec.12 of the Act provides that the Gram Panchayat shall consist of the Mukhiya elected under the Act and the Members directly elected. The Gram Panchayat may be divided into territorial constituencies in such manner that the population of each constituency as far as practicable be the same throughout the Panchayat area. Sec.15 of the Act provides for the election of a Mukhiya. It is specific, that a Mukhiya of the Gram Panchayat shall be directly elected by the voters enrolled in the voters list of that Gram Panchayat. The Gram Panchayat shall then elect the Up-Mukhiya at its first meeting in which the Mukhiya shall also be a voter. In the event the office of the Mukhiya or Up-Mukhiya falling vacant simultaneously, the Executive Officer of the concerned Panchayat Samiti shall call and preside over such meeting for election of Up-Mukhiya but shall not have the right to vote. The distinction between the three tiers of the Panchayat system has thus been maintained. The Gram Panchayat has been retained as a separate identity with regard to its territorial constituency, its voters. Sec.17 provides for the powers, function and duties of a Mukhiya. He shall inter alia have the general responsibility for the financial and executive administration of the Gram Panchayat alongwith administrative control, supervision over work of the Gram Panchayat. Sec.18(4) provides for removal of a Mukhiya on a no confidence motion passed by a simple majority of the total number of voters of the Gram Panchayat at a meeting convened for the purpose. Sec.36(1)(d) provides that Panchayat Samiti inter alia shall consist of all the Mukhiyas of Gram Panchayats falling within the Panchayat Samiti area. Section 90 provides for a Gram Kutchery in every Gram Panchayat. Sec.36(1)(d) provides that Panchayat Samiti inter alia shall consist of all the Mukhiyas of Gram Panchayats falling within the Panchayat Samiti area. Section 90 provides for a Gram Kutchery in every Gram Panchayat. It is thus to he seen that the distinct identity of every Gram Panchayat under a Block is recognized, enforced and identified under the Act as separate and independent identities at the grass root level. Sec.138 of the Bihar Panchayat Raj Act, 1993 provided that every person whose name is in the list of voters of any Panchayat Constituency shall, unless disqualified under this Act or any other law for the time being in force, be qualified to be elected as a Member of the office bearer of a Panchayat. It was this Clause which was the subject matter of interpretation by a Bench of this Court in CWJC 2695 of 2001 (Vinay Kumar Singh V/s. Bihar State Election Commission & Ors). This Court reading the aforesaid provision in conjunction with Rule 41(5) framed under the Act held that in order to contest a Gram Panchayat election, a candidate must be a voter of the relevant Gram Panchayat. Sec.138 has been rechristened as Sec.135 under the new Act. Sec.136 deals with disqualification for membership. This Court considers it proper to quote sub-clause (3) in its entirety: "If a person, who is chosen as a member of Panchayat, a Mukhiya, a Sarpanch is or becomes member of the Lok Sabha, Rajya Sabha, State Legislative Assembly or State Legislative Council or is or becomes a Municipal Councillor or a Councillor of a Municipal Corporation or a Member of the Sanitary Board or a Member of the Nagar Panchayat or a Member of any other Panchayat or Mukhiya then within 15 days from the date of commencement of the terms of office of a Member of Lok Sabha, Rajya Sabha, State Legislative Assembly or State Legislative Council or of a Councillor of Municipality or Municipal Corporation or a Member of Sanitary Board or Nagar Panchayat or a member of other Panchayat or Mukhiya, his seat in the Panchayat shall become vacant unless he has previously his resigned his seat in the Lok Sabha, Rajya Sabha, State Legislative Assembly or State Legislative Council, Municipality or the Municipal Corporation, Sanitary Board or the Nagar Panchayat or of any such Panchayat as the case may be." 8. A bare perusal of the aforesaid provision again reveals that the question of identity of a Mukhiya vis-a-vis a Gram Panchayat has been retained. 9. In pursuance of the aforesaid statutory provision the State Election Commission issued instructions on 3.2.2001. Clause 4(vi) reads as follows: "BIHAR PANCHAYAT RAJ ADHINIAM, 1993 Kl DHARA 138 KE ANUSAR PANCHAYAT KE SADSYA YA PADADHIKARI KE RUP MEIN NIRWACHIT HONE Kl AHARTA US WYAKTI KO PRAPTA HOGI JISKA NAAM KISI PANCHAYAT KE NIRWACHAN KSHETRA Kl MATDATA SUCHI MEIN ANKIT HO, ARTHAT CHUNAO LARNE WALE ABHYARTHI KA NAAM SAMBHANDHIT PANCHAYAT KE NIRWACHAN KSHETRA Kl MATDATA SUCHI MEIN ANKIT HONA AWASHYAK HAL KAHNE KA MATLAB YAH HAI Kl KISI WISHESH GRAM PANCHAYAT KE MUKHIA UKTA GRAM PANCHAYAT KE SADSYA PAD KE LIYA CHUNAO LARNE HETU SAMBHANDHIT ABHYARTHI KA NAAM US WISHESH GRAM PANCHAYAT KE NIRWACHAN KSHETRA Kl MATDATA SUCHI MEIN ANKIT HONA AWASHYAK HAI. YAH BHI ASPASHTA KIYA JATA HAI Kl GRAM PANCHAYAT KE NIRWACHAN KSHETRA KE MATDATA SUCHI MEIN NAAM ANKIT RAHNE PAR SAMBANDHIT MATDATA ABHYARTHI KE RUUP MEIN UKTA GRAM PANCHAYAT KE ADHIN KISI BHI PRADESHIK NIRWACHAN KSHETRA KE LIYA UMIDWAR HO SAKTA HAI. ISI PRAKAR PANCHAYAT SAMITI KE SADSYA AVAM ZILA PARISHAD KE SADSYA PAD KE LIYE CHUNAO LARNE KE LIYE UMIDWAR KA NAAM KARAMSAH SAMBHANDHIT PANCHAYAT SAMITI YA ZILA KE LIYE GATHIT MATDATA SUCHI MEIN ANKIT HONA AWASHYAK HAI." 10. The instruction makes it specific that to contest from a Gram Panchayat it was mandatory that the name of the contestant figure in the voters list of that Gram Panchayat. To that extent the Commission was under no misconception with regard to the meaning, scope and ambit of the constitutional and statutory provisions. The instruction of the Election Commission dated 25.2.2006 presently assailed, in sub-clause 4(xvi) makes a departure and provides as follows: "BIHAR PANCHAYAT RAJ ADHYADESH, 2006 Kl DHARA 135 KE ANUSAR, AISA PRATYEK WAKTI JISKA NAAM KISI PANCHAYAT KE NIRWACHAN KSHETRA Kl MATDATA SUCHI MEN HO AUR JISE IS ADHYADESH KE AADHIN YA TATSMYA PRABRITYA KISI ANYA WIDHI KE ADHIN NIRHIT NAHIN KIYA GAYA HO, USE PANCHAYAT KE SADSYA YA PADHARIKE UP MEIN NIRWACHIT HONE Kl AHRTA PRAPTA HOGI. IS SANDARBHA MEIN YAH ASPASHTA KIYA JATA HAI Kl GRAM PANCHAYAT KE NIRWACHAN KEHETRA Kl MATDATA SUCHI MEN NAAM ANKIT RAHNE PAR SAMBHANDHIT MATDATA UKTA GRAM PANCHAYAT KE ADHIN KISI BHI PRADESHIK NIRWACHAN KSHETRA KE LIYE SADSYA ATHWA PANCH KA UMIDWAR HO SAKTA HAI; PRAKHAND/PANCHAYAT SAMITI KE NIRWACHAN KSHETRA Kl MATDATA SUCHI MEN NAAM ANKIT RAHNE PAR SAMBANDHIT MATDATA US PRAKHAND ANTARGAT KISI BHI GRAM PANCHAYAT KE MUKHIA/ GRAM KATCHAHRI KE SARPANCH/ PANCHAYAT SAMITI KE KISI BHI NIRWACHAN KSHETRON KE SADSYA PAD KA UMIDWAR HO SAKTA HAI TATHA ZILA KE LIYE GATHIT MATDATA SUCHI MEN NAAM ANKIT RAHNE PAR SAMBHANDHIT MATDATA ZILA PARISHAD KE KISI BHI PRADESHIK NIRWACHAN KSHETRA KE SADSYA PAD KA UMIDWAR HO SAAKTA HAI. 11. It specifically provides that in the event of a persons name being in the voter list of a Block/Panchayat Samiti, the concerned voter could stand for the post of Mukhiya from any Gram Panchayat in that Block. The reason for this departure from the earlier circular is not explained. The counter affidavit on behalf of the Commission seeks to explain the same, though this will have its own limitations in view of the law laid down in A.I.R. 1978 S.C. 851 (Mohinder Singh Gill & anr. V/s. The Chief Election Commissioner, New Delhi & Ors.) that what is not stated in the order cannot be explained or supplemented by affidavit. The justification in the pleadings, is based on a hypothetical presumption that "a situation may arise where no person from the eligible category is available as a candidate in that Gram Panchayat or no one is willing to contest the election, in such a situation a void may be created and the post will remain vacant". This Court finds it difficult to appreciate the practicability of this hypothetical reasoning both keeping in mind, the large population of this State and the awareness and interest shows by its populace in the system of local governance after the elections came to be held pursuance of the orders of this Court. In any event, hypothetical presumptions cannot justify executive departures from constitutional and statutory provisions. 12. This Court cannot lose sight of the fact that the Gram Panchayat is the smallest but basic tier of this edifice of grass root democracy. In any event, hypothetical presumptions cannot justify executive departures from constitutional and statutory provisions. 12. This Court cannot lose sight of the fact that the Gram Panchayat is the smallest but basic tier of this edifice of grass root democracy. It empowers people to achieve their objects in a democratic manner though their own representative who shall as a voter be acquainted with the local problems and its remedies and shares the happiness and misery of the local populace. He shall be one who shall interact with them and be available to them immediately. Though in times of distress, District Magistrates, Sub-Divisional Officers and Block Development Officers may be available, but when catastrophy strikes, before Government Agencies can arrive to provide relief to the people in the rural areas, it is the Mukhiya and the Gram Panchayat Members who shall be the immediate source of relief and succcour. Though most of the Mukhiya generally represented the feudal elements in the villages, nevertheless, their apparent benevolent gesture and prompt response to the need of the affected people makes the institution of Mukhiya very popular among the local people. Can a person (Mukhiya) who is a resident of another Gram Panchayat, be so readily available or have the same commitment, or will he only have political aspirations of power and pelf. 13. Sec.135 of the Act opens with a specific term "Every person whose name is in the list of voters of any Panchayat Constituency..." it then concludes with the more general words.....", be qualified to be elected as a member or office bearer of the Panchayat". Can the more specific words loose their identity in the latter part of the definition or will the more general word in the latter part of the Section be read down to the more specific words in the earlier part of the Section. 14. The principle to statutory interpretation by which a generic word receives a limited interpretation by reason of its context is well established. The principle applicable in "noscitur a sociis". Put simply, "the meaning of a word is to be judged by the company it keeps". 14. The principle to statutory interpretation by which a generic word receives a limited interpretation by reason of its context is well established. The principle applicable in "noscitur a sociis". Put simply, "the meaning of a word is to be judged by the company it keeps". In (1981)2 SCC 141 (Rainbow Steels Ltd., Muzaffarnagar & Birla Cotton Spinning and Weaving Mills Ltd., Delhi V/s. C.S.T., U.P. and State of U.P.) the Apex Court was considering the meaning of the word "old" in context of the entry in a taxing tariff which read "Old discarded, unserviceable or absolute machinery, stores or vehicles including waste products....". It was held that though the tariff item started with the use of the wide word "Old", in order in fall within the expression "Old machinery" occurring in the entry, the machinery must be old machinery in the sense that it has become non-functional or non-usable. Not the mere age of the machinery relevant in the wider sense, but the condition of the machinery analogous to that indicated by the words following it, was relevant for the purpose of the statute. The Court, therefore, rejects the submission that all that is required is to be a voter of any Panchayat Constituency to be able to contest for the post Mukhiya and the only limitation is that both Gram Panchayat must be under the same block. The words "Panchayat" in the latter part of the Section has to be read subject to the limitation of being a voter of that Panchayat Constituency. 15. This Court on basis of the aforesaid discussions arrives at the conclusion that the Constitution and the Act contemplated a person as a Mukhiya who had roots in the soil, was omni present in the Gram Panchayat, able to share the miseries and happiness and supervise the works. On a conjoint reading of the aforesaid provisions of law this Court has no hesitation in holding that though Panchayat may be a generic term, a Gram Panchayat, Panchayat Samiti and Zila Parishad have been acknowledged as different tiers of the same. On a conjoint reading of the aforesaid provisions of law this Court has no hesitation in holding that though Panchayat may be a generic term, a Gram Panchayat, Panchayat Samiti and Zila Parishad have been acknowledged as different tiers of the same. To hold that a person with no local roots in the Gram Panchayat, can maintain political aspirations, as distinct from commitment to grass root democracy and can contest elections from a place where he is not a voter, is not conversant with local problems, accessible to local people, would be a travesty of the entire concept of grass root democracy. 16. This Court therefore holds that to be a candidate for the Mukhiya of a Gram Panchayat the candidate must be a voter of that Gram Panchayat. It will not suffice if he is a voter of any other Gram Panchayat within the Block. To import the generic term panchayat in support thereof shall be an act of sacrilege, demolishing the entire concept of grass root democracy. 17. The submission on behalf of respondent no. 7 that the petitioner no. 1 is estopped after having contested and lost does not appeal to this Court. If the disqualification of respondent no. 7 be under the law, it hardly matters. There can be no estoppel against the law. Likewise the submission that the writ petition is barred under Article 2430(b) of the Constitution also does not impress the Court. A similar question with regard to the ineligibility of a candidate whose name did not figure as a voter from the constituency but who nonetheless participated and won was considered by the Supreme Court in (1999)4 SCC 526 (K. Venkatachalam V/s. A. Swamickan & Anr). The writ jurisdiction was questioned in view of the bar under Sec.329(b) of the Constitution of India. The Apex Court at para 26 of the judgment framed the question that if in such circumstances the High Court would exercise its jurisdiction under Article 226 of the Constitution that he was not qualified to be a member of the constituency can he be allowed to continue or to do so would be a fraud on the Constitution. The Apex Court at para 26 of the judgment framed the question that if in such circumstances the High Court would exercise its jurisdiction under Article 226 of the Constitution that he was not qualified to be a member of the constituency can he be allowed to continue or to do so would be a fraud on the Constitution. The Court held after referring to various decisions of the Apex Court that Article 226 was couched in the widest possible terms and unless there is a clear bar to jurisdiction of the High Court its power under Article 226 can be exercised when there is any Act which is against any provision of law or violative of constitutional provisions and when recourse cannot be had to the provisions of the Act. It opined that could a foreigner can be permitted to sit and vote in the Legislative Assembly and the Court be incompetent to interfere under Article 226. As in the said case, so also presently the time limit for in an election petition has also run out. To non-suit the writ petitioner would cause grave injustice. The Court, therefore, rejects this submission also. 18. It is settled law that Executive instructions cannot be contrary to and in teeth of statutory provisions. The instructions of the Commission dated 25.2.2006 in clause 4(xvi) is therefore set aside as being contrary to Constitutional statutory provisions. 19. In conclusion, this Court holds that respondent no. 7 was not qualified to hold the post of Mukhiya of the Kulhariya Gram Panchayat as he is admittedly not a voter of the Kulhariya Gram Panchayat but is a voter of the Dhandiha Gram Panchayat. His election is accordingly set aside. 20. The writ application stands allowed. No costs.