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Madhya Pradesh High Court · body

2008 DIGILAW 1034 (MP)

Shivkumar Singh v. Risniraj Singh

2008-08-18

R.S.JHA

body2008
ORDER R.S. Jha, J. 1. The Petitioner has filed this petition assailing the legal validity of the order dated 23.4.2007, passed by the SDO, Teonthar, District Rewa, the Electric Tribunal, in Case No. 10-A-89/2004-05, dismissing the election petition filed by the Petitioner against the election of Respondent No. 1 as Sarpanch of Grain Panchayat Rakshakala, Janpad Panchayat and Tahsil Teonthar, District Rewa. 2. The brief facts leading to filing of the present petition are that the elections for the post of Sarpanch were notified by the State Government and pursuant thereto nomination papers for contesting the election for the post of Sarpanch of Gram Panchayat Rakshakala were filed by the parties as well as other contesting candidates on 23.12.2004. The voting was held on 23.1.2005 and the result of the election after counting was declared on 28.1.2005. The Respondent No. 1 was declared as the returned candidate as he had secured 24 votes more than the Petitioner. 3. Being aggrieved by the aforesaid election of Respondent No. 1, the Petitioner filed an election petition before the Election Tribunal, the SDO, Teonthar, on 6.2.2005 contending inter alia that the Respondent No. 1, while filling up the declaration form, as prescribed under Rule 31A of the M.P. Panchayat Nirvachan Niyam, 1995 (hereinafter referred to as "the Niyam of 1995"), did not disclose the fact that he had been convicted for offences punishable under Sections 452 and 324 of the Indian Penal Code in Criminal Case No. 209 of 1980 by the Judicial Magistrate First Class, Teonthar on 26.8.1982 and the criminal revision filed by him against the aforesaid order i.e. Criminal Revision No. 30 of 1982 had also been dismissed by the Sessions Judge, Rewa by order dated 24.5.1984 and that the Respondent No. 1 did not mention in the declaration form that he had taken a loan from the Punjab National Bank and was a defaulter in making repayments thereof. The Election Tribunal by the impugned order dated 23.4.2007 has dismissed the election petition, hence this petition. 4. The Election Tribunal by the impugned order dated 23.4.2007 has dismissed the election petition, hence this petition. 4. It is submitted by the learned Counsel for the Petitioner that the Respondent No. 1 was well aware of the fact that he had been convicted in the criminal case for offences punishable under Sections 452 and 324 of the Indian Penal Code in spite of which he failed to furnish the aforesaid information in the declaration form required to be filled under Rule 31A of the Niyam of 1995 and, therefore, the nomination papers filed by the Petitioner should have been rejected under Rule 35 of the Rules. It is submitted that due to non-disclosure of pendency of the criminal case and the fact that the Respondent No. 1 was a defaulter in repayment of loan, the election of the Respondent No. 1 as Sarpanch deserves to be set aside. 5. It is submitted that the Election Tribunal, while dismissing the election petition filed by the Petitioner, has failed to take into consideration the aforesaid aspects and has, therefore, committed material irregularity and manifest illegality in dismissing the petition and, therefore, the impugned order passed by the Election Tribunal, dated 23.4.2007 be quashed. In addition, the learned Counsel for the Petitioner submits that the Petitioner, having secured second highest votes in the election, be declared elected consequent upon quashing of the election of the Respondent No. 1. 6. The Respondent, per contra, submits that he was subsequently acquitted by this Court in Criminal Revision No. 337 of 1984 and, therefore, the disqualification, if any, incurred on account of his conviction stood wiped out and in such circumstances no fault can be found in the impugned order dated 23.4.2007 on this count. It is further submitted that the conviction of the Respondent No. 1 in the offences as aforesaid was more than five years prior to the date on which he submitted his nomination form and on the date the election was held and, therefore, the Respondent No. 1 was neither debarred nor disqualified from contesting the election in view of the provisions of Section 36 of the Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993. It is submitted that in such circumstances, nondisclosure of the aforesaid information does not in any manner affect the validity of the candidature of the Respondent as he does not incur any disqualification for contesting the election. It is submitted that in such circumstances, nondisclosure of the aforesaid information does not in any manner affect the validity of the candidature of the Respondent as he does not incur any disqualification for contesting the election. The Respondent No. 1, therefore, submitted that the petition filed by the Petitioner be dismissed and the impugned order be upheld. 7. Additionally, it is submitted that even otherwise, if this Court declares the election of Respondent No. 1 as void, in view of the provisions of Gram Panchayat Rules and the judgment of the Supreme Court in the case of Prakash Khandare v. Dr. Vijay Kumar Khandare and Ors. (2002)5 SCC 568 , the Petitioner cannot be declared as elected as the contention that all the votes polled in favour of the Respondent No. 1 would have been polled in favour of the Petitioner is in the realm of juncture and surmises on the basis of which the Petitioner cannot be declared elected. It is, therefore, submitted that the petition filed by the Petitioner be dismissed. 8. I have heard the learned Counsels for the parties at length and gone through the record. 9. The fact that the Petitioner was convicted for offences punishable under Sections 452 and 324 of the Indian Penal Code in Criminal Case No. 209 of 1980, dated 26.8.1982 and that the Criminal Revision No. 30/82 filed by him was dismissed by the Sessions Judge, Rewa on 24.5.1984 is not disputed. In fact, it is an admitted fact. Though the Respondent No. 1 has stated that his conviction was ultimately set aside and he was acquitted by this Court in Criminal Revision No. 337/84, the order passed in the aforesaid criminal revision or details thereof have not been placed on record by him. Be that as it may, the fact that the Respondent No. 1 was convicted in the year 1982 is an admitted fact and, therefore, it is also clear that the Respondent No. 1 was not disqualified from contesting the election for the post of Sarpanch for the Panchayat under Section 36 of the Act of 1993 as five years from the date of his conviction had elapsed. In any case, from the submissions made by the learned Counsels for the parties, I am of the considered opinion that the present case does not involve any dispute regarding qualification or disqualification of the Respondent No. 1 to contest the election. 10. The issue involved in the case is the impact and consequence of his giving an incorrect or incomplete declaration under Rule 31A of the Niyam of 1995. Admittedly, the Respondent No. I, while filling up the declaration form under Rule 31A did not disclose the fact of his conviction though he was required to specifically make the aforesaid disclosure. Rules 31A and 35 of the Niyam of 1995 and the statutory form notified by the State Government by notification dated 22.9.2004, a copy of which has been filed by the Petitioner along with the petition as Annexure P-8 are reproduced below: 31 A. Information of criminal record, properties, liabilities and educational qualifications, etc. of candidates. - (1) Every candidate for the post of Panel) shall submit a declaration in a form as prescribed by the State Election Commission along with nomination paper which shall include information about his educational qualification, criminal cases pending/decided, his/her assets and liabilities and that of his/her spouse and dependents,, his/her number of living children and information about whether he/she is an encroacher on Government Land. (2) Every candidate for the post of Sarpanch, member of Janpad Panchayat and Zila Panchayat shall submit an affidavit in a form as prescribed by the State Election Commission along with nomination paper which shall include information about educational qualifications, criminal cases pending/decided, his/her assets and liabilities and that of his/her spouse and dependents, the number of his/her living children and whether he/she is an encroacher on Government Land. The affidavit shall be sworn before competent Notary, Magistrate or Oath Commissioner. (3) A copy of affidavit/declaration of candidates for the post of Panch, Sarpanch, Member of Janpad Panchayat and Zila Panchayat shall be exhibited on the notice board in the office of Returning Officer. Its copy shall be made available to any citizen on demand on payment of prescribed fee. 35. Scrutiny of nomination papers. (3) A copy of affidavit/declaration of candidates for the post of Panch, Sarpanch, Member of Janpad Panchayat and Zila Panchayat shall be exhibited on the notice board in the office of Returning Officer. Its copy shall be made available to any citizen on demand on payment of prescribed fee. 35. Scrutiny of nomination papers. - (1) On the date fixed for the scrutiny of nomination papers under Rule 28, the candidate, their election agents, one proposer of each candidate, and one other person duly authorised in writing by each candidate, but not other person, may attend at the time and place appointed in this behalf under Rule 28 and the Returning Officer shall give them all reasonable facilities for examining the nomination papers of all candidates which have been delivered as required by Rule 32. (2) The Returning Officer shall then examine the date 23.4.2007, passed by the SDO, Teonthar, District Rewa, the Election Tribunal, in Case No. 10-A-89/2004-05 nomination papers and shall decide all objections which may be made to any nomination and may either on such objections or his own motion, after such summary inquiry, if any, as he thinks necessary, reject any nomination paper on any of the following grounds, that is to say -: (a) that the candidate is disqualified for being elected to fill the seat by or under the Act; (b) that the proposer is disqualified from subscribing a nomination paper; (c) that the provisions of Rule 31, 31A, 32 and 33 have not been complied with; and (d) that the signature of the candidate or the proposer on the nomination paper is not genuine. (3) Nothing contained in Clause (c) or (d) of Sub-rule (2) shall be deemed to authorise the rejection of the nomination of any candidate on the ground of any irregularity in respect of a nomination paper, if the candidate has been duly nominated by means of Anr. nomination paper in respect of which no irregularity has been committed. (4) The Returning Officer shall not reject any nomination paper on the ground of mere clerical or printing error or any defect which is not of a substantial character. nomination paper in respect of which no irregularity has been committed. (4) The Returning Officer shall not reject any nomination paper on the ground of mere clerical or printing error or any defect which is not of a substantial character. (5) The Returning Officer shall hold the scrutiny on the date appointed in this behalf under Clause (b) of Rule 28 and shall not allow any adjournment of the proceedings except when such proceedings are interrupted or obstructed by riot or open violence or by causes beyond his control: Provided that in case any objection is raised by the Returning Officer or is made by any other person, the candidate may be allowed time to rebut it not later than the next day, and the Returning Officer shall record his decision on the date to which the proceedings have been adjourned. (6) The Returning Officer shall endorse on each nomination paper his decision regarding accepting or rejecting the same and, if the nomination paper is rejected, shall record in writing a brief statement of his reasons for such rejection. The order passed by the Returning Officer shall, subject to the result of revision, if any under Rule 36, be final. (7) For the purposes of this rule the production of a certified copy of an entry made in the Voters' list of the relevant Gram Panchayat shall be conclusive evidence of the right of any voter named in that entry to stand for election, unless it is proved that the candidate is disqualified. (8) Immediately after all the nomination papers have been scrutinised and decisions accepting or rejecting the same have been recorded, the Returning Officer shall prepare ward wise or constituency-wise lists of candidates whose nominations have been accepted in form 5 and affix the lists on the notice board of his office, duly recording the date and time of affixture below his signature. (9) If nomination of a candidate has been accepted by the Returning Officer for more than one ward of constituency through oversight or for want of objection or for any other reason whatsoever, the Returning Officer shall after giving an opportunity of hearing to such candidate or his election agent, recognise the nomination tendered first in point of time and delete or cause to be deleted from the list of validity nominated candidates in Form 5, the name of such candidate from every other ward or constituency and record this fact in writing. The Returning Officer shall also affix a copy of the revised list of validity nominated, candidates in Form 5 on the notice board in his office, duly recording the date and time of such affixture below his signature. Statutory Form notified by the State Government 11. From a perusal of Rule 31A(2) and paragraph 1-B of the form prescribed above, it is clear that the Respondent No. 1 was required to disclose details of the all previously decided criminal cases against him but he failed to do so as is evident from a perusal of Annexure P-1. Rule 35(2) of the Niyam of 1995 stipulates that the Returning Officer may, on examining the nomination papers shall either on objections or on his own motion and after summary inquiry as he thinks necessary, reject any nomination paper on the ground that the provisions of Rule 31A have not been complied with. In view of the admitted facts mentioned in the preceding paragraph it is clear that the Petitioner's nomination form was liable to be rejected and the Returning Officer was required to reject the nomination form of the Respondent No. 1 in view of the non-compliance of Rule 31A of the Niyam of 1995, under Rule 35(2)(c). 12. In view of the admitted facts mentioned in the preceding paragraph it is clear that the Petitioner's nomination form was liable to be rejected and the Returning Officer was required to reject the nomination form of the Respondent No. 1 in view of the non-compliance of Rule 31A of the Niyam of 1995, under Rule 35(2)(c). 12. From a perusal of the aforesaid it is clear that the present case is one of wrongful acceptance of the nomination papers of Respondent No. 1 and, therefore, the ground for declaring the election of Respondent No. 1 as void was clearly made out by the Petitioner under Rule 21 of the M.P. Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 (hereinafter referred to as "the Rules of 1995") as the result of which the election, insofar as the returned candidate is concerned i.e. Respondent No. 1, is materially affected by the improper acceptance of his nomination papers. 1 am compelled to say so as had the nomination paper of the Respondent been rejected as required by law he would not have been a contesting candidate and would not have been delcared the returned candidate. 13. From a perusal of the impugned order passed by the Election Tribunal dated 23.4.2007 it is clear that the Election Tribunal has not applied its mind to the impact and import of Rule 31A, Rule 35, the statutory form prescribed in the Nirvachan Niyam 1995 and the provisions of the Rule 21 of the Rules of 1995 but has in fact gone on the question of disqualification of Respondent No. 1 under Section 36 of the Act. 14. I have already stated earlier that the Respondent No. 1 was not disqualified to contest the election and the issue involved in the present petition is not one of disqualification of Respondent No. 1 but is one of the wrongful acceptance of his nomination papers under Rules 31A and 35 of the Niyam of 1995. In view of the above, I am of the considered opinion that the Election Tribunal has committed gross illegality and material irregularity while deciding the election petition filed by the Petitioner in not considering the aforesaid aspects, specifically, in view of the admitted facts in the present petition. In view of the above, I am of the considered opinion that the Election Tribunal has committed gross illegality and material irregularity while deciding the election petition filed by the Petitioner in not considering the aforesaid aspects, specifically, in view of the admitted facts in the present petition. In these circumstances, the election of the Respondent No. 1 deserves to be and is hereby declared void on account of improper acceptance of his nomination papers due to non-compliance of the provisions of Rule 31-A and Rule 35 of the Niyam of 1995 under the grounds mentioned under Rule 21 of the Rules of 1995. 15. From a perusal of the provisions of Rule 23(2) of the Rules of 1995 it is clear that for the purposes of obtaining a declaration by an election Petitioner in his favour to the effect that he should be declared as the returned candidate after declaring the election of the returned candidate as void, it is necessary for the election Petitioner to plead, prove and state that but for the votes obtained by the returned candidate the Petitioner would have obtained majority of the valid votes. 16. In the instant case from a perusal of the documents filed by the Petitioner along with the petition it is clear that the Petitioner has not made any specific pleading to that effect nor has he made any statement in support of his claim that he would have obtained majority of the votes on the Respondent No. 1 being removed from the arena. The Supreme Court in the case of Prakash Khandare (supra), while considering the provisions of Sections 84 and 101 of the Representation of the People Act, which are similarly worded as the provisions of Rule 6 and Rule 23(2) of the Rules of 1995, respectively, has held in paragraphs 14 and 24 as follows: 14. However, in an election where the elected candidate is declared to be disqualified to contest election and there are more than two candidates contesting election, there is no specific provision under the Act under which the person who has secured the next highest number of votes could be declared as elected. The Act is silent on this point. Further it cannot be presumed that the votes secured by the disqualified elected candidate would have been wasted or would have been secured by the next candidate who has secured more votes. The Act is silent on this point. Further it cannot be presumed that the votes secured by the disqualified elected candidate would have been wasted or would have been secured by the next candidate who has secured more votes. If disqualified candidate was not permitted to contest the election then how the voters would have voted in favour of the candidate who has secured more votes than the other remaining candidates would be a question in the realm of speculation and unpredictability. In such a situation, declaring the election of the returned candidate on the ground of his initial disqualification to contest the election by itself would not entitle the election Petitioner or any other candidate to be declared elected. 24. In view of the aforesaid settled legal position, in our view, the impugned order passed by the High Court declaring the election Petitioner as elected on the ground that the votes cast in favour of the elected candidate (Appellant) are thrown away was totally erroneous and cannot be justified. As held by the Constitution Bench in Konappa case (1969)2 SCR 90 : AIR 1969 SC 604 Vishwanatha Redely v. Konappa Rudrappa Nadgouda, that some general rule of election prevailing in the United Kingdom that the votes cast in favour of a person who is found disqualified for election may be regarded as "thrown away" only in the voters had noticed before the poll the disqualification of the candidate, has no application in our country and has only merit of antiquity. We would observe that the question of sending such notice to all voters appears to us alien to the Act and the Rules. But that question is not required to be dealt with in this matter. As stated earlier, in the present case, for one seat, there were five candidates and it would be impossible to predict or guess in whose favour the voters would have if they were aware that the elected candidate was disqualified to contest election or if he was not permitted to contest the election by rejecting his nomination paper on the ground of disqualification to contest the election and what would have been the voting pattern. Therefore, order passed by the High Court declaring the election Petitioner Dr. Vijay Kumar Khandare as elected requires to be set aside. 17. Therefore, order passed by the High Court declaring the election Petitioner Dr. Vijay Kumar Khandare as elected requires to be set aside. 17. In the instant case also on the basis of the averments made by the Petitioner it cannot be presumed or assumed that all the votes secured by the Respondent No. 1, on his nomination being rejected, would have been secured by the Petitioner specifically in view of the fact that there were about six other candidates in the arena apart from including the Petitioner and Respondent No. 1 and, therefore, the votes could have been distributed in any imaginable proportion amongst the remaining candidates and, therefore, the declaration sought by the Petitioner to the effect that he be declared the returned candidate on setting aside the election of Respondent No. 1 is misconceived and deserves to be rejected. 18. In view of the aforesaid, the petition filed by the Petitioner stands partly allowed. The impugned order dated 23.4.2007 passed by the SDO, Theonthar, District Rewa, in Case No. 10-A-89/2004-05 is set aside and as a consequence thereof the election of Respondent No. 1 as Sarpanch of Gram Panchayat Rakshakala, Janpad Panchayat Teonthar, District Rewa is set aside and at the same time the prayer of the Petitioner that he be declared as an elected Sarpanch is also rejected. In the facts and circumstances of the case there shall be no order as to costs.