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Madhya Pradesh High Court · body

2008 DIGILAW 1072 (MP)

ANITA KAROPE v. GEETA UIKEY

2008-08-26

R.K.GUPTA, R.S.GARG

body2008
Judgment ( 1. ) THIS order shall dispose of Writ Appeal No. 1171/2006 (Smt. Anita Karope Vs. Smt. Geeta Uikey and 5 others) and Writ Appeal No. 1199/ 2006 (Smt. Basanti Uikey Vs. Geeta Uikey and 5 others ). ( 2. ) EACH of the appellant being aggrieved by the order dated 4. 11. 2006 passed by learned single Judge in Writ Petition No. 867/2005 (Smt. Geeta Uikey Vs. M. P. State Election Commission and others ) where under the writ application filed by the original petitioner Smt. Geeta Uikey was allowed has filed writ appeal under section 2 of M. P. Uchha Nyayalaya (Khand Nyapeeth Ko Appeal) Adhiniyam, 2005. The short facts necessary for disposal of these writ appeals are that the original petitioner Smt. Geeta Uikey was elected as the Sarpanch of Gram panchayat Ghoradongri, District Betul for the period 2000-2005. She contested for the post of Member from Seat No. 7 Banspur in respect of Janpad Panchayat ghoradongri and was elected by a reasonable margin. After the election of the members, a notice was issued to the elected Members for taking part in the election to the office of the President and the Vice President of Janpad Panchayat and the meeting was scheduled to be held at 11. 00 a. m. on 14. 2. 2005. The election programme is Annexure A/2 to this writ appeal. It provided that from 11. 00 to 11. 45 a. m the instructions would be issued to the candidates and thereafter nomination forms would be accepted. Between 11. 45 to 12. 00 noon a scrutiny would be made and thereafter, instructions would be given to the candidates regarding acceptance or rejection of the nominations. Between 12. 00 to 12. 30 candidates were made entitled to withdraw from the election. Between 12. 30 to 1. 00 ballot papers were to be prepared and thereafter, between 1. 00 to 1. 30 p. m elections were to be conducted. In the period between 1. 30 to 2. 00 p. m. ballot papers were to be counted, results were to be declared and Forms No. V, VI and vii were to be prepared and Form No. VI was to be issued. Between 2. 00 to 2. 45 p. m procedure for election of Vice President was to be adopted. ( 3. 30 to 2. 00 p. m. ballot papers were to be counted, results were to be declared and Forms No. V, VI and vii were to be prepared and Form No. VI was to be issued. Between 2. 00 to 2. 45 p. m procedure for election of Vice President was to be adopted. ( 3. ) IT is not in dispute before us that the original petitioner Smt. Geeta Uikey contested for the post of President, Janpad Panchayat, the said election meeting commenced at 11. 00 a. m as scheduled on 14. 2. 2005. The nominations were submitted by Smt. Geeta Uikey, Smt. Anita Karope and Smt. Basanti Uikey. From the report submitted by the Returning Officer it appears that at about 12 35 noon and at about 12. 45 noon Smt. Geeta Uikey and Smt. Basanti Uikey submitted an application for withdrawal of their candidature but the said applications for withdrawal was rejected as the time to withdraw from the nomination had already run out. The Election Officer thereafter, prepared the ballots and allowed the voting. The voting was conducted between 1. 00 to 1,30 noon and 16 persons had taken part in the voting process. After the voting process was over the ballot box was opened and the votes cast in favour of the different; candidates were counted. It was declared publicly that Smt. Anita Karope, appellant in Writ Appeal No. 1j 71/2006 received one vote only while Smt. Basanti Uikey, appellant in Writ Appeal Nq. 1199/ 2006 received seven votes. The original petitioner/present respondentno. l Smt. Geeta uikey received eight votes. After the aforesaid counting of the votes before further ministerial act could be undertaken, at. about2. 15 p. m some Members of the Janpad and other persons along with Member of Legislative Assembly came in the voting hall and made an allegation that nine persons of the Janpad were. not allowed to enter by the mob standing near the gate and therefore, they could not cast their votes and under the circumstances revoting should be allowed. The other group opposed the said suggestion as a result of which the situation became. tense and chaotic. not allowed to enter by the mob standing near the gate and therefore, they could not cast their votes and under the circumstances revoting should be allowed. The other group opposed the said suggestion as a result of which the situation became. tense and chaotic. The returning Officer sought guidance from the Collector who instructed the -Returning officer to do the needful in accordance with the ules/law The Returning Officer thereafter, recorded the proceedings, and observed that as the situation of emergency had emerged and it was not possible to decide that whether the nine voters were in fact restrained/detained by the mob and were not sallowed to cast their votes,, he however, directed that looking to the chaotic/riot condition it would be in the interest of all the concerned to adjourn the election. Exercising the powers vested in him under Section 21 (1) of Madhya Pradesh Panchayat (Upsarpanch, President and vice President) Nirvachan Niyam, 1995,, the process of election of the President and, thereafter the process of election of Vice President was adjourned. ( 4. ) THE report prepared by the Returning Officer is available on the record of this appeal as Annexure A/1. . Smt. Geeta Uikey. being aggrieved by the adjournment of the election process/meeting filed Writ Petition No. 867/2005. and submitted before the learned single Judge that after the elections to the post of the President were over and the votes were already counted there was no good reason for the Returning Officer to hold that present was a case of emergency and looking to the riot condition, the meeting was required to be adjourned for fresh elections. It was also contended before the learned single Judge that present was not a case for application of Rule 21 (1) of the Rules because in accordance with Rule 16 the election hadiakeady come to an end and after the results were declared the only ministerial act to be performed was to issue a certificate to the returned candidate in Form No. V. Smt Anita Karope made an application for intervention which was allowed jby the Court. She being aggrieved by the order passed by the learned single Judge, has filed Writ Appeal no. 1171/2006. She being aggrieved by the order passed by the learned single Judge, has filed Writ Appeal no. 1171/2006. Smt. Basanti Uikey who was also not part} to the writ petition filed this Writ Appeal No. 1199/2006 with an application seeking permission to file an appeal with a submission that in the adjourned meeting fresh elections were held and as she came out as returned candidate she was entitled to file the appeal. The application seeking permission to file the appeal was allowed. ( 5. ) SHRI Sharad Verma, learned counsel for Smt. Anita Kapode in Writ Appeal no. 1171/2006 and Shri Deepak Okhade, learned counsel for Smt. Basanti Uikey in Writ Appeal no. 1199/2006 have jointly submitted that if the Returning Officer being master of the situation after assessing the circumstances observed that present was a case or exercising power under Sub Rule 1 of Rule 21, exercised the powers and adjourned the meeting then the learned single Judge on basis of the legal interpretation should not have held that the adjournment of the meeting was invalid. It is also submitted that from a complete reading of Annexure A/1 it would clearly appear that declaration of the result and issuance of Form No. V had become impossible, therefore, the Presiding Officer / Returning officer was justified in adjourning the meeting. It is also submitted by the learned counsel for the appellants that from the return filed by the State Government it would clearly appear that the Presiding Officer was justified in adjourning the meeting because he found the case on hand to be a case of emergency. ( 6. ) SHRI Pillai, learned counsel for respondent no. l Smt. Geeta Uikey on the other hand submitted that a conjoint and juxtapose reading of Rule 10, 16 and 21 of the Rules would make it clear that the Collector has to fix a date for election, the election is to be conducted in a particular manner as provided in Rule 16 and an election meeting can be adjourned only in case of an emergency where the election is interrupted or obstructed by any riot or open violence or any other sufficient cause. According to him in the present case powers under Rule 21 (1)of the rules could not be exercised. According to him in the present case powers under Rule 21 (1)of the rules could not be exercised. It is also submitted by him that the Presiding officer had to adjourn the meeting and inform about the adjournment to the collector but in the present case even before adjourning the meeting the Presiding officer sought instructions from the Collector. According to him the return filed by the State Government under the signatures of Shri H. N. Sharma, Chief executive Officer of Janpad Panchayat, Ghoradongri, District Betul contains false averments and in fact Shri H. N. Sharma has tried to make a platform in favour of the adjournment of the meeting. It is also submitted by Shri Pillai that perusal of the report (Annexure A/1 to the appeal) and the return filed under signatures of Shri H. N. Sharma it would clearly appear that not only Shri H. N. Sharma was telling lies on oath but he was misreading the report of the Presiding Officer and was trying to mislead this Court. ( 7. ) THE learned single Judge in paragraph 15 has given a free translation to the necessary part of the return recorded by the Presiding Officer/returning Officer. We will adopt the said translation in toto. It reads as under : "two applications for withdrawal of the candidature were received. One from Smt. Geeta Uike at 12. 35 p. m and second from Ms. Basanti at 12. 45 but as per the schedule of the election process, the time for withdrawal of the name was fixed at 12. 30 p. m and as both these applications were received after 12. 30 p. m. they were rejected. There were three candidates in the process of voting. The process of voting were explained and after preparation of the ballot papers, as per scheduled programme, the voting was conducted between 1. 00 to 1. 30 p. m. 16 members including the three candidates participated in the voting. The voting was completed and the result was as under : After the aforesaid counting of the votes at 2. 15 p. m. some members of the Janpad and other persons along with an M. L. A. came in the voting hall and made an allegation that nine members of the Janpad were not allowed to enter by the crowd standing near the gate and they could not vote and, hence, revoting should be done. 15 p. m. some members of the Janpad and other persons along with an M. L. A. came in the voting hall and made an allegation that nine members of the Janpad were not allowed to enter by the crowd standing near the gate and they could not vote and, hence, revoting should be done. The other group opposed the said suggestion as a result of which the situation became tense and chaotic. A guidance was sought from the Collector who instructed to do the needful as per the provisions of the Rules. In the situation of emergency on 14. 2. 2005 there was a probability of open violence and fight at Ghodadogari in the election of President/vice President of Janpad Panchayat. In the aforesaid circumstances the process of the election could not be completed and the description as per Form - V and was not made, the certificate as per Form VI was not granted and the election of the President could not be notified as per Form VII. It was not ascertained whether the Members who were not allowed to enter at the time of voting were allowed to vote. In the aforesaid fact situation due to interruption in the proceeding of election of president, I, under the provisions of Rule 21 (1) of M. P. Panchayat (Upsarpanch. President and Vice President) Nirvachan Niyam, 1995 the process of election of the President and thereafter the process of election of Vice-President is adjourned. " ( 8. ) AFTER going through this order it does not appear that till the point of counting of the votes or oral declaration of the result there was commotion or free violence or any interruption or obstruction in the meeting. A perusal of the report would clearly show that the process of voting went on smoothly between 1. 00 to 1. 30 p. m. and 16 members including the three candidates participated in the voting. The report further shows that particular candidates received particular votes. According to the report after the counting was over at about 2. 15 p. m some members of the Janpad, some other persons came to the voting hall and made an allegation that nine members of the Janpad were not allowed to enter by the mob standing near the gate and as such nine persons could not cast their vote. According to the report after the counting was over at about 2. 15 p. m some members of the Janpad, some other persons came to the voting hall and made an allegation that nine members of the Janpad were not allowed to enter by the mob standing near the gate and as such nine persons could not cast their vote. The members who had entered in the hall raised a demand that revoting should be done. If the report is correct one then we would have no hesitation in holding that the commotion etc. came in existence after the results were declared. From the report it does not appear that at the meeting the proceedings of elections was interrupted by the riot or open violence. From the report it also does not appear that for any sufficient cause the Presiding Officer had announced the adjournment of the meeting. In fact the report clearly shows that after the votes were counted and the results were declared some people entered in the hall and thereafter, started asserting that revoting should be done. Such demand for revoting in fact has been taken as a situation of emergency. In our considered opinion after the elections were over, the results were declared and announced in public, any interruption or obstruction by the third party could not have affected the result of the elections. In the present matter the learned single Judge was absolutely justified in holding that present was not a case for exercising powers under Sub rule 1 of Rule 21 of the Rules. It is also to be seen that the voting had taken place between 1. 00 to 1. 30 p. m. Sub Rule 6 (1) of Rule 16 clearly provides that immediately afer the voting is over, the Presiding Officer shall open the ballot box, take out the ballot papers there from, count them and record the number thereof in a statement. After the counting is over, in accordance with Sub Rule 7 of Rule 16 the Presiding Officer has to declare the candidate who secured the largest number of votes to be duly elected in Form No. V. The declaration in Form No. V , in our considered opinion is a ministerial act. After the counting is over, in accordance with Sub Rule 7 of Rule 16 the Presiding Officer has to declare the candidate who secured the largest number of votes to be duly elected in Form No. V. The declaration in Form No. V , in our considered opinion is a ministerial act. A Presiding Officer is always obliged and duty bound to issue Form No. V declaring that a particular candidate has secured the largest number of votes and is duly elected. In a given case if a declaration is not made in Form No. V then too the result of the election would stand unaffected and unaltered. The fact would always remain that a particular candidate who secured maximum votes is to be declared elected. In the present case from the report of the Presiding Officer (Annexure A/1 to the appeal) it would clearly appear that ballot box was opened, votes were counted and in accordance with the counting the original petitioner Smt. Geeta Uikey received eight votes and was entitled to be declared as returned candidate. ( 9. ) THE entire exercise in adjourning the meeting could be taken by the Presiding officer if during the course of the election he recorded a finding that the election meeting was obstructed or interrupted because of the riot condition or because of the open violence. In the present case circumstances for application of Sub Rule 1 of Rule 21 never came into existence. Sub Rule 1 of Rule 21 if is understood in its proper perspective it would make it clear that the proceedings of the elections should be interrupted or obstructed by any riot or open violence at a meeting. at a meeting1 would simply suggest that any wrong should take place at the meeting and not outside the meeting. In the present case the commotion was outside the meeting area and after the election meeting was over number of persons had entered in the election premises. The entire exercise of voting, opening of ballot papers and counting Jhereof had already taken place. In the present case the commotion was outside the meeting area and after the election meeting was over number of persons had entered in the election premises. The entire exercise of voting, opening of ballot papers and counting Jhereof had already taken place. The only formality to be performed was to issue a declaration in Form No. V. In our considered opinion, the learned single Judge was not unjustified in holding that after the votes were counted and the report was already prepared, Presiding Officer was required and obliged to issue a declaration in accordance with Form No. V. In out opinion, if only the formality was to be performed then non-observance of the formality would not stretch the election process from the time of submission of the nomination forms beyond declaration of result or beyond that. The Presiding Officer was absolutely unjustified in adjourning the meeting even after knowing that the original petitioner Smt. Geeta Uikey successfully received eight votes and was entitled to a declaration in her favour. ( 10. ) IN our opinion the learned single Judge was also justified in observing that present was not a case for invoking emergency clause in absence of the requirement under the law. The learned single Judge was also justified in issuing the directions to issue necessary certificates in Form Nos. V and VI in favour of the petitioner. ( 11. ) IN appeal, we find no force. It deserves to and is accordingly dismissed. ( 12. ) FOR the contesting parties that is the end of the matter but for the administration of justice this is the beginning of the matter. The offieer- in-charge shri H. N. Sharma, has made certain submission. in paragraphs 5, 16 and 17 of the return, and has sworn an affidavit in support of the return. The affidavit has been sworn by him is on basis of the information received from the official records. When a person swears an affidavit on basis of the information received from the official records then he has to justify the submissions made in his affidavit or in the pleadings which he is supporting on oath. Paras 5, 16 and 17 read as under : "5 The answering respondent respectfully submits that in the instant case as per Schedule Annexure R-I the election was being conducted. However before a declaration under Sub Rule (7) (1) of Rule 16. Paras 5, 16 and 17 read as under : "5 The answering respondent respectfully submits that in the instant case as per Schedule Annexure R-I the election was being conducted. However before a declaration under Sub Rule (7) (1) of Rule 16. at about 2. 15 9 elected Janpad Members along with the Member of Legislative Assembly made a representation before the Presiding Officer that they were prevented by the crowd standing outside the office and accordingly they could not cast their votes within the stipulated time between 1. 00 p. m. to 1. 30 p. m. The Presiding officer after enquiring into the matter and looking to the situation immediately brought this fact to the notice of District Collector and the district collector directed the Presiding officer to discharge his duties in accordance with the rules. The presiding Officer since was convinced with the facts that 9 Janpad members were prevented by the crowd from casting the votes adjourned the election to a date fixed by District Collector. The answering Respondent respectfully submit that the aforesaid proceedings is duly recorded by the Presiding Officer and the same is filed herewith and marked as ANNEXURE R-II. 16. As to Para 5. 4. : The answering respondent respectfully submits that on 14. 2. 2005 after the voting was over a group of 9 elected Janpad Members made a representation before the presiding Officer at about 2. 15 P. M complaining that they have been prevented by crowd standing outside the Office from casting their votes. The Presiding Officer took the cognizance of same and after objectively considering the genuineness of complaint made by 9 elected members adjourned the election in exercise of his power under Rule 21 of the Rules of 1995. As submitted above the action taken by the Presiding Officer was strictly in accordance with the Rules and was subsequently informed to the district Collector. 17. As to Para 5. 5 and 5. 6: The answering respondent respectfully submits that the Presiding Officer was justified in not declaring the results as is provided under Rule 16 (7) (1) of the rules of 1995 because by that time he was convinced that 9 elected members have been prevented by the crowd. It is, therefore, submitted that the Presiding Officer was justified in not issuing the certificate under Rule 17. " ( 13. It is, therefore, submitted that the Presiding Officer was justified in not issuing the certificate under Rule 17. " ( 13. ) FROM a perusal of the submissions made in these paragraphs it would clearly appear that the officer-in-charge has made false averments in the return. The submission in the return the Presiding Officer since was convinced with the fact that,nine Janpad Members were prevented by the crowd from casting vote, adjourned the elections to a date fixed by the District Collector. This statement is contrary to the report of the Presiding Officer and is a false averment and a false assertion on behalf of the officer -in- charge. In paragraph 16 the officer- in -charge has stated the Presiding Officer took the cognizance of same and after objectively considering the genuineness of complaint made by nine elected members adjourned the election in exercise of his power under Rule 21 of the rules of 1995. This submission in paragraph 16 runs contrary to the report submitted by the Presiding Officer. The Presiding Officer in his report (Annexure a/1) had submitted that it was not possible to decide that whether such persons were restrained or that it could not be ascertained whether the members who were not allowed to enter at the time of voting were allowed to vote. In fact what the Presiding Officer wanted to say was that it was not ascertainable whether the complainants were not allowed to cast their votes. ( 14. ) IN paragraph 17 it was submitted by the officer -in -charge that "by that time he (Presiding Officer) was convinced that 9 elected members have been prevented by the crowd". These submissions made in the return not only run contrary to the facts but in fact have been concocted by the officer- in-charge to provide a foundation in support of the action taken by the Presiding Officer. When somebody swears on affidavit on basis of the official record then not only he has to go through the records and understand the contents of the record but he also has to understand the meaning of what he is writing in the pleading and the affidavit. He is also required to understand that what would be the consequences of his wrong reporting or wrong filing of an affidavit. He is also required to understand that what would be the consequences of his wrong reporting or wrong filing of an affidavit. In the present case, we are convinced that to obtain a favourable order in favour of the State Government and the other persons the officer -in- charge raised concocted and false pleadings and had also sworn a false affidavit. This action on the part of the officer -in -charge is punishable under the provisions of the Contempt of Courts Act and is also punishable under the common law. ( 15. ) WE hereby direct that let a notice be issued to Shri H. N. Sharma, Chief executive Officer, Janpad Panchayat, Ghoradongari, District Betul to show cause as to why appropriate action be not taken against him under the provisions of contempt of Courts Act and why he should not be directed to be prosecuted in accordance with the provisions contained in Section 340 of the Criminal Procedure code. The office shall send copy of the notice to the Collector, Betul for effecting its service on the Chief Executive Officer. If Shri H. N. Sharma, does not continue as Chief Executive Officer of Janpad Panchayat, Ghoradongari then the collector, Betul shall make enquiries about the whereabouts of Shri H. N. Sharma and shall see that the notice is served upon Shri H. N. Sharma and is returned to this Court before the next date of hearing. Along with the notice a copy of this judgment be also sent to Shri H. N. Sharma. ( 16. ) FOR the private parties the appeal stands disposed of but this appeal shall remain alive so that appropriate action is taken in these very proceedings against shri H. N. Sharma. The matter be taken up for consideration on 26. 9. 2008. Order accordingly.