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2010 DIGILAW 1051 (MP)

Suresh Saba v. Virendra Tyagi

2010-10-14

A.K.SHRIVASTAVA, BRIJ KISHORE DUBE

body2010
ORDER A. K. Shrivastava, J. --1. The order dated 21.9.2010 passed by the learned Writ Court has been assailed by the appellant, who was arrayed as respondent No.4 before that Court, by filing this appeal under section 2 of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005. 2. In Hindu Mythology as well as in all the religions in the world, universally it has been accepted that "be abhorrence to the sin and not to the sinner" ( ¼iki ls ?k`.kk djks ikih ls ugha½ ). In holy Quran Sharifalso, in Part No.2, Verse No. 222 of Suraye Bakr, it has been stated that "Undoubtedly, Allah loves those who repent and those who purify themselves from sin" ( bUuyykgk ;qfgCcks rOokchuk o ;ksfgCcqy eksrrkfgfju && dqN 'kd ugha fd [kqnk rkSck djus okyksa vkSj ikd lkQ jgusokys dks nksLr j[krk gSA ). To commit an offence of murder (except the exceptions provided under the Law) is an offence in the Indian Penal Code, but in every religion, the said person is said to be a "Sinner" because taking a life of a person by another is a "Sin". However, the State Legislature has not permitted the Sinner, who has committed the sin of murder, to contest the Panchayat Election after the expiration of a particular period as envisaged under section 36 (1) (a) (i) & (ii) of the Madhya Pradesh Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (hereinafter for short referred to as the "Adhiniyam"), which reads thus :- 36. Disqualification for being office bearer of Panchayat - (1) No person shall be eligible to be an office-bearer of Panchayat who – (a) has, either before or after the commencement of this Act, been convicted :- (i) of an offence under the protection of Civil Rights Act, 1955 (No. 22 of 1955) or under any law in connection with the use, consumption or sale of narcotics or any law corresponding thereto in force in any part of the State, unless a period of five years or such lesser period as the State Government may allow in any particular case has elapsed since his conviction; or (ii) of any other offence and had been sentenced to imprisonment for not less than six months, unless a period of five years or such less period as the State Government may allow in any particular case has elapsed since his release; or"..... At this juncture, it will be profitable to quote the preamble of the Adhiniyam, which is as under: An Act to consolidate and amend the law relating to establishment of Panchayats with a view of ensure effective involvement of the Panchayat Raj Institutions in the local administration and development activities." 3. It would be pertinent to mention here that originally writ petition was filed as Public Interest Litigation and on 23.7.2010, the Division Bench of this Court held that looking to the reliefs claimed particularly relief No. 2, the said petition cannot be said to be a PIL and hence directed the Registry to list the petition before the appropriate Bench. In this manner, the writ petition was placed before learned Single Bench. 4. The learned Writ Court by putting emphasis on section 36 of the Adhiniyam, came to hold that since undisputedly, the appellant, who was respondent No.4, before the learned Writ Court fought the election of Sarpanch and was declared to be elected Sarpanch, is not entitled to hold the Office of Sarpanch. 5. The contention of the writ petitioner before the learned Writ Court was that the appellant having been convicted under Section 302, IPC twice and has been sentenced to life imprisonment and further that nearabout 24 Criminal Case are registered against him, without disclosing these material facts, fought and won the election of Sarpanch. 6. 5. The contention of the writ petitioner before the learned Writ Court was that the appellant having been convicted under Section 302, IPC twice and has been sentenced to life imprisonment and further that nearabout 24 Criminal Case are registered against him, without disclosing these material facts, fought and won the election of Sarpanch. 6. In an application, which was filed by the appellant before the learned Writ Court, it has been stated that he has been elected as Sarpanch and further contended that the petition filed by the petitioner is not maintainable because there is a remedy available to himto file an Election Petition. 7. The contention of the learned counsel for the writ petitioner before learned writ Court was that the appellant was lacking qualification of being elected as Sarpanch under the provisions of Adhiniyam, hence, a writ of quo warranto may be issued and placed reliance on some judgments, which are referred in the order of learned Writ Court. 8. On the other hand, the learned counsel for the appellant submitted that specific remedy of election petition is there and the petitioner should approach the Election Tribunal and placed reliance on some judgment, which are referred in the order of the learned Writ Court. 9. Learned Counsel for the appellant submits that the election petition is already pending, but frankly admitted that the said election petition has not been filed by the writ petitioner, who has been arrayed as respondent No.1 in this appeal, but has been filed by some other person. 10. The undisputed fact is that the appellant is a convicted person and has been sentenced to life imprisonment by the Second Additional Sessions Judge, Bhind vide judgment dated 30.11.1998 in two Sessions Trials No. 8/94 and 58/ 94 and his conviction has not been set aside by any of the Court. The appellant was released from jail after completion of jail sentence on 15.8.2009.A copy of the certificate dated 6.2.2010 issued by the Deputy Jail Superintendent, Central Jail, Jabalpur to this effect is on record. Apart from these two cases under Section 302 of IPC, in which the appellant was convicted for life imprisonment, there are as many as 28 more Criminal Cases registered against him, which are as under: S. No. Criminal Cases Sections 1. 170/80 457, 380 IPC 2. 223/80 457, 380 IPC 3. 227/80 390 IPC 4. 230/80 454,380 IPC 5. Apart from these two cases under Section 302 of IPC, in which the appellant was convicted for life imprisonment, there are as many as 28 more Criminal Cases registered against him, which are as under: S. No. Criminal Cases Sections 1. 170/80 457, 380 IPC 2. 223/80 457, 380 IPC 3. 227/80 390 IPC 4. 230/80 454,380 IPC 5. 231/80 25 Arms Act 6. 411/80 454, 380 IPC 7. 188/80 307, 34 IPC 8. 117/81 336 IPC 9. 288/81 457, 380 IPC 10. 262/82 147, 148, 149, 506-B, of IPC 11. 448/82 380 IPC 12. 554/84 302,307, 394 IPC 13. 236/83 224 IPC 14. 242/85 224 IPC 15. 88/83 364,365,386,387,401 IPC and 11, 13 of MPDVPK Act 16. 186/83 302,24, 394 IPC and Section 11, 13 of MPDVPK Act 17. 237/85 380 IPC 18. 263/86 307 IPC, 25,27 Arms Act 19. 99/87 294, 506-B, IPC 20. 148/87 341, 307, 34 IPC 21. 440/87 147,506-B, IPC 22. 0/87 110 CrPC 23. 499/89 392 IPC 24. 500/89 392 IPC 25. 36/90 392 IPC 26. 70/90 399,400,407 IPC 27. 211/92 307,34 IPC 28. 203/97 224, 225, 120-B, IPC 11. The learned Writ Court allowed the petition by passing the following operative order:- "Consequently, the petition of the petitioner is allowed. By way of quo warranto, the election of respondent No.4 to the post of Sarpanch of the Gram Panchayat is hereby set aside. It is declared that respondent No.4 is not entitled to hold the post of Sarpanch of the Gram Panchayat. Gaheli, Tehsil Mehgaon, District Bhind. Looking to the facts of the case, the respondent No.4 is also directed to pay a cost of Rs. 5,000/- to the petitioner." 12. On bare perusal of section 36 of the Adhiniyam, we find that the disqualification has been prescribed and for ready reference, we have quoted herein above the said provision. 13. On bare perusal of section 36 (1) (a) (i) (ii) of the Adhiniyam, a person shall be ineligible to be the office bearer of the Panchayat, who has, either before or after the commencement of this Act, been convicted of any other offence other than mentioned in Clause (i) and had been sentenced to imprisonment for not less than six months, unless a period of five years or such less period as the State Government may allow in any particular case has elpsed since the date of his release. Needless to say and undisputedly the appellant was released only on 15.8.2009 and five years have not yet been elapsed and, therefore according to us, rightly it has been held by the learned writ Court that the appellant was having disqualification for holding the office of Sarpanch. 14. The purpose of quoting the Preamble in the beginning of the judgment is that the" Adhiniyam" has been enacted for the purpose of acquiring welfare of citizens and particularly of the residents as well as the voters of the locality for whom this Adhiniyam has been enacted. The Preamble of every Statute although has not an enacted part of that particular Statute, but certainly it explores the scope, object and purpose for which the particular Statute is enacted. 15. If we permit that appellant to continue to hold a post of Sarpanch, it would amount to throttling the real aim and object to legislate section 36 (1) (a) (i) & (ii) of the Adhiniyam because the appellant has been recently released from the jail after undergoing the sentence of life imprisonment imposed on him for committing two murders, and 5 years requisite period as envisaged under section 36 (1) of the Adhiniyam have not yet been expired from the date of his release. 16. We do not find any merit and force in the submissions of the learned counsel for the appellant that section 36 (1) of the Adhiniyam does not create any bar to fight the election of Sarpanch because this provision deals with disqualification only after the election has taken place. According to us, if this logic is accepted, then even disqualified person would be permitted to fight the election, which is not the intention of the Law and in order to give logical and workable interpretation, according to us, Section 36 (1) of the Adhiniyam would also be applicable for the candidates to contest the election, who are disqualified under section 36 (1) of the Adhiniyam. We also do not fine any merit in the contention of the learned counsel for the appellant that in view of sub-section (2) of Section 36 of the Adhiniyam, if any person having been elected as an office bearer of Panchayat, is removable only after filing the election petition. We also do not fine any merit in the contention of the learned counsel for the appellant that in view of sub-section (2) of Section 36 of the Adhiniyam, if any person having been elected as an office bearer of Panchayat, is removable only after filing the election petition. According to us, sub-section (2) of Section 36 (1) of the Adhiniyam is to be read in context to section 36 (1) of the Adhiniyam. 17. A statute is an edict of the Legislature and the conventional way of interpreting or construing a statute is to seek the 'intention' of its marker. In this context, we may rely a maxim "mens or sententia legis". The famous author Salmond in its Book "Jurisprudence" 11th Edition at Page 152 has explained the meaning of the maxim by saying that the object of interpreting a statute is to ascertain the intention of the Legislature enacting it. 18. The expression 'intention of the Legislature' is a shorthand reference to the meaning of the words used by the Legislature objectively determined with the guidance furnished by the accepted principles of interpretation. If a statutory provision is open to more than one interpretation the Court has to choose that interpretation which represents the true intention of the Legislature. In other words the 'legal meaning' or 'true meaning' of the statutory provision, (See, the Principles of Statutory Interpretation by Justice G.P Singh 12th Edition, 2010, page 3). 19. In order to give and construe section 36 (1) as well as sub-section (2) of the Adhiniyam, we have to interpret both the provisions in order to make the Section 36 as a whole workable. We may further add that the Courts strongly lean against a construction which reduces the statute to a futility. A statute or any enacting provision therein must be so construed as to make it effective and operative on the principle expressed in the maxim: "ut res magis veleat quam pereat". (See, Principles of Statutory Interpretation by Justice G.P Singh 12th Edition, 2010 page 44). Apart from this reason, for other reasons also, we are not accepting the said contention because this bar would not come in the way when a writ petition seeking relief of quo warranto is. filed. 20. (See, Principles of Statutory Interpretation by Justice G.P Singh 12th Edition, 2010 page 44). Apart from this reason, for other reasons also, we are not accepting the said contention because this bar would not come in the way when a writ petition seeking relief of quo warranto is. filed. 20. Learned Writ Court placed reliance on a decision of the Supreme Court N. Kannadasan v. Ajoy Khose (2009) 7 SCC 1 and by considering the scope of Writ of quo warranto and allowed the petition. According to us, the reasons so assigned by the learned Writ Court are cogent and are not required to be interfered with in this intra-Court appeal. 21. The decision of Ram Suklz v. Dinesh Aggarwal (2009) 10 SCC 541 , relied upon by the learned counsel for the appellant, is not applicable in the present case because in that decision it was held that certain mandatory requirement was not disclosed before contesting the election and the objection was raised in the election petition filed under the Representation of the People Act, 1951. In that case whether a writ of quo warranto is to be issued or not, was not in question, but here the facts of the case are altogether different. 22. Learned counsel for the appellant has also placed reliance on the Division Bench decision of Bombay High Court Bhairulal v. State of Bombay, AIR 1954 Bombay 116, which is in respect of Municipalities Act and relevailt provision has not been placed before us. 23. We hereby concur with the view taken by the Writ Court and accordingly this appeal is dismissed in limine.