Research › Search › Judgment

Madhya Pradesh High Court · body

2010 DIGILAW 1070 (MP)

Nirmala Pathak (Smt. ) v. State of M. P.

2010-10-21

K.K.LAHOTI, SUSHMA SHRIVASTAVA

body2010
JUDGMENT : Krishn Kumar Lahoti , J. – Thisappeal is directed against an order dated 26.10.2010 in Writ PetitionNo.12756/09, under Section 2 of the M.P. Uchcha Nyalaya ( Khand Nyaypeeth Ko Appeal) Adhiniyam , 2005. By the aforesaid order, learned SingleJudge disposed of the writ petition, preferred by the appellant, for pressingremedy of appeal before the appellate authority against the impugned orderdated 26.11.2009 Annexure P/12 passed by the Registration Officer, MunicipalCorporation ( Nirvachan ), Katni . 2. By order dated 26.11.2009, the Registration Officer,Municipal Corporation, Katni directed deletion of thename of the appellant from the voter-list. It will be pertinent to mention thatthe ordel * dated 26.11.2009 Annexure P/12 passerbythe Registration Officer, Municipal Corporation ( Nirvachan ) Katni was stayed by the learned Single Judge andafter the interim order passed by the learned Single Judge, the appellantherein contested the election of Mayor of Municipal Corporation, Katni and she defeated her nearest rival Smt.Alka Jain by a margin of votes of 5000. 3.This appeal was filed on 29.10.2010 and was placed before the Division Benchfor consideration. On 8.11.2010, a Division Bench of this Court passed an orderwhich reads thus:- "8.11.2010 Shri A.M.Trivedi , learned seniorcounsel assisted by Shri Ashish Trivedi , Advocate for the appellant. Shri Sanjay Dwivedi , learned Government Advocate for respondents No. land 3 to6. Shri Pankaj Dubey ,learned counsel for respondent No.2. Shri Rakesh Jain, learned counsel for respondent No.7. When thematter was taken up today, at the outset, Shri A.M.Trivedi , learned senior counsel appearing for theappellant, stated that the appellant has been advised to withdraw appealpreferred under Rule 9A(4) of the Madhya Pradesh Nagar Palika Nirwachan Niyam , 1994 before the Collector. He submitted that sincepure question of law is involved in the case and in view of the fact that theappeal is pending before this Court against the order of the learned SingleJudge, it is appropriate that the controversy may be decided by this Court. LearnedGovernment Advocate appearing for the respondents No.1 and 3 to 6 and the learned counsel for respondent No.2 have noobjection to the aforesaid prayer made by learned senior counsel appearing forthe appellant. LearnedGovernment Advocate appearing for the respondents No.1 and 3 to 6 and the learned counsel for respondent No.2 have noobjection to the aforesaid prayer made by learned senior counsel appearing forthe appellant. Inview of the aforesaid submissions made before us, the appellant may seek leaveof the appellate authority to withdraw appeal preferred under Rule 9A(4) of theMadhya Pradesh Nagar Palika Nirwachan Niyam , 1994 andfile an application along with the order of the appellate authority permittingher to withdraw the appeal. Looking to the facts of the case and also in viewof the interim order dated 26.11.2009 passed in W.P. No. 12756/2009, it isdirected that the operation of the impugned order dated 26.11.2009 passed byrespondent No.4 shall remain stayed till 31st of January, 2011. List the matterin the second week of January, 2011." 4.Thereafter, matter remained pending and is heard finally by this Court. Thelearned counsel appearing for the appellant challenged the impugned order dated26.11.2009 on following grounds:- ( i ) That the name of appellant was entered in the voter listof Ward No.31Chhotelal Pathak Ward, Katni . Though there was some error in the name and age ofthe appellant in the said voter list but it was duly corrected by theRegistration Officer under rule 9 of the M.P. Nagar Palika Nirvachan Niyam , 1994 (hereinafter referred to as ' Nirvachan Niyam ). (ii)The appellant belongs to an old tradition congress party family. Her husbandwas a Cabinet Minister and MLA. Her son is also a sitting MLA. The appellanthas made various allegations in respect of influence of another rulingpolitical party. Because of the aforesaid, it had influenced the electionofficer posted at Katni , resulting an order directing deletion of her name by the election officer on 26.11.2009,the date on which nomination for the office of Mayor, Municipal Corporation, Katni was to be filed. The post of Mayor, MunicipalCorporation, Katni was reserved for woman. (iii)That the name of appellant was included in the voter list of Gram Panchayat Barmani , LegislativeConstituency Vijayraghavgarh because appellant was possessing agricultural land and a rural house there,while appellant was not the ordinarily resident of village Barmani and in fact is an ordinarily resident of Ward No.31 of Katni .The appellant was usually visiting village Barmani totake care of her agriculture but since last one year because of heart disease,she was continuously residing at her house situated at Ward No.31 Chhakodilal Pathak Ward of Katni . Late Chhakodilal Pathak happened to be her grand-father-in-law and there isan ancestral house of husband of the appellant at Ward No.31 of the MunicipalCorporation, Katni . (iv) That , on 20.11.2009, the appellant moved an applicationfor deletion of her name from the voter list of Gram Panchayat Barmani on the ground that since about one year, shewas continuously residing in Ward No.31 of Katni . TheRevenue Inspector recommended for deletion of her name from the voter list ofthe Gram Panchayat Barmani ,but such application was rejected by the Registration Officer-cum-S.D.O., Vijayraghavgarh . Being aggrieved by the aforesaid,appellant had preferred an appeal before the Collector-cum-District Electionofficer, Panchayat , Katni who remanded the case to the S.D.O. and ultimately by an order dated 8.12.2009,the SDO, Vijayraghavgarh directed for deletion ofname of the appellant from the voter list of Gram Panchayat , Barmani vide order Annexure P/13. (v)That on 7.7.2009, M.P. State Election Commission had issued an order for appointment ofRegistration/Assistant Registration Officer for inviting claims and objectionfor preliminary/draft voter-list of Municipal Corporation, Katni .The last date of such correction was 24.10.2009 and last date of publication offinal voter list was 11.11.2009. Appellant had found that particulars of hername were wrongly recorded in Part-3, Ward No.31 Katni at Sr.No.219 as " Nirmala W/o Jitendra Kumar, aged 47 years". Appellant hadmoved an application for correction in the voter-list under rule 9 of the Nirvachan Niyam for correction ofthe entry as " Nirmala W/o Satyendra Kumar, aged 58 years". The applicationwas filed on the prescribed format Annexure P/15. An enquiry was made by an authorised officer. He had made recommendation andaccordingly, the Registration Officer, on being satisfied from the preliminaryenquiry report, on 20.10.2009 directed that the name of appellant be corrected.He ordered thus:- Inplace of ' Jitendra Kumar', ' Satyendra Kumar' and in place of age 47' years, age 58' years be corrected. (vi) That , under rule 6(4) of the Nirvachan Niyam , voter-list so amended was final subject todecision of appeal, if any. Rule 6(5) provides that any person aggrieved by thedecision of the Registration Officer may prefer an appeal to the appellateauthority within five days of such decision, but no provision is there forfiling an appeal after publication of the final voter-list. As no appeal wasfiled within 5 days against order dated 20.10.2009, order of RegistrationOfficer had attained finality. Rule 6(5) provides that any person aggrieved by thedecision of the Registration Officer may prefer an appeal to the appellateauthority within five days of such decision, but no provision is there forfiling an appeal after publication of the final voter-list. As no appeal wasfiled within 5 days against order dated 20.10.2009, order of RegistrationOfficer had attained finality. (vii)The appellant when inspected the final voter-list published on 11.11.2009 foundthat her name was not corrected because of some printing error or due toclerical mistake while aforesaid entry was already directed to be corrected bythe Registration Officer on 20.10.2009. The appellant under the proviso of rule9 moved an application to the Registration Officer for correction of such entryand the Registration Officer-cum-SDO, Katni directedcorrection of error in the name of appellant and the entry was directed to becorrected on 20.11.2009 in the final voter list. Against such an order, noappeal, revision or review is provided under the rules, as such final voterlist had attained finality under rule 6(4). (viii) That, rule 9-A of Nirvachan Niyam provides fordeletion of entry in the voter-list in certain exigencies, like a personconcerned is registered in the voter-list of more than one ward of theMunicipality concerned or of any other Municipality or of any Panchayat . Section 12of the M.P. Municipal Corporation Act, 1956 (hereinafter referred to as 'theAct') specifically provides that no person shall be entitled to be registeredin the electoral roll of more than one ward in the same city and no personshall be entitled to be registered in the electoral roll for any ward more thanonce. But registration of a person in any other Panchayat is not a disqualification under Section 13 of the Act. It is stated in para 9 of the memo of appeal that the provision as contained in rule 9-A providingdeletion of the name, if registered, in the voter-list of any Panchayat is contrary to section 12 of the Act. (ix)That, respondent No.7 Kamendra Singh, a worker ofrival political party, at the instance of some political leaders of rulingparty, filed an appeal on 23.11.2009 directly before the ElectionOfficer-cum-Collector under rule 9,9-A read with 9-A(4)(5) of the Nirvachan Niyam . The appellateauthority directed for issuance of the notice to the appellant on 23.11.2009directing her appearance on 24.11.2009 at 12 O'clock . (ix)That, respondent No.7 Kamendra Singh, a worker ofrival political party, at the instance of some political leaders of rulingparty, filed an appeal on 23.11.2009 directly before the ElectionOfficer-cum-Collector under rule 9,9-A read with 9-A(4)(5) of the Nirvachan Niyam . The appellateauthority directed for issuance of the notice to the appellant on 23.11.2009directing her appearance on 24.11.2009 at 12 O'clock . (x)That on 23.11.2009, the appellant was declared as an authorized congress partycandidate for the election of office of Mayor and had submitted a nomination asan authorised congress party candidate. (xi)Respondent No.7 Kamendra Singh raised an objectionthat name of the appellant was registered in the Panchayat also and her name deserves to be deleted from the voter list of Ward No.31 ofMunicipal Corporation, Katni . (xii)That, respondent No. 7 erroneously moved an application under rule 9-A beforethe Registration Officer-cum-SDO on the basis of same set of fact on which hehad filed an appeal before the appellate authority-cum.. Collector. On this appeal, the appellate authority directed for appearance of theappellant 24.11.2009 at 12 hours. On the application filed by the respondentNo.7 under rule 9-A before the Registration Officer-cum-SDO, Katni , the Registration Officersummoned the appellant to appear on 24.11.2009 at 4 p.m. (xiii)The appellate authority who directed for appearance of the appellant at 12 O'clock again directed the appellant toappear before him at 5 p.m. Though he was apprised that the Registration Officer had fixed thecase under rule 9(A) at 4 p.m. The appellant at 4 p.m. appeared before the Registration Officer. Theappellant made an objection before the Registration Officer for supply ofdocuments filed by the respondent No.7 along with the application. TheRegistration Officer fixed the case for 25.11.2009 at 10 a.m. Thereafter, when the appellant reached to theoffice of appellate authority-cum-Collector at 5.15 p.m. , she became aware that the respondent No.7 Kamendra Singh had withdrawn the appeal filed before the District Election Officer. (xiv)On 25.11.2009, the Registration Officer heard both parties and passed an orderat 7 p.m. Some allegations are alsomade in para 13 of the writ appeal that the leadersof rival ruling party had met with the SDO, Katni andin this regard, a Fax message was also sent to the State Election Commissionagainst the Registration Officer. (xiv)On 25.11.2009, the Registration Officer heard both parties and passed an orderat 7 p.m. Some allegations are alsomade in para 13 of the writ appeal that the leadersof rival ruling party had met with the SDO, Katni andin this regard, a Fax message was also sent to the State Election Commissionagainst the Registration Officer. (xv)That, 26.11.2009 was the last date for filing nomination paper and to deter theappellant from contesting the election of Mayor, Katni ,the Registration Officer-cum-SDO, Katni passed theimpugned order on 26.11.2009 at 12 p.m. directing deletion of the name ofappellant from the voter-list of Municipal Corporation, Katni on the ground that her name was entered in the voter-list of Gram Panchayat , Barmani . Though it was not a disqualification under Section 12 of the Act. (xvi)That, an appeal against such an order was filed before the District ElectionOfficer, Katni , but the appeal was not registered bythe District Election Officer and the appellant apprehending some bias of theDistrict Election Officer, rushed to the High Court, filed a writ petitionbefore the learned Single Bench on 26.11.2009. The aforesaid writ petition washeard on 26.11.2009 itself and ad interim writ was issued in W.P.No.12756/09.The order reads thus:-"26.11.2009 Itis submitted that petitioner has been declared as a candidate for the office ofMayor for Kami district by the Indian NationalCongress political party and her name also exists in the voter-list of CLP WardNo.31 Katni , but the respondent No.4 by the impugnedorder dated 26.11.2009 Annexure P-12, has directed for the deletion of her namefrom the voter list. It has also been submitted that if the order dated26.11.2009 will not be stayed, petitioner will beillegally deprived from contesting the prestigious election of Mayor as thedate fixed for scrutiny of nomination papers is tomorrow. After hearing thelearned counsel for petitioner, I deem it proper to stay the operation ofimpugned order dated 26.11.2009 Annexure P/12, and the operation of the orderis accordingly stayed. It is, however, made clear that the election in questionof petitioner will be subject to the final decision of this petition." (xvii)Against the order passed by the learned Single Judge dated 26.11.2009,respondent No.7 Kamendra Singh filed a Writ AppealNo.1142/09 in which on 27.11.2009, a Division Bench of this Court passed anorder which reads thus:- "27.11.2009 Having heard the learned counsel for the parties, weare of the considered opinion that the lis inquestion does require delineation both on fact and law. What has been canvassedbefore us from both sides is not such which apparently touches anyjurisdictional factor but delving deep into the factual matrix, the provisionsin entirety and law in the field. In view of the aforesaid, we are disposed tothink that interference at this stage in appeal would not be appropriateespecially when the learned single Judge has expressed the view the election inquestion would be subject to the final decision of the writ petition. However,we may hasten to clarify that we have not expressed any opinion on the meritsof the case. Regard being had to the peculiarity of the case we would requestthe learned single Judge to dispose of the writ petition as expeditiously aspossible. Accordingly, the writ appeal stands disposed of. (xviii)After ad interim writ issued by the learned Single Judge on 26.11.2009, theappellant contested the election of Mayor of Municipal Corporation, Katni as a candidate of Indian National Congress anddefeated her nearest rival Smt . Alka Jain, a candidate of ruling party BJP by a margin of about 5000 votes. It isalleged that after declaration of the result, various appeals were filed beforethe District Election Officer which in spite of objection raised by the appellant, were entertained. (xix)That, Smt . Alka Jain hasalso filed an election petition against the appellant under Section 441 of theAct on the same grounds, which are raised in this case, which is pending beforethe Additional District Judge, Katni . Onthe aforesaid grounds, this appeal has been filed. 5.Respondents opposed the writ appeal on the following grounds:- (a)That, the appellant was in fact an ordinarily resident of village Barmani and was not entitled to contest the election ofMayor, Municipal Corporation, Katni . (b)That, in fact Nirmala W/o Jitendra Kumar is the wife younger brother of husband of appellant, the ordinarilyresident of Ward No.31, Municipal Corporation, Katni and taking advantage of the same name, the appellant, just to get the benefitof reservation of seat of Mayor, Katni got theaforesaid manipulation. (c)That, upto 20.10.2009, no order as is filed asAnnexure P/15 was passed, otherwise there was no question of filing anotherapplication on 20.10.2009 by the appellant for correction the entry. (d)That appellant's application for deleting her name from the voter list of Gram Panchayat Barmani was alreadyrejected, so she was not entitled to contest the election from Ward No.31 forthe office of Mayor, Katni . (d)That appellant's application for deleting her name from the voter list of Gram Panchayat Barmani was alreadyrejected, so she was not entitled to contest the election from Ward No.31 forthe office of Mayor, Katni . (e)Against the impugned order dated 26.11.2009, the appellant had alreadypreferred an appeal, so learned Single Judge rightly directed for disposal ofthe writ petition with liberty to the appellant to press the appeal pendingbefore the District Election Officer. (f)That, on the date when the impugned order dated 26.11.2009 was passed, her namewas appearing in both places namely at Gram Panchayat , Barmani and also at Ward No.31 of MunicipalCorporation, Katni , so Registration Officer rightlydirected deletion of the name of the appellant from the voter list of WardNo.31 of Katni . (g)That the appellant was ordinarily resident of village Barmani .By manipulation, she got entered her name in the garb of correction of entrywhich was not correct. In fact, younger brother of husband of the appellantnamely Jitendra Kumar is ordinarily resident of WardNo.31. Other family members' names are also appearing in the voter list, so theRegistration Officer rightly passed the order dated 26.11.2009 directingdeletion of the name of the appellant from the voter list of Ward No.31 of Katni , in which there is no fault. (h)The appellant was not entitled to be registered at two places and herapplication for correction of the entry was not maintainable. It is submittedby the respondents that this appeal may be dismissed. 6.From the perusal of the aforesaid facts, it is apparent that the appellant,after passing of ad interim writ by the learned Single Judge contested theelection for {he office of Mayor, Municipal Corporation, Katni and she was declared as a returned candidate and at present she is holding theoffice of Mayor, Katni . It is also not in disputethat the another candidate who was rival contestant of the appellant namely Smt.Alka Jain has filed an election petition against theappellant under Section 441 of the Act which is pending, for adjudication,before the Additional District Judge, Katni who hasto look into the matter and after holding a due enquiry, to decide the matterin accordance with law. In this case, various disputed questions of facts areinvolved namely:- (a)Whether the appellant was the ordinarily resident of Ward No.31 of Katni or she was ordinarily resident of Gram Panchayat , Barmani ? In this case, various disputed questions of facts areinvolved namely:- (a)Whether the appellant was the ordinarily resident of Ward No.31 of Katni or she was ordinarily resident of Gram Panchayat , Barmani ? (b)Whether Smt.Nirmala W/o Jitendra Kumar was a correct entry in the voter list or it was duly corrected at theinstance of the appellant by the Registration Officer ? (c)Whether the order dated 20.10.2009 was duly passed by the Registration Officerand it was in existence even before passing of the order by the RegistrationOfficer on 11.11.2009 ? (d)Whether the appellant was an eligible candidate to contest the election ofMayor, Katni . Allthese questions are to be examined by the Election Tribunal in the electionpetition filed by Smt.Alka Jain. The ElectionTribunal while considering the election petition will have to record findingsin this regard after receiving the evidence of both parties. The order ofElection Tribunal deciding all the issues will supersede the orders passed bythe Registration Officer or by the appellate authority in the matter. At thisstage, if the matter is remanded back to the appellate authority to decide theappeal, which has already been withdrawn by the appellant will be a futileexercise in the matter. The Division Bench in this matter rightly permitted theappellant to withdraw the aforesaid appeal with liberty to raise all thecontentions in this appeal on 8.11.2010. Any decision in this writ appeal willaffect the decision of the election petition filed by Smt.Alka Jain who is not party before this Court. In this appeal, the contesting partyis respondent No.7 who at present is not party in the election petition. Inabsence of Smt.Alka Jain, if any finding is recordedby this Court, naturally it will affect Smt.Alka Jainwho has not been heard by this Court. In these circumstances, we find itappropriate to dispose of this writ appeal with a direction that matter befinally adjudicated by the Election Tribunal in the election petition filed by Smt.Alka Jain and till the matter is decided by theElection Tribunal, order dated 26.11.2009 passed by the Registration Officer benot given effect to and which shall be made subject to final decision by theElection Tribunal. 7.The matter may be examined from one more angle. 7.The matter may be examined from one more angle. If this appeal is dismissed,naturally order passed by the Registration Officer under rule 9-A of the Nirvachan Niyam will come intoforce and the appellant who has contested the election of Mayor will lose theseat only on the ground that she was not an eligible candidate to contest theelection of Mayor on the reserved seat for woman at Municipal Corporation, Katni . If this appeal is allowed and the order passed bythe Registration Officer is set aside, this Court has to record variousfindings which should be recorded only by the Election Tribunal. If thosefindings are recorded by this Court, naturally it will have an effect on theElection Petition filed by Smt.Alka Jain against theappellant and is still pending before the Election Tribunal, Katni . Article 243ZG of the Constitution of India providesthat no election to any municipality shall be called in question except by anelection petition presented to such authority and in such manner as is providedfor by or under any law made by the legislature of a State. Section 441 of theM.P. Municipal Corporation Act, 1956 provides thus:- 441 .Election Petition- (1) No election or nomination under thisAct shall be called into question except by a petition presented in accordancewith the provision of this section. (2)Such petition may be presented on one more of the grounds specified in section441-B- (a) by any candidate at such election or nomination; or (b)( i ) in the case of anelection of a Councillor , by any voter of the wardconcerned; (ii)in the case of nomination of a Councillor , by any Councillor ; (iii) in the case of election of Mayor, by anyvoter of the Municipal area to the principal Civil Court of originaljurisdictional (hereinafter referred as the Court) within the local limits ofwhose jurisdictional the election or nomination was held. (3)No petition presented under sub-section (2) shall be admitted unless- ( i ) it is presented within thirtydays from the date on which the result of such election or nomination wasnotified in the Gazette; and (ii) it is. accompanied by aGovernment Treasury receipt showing a deposit of two hundred and fifty rupees. (4)A petitioner shall join as respondents to his petition. accompanied by aGovernment Treasury receipt showing a deposit of two hundred and fifty rupees. (4)A petitioner shall join as respondents to his petition. (a)where the petitioner, in addition to claiming a declaration that the electionor nomination, as the case may be, of all or any of the returned candidate isvoid, claims a further declaration that he himself or any other candidate hasbeen duly elected or nominated, all the contesting candidates other than thepetitioner, and where no such further declaration is claimed, all the returned 'candidates; (b) any other candidates against whom allegations of anycorrupt practices are made in the petition. (5)An election petition shall- (a) contain a concise statement of the material facts onwhich the petitioner relies; (b) with sufficient particulars, set forth the ground orgrounds on which the election or nomination is called in question; (c) be signed by the petitioner and verified in the mannerprescribed in the Code of Civil Procedure, 1908 (V of 1908), for theverification of pleadings.