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Madhya Pradesh High Court · body

2011 DIGILAW 12 (MP)

Shivkali Adiwasi v. State of M. P.

2011-01-04

S.N.AGGARWAL

body2011
JUDGMENT: 1. The petitioner Smt. Shivkali had contested the election and was declared duly elected Sarpanch of Gram Panchayat Singh Niwas and her election was notified on 3.2.2010. 2. A complaint was made by one Pappu against the petitioner that she does not belong to Adhivasi Caste and therefore she is not eligible to contest the election to the post of Sarpanch as the said post was reserved for a woman candidate belonging to scheduled tribes category. 3. An enquiry into the said complaint was made by the Sub-Divisional Officer, who vide his order dated 1.11.2010 held the petitioner ineligible for contesting election to the post of Sarpanch as it was found that she does not belong to Adhivasi caste (caste recognized as scheduled tribe in the District of Shivpuri, M.P.) 4. The petitioner challenged the said order of the Sub-Divisional Officer dated 1.11.2010 by filing an appeal which was stated to be presently pending before the Collector, Shivpuri. 5. After order dated 1.11.2010 passed by the Sub-Divisional Officer, respondent No.6 (Smt. Kanchaniya) filed election petition on 30.11.2010 challenging the election of the petitioner mainly yon the ground that she was ineligible as she did not belong to scheduled tribe category in terms of the finding of the Sub-Divisional Officer contained in his order dated 1.11.2010. 6. The election petition was filed along with an application under section 5 of the Limitation Act for condonation of delay. 7. The Sub-Divisional Officer (respondent No.3) who also happens to be Election Tribunal vide impugned order dated 28.12.2010 condoned the delay, entertained the election petition and set aside the election of the petitioner as Sarpanch of Gram Panchayat, Singh Niwas. Consequent thereto the respondent No.4 (Chief Executive Officer) issued an office order for appointment of substitute/ officiating Sarpanch in place of the petitioner. 8. The petitioner has filed this writ petition under Article 226/227 of the Constitution of India seeking quashment of the impugned order passed by the respondent No.3 dated 28.12.2010 and also the order passed by the respondent No.4 dated 29.12.2010. The impugned orders are assailed by the petitioner mainly on the ground that the election petition filed by respondent No.6 beyond 30 days of notifying of the election could have not been entertained by the prescribed authority and therefore according to petitioner, the impugned orders are without jurisdiction. 9. Mr. The impugned orders are assailed by the petitioner mainly on the ground that the election petition filed by respondent No.6 beyond 30 days of notifying of the election could have not been entertained by the prescribed authority and therefore according to petitioner, the impugned orders are without jurisdiction. 9. Mr. R.P. Rathi, learned Government Advocate accepts notice on behalf of respondent No.1 to 3/State. Mr. A.S. Rathore, learned counsel appears on behalf of respondent No.6. In fact respondent No.6 has filed a Caveat in the matter and since the counsel has appeared for the Caveator, therefore Caveat 153 stands discharged and the matter is taken up of for final disposal with the consent of learned counsel for both the parties. 10. The impugned order dated 28.12.2010 passed by the prescribed authority i.e. respondent No.3 is sought to be assailed mainly on the ground of limitation. It is contended that the election petition of the respondent No.6 challenging the appointment of the petitioner on the post of Sarpanch was filed beyond 30 days from the date of notifying of the election, therefore the same was not maintainable and liable to be dismissed at its threshold. 11. Mr. A.S. Rathore, learned counsel appearing on behalf of respondent No.6 has no answer to this legal submission made on behalf of the petitioner. 12. Section 122 (2) of Madhya Pradesh Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 is relevant and the same is extracted herein below : "(2) No such petition shall be admitted unless it is presented within thirty days from the date of which the election in question was notified." 13. A plain reading of the above extracted legal provision makes it abundantly clear that the provision of section 122 (2) which prescribes a period of 30 days from the date of notifying the election is mandatory in nature and there is no discretion whatsoever vests with the prescribed authority to condone the delay beyond the said period. Sub clause (2) of section 122 of the Act starts with non-obstante clause which makes the intention of the legislator clear that an election petition filed beyond 30 days of notification of election of an elected candidate cannot be entertained. 14. Sub clause (2) of section 122 of the Act starts with non-obstante clause which makes the intention of the legislator clear that an election petition filed beyond 30 days of notification of election of an elected candidate cannot be entertained. 14. In view of the above, the impugned order dated 28.12.2010 passed by the respondent No.3 setting aside the election of the petitioner on an election petition filed on 30.11.2010 beyond 30 days of the notification of the election of the petitioner notified on 3.2.2010 is without jurisdiction and therefore the same cannot stand the test of legal and judicial scrutiny. Accordingly, this writ petition IS allowed and the impugned order dated 28.12.2010 passed by respondent No.3 and the consequential order dated 29.12.2010 passed by respondent No.4 are hereby set aside. It is made clear that the appeal pending before respondent No.4 shall be decided by the appellate authority uninfluenced by the decision of this Court in the present petition. 15. This writ petition stands disposed of in terms referred above.