Research › Search › Judgment

Madhya Pradesh High Court · body

2014 DIGILAW 1664 (MP)

Chentomani Singh v. State of M. P.

2014-12-12

A.M.KHANWILKAR, K.K.TRIVEDI

body2014
ORDER : 1. Shri Siddharth Singh, Advocate for the petitioner. Shri P.K. Kaurav, Additional Advocate General for the respondents/State. Shri Siddharth Seth, Advocate for the M.P. State Election Commission. Heard counsel for the parties. In this petition the challenge is to the reservation specified in respect of Gram Panchayat Sendaha in Janpad Panchayat, Gangeo. As held in companion cases [in W.P. No. 17253/2014 (Sadashiv Gadhekar vs. State of M.P. and others)] [2014 MPLJ Online 2], in absence of challenge to the Notification providing for reservation for the entire Janpad Panchayat the relief sought cannot be entertained. For, setting aside of reservation of one Gram Panchayat may affect the ratio of reservation of the entire Janpad Panchayat under the same Notification. 2. To oppose the preliminary objection regarding maintainability of the petition taken by the counsel for the State, reliance is placed on the decision of the Full Bench of this Court in Chandra Bhan Singh Vs. State of M.P. and others, (2001) 2 MPLJ 419 . That decision takes the view that election petition can be filed after issuance of notification. For, cause of action to file election petition arises only after issuance of notification and more so because the relief will be directed against the returned candidate. There can be no quarrel with the proposition that writ petition to question the action preceding the notification to commence election process, the bar does not operate. But, as aforesaid the challenge to reservation in respect of one Gram Panchayat as against the process for the entire Janpad Panchayat cannot be countenanced. Further, the ground to challenge the election because of non-compliance of provisions of the Act and the Rules is available against the returned candidate. It is for that reason, in companion cases this Court has observed that, it will be open to the writ petitioner to pursue remedy of election petition/dispute after the conclusion of the impending election process. 3. In any case, this argument does not deal with the preliminary objection taken by the State and which has been accepted by us today in companion cases about availability of remedy by way of appeal under section 91 of the Adhiniyam read with Rule 3 of the MP. 3. In any case, this argument does not deal with the preliminary objection taken by the State and which has been accepted by us today in companion cases about availability of remedy by way of appeal under section 91 of the Adhiniyam read with Rule 3 of the MP. Panchayat (Appeal and Revision) Rules, 1995 against the decision of the Collector providing for reservation, being an order passed by the Collector in exercise of powers referable to the provisions of the M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 read with M.P. Panchayat Nirvachan Rules, 1995. 4. With reference to that preliminary objection, the argument of the petitioner, is that, section 91 of the Adhiniyam is attracted only in respect of proceedings and orders of the Panchayat; and that the expression "other Authorities" occurring in section 91 must be read in that context. Even this submission does not commend to us. It is founded on complete misreading of section 91. Section 91, in our opinion, envisages that remedy of appeal or revision is provided against the order or proceedings of a Panchayat as much as against the orders passed by "other Authorities under the Act" in exercise of powers under the Adhiniyam. The two are independent and mutually exclusive. This position is reinforced, on a bare reading of Rule 3 of the Appeal and Revision Rules of 1995. For, the said Rules segregate the orders passed by "other Authorities" such as Sub Divisional Officer, Collector and Commissioner and remedy of appeal against their decisions is provided before the superior Authority as per Rule 3(a) to (c). Whereas, the remedy of appeal against the order of the Panchayat is before the specified Authority as given in the Table as per Rule 3(d), which is ascribable to the first part of section 91(1) of the Adhiniyam. 5. Counsel for the petitioner then contended that the impugned order passed by the Collector, is not an order under the Adhiniyam as such. This argument clearly overlooks the statutory provision regarding the mechanism to be followed for providing reservation and the duty cast on the Collector to determine the reservation before the notification is issued by the State Election Commission to ignite the election process. This argument clearly overlooks the statutory provision regarding the mechanism to be followed for providing reservation and the duty cast on the Collector to determine the reservation before the notification is issued by the State Election Commission to ignite the election process. Inasmuch as, section 17 of the Adhiniyam, 1993 deals with the election of Sarpanch and Upsarpanch and for reservation of seats for Scheduled Caste and Scheduled Tribe in the Gram Panchayat within the block. In the same manner, section 25 provides for the mechanism to be followed for election of President and Vice President of Janpad Panchayat and reservation for the Scheduled Caste and Scheduled Tribe in the District. This provision if read with Rules 6 and 7 of the M.P. Panchayat Nirvachan Rules, 1995 which have been framed in exercise of powers conferred under section 95 (1) read with section 43 of the Adhiniyam, 1993, are a self-contained Code regarding the reservation of seats to be done by the prescribed Authority. A priori, the impugned order of the Collector in the matter of reservation of seats during the impending elections, nevertheless, is an order passed under the Adhiniyam - for the purposes of section 91 of the said Adhiniyam. Therefore, the said order is amenable to remedy of appeal and revision. Taking any view of the matter, therefore, we find no reason to depart from the view taken in the companion cases for disposing of the writ petition with liberty to the concerned petitioner to take recourse to other appropriate remedy as may be permissible in law. All questions will have to be decided by the Competent Authority without being influenced by the observations made in the present order with regard to the merits of the controversy. Disposed of accordingly.