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2014 DIGILAW 66 (MP)

Dharmendra Singh v. Pappu Lal Kori

2014-01-13

D.K.PALIWAL, S.K.GANGELE

body2014
ORDER 1. Heard. 2. This writ appeal is filed against the order dated 3.12.2013 passed by writ Court in Writ Petition No.1428/2013. 3. Respondent No.1 Pappu Lal Kori contested election of Sarpanch of Gram Panchayat Mahua, Tahsil Porsa, District Morena which was held in the month of January, 2010. He was elected as Sarpanch of the Gram Panchayat in January, 2010 as admitted by learned counsel for respondent No.1. 4. Certain complaints were made in regard to illegalities committed by respondent No.1. A show cause notice was issued to him. Thereafter, ten charges were framed against him. The Sub-Divisional Officer after conducting enquiry held all the charges proved against respondent No.1. Thereafter, he passed an order of removal from the post of Sarpanch against the respondent on 12.11.2012. Against the aforesaid order, an appeal was filed by respondent No.1 before the Collector, that has been dismissed vide order dated 18.2.2013 (Annexure P-1). Then the respondent No.1 filed a writ petition before this Court. The writ Court allowed the writ petition by the impugned order and remanded the matter back to the authority for proper enquiry, after holding that the enquiry report was not supplied to respondent No.1 and proper opportunity was not afforded to him. 5. Learned counsel for the appellant submits that respondent No.1 was not eligible to hold the post of Sarpanch because he was convicted by the Court of Judicial Magistrate First Class, Dabra for offence committed by him under section 379, IPC and awarded sentence of two years rigorous imprisonment with fine. Against the aforesaid judgment of conviction, an appeal was filed by the respondent No.1, that has also been dismissed by the Court of Additional Sessions Judge in Criminal Appeal No.46/07 and thereafter a criminal revision, being Criminal Revision No.371/07 is pending before this Court it is contended by learned counsel for the appellant that respondent No.1 was not eligible to contest election in view of the provisions of section 36 of the Madhya Pradesh Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (for brevity, the “Adhiniyam”), hence, relief could not be granted by the writ Court in favour of respondent No.1. 6. Learned counsel for the respondent No.1 contends that the point raised by the appellant in this writ appeal and argued by his learned counsel was not raised before the writ Court. 6. Learned counsel for the respondent No.1 contends that the point raised by the appellant in this writ appeal and argued by his learned counsel was not raised before the writ Court. The respondent No.1 was not disqualified on the aforesaid count by the Sub-Divisional Officer, hence, the aforesaid point could not be considered by the appellate Court in this writ appeal. In support of the contention, learned counsel has placed reliance on a decision of the Hon’ble Supreme Court in Ravi Yashwant Bhoir v. District Collector, Raigarh [ (2012)4 SCC 407 ]. 7. It is an admitted fact that respondent No.1 was convicted by the Court of Judicial Magistrate First Class, Dabra, District Gwalior vide judgment dated 16.1.2007 pronounced in Criminal Case No.813/2006 and sentenced to undergo two years RI and fine for an offence punishable under section 379 IPC. Against the aforesaid judgment of conviction, an appeal was filed being Criminal Appeal No.46/2007 which was dismissed vide judgment dated 2.5.2007. Thereafter, Criminal Revision No.371/2007 was filed by respondent No.1 before this Court which is pending for consideration. 8. Section 36 of the Adhiniyam prescribes disqualification for being office bearer of Panchayat. It 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.” 9. From the aforesaid section, it is clear that no person shall be eligible to be an office bearer of a Panchayat who 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. 10. It is an admitted fact that the State Government did not pass any order in regard to relaxing the provisions of section 36 of the Adhiniyam in the present case. Judgment of the trial Court convicting respondent No.1 for offence punishable under section 379 IPC and awarding sentence of two years RI and fine was pronounced on 16.1.2007. In accordance with the provisions of section 36(1)(a) of the Adhiniyam, respondent No.1 could not contest election upto the period of five years, which means upto 16.1.2012. Admittedly, respondent No.1 contested election of Sarpanch in January, 2010 and elected as Sarpanch. At that time, he was disqualified to hold the post of Sarpanch; even he was disqualified to contest election of Sarpanch. When respondent No.1 incurs disqualification provided in the statute, no relief could be granted in favour of respondent No.1 in exercise of powers under Article 226 of the Constitution of India, which is an equitable jurisdiction, because if relief is granted in favour of respondent No.1 then it would amount that the Court is perpetuating illegality which is against the principles of exercising equitable jurisdiction. Even though, this point has not been raised before the writ Court and other authorities, however, if respondent No.1 incurs disqualification to hold the post per se, that point can be taken at subsequent stage in regard to grant of relief under equitable jurisdiction. The writ Court has not considered the aforesaid aspect of the case. 11. The judgment of the Hon’ble Supreme Court relied upon by learned counsel for respondent No.1 is not applicable in the present facts and circumstances of the case because we have held that respondent No.1 was not eligible to contest the election on account of sentence awarded to him in a criminal case. 12. Consequently, this writ appeal is allowed. Impugned order dated 3rd December, 2013 passed by the writ Court in Writ Petition No.1428/2013 is hereby quashed. No order as to costs.