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2015 DIGILAW 129 (MP)

B. K. Bohre v. State of M. P.

2015-02-02

SHEEL NAGU

body2015
JUDGMENT : Sheel Nagu, J. 1. This petition under Article 226 of the Constitution of India assails rejection of an appeal preferred by the plaintiff under Rule 12 (5) of the M.P. Panchayat Nirwachan Niyam, 1995 (1995 Niyam for brevity) against wrongful deletion of name of petitioners from the voter list. 2. Learned counsel for the rival parties are heard on the question of admission. 3. Learned counsel for petitioners contends that the petitioners are deeply prejudiced by the impugned order as by wrongly excluding their names from the voter list, their right to contest the elections for the office of Member, Zila Panchayat, Bhind, has been violated. 4. From reading of the impugned appellate order Annexure P/1, it is evident that the appeal filed by the petitioners under Rule 12 (5) of the Rules of 1995 has been rejected as time barred. The said appeal had admittedly been filed after 67 days of passing of the order of Registration Authority dated 27.10.2014. 5. Rule 12 (5) of the 1995 Niyam while providing for an appeal prescribes a period of 5 days. The said provision does not expressly provide for power of condonation of delay in preferring of an appeal under Rule 12 (5) of the Rules. 6. The contention of the learned counsel for petitioner that since the petitioners had shown due and sufficient cause explaining the delayed filing of the appeal, the appellate authority ought to have entertained and decided the appeal on merits by invoking the provisions of Section 5 of the Limitation Act. 7. The abovesaid contention of the learned counsel for petitioners is required to be addressed from the view point of 1995 Niyam being part of a special law providing for initiation, conduction and conclusion of Panchayat elections. 8. Bare reading of the Scheme of 1995 Rules reveals that the same provides for initiation, conduction and conclusion of the elections to the 3-tier Panchayats, which are institutions of self-governance in rural areas. The said 1995 Rules derive strength from provisions of Sections 95(1) and 43 of the M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993. 9. 8. Bare reading of the Scheme of 1995 Rules reveals that the same provides for initiation, conduction and conclusion of the elections to the 3-tier Panchayats, which are institutions of self-governance in rural areas. The said 1995 Rules derive strength from provisions of Sections 95(1) and 43 of the M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993. 9. The sequence, in which various provisions have been codified in 1995 Rules, reflects that the earliest ones pertain to initiation of the election process comprising of formation of wards, constituency and reservation; whereas the subsequent ones included in Chapter IV to VIII relate to the voter list, administrative machinery for conduct of the election, actual conduct of election, candidates and their agents besides providing for general procedure of election. Thereafter the remaining provisions contained in Chapter IX & X relate to polling and voting for election, voting by voting machines and counting of votes and declaration of results. Thus from the initiation till the end, the sequence, in which various provisions have been codified, is commensurate to the sequence of conduction of election process. Importantly, each individual rule is placed in such a manner that conclusion of process of election it relates to becomes a cause for invoking the subsequent rule. Therefore, there is a chain of events, which runs in one direction right through the 1995 Rules starting from Rule 3 to Rule 84. Each rule is interlinked to the other. Any disturbance in the process of election provided in any particular rule would cause ripples of disturbance to the entire process of elections. 10. It is relevant to mention here that since 1995 Niyam are special statute and is a complete code for initiation, conduction and conclusion of Panchayat elections, no other general or special provision, unless otherwise expressly enabled by 1995 Rules, can eclipse any provision of 1995 Niyam. Thus, in view of the decision of the Apex Court in Gopal Sardar v. Karuna Sardar reported in : (2004) 4 SCC 252 , (Para 13) the provisions of Limitation Act cannot apply unless the same is expressly provided for by 1995 Niyam. Relevant portion of paragraph 13 is reproduced as under :- “13. ..... Thus, in view of the decision of the Apex Court in Gopal Sardar v. Karuna Sardar reported in : (2004) 4 SCC 252 , (Para 13) the provisions of Limitation Act cannot apply unless the same is expressly provided for by 1995 Niyam. Relevant portion of paragraph 13 is reproduced as under :- “13. ..... At any rate, in the light of the three-Judge Bench decision of this Court in Hukumdev Narain Yadav case and subsequently followed in Anwari Basavaraj Patil case even though special or local law does not state in so many words expressly that Section 5 of the Limitation Act is not applicable to the proceedings under those Acts, from the scheme of the Act and having regard to various provisions such express exclusion could be gathered. Thus, a conscious and intentional omission by the legislature to apply Section 5 of the Limitation Act to the proceedings under Section 8 of the Act, looking to the scheme of the Act, nature of right of pre-emption and express application of Section 5 of the Limitation Act to the other provisions under the Act, itself means and amounts to “express exclusion” of it satisfying the requirement of Section 29(2) of the Limitation Act.” 11. In the instant case, Rule 12 (5) of 1995 Niyam prescribes a period of 5 days of the order of Registration Officer to file an appeal with no further express provision for condonation of delay and also with no enabling provision to borrow the provisions of Rule 5 of Limitation Act. 12. The object of not providing for any power for condonation of delay in Rule 92 (5) is obvious and therefore has been consciously not provided for. The period of 5 days and no more with absence of any power to condone delay is provided consciously to ensure that there is no delay in conduction of process of elections, which are required to be completed within a limited period of time. 13. It is trite that the process of election is the foundation of democratic form of Government in our country. To preserve this foundation, it is of utmost importance that the process of election is not only conducted in a free and fair manner, but with utmost promptitude. 13. It is trite that the process of election is the foundation of democratic form of Government in our country. To preserve this foundation, it is of utmost importance that the process of election is not only conducted in a free and fair manner, but with utmost promptitude. Expeditious initiation, conduction and conclusion of the process of election is only possible when the Rules of natural justice, which are otherwise available to a citizen, are curtailed to a reasonable extent by ensuring preservation of optimum balance between adherence to atleast bare minimum principles of natural justice while at the same time preventing offence to the object and intent of 1995 Rules. This curtailment takes place by either prescribing a lesser period of limitation for availing the remedy to the higher forum or by placing a bar as contained in proviso to Rule 15 and Rule 15A(2) of the 1995 Rules. Reasonable curtailment of the principles of natural justice for the sake of public interest of expeditious conclusion of free and fair election can very well take place as held by the Apex Court in the case of Mohinder Singh Gill & Another v. The Chief Election Commissioner : (1978) 1 SCC 405 (Para 92). Relevant portion of paragraph 92 is reproduced as under :- “92 (2) (b). .....Secondly, the Commission shall be responsible to the rule of law, act bona fide and be amenable to the norms of natural justice in so far as conformance to such canons can reasonably and realistically be required of it as fairplay-in-action in a most important area of the constitutional order, viz., elections.” 14. In view of the above discussion, it is evident that the appellate forum has rightly dismissed the appeal filed by the petitioners on 03.01.2015 against the order of Registration Officer passed on 27.10.2014. Allowing of this appeal would have caused disturbance, disruption and stalling of the process of election. Moreover, there was no occasion for condoning of delay on the part of the appellate authority in absence of any express provision in that regard and therefore the impugned order passed by the appellate authority rejecting the appeal of the petitioners under Rule 12 (5) of 1995 Niyam, cannot be found fault with. 15. Moreover, there was no occasion for condoning of delay on the part of the appellate authority in absence of any express provision in that regard and therefore the impugned order passed by the appellate authority rejecting the appeal of the petitioners under Rule 12 (5) of 1995 Niyam, cannot be found fault with. 15. In view of the above, there is no occasion for interference in this matter and, therefore this writ petition under Article 226 of the Constitution of India is dismissed sans cost.