Research › Search › Judgment

Madhya Pradesh High Court · body

2015 DIGILAW 184 (MP)

Vidhya Manjhi v. M. P. State Election Commission

2015-02-12

ROHIT ARYA

body2015
ORDER : 1. By this petition under Article 226 of the Constitution of India, challenge is made to the communication dated 19.1.2015 (Annexure P-1) whereby nomination of the petitioner, Smt.Vidhya Manjhi and one Smt. Bharti Manjhi w/o Bharat Manjhi have been rejected purportedly for the reason that their names did not appear in the “Dayara Register” maintained in the office of Sub-Divisional Officer (Lashkar), Gwalior as indicated in the communication No.Q/Reader2/Jan.Pra.P.Satya/15 dated 16.1.2015. 2. Relevant facts are to the effect that the petitioner has filed nomination paper for the election to the post of Sarpanch, Gram Panchayat, Bilokalan, Tahsil and District Shivpuri reserved for the Scheduled Tribe Women candidate. It is submitted that the petitioner belongs to ‘Manjhi’ caste which finds place at serial No.29 in the list of Schedule Tribes for the State of Madhya Pradesh by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976. Copy of notification published in the Madhya Pradesh Gazette dated 1.7.1977 is annexed as Annexure P-2. It is further submitted that along with required documents on oath, have been submitted on 8.1.2015. Copy of receipt of nomination form and receipt of security amount are placed on record as Annexure P-4. After scrutiny of nomination papers, petitioner was allotted the symbol of “Spectacles”. Copy of such document is on record as Annexure P-5. It appears that on complaint by rival candidate, a notice dated 14.1.2015 was issued to the petitioner by the respondent No.4/Returning Officer to the effect that the caste of Manjhi is not included for the district Shivpuri. Copy of such notice is on record as Annexure P-6. Reply thereto was filed by the petitioner on 15.1.2015 (Annexure P-7). Along with the reply, she has also filed number of documents, namely; (1) Notification No.72/99/5825 dated 13.10.1993 issued by the State of Madhya Pradesh, Scheduled Castes and Scheduled Tribes Department, Bhopal; (2) Order No.F.1/78/98/OC/1 dated 7.9.1998 issued by the General Administration Department, Mantralay, Bhopal, State of Madhya Pradesh; (3) Order No.Q/2B/Sta/SOF49/2002 dated 27.12.2002, Collector, District Gwalior; (4) Order No.4592/Sta/62/SOF/05 dated 2.9.2005 Collector, District Shivpuri; (5) Order No.F.1/736/2004/OC/1 dated 11.11.2005 issued by the General Administration Department, Mantralay Bhopal, State of Madhya Pradesh; (6) Order No.F.1/736/2004/OC/1 dated 21.3.2013 issued by the General Administration Department, Mantralay, Bhopal, State of Madhya Pradesh; (7) Affidavit dated 15.1.2015. However, vide the impugned communication dated 19.1.2015 (Annexure P-1), the respondent No.4 has rejected nomination of the petitioner on the ground of noninclusion of name of the petitioner in the ‘Dayara Register” maintained in the office of Sub-Divisional Officer (Lashkar), Gwalior as referred to above. 3. Petitioner assails the aforesaid order on the premise that besides serious illegalities committed in passing the impugned communication, the principles of natural justice have been frightfully violated inasmuch as neither opportunity was afforded to the petitioner to present her case nor relevant documents alongwith affidavit filed by the petitioner were looked into instead by referring to communication dated 16.1.2015 (Annexure R-2) allegedly made from the office of Sub-Divisional Officer (Lashkar), Gwalior, the impugned communication, Annexure P-1 has been made to the petitioner. It is submitted that the caste of Manjhi has already been included in the entire State of Madhya Pradesh and no distinction is carved out for the District Shivpuri in the notification issued by the State of Madhya Pradesh dated 1.7.1977 as per the list of Schedule Tribes for the State of Madhya Pradesh by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 (Annexure P-2). The reasons assigned in the communication are factually incorrect, illegal and unsustainable in the eye of law. That apart, it is further submitted that the caste certificate issued to the petitioner was from the office of Sub-Divisional Officer (Certification), Sub-Division Gwalior, District Gwalior (Annexure P-3) on 19.6.2002 wherein she is shown to be Manjhi caste which finds place at Sl.No.29 in terms of the aforesaid notification (Annexure P-2) whereas the communication dated 16.1.2015 is allegedly procured from the office of Sub-Divisional Officer (Lashkar), Gwalior. Therefore, on the face of it, the impugned communication is wholly illegal, arbitrary and unsustainable in the eye of law. 4. That apart, it is further submitted that upon scrutiny of the nomination, petitioner was declared as an eligible candidate. Hence, after preparation of the list of contesting candidates and allotment of the symbol “Spectacles” vide Annexure P-5, the impugned communication is purportedly issued under rule 40A of the Madhya Pradesh Panchayat Nirvachan Niyam, 1995. Counsel for the petitioner refers to and explains various steps required to be adhered to in the context of the aforesaid provision before any order is passed. 5. Counsel for the petitioner refers to and explains various steps required to be adhered to in the context of the aforesaid provision before any order is passed. 5. Before adverting to the submissions advanced by counsel for the petitioner with reference to the aforesaid provision, it is apposite to quote relevant rule 40A of the Madhya Pradesh Panchayat Nirvachan Niyam, 1995 (hereinafter referred to as the Nirvachan Niyam, 1995). “40A. Stay on election in certain cases. -- (1) Notwithstanding anything contained in these Rules, if it comes to the notice of the Returning Officer at any time prior to the date of poll that the nomination of any candidate who, prima facie, does not belong to a Scheduled Caste, Scheduled Tribe or other Backward Class, has been accepted for a seat which is reserved for Scheduled Casts, Scheduled Tribes or Other Backward Classes as the case may be, through oversight or want of objection or for any other reason, he shall forthwith issue a notice to such candidate, asking him to file an affidavit that he belongs to the category for which the seat is reserved. (2) In case the candidate concerned files an affidavit, the Returning Officer shall make no further inquiry into the matter and treat the nomination as valid. (3) In case the concerned candidate fails to file an affidavit on or before the date specified in the notice, it shall be presumed that he does not belong to the category for which the seat is reserved and the Returning Officer shall report full facts to the following competent authority, as the case may be and seek its permission to review his own order, regarding the validity of the nomination, namely : (i) Sub-Divisional Officer (Revenue) in case of election of a Panch or Sarpanch of a Gram Panchayat; (ii) Collector in case of election of a member of Janpad Panchayat; and (iii) Divisional Commissioner in case of a member of Zila Panchayat. (4) The competent authority, shall immediately, dispose off every case referred to it under sub-rule (3), and communicate its order to the Returning Officer, as soon as possible. (4) The competent authority, shall immediately, dispose off every case referred to it under sub-rule (3), and communicate its order to the Returning Officer, as soon as possible. (5) After receiving the permission of the competent authority, the Returning Officer, may review his own order and exclude the name of the concerned candidate from the list of validly nominated candidates prepared under rule 35 and from the list of contesting candidates, if such list has already been prepared and published the Returning Officer shall prepare a revised list of contesting candidates and publish it in accordance with the provision of rule 40 : Provided that if the concerned candidate has in the meanwhile submitted an affidavit in response of the notice issued under sub-rule (1) the Returning Officer shall not review his order.” (Emphasis supplied) 6. Counsel for the petitioner submits that upon perusal of the aforesaid rule, following steps are required to be followed to take a decision in the matter : (i) the nomination of any candidate has been accepted for a seat which is reserved for Scheduled Castes, Scheduled Tribes or Other Backward Classes as the case may be, through oversight or want of objection or for any other reason which prmia facie according to Returning Officer does not belong to a Scheduled Castes, Scheduled Tribes (as relevant in this case) or Other Backward Classes, he shall forthwith issue a notice to such candidate asking him to file an affidavit that he belongs to the category for which the seat is reserved; (ii) in case the candidate concerned files an affidavit, the Returning Officer shall make no further inquiry into the matter and treat the nomination as valid; (iii) in case the concerned candidate fails to file an affidavit on or before the date specified in the notice as provided under sub-rule (3), it shall be presumed that the candidate does not belong to category for which the seat is reserved and the Returning Officer shall seek permission of the competent authority regarding validity of the nomination; Sub-Divisional Officer (Revenue) in case of election of a Panch or Sarpanch (relevant for the purpose of this case) of a Gram Panchayat; (iv)after receiving the permission from the competent authority, the Returning Officer, may review his own order and exclude the name of the concerned candidate from the list of validly nominated candidates prepared under rule 35 and from the list of contesting candidates prepared and published and prepare a fresh revised list of contesting candidates and publish the same in accordance with the provisions of rule 40; and (v) however, proviso appended to sub-rule (5) provides that if the concerned candidate has in the meanwhile submitted an affidavit in response of the notice issued under sub-rule (1), the Returning Officer shall not review his own order.” (Emphasis supplied) 7. With the aforesaid submissions in the context of the scheme contemplated under rule 40A of Nirvachan Niyam, 1995, learned counsel for the petitioner submits that as a matter of fact, after notice was issued to the petitioner vide notice dated 14.1.2015 (Annexure P-6), the petitioner had submitted detailed reply thereto alongwith documents and specific affidavit on 15.1.2015 (Annexure P-7) stating inter alia that she belongs to Manjhi caste; Scheduled Tribe in terms of the notification dated 1.7.1977 (supra), therefore, the respondents were precluded from proceeding further in the matter in terms of sub-rule (2) and proviso to sub-rule (5) of rule 40A of the Nirvachan Niyam, 1995. Hence, the subsequent action of the respondents’ by communication dated 19.1.2015 (Annexure P.1) based on the alleged communication of the Sub-Divisional Officer (Lashkar), Gwalior dated 16.1.2015 (Annexure R-2) is absolutely without authority and jurisdiction and cannot be sustained in the eye of law. Apart from the vulnerability of the aforesaid communication dated 16.1.2015 (Annexure R-2) for the reason that the same is issued from the office of Sub-Divisional Officer (Lashkar), Gwalior on the premise that the name of the petitioner was not mentioned in the “Dayara Register” because the caste certificate has been issued from the office of Sub-Divisional Officer (Certification), Su-Division, Gwalior, District Gwalior on 19.6.2002 (Annexure P-3) and not from the office of Sub-Divisional Officer (Lashkar), Gwalior. Therefore, the impugned communication is patently illegal and deserves to be set aside. 8. The respondents/State, however, supported the impugned communication dated 19.1.2015 (Annexure P.1) which is based on communication dated 16.1.2015 (Annexure R.2). However, the respondents have not brought on record any notification which excludes Manjhi caste; Scheduled Tribe in the District Shivpuri. 9. The intervenor, Smt.Ramo w/o Dhamola Aadiwasi has filed an application for intervention, I.A.No.656/2015 with the submission that consequent upon rejection of nomination of the petitioner, the sole surviving contestant (intervenor) for the post of Sarpanch, Gram Panchayat, Bilokalan, Tahsil and District Shivpuri has been declared elected as unopposed. 10. Heard counsel for the parties and record has been perused. 11. There is no cavil of doubt between the parties that after reservation of seat of Sarpanch, Gram Panchayat, Bilokalan, Tahsil and District Shivpuri for Women candidate of Scheduled Tribe; petitioner had filed her nomination paper as Scheduled Tribe candidate belonging to Manjhi caste. 10. Heard counsel for the parties and record has been perused. 11. There is no cavil of doubt between the parties that after reservation of seat of Sarpanch, Gram Panchayat, Bilokalan, Tahsil and District Shivpuri for Women candidate of Scheduled Tribe; petitioner had filed her nomination paper as Scheduled Tribe candidate belonging to Manjhi caste. The nomination paper of the petitioner after scrutiny was accepted and her name appeared in the list of contesting candidates prepared under rule 38, followed by allotment of symbol under rule 39 of Nirvachan Niyam, 1995. As such, rejection of nomination paper of the petitioner has to be judicially tested in the light of the provisions contained under rule 40A of the Nirvachan Niyam, 1995. 12. Before rejection of nomination by the impugned communication dated 19.1.2015 (Annexure P-1), petitioner had submitted reply on 15.1.2015 (Annexure P-7) in response to the notice dated 14.1.2015 (Annexure P-6) along with number of documents referred to above and specific affidavit that she belongs to Manjhi caste which finds place at serial No.29 in the list of Schedule Tribes for the State of Madhya Pradesh by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 issued on 1.7.1977. She was born in the year 1986 at Mohalla Ladhedi, Municipal Corporation, Gwalior. 13. The petitioner has filed an affidavit and has asserted that she belonged to the category of the Scheduled Tribe for which the seat was reserved. The respondent No.4/Returning Officer shall have no jurisdiction for further enquiry and is obliged to treat the nomination as valid by force of sub-rule (2) of rule 40A of the Nirvachan Niyam, 1995. That apart, the Returning Officer has altogether ignored the mandatory provisions as contained under the Rules before passing the impugned communication (Annexure P-1). 14. As a matter of fact, if the petitioner had not filed affidavit, even in that eventuality before proceeding to reject the nomination paper of the petitioner, the Returning Officer was required to seek permission from the competent authority, i.e., Sub-Divisional Officer (Revenue) to review his own order regarding the validity of the nomination in terms of sub-rule (3) of rule 40A of Nirvachan Niyam, 1995. There is no order of the competent authority/Sub-Divisional Officer (Revenue) in the instant case. As such, the impugned communication of the Returning Officer purportedly under sub-rule (5) of rule 40A of the Nirvachan Niyam, 1995 is without authority and jurisdiction. There is no order of the competent authority/Sub-Divisional Officer (Revenue) in the instant case. As such, the impugned communication of the Returning Officer purportedly under sub-rule (5) of rule 40A of the Nirvachan Niyam, 1995 is without authority and jurisdiction. 15. Even the justification for passing the impugned communication is also of disputed nature in the light of the caste certificate issued in favour of petitioner from the office of Sub-Divisional Officer (Certification), Sub-Division, Gwalior, District Gwalior (Annexure P-3) on 19.6.2002 whereas the alleged communication was issued from the office of the Sub-Divisional Officer (Lashkar), Gwalior dated 16.1.2015 (Annexure R-2). 16. That apart, it appears that Manjhi caste finds place at serial No.29 in the list of Schedule Tribes for the State of Madhya Pradesh by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 issued on 1.7.1977 has totally been ignored. 17. That apart, there is no such notification on record that the caste of Manjhi is not Scheduled Tribe in the District Shivpuri. Hence, such contention is de hors the material on record. Disputed questions of fact are required to be addressed upon after affording opportunity of leading evidence to either party and cannot be made basis for passing the impugned communication, Annexure P-1 by stroke of pen that too contrary to mandatory provision of rule 40A(2) of the Nirvachan Niyam, 1995. 18. In view of the aforesaid, this Court is of the view that the Returning Officer had no authority to pass the impugned communication in the light of the provisions contained in sub-rule (2) of rule 40A of the Nirvachan Niyam, 1995. Hence, the impugned communication, Annexure P-1 dated 19.1.2015 is quashed. The petitioner shall be permitted to contest the election for the post of Sarpanch, Gram Panchayat, Bilokalan, Tahsil and District Shivpuri, on the basis of nomination paper filed by her. 19. There is remedy to either party for filing the election petition on the grounds available under rule 21 of the Madhya Pradesh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 after declaration of result. 20. It is made clear that any observation made on facts in the order is for the purpose of this writ petition only. ............