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Madhya Pradesh High Court · body

2015 DIGILAW 28 (MP)

Dhano Bai Parihar v. State of M. P.

2015-01-07

SHEEL NAGU

body2015
ORDER 1. This petition under Article 226 of the Constitution of India has been filed aggrieved by the deletion of the name of the petitioner from voter list prepared in the ensuing Panchayat elections. 2. Learned counsel for the rival parties are heard on the question of admission. 3. Learned counsel for the petitioner submits that in the voter list of village Charai Shyampur, Tahsil Ghatigaon, District Gwalior prepared under rule 9 and published under rule 10 of the M.P. Panchayat Nirvachan Niyam, 1995 (1995 Niyam for brevity), the name of the petitioner was mentioned at serial No.299. It is his contention that by order passed by Registration Officer on 23.10.2014 the name of the petitioner was deleted from the voter list by invoking provisions of rules 11 and 12(1) of 1995 Niyam. Thereafter it is submitted that petitioner preferred an appeal under rule 12(5) of 1995 Niyam within the prescribed period of five days before the appellate authority who is stated to be sitting over this appeal and has not taken any decision on the same. 4. This Court after hearing the matter on admission on 18.12.2014 directed as an interim measure as follows :- “Considering the aforesaid, as an interim measure, it is directed that petitioner be treated as a voter of Gram Panchayat Charai-Shyampur and her name be treated as included in the voter list of said Gram Panchayat for all purpose.” 5. Pursuant to the above interim order which is subsisting till date the name of the petitioner has been included in the voter list of the above said village. 6. Rule 12(5) obliges the appellate authority to make enquiry and pass suitable orders expeditiously on an appeal preferred within the prescribed period of five days. The said provision further lays down that in case the appeal succeeds then the voter list shall be suitably amended in line with the decision taken by the appellate authority. The proviso to the said rule places bar on the power of the appellate authority by laying down that no amendment in the voter list shall take place even to implement the appellate order passed under rule 12(5) of 1995 Niyam, after the last date fixed for making nominations mentioned in notice issued under rule 28 and before election. 7. The proviso to the said rule places bar on the power of the appellate authority by laying down that no amendment in the voter list shall take place even to implement the appellate order passed under rule 12(5) of 1995 Niyam, after the last date fixed for making nominations mentioned in notice issued under rule 28 and before election. 7. From the scheme of 1995 Niyam, it is ostensibly evident that no amendment in the voter list is permissible after expiry of the last date for filing of the nomination. 8. It is not disputed that last date for filing of the nomination is 7.1. 2015 i.e. the date on which the order is being passed. 9. The petitioner places heavy reliance on the enquiry report dated 8.11. 2014 Annexure P-2 provided by the CEO of Janpad Panchyat Ghatigaon stating interalia that the name of the petitioner was wrongly deleted without following the due process of law. 10. In the conspectus of factual scenario, it is evident that the present case is an exceptional one due to following exceptional circumstances; 1. This Court while exercising power of judicial review has already granted interim order vide order dated 18.12. 2014 directing for treating the petitioner as voter of said Gram Panchayat and; 2. the apathy/inaction on the part of the appellate authority to discharge its statutory obligation of deciding the appeal preferred by the petitioner under rule 12(5) of 1995 Niyam. 11. The bar contained in proviso to rule 12(5) of 1995 Niyam can become operational only when the statutory obligation of the appellate authority is duly discharged in terms of rule 12(5). If the appellate authority does not discharge its statutory obligation of deciding the appeal expeditiously then the right of the appellant/petitioner which he could have exercised if his appeal was decided expeditiously, cannot be foreclosed by taking recourse to the prohibitory nature of the proviso. 12. No doubt proviso to the statutory provision qualifies and imposes certain restrictions upon the main proviso i.e. rule 12(5) of 1995 Niyam herein. At the same time the proviso cannot be a complete bar to the extent of supplanting the entire main provision. A proviso is merely to qualify the main provision and not to supersede it. 12. No doubt proviso to the statutory provision qualifies and imposes certain restrictions upon the main proviso i.e. rule 12(5) of 1995 Niyam herein. At the same time the proviso cannot be a complete bar to the extent of supplanting the entire main provision. A proviso is merely to qualify the main provision and not to supersede it. In this regard the decision of the apex Court in the case of Dwarka Prasad v. Dwarka Das Saraf reported in AIR 1975 SC 1758 is worthy of reference. The relevant extract of para 18 of this judgment is reproduced herein below:- “The law is trite. A proviso must be limited to the subject-matter of the enacting clause. It is a settled rule of contruction that a proviso must prima facie be read and considered in relation to the principal matter to which it is a proviso. It is not a separae or independent enactment. ‘Words are dependent on the principal enacting words, to which they are tacked as a proviso. They cannot be read as divorced from their context’ (1912 A.C. 544). If the rule of construction is that prima facie a proviso should be limited in its operation to the subject matter of the enacting clause, the stand we have taken is sound. To expand the enacting clause, inflated by the proviso, sins against the fundamental rule of construction that a proviso must be considered in relation to the principal matter to which stands as a proviso. A proviso ordinarily is but a proviso, although the golden rule is to read the whole section, inclusive of the proviso in such manner that they mutually through light on each other and a result in a harmonious construction” 13. Following this decision, similar view was expressed in the case of Dashrath Rupsingh Rathod v. State of Maharashtra reported in (2014)9 SCC 129 . 14. In the instant case the bar contained in the proviso prohibiting change in the voter list after the expiry of the last date of nominations mentioned in notice under rule 28 could have become operational only if the appeal preferred by the petitioner within the prescribed period of five days under rule 12(5) of 1995 Niyam was decided expeditiously. Herein, the appeal is stated to be still pending. Herein, the appeal is stated to be still pending. If that is so then the appellant/petitioner who has exercised his rights to prefer an appeal under rule 12(5) of 1995 Niyam within the stipulated period of time cannot be left remedyless by invoking the prohibitory proviso to rule 12(5) despite the appellate authority failing to discharge its statutory obligation of deciding the appeal expeditiously. 15. In view of the above, this Court has no hesitation to hold that the bar contained in proviso to rule 12(5) shall not come in way of the petitioner to pursue his appeal if filed within the prescribed period of five days and if the same is still pending. The proviso shall also not come in way of the appellate authority to decide the same in accordance with law or in way of the Registration Officer to carry out any amendment in the voter list in terms of the appellate order which ultimately passed by the appellate authority. 16. Accordingly, this petition deserves to be and is hereby allowed to the following extent ; 1. That in case the petitioner’s appeal against the order preferred within stipulated period of five days is pending before the appellate authority then the same shall be decided by the appellate authority under rule 12(5) of 1995 Niyam on its own merits without being influenced to the bar contained in rule 12(5) and the fact of the petitioner having approached this Court. 2. In case appeal of the appellant is allowed then the consequential action of the amendment in the voter list be carried out as expeditiously as possible. 3. Till the decision is taken in the appeal by the appellate authority, the interim order passed on 18.12. 2014 by this Court shall remain in operation. A. K. Nirankari for petitioner; Praveen Newaskar, Deputy Government Advocate for respondents No.1, 3 and 4; Smt. Ami Prabal for respondent No.2; G. S. Sharma for respondent/Intervener.