Madhya Pradesh High Court
Smt.Ramo vs M.P. State Election Commission on 17 March, 2015
1 Writ Appeal No. 50/2015 [Smt. Ramo Vs. State of Election Commission & Ors.]
17/03/2015
Shri Shailendra Singh Raghuvnahi, learned counsel
for the appellant.
Shri RD Jain, learned Senior Counsel assisted by Shri
Sangam Jain, learned counsel for the respondent No.1.
Shri Praveen Niwaskar, learned Government Advocate for the respondents No. 2 to 4/ State.
Shri Sandeep Kulshrestha, learned counsel for the respondent No.5.
Heard on the question of admission.
Admit.
Respondents' counsel have taken notice of this admission,hence, no further notice to any of the respondent is required.
On behalf of the respondent No.5, the reply of IA No.1326/2015, appellant's application for grant of stay against the operation and execution of the impugned order of the writ Court has already been filed.
On asking the learned senior counsel Shri Jain, as well as the State Counsel whether any of them wants to file the reply of such IA, on which they submit that no reply is necessary on behalf of their respective parties. In the aforesaid premises, the parties are directed to make their 2 submissions on the aforesaid IA No.1326/2015.
Appellant's counsel after taking us through the appeal memo as well as the record of the writ Court alongwith impugned order and other papers placed with the same, said that after accepting the nomination form by the returning officer the appellant was declared to be elected as an unopposed Sarpanch of the alleged Gram Panchayat of the village (vide Annexure R-5/1 with the writ petition). Subsequent to such declaration of appellant as Sarpanch of Gram Panchayat, instead of filing election petition under the procedure prescribed under the law, the respondent No.5 had directly approached the writ Court and without considering the availability of alternate efficacious forum for redressal of dispute, by entertaining the impugned writ petition without extending any proper opportunity of hearing to the appellant, impugned order has been passed whereby the appellant's election was set aside with some observations and in such premises, prayed to stay the operation and execution of the impugned order of the writ Court, by allowing the IA.
The aforesaid prayer of the appellant's counsel is opposed by the counsel for the respondent No.5, saying that as many as five safeguards have been provided to 3 consider the nomination forms of the candidates in the Madhya Pradesh Panchayat Nirvachan Niyam, 1995 [ in short the "Niyam 1995'']. He has also referred some provisions of such Niyam 1995. In continuation, he said that the nomination forms of the appellant herein as well as other candidates were initially accepted by the returning officer and pursuant to that, the symbols to hold the election between such candidates were also allotted them but subsequently contrary to the rules, the nomination forms of the other candidates were rejected and the present appellant was declared to be an unopposed Sarpanch of Gram Panchayat and due to such ab initio void act of the returning officer, the respondent No.5 came to this Court with the impugned writ petition in which after considering the existing legal provision, by allowing the writ petition, the aforesaid declaration of the appellant as an unopposed Sarpanch of Gram Panchayat has been set aside with a further observation extending liberty to the parties to approach the appropriate forum for redressal of their grievances. So in such premises, the impugned order of the writ Court does not require any interference in this appeal and prayed for dismissal of IA.
Apart from the aforesaid, Shri Jain, learned senior 4 counsel by referring Rule 40-A of the aforesaid Niyam, 1995, said that even after accepting the nomination forms of the candidates if the objection is received by the returning officer, then after issuing notice extending opportunity of hearing to the affected parties the returning officer may take appropriate decision to reject the nomination forms of such candidate. In continuation, he said that in the case at hand on receiving the objection the enquiry was held and in such enquiry, the requisite record of the caste certificate of respondent No.5 was not found in the office of the concerning authority empowered to issue the caste certificate and on such counts, the nomination form of other candidate i.e. respondent No.5 was rejected and appellant was declared to be elected as an unopposed Sarpanch of the Gram Panchayat. In continuation by referring Article 243E of the Constitution of India, he said that the returning officer is bound to hold the Panchayat election within five years. In such premises, he also said that as per the settled proposition, after publication of the notification to hold the election and starting the process of the same, no writ petition or other proceedings could be entertained in respect of any dispute of such election by any court, the same could be raised through election 5 petition before the election tribunal only and in such premises also, the impugned order of the writ Court requires reconsideration at this stage. In support of his contention, he also placed his reliance on the decision of the Supreme Court in the matter of Karupati Maria Das Vs. Dr. Ambedkar Seva Samajan and Others, reported in (2009) 7 SCC 387.
State Counsel has supported the arguments of the learned Senior Counsel Shri Jain.
Having heard the counsel at length, keeping in view the arguments advanced, after perusing the available record alongwith the aforesaid cited case and concerning provision, by allowing the IA in part, the operation and execution of the impugned order of the writ Court till setting aside the election of the appellant on the aforesaid post of Sarpanch is hereby stayed till disposal of this appeal.
Certified copy.
(U. C. Maheshwari) (Sheel Nagu)
Judge Judge
MKB