Chattisgarh High Court
Smt. Shanti Bai vs Smt. Neera Manhar on 21 October, 2008
Author: Satish K. Agnihotri
Bench: Satish K. Agnihotri
HIGH COURT OF CHATTISGARH AT BILASPUR
Review Petition No. 29 of 2007
1. Smt. Shanti Bai
...Petitioners
VERSUS
1. Smt. Neera Manhar
2. The Collector
3. State of Chhattisgarh through the
Secretary
...Respondents
! Shri Vishnu Koshta, Advocate for the petitioner. ^ Shri S.I.Ali, Advocate for the respondent No. 1.
Shri Alok Bakshi, Government Advocate for the State/respondent No. 2 and 3.
Shri Sanjay K. Agrawal, Advocate as amicus curiae.
Honble Shri Satish K. Agnihotri J Dated: 21/10/2008 : Judgement ARISING OUT OF THE ORDER DATED 7.12.2006 PASSED IN W.P NO. 4202/2006 REVIEW PETITOIN UNDER SECTION 114 OF CIVIL PROCEDURE CODE.
Passed on 21st october 2008
1. The review petitioner, who was impleaded as respondent No. 2 in Writ Petition No. 4202/2006 (Smt.Neera Manhar v. Ex-Collector, Janjgir-Champa & others), has preferred this review petition seeking review of the order dated 7th December, 2006 passed in the aforesaid writ petition. The review petitioner was represented through one Shri Shrawan Kumar Chandel in the writ petition. None appeared on the date of hearing of the matter. This Court, having heard learned counsel appearing for the writ petitioner (respondent No. 1 in the review petition) and the State, held that the order dated 13.03.2006 passed by the Collector, Janjgir-Champa was passed on the basis of mis- representation made by the review-petitioner. Thus, the impugned orders dated 13.3.2006 and 25.7.2006 passed by the Collector, Janjgir-Champa were quashed.
2. The review petitioner seeks review of the order on the ground that on the date, the petition was heard, the writ petition became infructuous as pursuant to the order dated 13.3.2006, the petitioner was declared disqualified and the post of Sarpanch, Gram Panchayat, Thoothi was declared vacant under the provisions of section 36(1) of the Chhattisgarh Panchayat Raj Adhiniyam, 1993 (for short `the Adhiniyam, 1993). Bye-election for the post of Sarpanch, Gram Panchayat, Thoothi, was held in accordance with the provisions of section 38(1)(a) of the Adhiniyam, 1993 on 27.11.2006 and the review petitioner was declared as elected Sarpanch of Gram Panchayat, Thoothi. The review petitioner, despite service of notice had not chosen to appear in the writ petition on the date of hearing. Thus, the said information could not be brought to the notice of the Court and the order was passed.
3. Shri Sanjay K. Agrawal, learned counsel was appointed as amicus curiae.
4. Having heard learned counsel for the parties and amicus curiae, perused the pleadings and documents appended thereto, it is evident that since there was no stay of the impugned order dated 13.3.2006, the Election Commission was under an obligation to fill up the vacancy by holding bye- election in accordance with the provisions of section 38(1)(a) of the Adhiniyam, 1993 and the rules made thereunder.
5. Section 9 of the Adhiniyam, 1993 contemplates duration of Panchayat i.e. for five years from the date appointment for its first meeting. Sub section (2) of section 9 of the Adhiniyam, 1993 prescribes for constitution of Panchayat before expiration of a period of six months from the date of its dissolution. Section 38 of the Adhiniyam, 1993 deals with filling up of the vacancy. Sub section (1)(a) of section 38 prescribes that in the event of death, resignation, no confidence motion or removal of office bearer of Panchayat or on his becoming a member of State Legislative Assembly or a member of either House of Parliament before the expiry of his term, a casual vacancy shall be deemed to have occurred in his office and such vacancy shall be filled as soon as may be, in accordance with the provisions of the Adhiniyam, 1993 and the rules made thereunder.
6. In the present case, pursuant to order dated 13.03.2006, the respondent No. 1 (writ petitioner) was declared disqualified for holding the post of Sarpanch on account of the fact that she had more than two living children on 26.1.2001 under provisions of section 36(1)(m) of the Adhiniyam, 1993. Thereafter, the office of Sarpanch, Gram Panchayat, Thoothi, was declared vacant under the provisions of sub section (3) of section 36 of the Adhiniyam, 1993.
7. In writ petition No. 4202/2006, this Court held that the order dated 13.03.2006 was on the basis of mis- representation made by the review petitioner who remained absent during hearing of the writ petition. The order dated 13.3.2006 was quashed and the disqualification imposed on respondent No. 1 (writ petitioner) was removed.
8. This Court may not loose sight of the fact that during pendency of the writ petition No. 4020/2006, bye-election for electing Sarpanch was held on 27.11.2006 which was not brought into the notice of this court when this writ petition was heard and decided on 7.12.2006.
9. Be that as it may, since a democratic election has been held in accordance with law on declaration of vacancy, the election cannot be set aside in a writ petition. The Election Commission was under an obligation to fill up the casual vacancy arisen from imposition of disqualification of the then Sarpanch i.e. respondent No. 1 (writ petitioner). The election of the review petitioner was not under challenge in the writ petition and as such, there was no challenge to the election even in any election petition as contemplated under part IX of the Constitution of India. Article 243-O of the Constitution provides a bar for interference by courts in electoral matters except by election petition presented to such authority and in such manner as provided for by or under any Law made by the Legislature of a State.
10. In the matter of Harnek Singh v. Charanjit Singh and others1, the Hon'ble Supreme Court observed that in case of election to Panchayats, the High Court may not exercise its plenary jurisdiction under Article 226 of the Constitution as there is efficacious remedy available. This Court, in the matter of Smt. Sikha Soni v. The Election Commission & Others in W.P. No. 4713/2004, by order dated 24th September, 2008, relying on the decisions of the Hon'ble Supreme Court in the matter of Jaspal Singh Arora v. State of M.P. and others2, N.P.Ponnuswami v. The Returning Officer, Namakkal Constitutency, Manakkal, Salem Dist., and others3, Manda Jagannath v. K.S. Rathnam and others4, and Gurdeep Singh Dhillon v. Satpal and others5, held that the writ petition is not maintainable when the election had already taken place.
11. For the reasons stated hereinabove, the review petition is allowed to the extent that the review petitioner is duly elected on the post of Sarpanch, Gram Panchayat, Thoothi, and the same cannot be quashed except in accordance with law, i.e. by filing an election petition under the provisions of Adhiniyam, 1993. So far as disqualification is concerned, the same stands removed by the order dated 07.12.2006 passed in the writ petition i.e. W.P. No. 4202/2006.
12. This Court records appreciation for valuable assistance rendered by Shri Sanjay K. Agrawal, learned counsel assisting the Court as amicus curiae.
13. For the reasons stated hereinabove, the review petition is allowed to the above extent. No order as to costs.
JUDGE
Amit
HIGH COURT OF CHHATTISGARH AT BILASPUR
Review Petition No. 29 of 2007
PETITIONER : Smt. Shanti Bai.
VERSUS
RESPONDENTS : Smt. Neera Manhar & Others
Post for pronouncement of the Judgment and Order on /10/2008 JUDGE