Madhya Pradesh High Court
Baijnath Prasad vs The State Of Madhya Pradesh Judgement ... on 25 June, 2013
W.P. No.14108/2011.
25.6.2013.
Shri D.P. Patel, learned counsel for petitioner.
Ms. Vandana Shrivastava, learned counsel for
respondent nos.1 to 4.
Shri Mrigendra Singh, learned counsel for respondent no.5.
Since contesting respondent no.5 is duly represented, with consent of learned counsel for the parties, matter is heard finally.
Challenge is to an order-dated 15.7.2011 passed by the Prescribed Authority, Sub-Divisional Officer, Rampur- Baghelan, Distt. Satna, whereby election petition preferred by the petitioner under Section 122 of the Madhya Pradesh Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (for short 'Adhiniyam, 1993') against the election of respondent no.5 as Sarpanch, Gram Panchayat, Etma Kothar, Janpad Panchayat Rampur-Baghelan has been dismissed.
In an election for Sarpanch, Gram Panchayat, Etma Kothar held on 24.1.2010, respondent no.5 was elected as Sarpanch. This election was called in question by the petitioner by filing an election petition under Section 122 of the Adhiniyam, 1993 on 17.2.2010 on the ground that he incurred disqualification under Section 39(1)(a) and under Section 36(1)(cb) and (e) of Adhiniyam, 1993.
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W.P. No.14108/2011.
It was stated in the election petition that earlier the respondent no.5 was employed as Panchayat Secretary Gram Panchayat Etma Kothar when he was removed from service on the charge of misappropriation by order-dated 3.7.2000. That, by order-dated 14.6.2000, recovery of Rs.41,398/- was effected and for misappropriation of fund, an offence under Sections 409, 420, 467 and 468 Indian Penal Code was registered.
Respondent no.5 denied the allegations. Parties led their evidence to substantiate respective contentions. That, following five issues were framed :-
¼1½ D;k xSj ;kfpdkdrkZ dz0&1 ds fo:) e-iz- iapk;r jkt ,oa xzke Lojkt vf/kfu;e dh /kkjk 39¼d½ ds v/khu Hkkjrh; naM lafgrk ds v/;k; 18 ds v/khu Hkz"Vkpkj fuokj.k fdlh Hkh fof/k ds v/khu vkjksiksa ij nafMr fd;k x;k Fkk A ¼2½ D;k xSj ;kfpdkdrkZ dz0&2 jktLo cdk;k dh tkudkjh ? kks"k.k i= izki= 36¼1½¼x&[k½¼x&x½ ij jktLo cdk;k dh tkudkjh fn;k x;k gS A og jktLo cdk;k dh jkf'k D;k Fkh A ¼3½ D;k xSj ;kfpdkdrkZ dz0&1 iwoZ lfpo dk] dysDVj us Hkz"Vkpkj ij gVk;k] ftl le; fuokZpu QkeZ Hkjk Fkk] vkifRr ;kfpdk drkZ }kjk dh xbZ] D;k vH;FkhZ gks ldrk gS ;k ugh A ¼4½ xSj ;kfpdkdrkZ dks dc ,oa fdl fnukad dks nafMr fd;k x;k fdrus o"kZ O;rhr gksus ij ljiap dk pquko yMk A ;kfpdkdrkZ }kjk izLrqr lk{; vf/k- ds vuqlkj xSj ;kfpdkdrkZ :: 3 ::
W.P. No.14108/2011.
dks o"kZ 2000 esa in ls i`Fkd fd;k x;k Fkk A ljiap dk pquko 2010 esa lEiUu gqvk A vr% ljiap dk pquko 10 o"kZ ckn ¼9½ o"kZ½ ckn yM+k tkuk izekf.kr ik;k x;k gS fujgjrk fu;e /kkjk 36 esa 5 o"kZ dk ys[k gksus ls ;g okn fcUnq Hkh ;kfpdk ds leFkZu esa izekf.kr ugha ik;k x;k A ¼5½ ;kfpdk esa xSj ;kfpdk drkZ dz0&,d ij vkjksi gS fd og iapk;r jkt vf/kfu;e o xzke Lojkt vf/kfu;e dh /kkjk 36¼1½¼M-½ ds rgr vkjksfir vH;FkhZ Fkk A In order to substantiate the pleadings, the petitioner brought on record the recovery order-dated 14.6.2000, removal order-dated 3.7.2000 and the charge sheet in Criminal Case No.393/2001 in the Court of Judicial Magistrate First Class, Satna. The petitioner also filed the copy of nomination form filed by respondent no.5 on 31.12.2009 concealing the fact of recovery and removal from the post of Panchayat Secretary.
The Prescribed Authority negativing the issues dismissed the election petition by impugned order.
Considered the rival contentions and perused the material brought on record.
Findings as to issue no.(i) as to whether when a charge is framed in a criminal case for an offence under Sections 409, 420, 467 and 468 of the IPC; whether the :: 4 ::
W.P. No.14108/2011.
same would not incur a disqualification when tested on the anvil of provisions contained under Section 36(1)(a) of Adhiniyam, 1993, the findings cannot be faulted with.
Sub-section (1)(a)(i) and (ii) stipulates -
36. Disqualification for being office-bearer of Panchayat.- (1) No person shall be eligible to be an office-bearer of Panchayat who -
(a) has, either before or after the commencement of this Act, been convicted :-
(i) of an offence under the Protection of Civil Rights Act, 1955 (No.22 of 1955) or under any law in connection with the use, consumption or sale of narcotics or any law corresponding thereto in force in any part of the State, unless a period of five years or such lesser period as the State Government may allow in any particular case has elapsed since his conviction; or
(ii) of any other offence and had been sentenced to imprisonment for not less than six months, unless a period of five years or such less period as the State Government may allow in any particular case has elapsed since his release; or It is only on the happening of the event mentioned in sub-clause (i) and (ii) of clause (a) of sub-section (1) of Section 36, which leads to disqualification for being an office bearer of Panchayat. Section 39(1)(a) which has been pressed in service has a different field of operation and is :: 5 ::
W.P. No.14108/2011.
applicable in respect of existing office bearer of Panchayat. In view whereof, the conclusion arrived at by the Prescribed Officer as to issue no.(i) cannot be faulted with.
Issue no.(ii) relates to non-payment of dues. Section 36(1)(cb) stipulates that no person shall be eligible to be an office-bearer of Panchayat who has not paid all the dues which are recoverable by Panchayat and has not filed with nomination paper, the declaration of such intention that no money is due to be paid by him on any account payable to the Panchayat. Respondent no.5 though gave a declaration on 31.12.2009 to the effect that no money is due to be paid by him on any account payable to the Panchayat. The said declaration has been claimed to be false by the petitioner who relied on order-dated 14.6.2000 whereby Collector, Satna in respect of financial irregularity by respondent no.5 directed the Chief Executive Officer, Janpad Panchayat, Rampur-Baghelan for launching the criminal prosecution. It is a matter of record that besides being prosecuted for an offence under Sections 409, 420, 467 and 468 of the IPC, respondent no.5 was also removed for said charges from the post of Panchayat Karmi, Gram Panchayat Etma Kothar. These facts are duly admitted by respondent no.5 in his cross-examination stating that -
esjs }kjk Hkjk x;k uke funsZ'ku QkeZ izk:i 42 ,oa ''kiFk i= fd lR;izfr fyfi ;kfpdk ds lkFk izLrqr gS A ogha gS :: 6 ::
W.P. No.14108/2011.
tks esa uke funsZ'ku ij QkeZ Hkjk Fkk] eq>s tks pktZ ''khV esa tks izkIr gqvk Fkk mlh dks eSaus vius 'kiFk i= esa Hkjk gS] ;g dguk xyr gS fd tks esjs mij tkap ''khV yxkbZ xbZ gS mu leLr /kkjkvksa dks 'kiFk i= ds dkWye esa fooj.k iwjh ugha fy[kk mijksDr izdj.k U;kf;d naMkf/kdkjh vejikVu ds U;k;ky; esa fopkjk/khu gS A ftldk uEcj vkt ;kn ugha gS A ;kfpdk ds lkFk iapk;r ds cdk;k o vfrdze.k ds laca/k esa tks 'kiFk i= izLrqr fd;k tkrk gS mldh lR;izfrfyfi ;kfpdk esa yxh gS A lgh gS eq>s dsoy ia;kpr dehZ ls izFkd fd;k x;k Fkk cdk;k jkf'k fudkyh xbZ Fkh ftldk izdj.k U;kf;d naMkf/kdkjh vejikVu ds ;gka fopkjk/khu gS A eq>s ;g ugha ekywe gS fd cdk;k jkf'k fdruh izn'kZ ih@3 vejikVu U;k;ky; ls ugha feyk Fkk A pkyku ds lkFk tks Hkh nLrkost U;kf;d eftLVªsV ds ;gka ls feys Fks mldh tkudkjh gS A vkjksi i= dh eq>s tkudkjh ugha gS A pwafd ekeyk fopkj.k esa gS blfy;s eSaus vius odhy ugha iwNk eq>s dysDVj egksn; }kjk lfpo in ls gVk;k x;k Fkk A tks yxHkx vkB] nl lky gks x;s gksaxs lfpo in ls i`Fkd djus dk vkns'k eq>s feyk Fkk 10 lky iqjkuk vkns'k gS blfy;s eSa ugha crk ldrk fd ogh vkns'k gS tks izdj.k ds layXu gS dysDVj egksn; }kjk o`)koLFkk isa'ku 4800 v dk eSanku leryh 5118 v-th-vkbZ- ikbZi dz; djus gsrq 4480 eqjehdj.k gsrq 20-00 :- QkbZi ,oa lhesaV dz; djus gsrq 7000@& dqy 41398@& dh cdk;k ¼fjdojh½ esjs mij fudkyh xbZ Fkh bldh eq>s tkudkjh ugha gS A dysDVj dk;kZy; fjdojh laca/kh lwpuk ugha izkIr gqbZ A ;kfpdk ds lkFk izLrqr nLrkost ftlds fjdojh n'kkZ;h xbZ gS izkIr fd;k fy[kk gS mlds esjs gLrk{kj ugha gS A U;kf;d naMkf/kdkjh egksn; ds ;gka py jgs izdj.k dh vkxkeh :: 7 ::
W.P. No.14108/2011.
frfFk& 27@04@2011 dks lk{; gsrq fu;r gS A ;kfpdk ds lkFk izLrqr izn'kZ ih&4 ds }kjk izLrqr fd;k x;k Fkk ftldh Nk;kizfr layXu gS rFkk esjs gLrk{kj gS A Findings recorded by the Prescribed Officer in respect of this issue in favour of respondent no.5 in the given facts are not sustainable. Evidently, the dues could not be recovered because of pending criminal case. The dues however remain and it was obligatory on respondent no.5 to have declared the dues he was liable for, having not done so and there being dues payable, respondent no.5 was not qualified for being office-bearer of Panchayat.
Furthermore, the Prescribed Officer erred in holding that since no objections were raised at the time of nomination; the objections are not sustainable in the election petition. The doctrine of waiver, estoppel or acquiescence is not applicable in case of an election petition that because certain objections were not raised at the stage of nomination or at the stage of counting that those objection later on cannot be taken. It is the duty cast on the candidate who seek election to be honest and giving the details and information sought for while filing the nomination and if later it is found that material information which will render the candidate ineligible were not disclosed, the same can very well be raised in election :: 8 ::
W.P. No.14108/2011.
petition and if proved the candidature can be declared void ab initio. In the case at hand, there are ample evidence, oral and documentary on record to bring home the charge of respondent no.5 being disqualified for being the office bearer.
The Prescribed Officer has also erred in holding that a removal from the post of Panchayat Secretary will not render the respondent no.5 ineligible for being the office bearer of Panchayat. Three reasons are being given, viz. (i) that the removal is not a dismissal (ii) removal was - 9½ years ago and (iii) five years have lapsed from the date of removal. These reasoning, in the considered opinion of this Court, are contrary to the very spirit of the provisions laying down disqualification. It is the purity in public life of an individual intending to hold a public office is the object for framing the provisions as contained under Section 36 of the Adhiniyam, 1993. The Prescribed Officer, while holding that unless dismissed, a removal of Panchayat Secretary will not be a disqualification is a concept borrowed from service jurisprudence wherein of the major penalties are removal and dismissal. Whereas, removal of an incumbent from post in service may not disentitle him for future job, where a dismissal can. This aspect is however not applicable in a democratic institution like Panchayats where for a limited term, the candidates are elected. Clause (e) of sub-section :: 9 ::
W.P. No.14108/2011.
(1) of Section 36 of Adhiniyam, 1993 clearly stipulates that no person shall be eligible to be an office-bearer of Panchayat who has been dismissed from the service of the State Government or Central Government or a panchayat or any other local authority, or a Co-operative Society, or any Public Sector Undertakings under the control of the Central Government or the State Government for corruption or for disloyalty. In the case at hand, the removal of the petitioner as Panchayat Secretary on the ground of financial irregularity disentitles him to hold the office of Panchayat irrespective of the period which has expired. The stigma of removal on the ground of corrupt practice remains till such order is set aside.
In view whereof, the impugned order passed by the Prescribed Authority is quashed. Election Petition filed by the petitioner is allowed. It is held that the respondent no.5 incurred disqualification under Section 36(1)(cb) and (e) of Adhiniyam, 1993 to be office-bearer of Panchayat.
In the result, the petition is allowed to the above extent. There shall be no order as to costs.
(SANJAY YADAV) JUDGE vinod