Madhya Pradesh High Court
Mohd. Haneef vs Mahenda Kumar on 20 July, 2024
1 MP-2766-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 20th OF JULY, 2024
MISC. PETITION No. 2766 of 2024
MOHD. HANEEF
Versus
MAHENDA KUMAR AND OTHERS
Appearance:
Shri G.S. Baghel - Advocate for the petitioner.
Shri Priyank Shandiyal - Advocate along with Shri Sachin Jain - Advocate for the
respondents.
ORDER
The present petition has been filed challenging the order Annexure P- 1 dated 29.04.2024 by the Election Tribunal of Sub Divisional Officer, whereby the Sub Divisional Officer has set aside the Election of the present petitioner on the post of Sarpanch of Gram Panchayat Rithi, Janpad Panchayat Rithi, District Katni on the ground that on the date of nomination of the petitioner, he was disqualified to contest the election and the said disqualification has been suppressed by the petitioner in the nomination form.
2. Learned counsel for the petitioner submits that the Sub Divisional Officer has held that the petitioner was disqualified to hold the post and to be a candidate in terms of Section 36(1)(e) of M.P. Panchayat Raj Avam Gram Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 7/20/2024 6:40:54 PM 2 MP-2766-2024 Swaraj Adhiniyam, which mentions that an employee who is dismissed from the service of the State Government or Central Government or certain other specified employments for corruption and disloyalty, shall be disqualified for being office bearer of Panchyat.
3. It is also contended by learned counsel for the petitioner that while holding so, the dismissal order of the petitioner was not on record before the Election Tribunal and in absence of even such dismissal order being on record, the Election Tribunal has given the finding of disqualification of the petitioner. Learned counsel for the petitioner further points out that even before this Court in writ petition, the respondent No.1 has been unable to place any such dismissal order on record before this Court.
4. Learned counsel for the petitioner further submits that the Election Tribunal has erroneously held that the petitioner was earlier disqualified to hold the post when he was earlier also elected in the year 2005 and the said order dated 23.06.2006 (Annexure R-1) would be read against the petitioner, even for the purpose of this Election as in the said order it has been held that the petitioner is disqualified in terms of Section 36(1)(e) of the Adhiniyam, 1993. Learned counsel for the petitioner also submits that the earlier order relating to Election of the year 2005 was challenged before this Court in W.P. No.16430/2006, wherein this Court finding prima facie case in favour of the petitioner had stayed the aforesaid order dated 23.06.2006 on 14.03.2007 and later on, the said petition was dismissed as infructuous as the term was over and the legal issue was kept open to be decided in Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 7/20/2024 6:40:54 PM 3 MP-2766-2024 appropriate case vide order dated 06.05.2011. Thus, it is contended that the legal issue of disqualification of the petitioner was to be decided afresh by the Election Tribunal and the earlier decision dated 23.06.2006 could not have been straightaway employed to hold the petitioner disqualified.
5. It is also contended that the procedure as prescribed under the Rules for trial of Election Petitions has not been followed, because no issues were framed, no evidence was taken and only considering the pleadings of rival parties, the Election Petition has been decided.
6. Learned counsel for the petitioner further submits that there was no suppression by the petitioner, because there was as such no column in the nomination form or in the affidavit, wherein the details of any previous order are required to be mentioned. Thus, the non-mentioning of the previous order dated 23.06.2006 could not be said to be suppression on part of the petitioner, because no such disclosure was required to be made as per the nomination form or affidavit. Copy of affidavit has been placed on record as part of Annexure P-2.
7. Per contra, it is contended by learned counsel for the respondent No.1 that the petitioner has suppressed the aspect of his earlier disqualification in the nomination form and he has been dismissed from service while being posted as Compounder in Public Health and Family Welfare Department. The dismissal of services of the petitioner would amount to disqualification in terms of Section 36(1)(e) of Adhiniyam, 1993, which ought to have been disclosed by the petitioner and also that once a Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 7/20/2024 6:40:54 PM 4 MP-2766-2024 disqualification is incurred, the petitioner was disqualified to be nominated and to be declared elected and to hold the post.
8. It is further argued that non-framing of the issues is hardly relevant, because the question was only a legal question as to whether the petitioner was disqualified in terms of Section 36(1)(e) of Adhiniyam, 1993 and no evidence in that matter was required to be taken, because admittedly the petitioner has been dismissed from Government service and disqualification is only a legal issue in terms of Section 36(1)(e) of Adhiniyam, 1993.
9 . It is further contended that the petition was properly filed by adhering to the relevant rules and the attested and verified copies thereof were duly supplied to the present petitioner and there was no technical defect in filing of the Election Petition.
10. Learned counsel has relied on judgment reported by this Court in the case of Suresh Choudhary v. Atarlal Verma, (2006) 3 MP LJ 506 to submit that the suppression of a previous disqualification can be a ground to declare the Election as void. Learned counsel for the petitioner has vehemently argued that as the petitioner stood disqualified, the Election Tribunal has not erred in declaring the Election of the petitioner to be void and declaring the seat to be vacant and consequently, ordering fresh Election.
11. Heard learned counsel for the parties.
12. The procedure for trial of election petition has been laid down by Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 7/20/2024 6:40:54 PM 5 MP-2766-2024 Rule-11 of the M.P. Panchaeyat Election Petitions and Corrupt Practices Rules, 1995. The relevant rule is as under :-
"11. Procedure before the specified officer and his powers. -(1) Subject to the provisions of these rules, every election petition shall be enquired into by the specified officer as nearly, as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits :Provided that it shall have only be necessary for the specified officer to make a memorandum of the substance of the evidence of any witness examined by him.
(2) The specified officer, shall have the powers which are vested in a Court under the Code of Civil Procedure, 1908 when trying a suit in respect of the following matters :-
(a) discovery and inspection;
(b) enforcing the attendance of witnesses, and requiring the deposit of their expenses;
(c) compelling the production of document;
(d) examination of witnesses on oath;
(e) reception of evidence taken on affidavit; and
(f) issuing commission for examination of witnesses and summoning and examining suo motu any person whose evidence, appears to him to be material";
13. In the light of aforesaid, it has been submitted by the Counsel for the petitioner that election petition shall be tried as a suit as per provisions contained in the Code of Civil Procedure and the same are required to be Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 7/20/2024 6:40:54 PM 6 MP-2766-2024 mandatorily followed. He has relied upon the judgment passed in the cases o f Vadivelu v. Sundaram and Ors., reported in 2000 (8) SCC 355, Ram Niwas vs. Pooran and Ors, reported in 2001 (II) MPJR 198, Pooran vs. The Election Officer and Ors, reported in 2001 (II) MPJR 190 and 3 Rameshchandra Bhilala vs. Bashir and Ors., reported in 2011 (1) MPHT 35.
1 4 . The aforesaid provision of Rule-11 duly shows that there is a violation of mandatory procedure by not recording evidence.
15. So far as the reliance of the respondent No.5 on the judgement in the case of Kalyan Singh Chouhan Vs. C.P. Joshi reported in 2011 (11) SCC 786 is concerned, the said judgment lays down that issues are not mandatory to be framed, but does not hold that even trial is not necessary. The following has been held therein -
"27. There may be an exceptional case wherein the parties proceed to trial fully knowing the rival case and lead all the evidence not only in support of their contentions but in refutation thereof by the other side. In such an eventuality, absence of an issue would not be fatal and it would not be permissible for a party to submit that there has been a mistrial and the proceedings stood vitiated. (Vide Nagubai Ammal v. B. Shama Rao [AIR 1956 SC 593] , Nedunuri Kameswaramma v. Sampati Subba Rao [AIR 1963 SC 884] , Kunju Kesavan v. M.M. Philip [AIR 1964 SC 164] ,Kali Prasad Agarwalla v. Bharat Coking Coal Ltd. [1989 Supp (1) SCC 628 :
AIR 1989 SC 1530] , Sayeda Akhtar v. Abdul Ahad [(2003) 7 Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 7/20/2024 6:40:54 PM 7 MP-2766-2024 SCC 52] and Bhuwan Singh v. Oriental Insurance Co. Ltd. [(2009) 5 SCC 136 : (2009) 2 SCC (Cri) 619 : (2009) 2 SCC (Civ) 399 : AIR 2009 SC 2177] )."
16. Even otherwise, this issue is no longer res-integra. It is well settled that the object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. Its object is also to ensure that each side is fully alive to the questions that are likely to be raised or considered so that they may have an opportunity of placing the relevant evidence appropriate to the issues before the court for its consideration. Where the parties proceed to trial fully knowing the rival case and lead all the evidence not only in support of their contentions but in refutation thereof by the other side. In such an eventuality, absence of an issue would not be fatal and it would not be permissible for a party to submit that there has been a mistrial and the proceedings stood vitiated. (See Nagubai Ammal v. B. Shama Rao [AIR 1956 SC 593] , Nedunuri Kameswaramma v. Sampati Subba Rao [AIR 1963 SC 884] , Kunju Kesavan v. M.M. Philip [AIR 1964 SC 164] , Kali Prasad Agarwalla v. Bharat Coking Coal Ltd. [1989 Supp (1) SCC 628] , Sayeda Akhtar v. Abdul Ahad [(2003) 7 SCC 52] and Bhuwan Singh v. Oriental Insurance Co. Ltd. [(2009) 5 SCC 136)]. Hon'ble Apex Court in the case of Nedunuri Kameswaramma v. Sampati Subba Rao reported in AIR 1963 SC 884 held as under :-
"Where the parties went to trial fully knowing the rival case and led all the evidence not only in support of their Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 7/20/2024 6:40:54 PM 8 MP-2766-2024 contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mis-trial which vitiates proceedings. The suit could not be dismissed on this narrow ground, and also there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion and neither party claimed that it had any further evidence to offer."
17. However, the reliance on the judgment in case of Kalyan Singh Chouhan (supra) does not make the violation of procedure cured, because in the present case not only issues are not framed, but also the evidence has not been taken. There has been no "trial" in the present case.
1 8 . On this anvil, it was argued by the learned counsel for the respondent No.1 that no evidence was required in the present case, as the issue was only legal regarding disqualification of the petitioner. Thus, this Court now proceeds to examine whether there was sufficient material available before the Election Tribunal to hold the petitioner to be disqualified in terms of Rule 36(1)(e).
19. Learned counsel for the respondent No.1 has relied on document Annexure R-2 to submit that the petitioner was dismissed from service on account of allegation of corruption and disloyalty. However, the said document Annexure R-2 is not a termination order, but it is only the final show cause notice after receipt of enquiry report and is not the termination order. Even as per the allegations contained in the said final show cause notice Annexure R-2, it is evident that the allegations did not relate to corruption, but related to being in drunken state, negligent towards duties, Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 7/20/2024 6:40:54 PM 9 MP-2766-2024 etc. It is not available on record that what was the final outcome of this final show cause notice and what was the final finding of the disciplinary authority against the petitioner and whether in the final penalty order the disciplinary authority has found the petitioner guilty of corruption or disloyalty.
2 0 . The termination order has not been placed on record by the respondent No.1 even before the Election Tribunal. Thus, it appears that the respondent No.1 is in fact not in possession of the termination order of the petitioner and it is supprising that the Election Tribunal has held the petitioner to be disqualified in terms of Section 36(1)(e) despite there being no dismissal order available on record before the Tribunal. Section 36(1)(e) is as under:-
"36(1)(e) 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; or"
21. It is also interesting to note that when earlier in relation to Election of the year 2005, the petitioner was declared disqualified in terms of Section 36(1)(e), he had filed W.P. No.16430/2006, wherein stay was granted on the order of Election Tribunal and subsequently, on 06.05.2011 the following order was passed by this Court while final disposing the said writ petition:-
"Shri Vijay Tripathi, learned counsel for the petitioner.
Subject matter of this petition pertains to election of Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 7/20/2024 6:40:54 PM 10 MP-2766-2024 Member Janpad Panchayat, Rithi, District Katni.
It appears that with the efflux of time the cause now does not survives for adjudication, the petition is dismissed having been rendered infructuous.
The legal issue which has been raised here in this petition, is kept open to be dwelt upon in appropriate case.
Cc as per rules. "
22. From perusal of the aforesaid order, it is evident that legal question was kept open to be dwelt upon in appropriate case. Thus, it was the duty of the Election Tribunal in the present case also to have dwelled on the aspect of disqualification of the petitioner independently, but the Election Tribunal has adopted a very careless appropach in dealing with the matter and has not even cared to have the dismissal order on record.
23. Copy of Writ Petition No.16430/2006 has been brought on record, wherein it is pleaded that there was no dismissal against the petitioner and there is only removal order against the petitioner dated 20.09.1995. In the present case, the said order dated 20.09.1995 in not on record before the Election Tribunal. If indeed, the petitioner has not been dismissed from service, but only removed from service, then the effect of such removal would be debatable issue in terms of Section 36(1)(e) because the said provision speaks about dismissal. Even the said removal order was not on record before the Election Tribunal to ascertain the findings against the present petitioner whether it was on account of any allegation of disloyalty and corruption.
Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 7/20/2024 6:40:54 PM11 MP-2766-2024
24. Thus, in the opinion of this Court, the order Annexure P-1 has been passed in violation of following the mandatory procedure as prescribed under the Rules of 1995 so also in absence of any material on record to hold the petitioner to be disqualified to hold the post in terms of Section 36(1)(e). There was no column in the affidavit, which required disclosure of order dated 23.06.2006, which was the order passed by the Election Tribunal while dealing with the Election of petitioner in the year 2005. There does not appear to be any suppression of disqualification of the petitioner.
25. Consequently, the order Annexure P-1 cannot be given stamp of approval. It is hereby quashed. The matter is remanded back to the Election Tribunal to decide the matter by giving proper opportunity of hearing to the rival parties and following the procedure as prescribed by the Rules of 1995. The Tribunal shall endeavor to decide the Election Petition expeditiously preferably within a period of six months from the date of production of certified copy of this order.
26. With the aforesaid directions, petition stands disposed of.
(VIVEK JAIN) JUDGE rj Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 7/20/2024 6:40:54 PM