Allahabad High Court
Nanhey vs State Of U.P. & Others on 9 September, 2010
Author: F.I. Rebello
Bench: Ferdino Inacio Rebello, Amreshwar Pratap Sahi
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Chief Justice's Court Case :- SPECIAL APPEAL DEFECTIVE No. - 799 of 2010 Petitioner :- Nanhey Respondent :- State Of U.P. & Others Petitioner Counsel :- Shamim Ahmad,M.A. Qadeer Respondent Counsel :- C.S.C.,B.K. Pandey Hon'ble Ferdino Inacio Rebello,Chief Justice Hon'ble Amreshwar Pratap Sahi,J.
The appellant contested the elections of Village Pradhan governed by the provisions of the U.P. Panchayat Raj Act, 1947 with the name of Nanhey son of Lalla and was declared elected in the elections held in the year 2005. He was continuing as the elected Pradhan and it appears that certain allegations were made against his continuance in office upon which a show cause notice was issued to the appellant on 31st October, 2008 by the District Magistrate, Rampur calling upon him to submit a response. After receipt of the reply, the appellant has been removed on the ground that his continuance stands curtailed as he had become incapable of acting as Pradhan upon having been found that he was an accused and charged for an offence involving moral turpitude in which he was charge sheeted and is on bail. The removal order was challenged on several grounds and the writ petition has been dismissed by the learned Single Judge by order dated 03.07.2010 on the admitted fact that the appellant had been charge sheeted in two criminal cases involving charges of moral turpitude.
This appeal is against the aforesaid judgment of the learned Single Judge, contending that the entire enquiry as required under the U.P. Panchayat Raj (Removal of Pradhan, Up Pradhan and Members) Enquiry Rules, 1997, has not been conducted and, therefore, the same is vitiated.
Shri M.A. Qadeer, learned Senior Counsel for the appellant submits that the findings recorded by the learned Single Judge that the appellant stood disqualified from continuing on the post being accused and charged for an offence involving moral turpitude could not have been a ground for his removal as the said charge related to an alleged offence committed prior to his election as Gram Pradhan in the present term.
Learned Standing Counsel for respondents 1, 2 and 3, and Shri C.K. Parekh for respondent no.4 have submitted that the facts, as stand admitted, disqualify the appellant from further continuing to act as Pradhan under the provisions of Section 95 (1) (g) (ii) of the U.P. Panchayat Raj Act, 1947 (in short 'Act 1947'). They submit that the appellant having been found guilty of having suppressed this information at the time of his nomination and secondly having contested the election on a different name, his removal is fully justified and, therefore, the learned Judge has not committed any error in dismissing the writ petition We had heard the matter on previous occasions and vide order dated 6th September, 2010, we had called upon the learned counsel for the parties to address the Court on the issue that, if an involvement in a criminal case for having been charged for an offence involving moral turpitude, is not a disqualification under Section 5-A of the Act 1947, then could such a ground be made available to dislodge an elected Gram Pradhan for an offence by way of removal under Section 95 (1) (g) (ii) for an offence that was allegedly committed prior to the election of such a person.
Before embarking upon to consider the legislative enactment and the provisions germane to the controversy, it would be apt to refer to the provisions relating to Panchayats which have been incorporated under the 73rd amendment to the Constitution contained in Chapter IX thereof. Article 243-F makes a provision for disqualifications, which may be gainfully reproduced hereunder:-
"243-F. Disqualifications for membership.- (1) A person shall be disqualified for being chosen as, and for being, a member of a Panchayat -
(a) if he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State concerned:
Provided that no person shall be disqualified on the ground that he is less than twenty-five years of age, if he has attained the age of twenty-one years;
(b) if he is so disqualified by or under any law made by the Legislature of the State.
(2) If any question arises as to whether a member of a Panchayat has become subject to any of the disqualifications mentioned in clause (1), the question shall be referred for the decision of such authority and in such manner as the Legislature of a State may, by law, provide."
The aforesaid mandate is clear, that disqualification can be incurred provided there is a law made by the legislature of the State concerned and not otherwise. This constitutional protection, therefore, envisages disqualifications only if there is a specific law made by the legislature. Conversely, in the absence of any such law, any purported disqualification would be violative of Article 243-F of the Constitution of India.
The other provision is Article 243-O, which is quoted below:-
"243-O. Bar to interference by Courts in electoral matters..- Notwithstanding anything in this Constitution -
(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 243-K, shall not be called in question in any Court;
(b) no election to any Panchayats shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State."
Sub-clause (b) of the aforesaid constitutional provision bars the presentation of any election petition of the Panchayat elections except in such manner as is provided for under any law made by the legislature of a State. It is, therefore, clear that a plea of disqualification can be raised but through the procedure prescribed in law. The aforesaid twin provisions, therefore, shield an elected Member including a Gram Pradhan from being removed or held disqualified except otherwise than in accordance with the lawful provisions incorporated by the State legislature.
Having framed the said issue, learned counsel for the parties have been heard at length and we find for the reasons set out hereinafter, that the legislature in its wisdom has not provided for any such disqualification under Section 5-A of the Act 1947, which is quoted below:-
"5-A. Disqualification of membership - A personal shall be disqualified for being chosen as, and for being, the Pradhan or a member of a Gram Panchayat, if he -
(a) is so disqualified by or under any law for the time being in force for the purposes of elections of the State Legislature;
Provided that no person shall be disqualified on the ground that he is less than twenty-five years age, if he has attained the age of twenty-one years;
( b) is a salaried servant of the Gram Panchayat or a Nyaya Panchayat;
(c) holds any office of profit under a State Government or the Central Government or a local authority, other than a Gram Panchayat or Nyaya Panchayat; or a Board, Body or Corporation owned or controlled by a State Government or the Central Government;
(d) has been dismissed from the service of State Government, the Central Government or a local authority or a Nyaya Panchayat for misconduct;
(e) is in arrears of any tax, fee, rate or any other dues payable by him to the Gram Panchayat, Kshettra Panchayat or Zila Panchayat for such period as may be prescribed, or has, in spite of being required to do so by the Gram Panchayat, Nyaya Panchayat, Kshettra Panchayat or Zila Panchayat failed to deliver to it any record or property belonging to it which had come into his possession by virtue of his holding any office under it;
(f) is an undischarged involvement;
(g) has been convicted of an offence involving moral turpitude;
(h) has been sentenced to imprisonment for a term exceeding three months for contravention for any order made under the Essential Commodities Act, 1955;
(i) has been sentenced to imprisonment for a term exceeding six months or to transportation for contravention of any order made under the Essential Supplies (Temporary Powers) Act, 1946 or the U.P. Control of Supplies (Temporary Powers) Act, 1947;
(j) has been sentenced to imprisonment for a term exceeding three months under the U.P. Excise Act, 1910;
(k) has been convicted of an offence under the Narcotic Drugs and Psychotropic Substances Act, 1985;
(l) has been convicted of an election offence;
(m) has been convicted of an offence under the U.P. Removal of Social Disabilities Act, 1947 or the Protection of Civil Rights Act, 1955; or
(n) has been removed from office under sub-clauses (iii) or (iv) of Clause (g) of sub-section (1) of Section 95 unless such period, as has been provided in that behalf in the said section or such lesser period as the State Government may have ordered in any particular case, has elapsed;
Provided that the period of disqualification under Clauses (d), (f), (g), (h), (i), (j), (k), (l) or (m) shall be five years from such date as may be prescribed.
Provided further that the disqualification under Clause (e) shall cease upon payment of arrears or delivery of the record of property, as the case may be;
Provided also that a disqualification under any of the clauses referred to in the first proviso may in the manner prescribed, be removed by the State Government.
A perusal of the said provision, therefore, leaves no room for doubt that it is only a conviction, which brings about a disqualification and, therefore, such a person, if convicted of an offence involving moral turpitude, cannot be permitted to contest the election. Even otherwise, after having been convicted, a Pradhan can be removed on such conviction. The Section, however, does not disqualify a person on a mere involvement in a criminal case involving moral turpitude so as to prevent him from contesting the election.
The position, therefore, that emerges is, as in the present case, that if a person is merely involved in a criminal case of moral turpitude and not convicted, prior to his contesting the elections, the same is not a disqualification for him to contest the election.
Coming to the provisions of Section 95 (1) (g) (ii) of the Act 1947, the same may be gainfully reproduced hereunder for ready reference:-
"95. Inspection. - (1)The State Government may -
(a) ... ... ...
... ... ...
(g) remove a Pradhan, Up-Pradhan or member of a Gram Panchayat or a Joint Committee or Bhumi Prabandhak Samit, or a Panch, Sahayak Sarpanch or Sarpanch of a Nyaya Panchayat if he -
(i) ... ... ...
(ii)refuses to act or becomes incapable of acting for any reason whatsoever or if he is accused of or charged for an offence involving moral turpitude,
(iii) ... ... ..."
The said provision puts an embargo in the continuance of a Gram Pradhan and contemplates his removal if he is accused of or charged for an offence involving moral turpitude. This provision does not make any distinction with regard to the period during which such an offence was committed.
Nonetheless, to our mind it appears that the legislature was conscious of this fact and, therefore, the aforesaid provision would relate to any offence that is committed by a Gram Pradhan after his election to the office. The rule applies only to a person who has been elected to the office so as to bring about his removal. In our considered opinion, the offence which would bring about such a removal has to be of the period which may have been committed after the person has been elected as Pradhan.
The aforesaid provision is distinguishable from Section 5-A of the Act 1947, quoted above. In the event, the legislature was of the opinion to disqualify such person inherently, such a provision could have been included in Section 5-A, but the same having been excluded expressly under Section 5-A, the appropriate interpretation that can be given, is to harmoniously construe the intention expressed in Section 95 (1) (g) (ii) to mean that the removal can be brought about if the offence has been committed after having been elected to the office of Pradhan.
It is to be remembered that laws relating to the elections have to be strictly construed and applying the literal rule of construction, the conclusions drawn by us are in consonance with the provisions of the Act, 1947.This is all the more imperative under the constitutional mandate under Chapter IX-A of the Constitution of India.
The Statute as framed by the legislature in such matters have to be interpreted having regard to the constitutional scheme. The provisions of Articles 243-F and 243-O read with the provisions of Sections 5-A and 95 (1) (g) (ii) of the Act 1947, as explained above, leads us to the conclusion that the Court cannot provide for any qualification which has not been included under Section 5-A. The Court cannot substitute and provide for a disqualification on the ground of any obscurity that can be imagined. Having construed the provisions harmoniously, for the reasons recorded herein above, it would be unconstitutional to remove a Pradhan on the basis of an allegation as presently involved.
The show cause notice, in the instant case and the removal both indicate that the appellant had committed an offence by changing his name and was, therefore, charged with an offence in a criminal case being Case Crime No. 2279 of 2004 and also in Case Crime No. 2280 of 2004 relating to an offence under Section 409 of the Indian Penal Code, involving moral turpitude. Both these cases were registered against the appellant prior to his having been elected as Gram Pradhan.
The allegation against the appellant is that he changed his name then contested the election on an incorrect nomination. This could have been a ground for an election petition, if it was available under the provisions, but such an allegation does not fall within the definition of Section 95 (1) (g) (ii) of the Act 1947. The Pradhan does not become incapable of acting as such inviting removal under the aforesaid provision inasmuch as the accusations are prior to his having been elected as a Gram Pradhan in the present term that commenced in the year 2005 and he was not accused or charged for an offence after he took over the office of Gram Pradhan. The allegation, by itself, relates to a period much prior to his taking over the office of Pradhan in the present term. This aspect of the matter, as discussed herein above, has completely escaped the notice of the learned Single Judge and which, in our opinion, ought to have been taken into consideration for allowing the continuance or otherwise of the appellant. The District Magistrate also, while passing the order of removal, did not take notice of the aforesaid aspects of the matter and, therefore, the said order is unsustainable.
Accordingly, the order dated 05.01.2009 passed by the District Magistrate and the judgment of the learned Single Judge dated 03.07.2010 are set aside.
The appeal is allowed with no order as to costs.
9.9.2010
AHA
(A.P. Sahi, J.) (F.I. Rebello, C.J.)
C.M. Delay Condonation Application No. 259832 of 2010
Hon'ble F.I. Rebello, C.J.
Hon'ble A.P. Sahi, J.
Grounds for condoning the delay in filing the appeal are sufficient.
Accordingly, delay in filing the appeal is condoned.
Application stands allowed.
9.9.2010
AHA
(A.P. Sahi, J.) (F.I. Rebello, C.J.)
C.M. Exemption Application No. 259841 of 2010
Hon'ble F.I. Rebello, C.J.
Hon'ble A.P. Sahi, J.
Exemption application is allowed.
9.9.2010
AHA
(A.P. Sahi, J.) (F.I. Rebello, C.J.)
Hon'ble F.I. Rebello, C.J.
Hon'ble A.P. Sahi, J.
Allowed.
For orders, see order of date passed on separate sheets.
9.9.2010
AHA
(A.P. Sahi, J.) (F.I. Rebello, C.J.)