Patna High Court
Rajendra Misra vs The State Of Bihar And Ors. on 8 July, 1971
Equivalent citations: AIR1973PAT87, AIR 1973 PATNA 87
ORDER B.D. Singh, J.
1. This application under Articles 226 and 227 of the Constitution of India has been preferred by Rajendra Misra the sole petitioner against the order dated 14-3-1970. passed by the Sub-Divisional Officer, respondent No. 2, rejecting the nomination paper filed by the petitioner who was a candidate for the post of Mukhiya of Goshpur Panchayat in Raghopur Anchal. Sub-Division Supaul in the district of Saharsa. The application of the petitioner was admitted by this Court on 3-4-1970 and by order D/- 21-4-1970, this Court passed an order that pending the hearing of this application there would be a stay of the election of the Mukhiya of the said Panchayat.
2. In order to appreciate the point involved in this application it will be necessary to state briefly the facts.
On 4-3-1970, the petitioner filed a nomination paper along with four others including Sri Krityanand Misir. respondent No. 4. The nomination of the petitioner was accepted by the Block Development Officer, respondent No. 3. Against the acceptance of his nomination paper respondent No. 4 filed an application under Rule 23, Clause 4 of the Bihar Panchayat Election Rules (hereinafter referred to as the rules) before the Sub-Divisional Officer, respondent No. 2 who by the impugned order rejected his nomination paper mainly on the ground that the petitioner had taken Rs. 2,406.70 paisa on behalf of the Gram Panchayat for the construction of a sluice gate but the petitioner did not construct the same and it was alleged by respondent No. 4 that the petitioner had misutilised the entire money, in his personal share and interest. A certificate proceeding also was started against the petitioner to realise the amount but he had not deposited the certificate amount in the Government treasury. Even body warrant was issued against the petitioner and he was evading execution of the same.
The further allegation against the petitioner was that the money was not even entered in "Lekhanidhi Bahi" of the said Gram Panchayat In order to support the said contention respondent No. 4 had filed a certified copy of the certificate proceeding before the Sub-Divisional Officer which also indicated that the certificate proceeding was pending till then against the petitioner. Another certified copy of Gram Panchayat Case No. 8 of 1970 was filed by respondent No. 4 before the Sub-Divisional Officer to show that the petitioner had misutilised the amount. Before the Sub-Divisional Officer the petitioner admitted that he had received an advance as alleged in the capacity of a Mukhiya and executed an agreement of the said contract along with one member of the executive committee as required under law. He however stated that he had utilised the whole amount properly. In support of his statement he also filed an affidavit. The Sub-Divisional Officer, after hearing the parties and perusing the record held that he was satisfied that the petitioner had share and interest in the contract directly or indirectly and while entering into an agreement on behalf of the Gram Panchayat had misutilised the advanced amount for his own interest and at his own risk. On that ground respondent No. 2 rejected the nomination paper which was filed by the petitioner and set aside the order of the Block Development Officer, respondent No. 3. It is against this finding and the order that the petitioner has come up before this Court. Respondent No. 4 has also filed a counter-affidavit.
3. In spite of the said order of this Court dated 21-4-1970. the election of respondent No. 4 as Mukhiya was held on 25-4-1970. Thereafter on 12-5-1970, the petitioner filed on application dated 8-5-1970 in this Court for initiating a contempt proceeding against the Sub-Divisional Officer and Block Development Officer for disobedience of the said order. In that application the Sub-Divisional Officer was impleaded as respondent No. 1 and the Block Development Officer was impleaded as respondent No. 2. On 13-5-1970, this Court ordered issue of notice to the Sub-Divisional Officer and Block Development Officer for showing cause as to why a contempt proceeding be not started against them for disobeying the order of this Court dated the 21st April, 1970, staying the election of the said Gram Panchayat in spite of the petition along with stay order having been filed by the petitioner before them. It appears that those two contemners filed show cause and tendered an unqualified apology. This Court by an order dated 1-9-70, observed that the two contemners i.e., the Sub-Divisional Officer and the Block Development Officer were present in Court. Mr. Katariar, learned counsel for the contemners stated that his clients tendered unqualified apology in the case. They had not intentionally flouted the order of this Court. In that view, their apology was accepted and the contempt proceeding against them was dropped. It was however observed that the said order pass-by this Court was without prejudice to the case of the petitioner regarding the rejection of his nomination paper. The show cause petition filed by the Sub-Divisional Officer and the Block Development Officer in the contempt matter would be taken into consideration at the time of final hearing of the writ application. In paragraph 4 of the show cause the Sub-Divisional Officer as well as the Block, Development Officer stated that since the order of this Court was received the result of the poll was not sent for publication in the Bihar Gazette and the same was not published in the official gazette. Kirtyanand Missir was asked by the Election Officer not to bake oath of the office of Mukhiya of the said Gram Panchayat.
4. In this case respondent No. 4 on 21-4-1970, filed a counter-affidavit mentioned earlier, stating inter alia that the petitioner had defalcated the money belonging to the Gram Panchayat and thereby he had personal interest in the contract inasmuch as the contract money obtained by him was not entered in the 'Lekha Nidhi Bahi' and the goods received in kind for completion of the contract were also sold away by him and thereby the petitioner profited himself at the cost of the Gram Panchayat. A certificate 'Proceeding was also started against the petitioner on 6-7-1963 by the Block Development Officer which was registered as certificate case No. 265 of 1963-64 and body warrant was issued against him for his deliberately and intentionally evading the processes and till the date of the filing of nomination paper he did not pay the said certificate dues. It was further stated therein that the petitioner having realised that he was disqualified by his said acts and omission, deposited the certificate dues long after the rejection of his nomination paper, and just before filing his application in this Court. Therefore it was contended on behalf of respondent No. 4 that the petitioner had rightly been held by respondent No. 2 to be disqualified under Section 79 (1) (i) of; the Bihar Panchayat Raj Act, 1947 (hereafter referred to as the Act); the relevant portion of which reads as follows:--
"Notwithstanding anything contained in this Act a person shall be disqualified for election, nomination or appointment as a Mukhiya if such person has directly or indirectly any share or interest in any contract with, by or on behalf of the Gram Panchayat while owing such share or interest".
It was further contended on behalf of respondent No. 4 by learned counsel that the finding of facts by respondent No. 2 was based on the evidence on the record and this finding clearly disqualifies the petitioner under the aforesaid provision of the Act and as such the nomination, paper of the petitioner was rightly rejected.
5. In my opinion those findings are not sufficient to disqualify the petitioner under the aforesaid provision and to reject his nomination paper. Section 33 of the Act empowers the Government to entrust the Gram Panchayat to enter into a contract for certain purposes indicated therein. Section 34 of the Act further provides the liability against the members of the committee of the Gram Panchayat including the Mukhiya. It makes it clear that if there is any misappropriation or misconduct or neglect on the part of the members of the committee including the Mukhiya. Government shall have the power to institute a suit or case under the said section on its own initiative. Obviously, therefore for the alleged misdeed and acts of commission and omission on the part of the petitioner, there is ample power provided under Section 34 of the Act. In that view of the matter it was not the intention of the Legislature under Section 79 (1) (i) of the Act to disqualify a Mukhiya for misappropriation or his neglect or for not entering the amount in the 'Lekha Nidhi Bahi'. If the petitioner had some definite share in the contract which he had taken on behalf of the government then of course he might have been disqualified but there is no evidence on the record to establish that he had any definite share or profit or interest in the contract which he had entered into on behalf of the said Gram Panchayat.
It was further contended on behalf of respondent No. 4 that the impugned order was passed on the clear finding of facts, which should not be interfered with by this Court under Articles 226 and 227 of the Constitution as it requires investigation, since it is a disputed question of facts. In my opinion respondent No. 2 has erred in coming to the conclusion on those findings of facts, and the error is apparent on the impugned order itself. Therefore, this Court has ample jurisdiction under those articles to interfere with the said order. I find support of my views from the series of cases decided by this Court (Vide unreported judgment D/- 12-12-1961 by Untwalia. J. in Damodar Pd. Singh v. S. D O. Muzaffarpur, (Misc. Judl. Case No. 583 of 1961 (Pat)), and also vide unreported judgment, D/-20-4-1970 in Jahuri Mandal v. Chandra-mauleshwar Singh, (C. W. J. C. No. 514 of 1970) (Pat) by Kanhaiyaji. J.)
6. Lastly. It was contended on behalf of respondent No. 4 that since respondent No. 4 was already elected as Mukhiya, and since he was functioning, as such, the petitioner's remedy was not under writ jurisdiction, but the petitioner has alternative remedy, before the election tribunal. In a normal case no doubt I would have accepted this contention of the learned counsel, but in the instant case as stated earlier, respondent No. 4 was elected, as Mukhiya in spite of the stay order passed by this Court In this view of the matter the election of respondent No. 4, so held cannot be sustained, and it has got to be quashed. The impugned order dated 14-3-1970. passed by respondent No. 2 rejecting the nomination paper of the petitioner cannot be upheld and the same has also got to be quashed.
7. It is obvious that as a result of my order the declaration of respondent No. 4 as the duly elected Mukhiya of the said Panchayat shall stand cancelled, and the impugned order dated 14-3-1970 shall also stand quashed. It will now be for the appropriate authority to decide, and take such steps as it may deem fit and proper to take in the matter for holding fresh election in accordance with the rules in consequence of my order.
8. In the result, the application is allowed and the impugned order is quashed with the above direction. There will be no order as to costs, in the circumstances of the case.