Madhya Pradesh High Court
Ashok Kumar Rawat vs State Of M.P. And Ors. on 30 April, 2002
Equivalent citations: 2002(4)MPHT246
Author: Rajendra Menon
Bench: Rajendra Menon
ORDER Rajendra Menon, J.
1. Petitioner by this petition has challenged the notification, Annexure P-1 issued under the provisions of Rule 22 of the Panchayat (Up-Sar-panch, President and Vice-President) Nirvachan Niyam, 1995 by which the respondent No. 6 has been declared elected to the post of Vice-President in the reserved category of Scheduled Tribe.
2. It is the case of the petitioner that respondent No. 6 is Sapera by caste and according to the Presidential notification issued under Article 342 of the Constitution of India. Sapera comes within the Scheduled Caste and not under the Scheduled Tribe. It is also the case of the petitioner that under the Constitution Scheduled Tribes Order, 1950, Sapera has been entered in the category of Scheduled Caste person and the respondent No. 6 is not a Scheduled Tribe person. Accordingly, he is not entitled to be appointed to the post of Vice-President in a seat reserved for Scheduled Tribe candidate.
3. The respondents have filed return and it is submitted that respondent No. 6 is a member of the Scheduled Tribe and in support thereof, they have placed reliance on certain notifications issued under Section 165 of the Madhya Pradesh Land Revenue Code.
4. On behalf of respondent No. 6, it is stated that he belongs to the Scheduled Tribe, along with his nomination form, necessary certificates were submitted by him and on the basis of the said certificates only, he was permitted to contest the election. Accordingly, it is stated that there is no merit in the claim made by the petitioner.
5. A preliminary objection has been raised and it is averred that the petition is not maintainable before this Court. It is submitted that the elections in the instant case were held under the provisions of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as the 'Adhiniyam of 1993'). There is a specific provision for filing of an election petition. It is accordingly, submitted that in view of the provision contained in Article 243O(b) of the Constitution of India, no petition calling in question election to the Panchayat is maintainable.
6. Placing heavy reliance on the aforesaid Article of the Constitution of India, it is submitted by Shri Arvind Dudawat, learned Counsel for the respondent No. 6 that the present petition is not at all maintainable.
7. Per contra, Shri S.B. Mishra, learned Senior Advocate appearing for the petitioner placing reliance on a judgment of the Supreme Court in the case of K. Venkatachalam v. A. Swamickan and Anr., AIR 1999 SC 1723, it is urged that when a person lacks basic qualification for contesting the election and when he is disqualified, constitutional bar provided under Article 243O(b) of the Constitution is not applicable. It is submitted by the learned Senior Advocate for the petitioner that in the instant case, admittedly, the seat is reserved for a Scheduled Tribe candidate. From the documents on record, i.e., the particulars of the khasra entries wherein the name of the respondent No. 6 and his father is given, it is recorded that they are Sapera by caste and Sapera comes within the category of Scheduled Caste category as per the Presidential Notification, Annexures P-3 and P-4. Accordingly, he is disqualified and that being so, the petition is maintainable.
8. In support of his contention, Shri Arvind Dudawat, learned Counsel for the respondent No. 6 has placed reliance on the judgments of this Court in the case of Sugna Bai v. Election Officer, Gram Panchayat Bammi Bujurga, Tahl. Kannod, Dewas and Ors., 1996 MPLJ 134 and State Election Commission, Bhopal v. Ras Bihari Raghuwanshni and Ors., AIR 1995 MP 245. Apart from this, he has placed reliance on the following judgments :--
Mohnider Singh Gill and Anr. v. The Chief Election Commission, New Delhi and Ors., AIR 1978 SC 851. Krishna Ballabh Prasad Singh v. Sub-Divisional Officer Hilsa-cum-Returning Officer and Ors., AIR 1985 SC 1746, and The Election Commission of India v. Shivaji and Ors., AIR 1988 SC61 and contended that the petition is not maintainable.
9. The question that requires consideration in the present petition is, whether in the facts and circumstances of the present case, the writ petition is maintainable. Article 243O(b) of the Constitution creates a total bar. According to the aforesaid Article in cases of Panchayat elections when a provision for election petition is provided, no writ petition is maintainable and cognizance of a writ petition is totally prohibited. A plain reading of the aforesaid Article makes it clear that no writ petition can be entertained in such cases. However, the aforesaid has to be considered in the light of the law laid down by the Supreme Court in the case of K. Venkatachalam (supra).
10. In the aforesaid case, the question was with regard to maintainability of a petition challenging the election to the Legislative Assembly. Supreme Court, in that case, considered the disqualification of the elected person in the light of the provisions of the Representation of People Act and it came to the conclusion that one of the essential conditions for contesting the election to the Legislative Assembly was, that person should be a voter in a particular constituency. As the person concerned was not a voter in a particular constituency and his name did not find place in the Voter List, he was not qualified to contest the election. It was under those circumstances that the Supreme Court came to the conclusion that the candidate lacks basic qualification to contest the election.
11. Shri S.B. Mishra, learned Senior Advocate argued that similar provision with regard to disqualification of a candidate is contained in the Adhiniyam of 1993 and Section 36 provides for disqualification.
12. Both the learned Counsel elaborately referred to each and every item in the said provision and ultimately it was submitted by Shri Mishra that the disqualification contained in Section 36 (1) (i) is attracted in the present case. The said clause reads as under :--
"is so disqualified or under any law made by the Legislature of the State."
13. Aperusal of the above indicates that a person has to be disqualified by or under any law made by the Legislature of the State. In the present case, I am of the opinion that this provision cannot be brought into effect. The question in the present case is with regard to social status of the respondent No. 6. Even though, the petitioner prima facie has tried to establish that he belongs to Sapera by caste and by placing reliance on entries made in certain khasras, it is demonstrated that he belongs to a Scheduled Caste and not Scheduled Tribe. But the respondent No. 6 has made and having specifically stated that he has filed his caste certificate before the Election Officer and it was only after the caste certificate was scrutinized that he was permitted to contest. That being so, there is a serious dispute between the parties with regard to social status of the respondent No. 6. This requires adjudication of the matter. Apart from this, election rules known as Madhya Pradesh Panchayat (Up-Sarpanch, President and Vice-President) Nirvachan Niyam, 1995 have been framed. In the said election rules provision for nomination paper, scrutiny of nomination paper and various other procedures have been prescribed. If the petitioner has any objection, he should have immediately objected at the time of submission of nomination paper by the respondent No. 6 and at the time of scrutiny of nomination paper. It seems that no such objection was raised at the time of scrutiny of nomination papers before the Election Officer. It is for the first time that a dispute has been brought before this Court in the form of present petition challenging the social status of the petitioner. In the opinion of this Court, determination of the social status of the respondent No. 6 and the fact with regard to his being member of the Scheduled Caste or Scheduled Tribe cannot be decided only on the basis of the affidavits and documents brought on this record. For this, the petitioner has to raise a dispute before the Election Tribunal and it will be the appropriate authority to decide the dispute on the basis of the evidence. This is not a case where the disqualification prescribed under the law is apparent on the face of the record, as laid down by the Supreme Court in the case of K. Venkatachalam (supra). In this view of the matter, the law laid down by the Supreme Court in the case of K. Venkatachalam (supra) is not applicable in the present case.
14. The Supreme Court in the case of The Election Commission of India (supra), has held that a writ petition challenging the election is not maintainable. In that case the provision of Article 329(b) of the Constitution was considered, which is pari materia with Article 243O of the Constitution. In that case, after considering the provisions of laws, it has been held that in view of the non-obstante clause contained in Article 329(b) of the Constitution, the power of the High Court of entertain a petition questioning an election of whatsoever grounds under Article 226 of the Constitution is taken away. It has been held in the said case that the word "election" has a long usage and the process of selection of a proper representative starts from the notification of the election to the declaration of the results and accordingly, it has been held that a petition under Article 226 of the Constitution of India is not maintainable for the purpose of challenging an election. Similarly non-obstante clause as contained in Article 329 of the Constitution is also present in Article 243O(b) of the Constitution and in view of the categorical enunciation of the law in the aforesaid case, a petition under Article 226 is not maintainable in the present case also.
15. Considering the present case, in the light of the aforesaid, I am of the considered view that the present petition is also not maintainable. The argument of the learned Counsel placing reliance in the case of K. Venkatachalam (supra) is distinguishable in view of the fact that the basic disqualification which was available in that case is lacking in the present case. The present case is not a case where it can be said that the respondent No. 6 lacks the basic qualification as provided for contesting the election. On the contrary the question with regard to the social status of the respondent No. 6 requires determination on the basis of the evidence that may be led by the parties. Accordingly, I have no hesitation in holding that the petitioner has a remedy to approach the Election Tribunal.
16. Accordingly the petition is dismissed. The interim order passed by this Court on 9-4-2001 would stand vacated in view of the dismissal of the petition.