Madhya Pradesh High Court
Kamlesh Singh Gond vs State Of M.P. on 17 March, 2020
Author: Vishal Dhagat
Bench: Vishal Dhagat
1
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
Writ Petition No. 19884 of 2019
Parties Name Kamlesh Singh Gond
Vs.
State of Madhya Pradesh and others.
Writ Petition No. 527 of 2018
Parties Name Munna Singh
Vs.
State of Madhya Pradesh and others.
Bench Constituted Single Bench
Judgment delivered by Hon'ble Shri Justice Vishal Dhagat.
Whether approved for Yes/No
reporting
Name of counsel for parties For petitioner: Shri Arpan Pawar,
(In W.P. No.19884/2019) Advocate.
For respondent No.1 to 4/State: Shri S.P.
Mishra, Government Advocate.
For respondents No. 5 and 7: Shri Premendra Singh, Advocate.
Name of counsel for parties For petitioner: None. (In W.P. No.527/2018) For respondents/State: Shri S.P. Mishra, Government Advocate.
For caveator: Shri Pramendra Singh, Advocate.
Law laid down Significant paragraph numbers (O R D E R) 17.03.2020 In W.P. No.19884/2019:
1. Petitioner has filed the present writ petition being aggrieved by the order dated 04.04.2019 (Annexure P/11) passed by the Collector, Umaria and also the order dated 30.07.2019 (Annexure P/12) passed by the Chief Executive Officer, Janpad Panchayat Karkeli, District Umaria.
2. Brief facts of the case are as under :
a. A proceeding under Section 40 of Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 was instituted against respondent No.6-Munna Singh. In the said proceedings, vide order dated 03.07.2017, Munna Singh, Sarpanch of Gram Panchayat Majhouli Khurd, Janpad Panchayat Karkeli, District Umaria was removed from the post of Sarpanch and further disqualified to contest the elections for a period of six years.
b. Respondent No.6-Munna Singh assailed the said order passed by the Chief Executive Officer, Jila Panchayat, Umaria in appeal before the Commissioner, Shahdol Division, Shahdol. Learned Additional Commissioner vide order dated 27.07.2017 stayed the order of Chief Executive Officer, Jila Panchayat, Umaria and finally the order passed by the Chief Executive Officer dated 03.07.2017 was set aside by the Commissioner on 06.08.2018 and matter was remanded back to pass fresh orders after hearing the appellants. The order of Commissioner was challenged in W.P. No.20681/2018 by one Ramesh Singh. Said petition was disposed off by this Court on 05.10.2018 and the order passed by the Commissioner dated 06.08.2018 was confirmed and further a direction was given to conclude the enquiry and pass final orders within a period of three months. Chief Executive Officer reconsidered the matter after giving notices to respondent No.6 and passed final orders on 28.01.2019. In said order, earlier order dated 03.07.2017 was reasserted and respondent No.6 was removed from the post of Sarpanch with disqualification to contest election for a period of six years. The order passed by the Chief Executive Officer dated 28.01.2019 was challenged in appeal No.193/2016-17 before Commissioner, Shahdol. In the said appeal, an application was filed for staying the order of Chief Executive Officer dated 28.01.2019. Learned Commissioner in appeal No.67/2018- 19 considered the Interlocutory Application for grant of interim relief and had rejected it on 25.02.2019. In the light of the order passed by the Commissioner dated 25.02.2019, there is no stay operating in favour of the respondent No.6.
3. Another application was filed before Collector challenging the order passed by Chief Executive Officer, Janpad Panchayat, Karkeli dated 04.02.2019, by which officiating Sarpanch was appointed in Gram Panchayat, Majhouli Khurd. Collector vide its order dated 04.04.2019 stayed the order of Chief Executive Officer, by which officiating Sarpanch was appointed. Collector held that since High Court has stayed election notification of Sarpanch, Gram Panchayat Majhouli Khurd, therefore, Chief Executive Officer could not have appointed officiating Sarpanch.
4. Now the question before this Court is whether the Collector has rightly passed the impugned order dated 04.04.2019.
5. In W.P. No.527/2018, this Court has directed that election as per notification Annexure P/7 for the post of Sarpanch Gram Panchayat Majhouli Khurd shall remain stayed. The reason for staying the election was that Commissioner by an interim order had stayed the order passed by the Chief Executive Officer dated 03.07.2017. Since the order of removal of Sarpanch has been stayed, therefore, no post has fallen vacant and therefore, fresh notification for conducting election could not be issued.
6. The Collector, Umaria failed to take into consideration the fact that appeal, which was pending before the Commissioner, in which stay has been granted on 03.07.2017 has already been disposed off and matter has been remanded before the Chief Executive Officer for fresh decision on the application filed under Section 40 of Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 against Sarpanch-Munna Singh. Thereafter, Chief Executive Officer has passed order on 28.01.2019 and respondent No.6 has been removed from the post of Sarpanch.
Since the order passed by Chief Executive Officer, Jila Panchayat, Umaria dated 28.01.2019 is under challenge in appeal before Commissioner, Shahdol, the application for stay was also filed for staying the order of removal of Sarpanch dated 28.01.2019 and same has been rejected by Commissioner, Shahdol on 25.02.2019. There is no stay order operating against removal of Sarpanch, therefore, the post of Sarpanch has fallen vacant, as on today, therefore, the Collector had committed an error in relying on the stay order dated 12.01.2018 passed in W.P. No.527/2018.
7. In view of the aforesaid facts and circumstances of the case, writ petition No.19884/2019 filed by the petitioner is allowed and the impugned order dated 04.04.2019 (Annexure P/11) passed by the Collector, Umaria is quashed. Order dated 30.07.2019 (Annexure P/12) passed by the Chief Executive Officer, Janpad Panchayat Karkeli, District Umaria is consequential order passed on basis of direction issued by Collector in its order 04.04.2019. Since order of Collector is quashed, resultantly, order dated 03.07.2019 (Annexure P/12) is also quashed.
In W.P. No.527/2018 :
1. Petitioner in this writ petition has challenged Annexure P/7, dated 27.12.2017, by which notification was issued for conduct of election under Madhya Pradesh Panchayat Nirwachan Niyam, 1995.
2. The aforesaid notification was challenged on the ground that post of Sarpanch, Gram Panchayat Majhouli Khurd, Janpad Panchayat Karkeli, District Umaria is not vacant. Chief Executive Officer has passed order dated 03.07.2017, by which Sarpanch of Gram Panchayat Majhouli Khurd was removed from the post, but latter on the order of Chief Executive Officer has been stayed by the Commissioner, Shahdol on 03.07.2017. Because of said order passed by Commissioner, petitioner Munna Singh continued to remain Sarpanch of Gram Panchayat Majhouli Khurd, therefore, notification could not be issued and same is illegal.
3. The writ petition filed by the petitioner has become infructuous. The Commissioner vide its order dated 06.08.2018 has remanded the matter back to Chief Executive Officer for deciding it afresh and had set aside the order dated 03.07.2017, thereafter, Chief Executive Officer after giving opportunity of hearing to the petitioner passed the order dated 28.01.2019, by which, petitioner has been removed from the post of Sarpanch.
The appeal was preferred before the Commissioner alongwith application for staying the order of Chief Executive Officer. The Commissioner has also dismissed the application for stay on 25.02.2019.
4. In view of above, there is no stay over the order of removal of Sarpanch and post has fallen vacant, therefore, the writ petition No.527/2018 filed by the petitioner is dismissed.
(Vishal Dhagat) Judge vkt Digitally signed by VINOD KUMAR TIWARI VINOD KUMAR DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482002, st=Madhya Pradesh, TIWARI 2.5.4.20=c3a773822dd60058372dba984a8595fa55 6ca32c10ef613cc76f9f59c60d4d85, cn=VINOD KUMAR TIWARI Date: 2020.03.18 14:38:22 +05'30'