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2008(3) JLJ 64
Abhay M. Naik, J.
Bhurneshwar Prasad alias Guddu Dixit v. State of M.P. and others
Writ Petition No.3140 of 2007 (Jabalpur);
Decided on 10.4.2008.
Respondent No.5, a defeated candidate, filed a petition under section 122 of the M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 on the ground that the elected Sarpanch (petitioner), in his affidavit, had admitted having four children. His fourth child was born on 13.5.2003 whereas in the affidavit the child is shown to have been born before 26.1.2001 which being a false statement, he is disqualified under section 36(1)(m). [Para 2
Held: Petitioner was admittedly served with the show cause notice by respondent No.2. She did not submit any reply to the petition which was directed to be decided by this Court vide Annexure R-1. She did not submit any written statement before the Collector, Katni and did not take any specific stand that the fourth child was born on any particular date prior to 26.1.2001. She had filed written submissions before the Collector, Katni which is on record as Annexure P-6. Even in the written submissions, no date was specified with respect to date of birth of the fourth child. The defence of the petitioner was merely of denial without taking any specific stand. On the other hand doctor‘s certificate Annexure P-10 is on record which certifies that the fourth child was born on 13.5.2003. This certificate was prepared and issued on the basis of various authentic record like Annexure P-9 and P-11 to P-14. True copy of the birth register is on record wherein the child is shown to have been born on 13.5.2003. Mrs. Dorothy Charles was examined who was working on the post of ANM in the Primary Health Centre, Vijayraghavgarh. Medical Officer, namely, Dr. Vinod Kumar was also examined who verified that the last issue of the petitioner was born on 13.5.2003. Thus, in the light of the evidence on record, it is found that the Collector, Katni has not recorded any perverse finding in holding that the; last child of the petitioner was born after 26.1.2001. This apart, Smt. Kalpana Tiwari has also been examined who was Anganwadi Worker in village Badari. The case before the Collector, Katni proceeded on the basis of preponderance of probabilities and in the absence of any evidence by the petitioner, the Collector is not found to have recorded any perverse finding. [Para 13
(2) Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (M.P.) -- Ss.36(1)(m) -- deleted by M.P. Panchayat Raj Evam Gram Swaraj (Sanshodhan) Adhiniyam, 2006 published in M.P. Gazette (Extraordinary) dated 1.9.2006 -- deletion has been effected in prospective manner -- election held, result declared and affidavits submitted before 1.9.2006 -- on all crucial dates, clause (m) was in force -- disqualification incurred. [Para 12
(3) Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (M.P.) -- Ss.36(2)(a) and 122 -- disqualification u/s 36(1)(m) concealed by elected Sarpanch -- not decided in election petition preferred u/s 122 -- there is no legal impediment in directing Collector to decide, the petition u/s 36. [Paras 10 & 12
(4) Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (M.P.) -- Ss.36 and 122 -- election petition u/s 122 treated as one u/s 36 -- limitation does not apply. [Para 14
(5) Constitution of India -- Art.227 -- writ petition already admitted -- cannot be dismissed on ground of alternative remedy. AIR 1971 SC 33 followed. 1986 MPLJ 561 relied on. [Para 6
¼1½ iapk;r jkt ,oa xzke Lojkt vf/kfu;e] 1993 ¼e-iz-½ && /kkjk 36¼1½¼³½ rFkk 36¼3½ ijarqd && /kkjk 36¼1½¼³½ ds v/khu fujgZrk && f‘k‘kq ds tUe ds fnukad ds ckjs esa fdlh fofufnZ"V vk/kkj ds fcuk ek= izR;k[;ku }kjk izfrokn && tcfd fuokZpu vthZnkj }kjk fpfdRld dk izek.ki=] tUe jftLVj dh lR; izfrfyfi izLrqr && tUe&frfFk ds ckjs esa fpfdRld dh ijh{kk Hkh dh && lquokbZ dk volj iznÙkA
ijkftr vH;FkhZ izR;FkhZ Ø-5 us e-iz- xzke Lojkt ,oa iapk;r jkt vf/kfu;e] 1993 dh /kkjk 122 ds v/khu fuokZpu vthZ bl vk/kkj ij qkby dh fd fuokZfpr ljiap ¼;kph½ us vius ‘kiFki= esa pkj larku gksuk Lohdkj fd;k gSA mldh pkSFkh larku dk tUe 13-5-2003 dks gqvk Fkk tcfd ‘kiFki= esa larku dk tUe 26-1-2001 ds iwoZ gksuk crk;k x;k gS tks feF;k dFku gksus ds dkj.k og /kkjk 36¼1½¼³½ ds v/khu fujgZ gSA ¿ iSjk 2
vfHkfu/kkZfjr % Lohd`r :i ls ;kph ij izR;FkhZ Ø-2 }kjk dkj.k crkvks lwpuk rkehy dh xbZ Fkh] mlus bl U;k;y; dks mikca/k vkj&1 }kjk fufnZ"V ;kfpdk dk dksbZ mÙkj izLrqr ugha fd;k tks bl U;k;ky; }kjk fu.khZr dh tkuk FkhA mlus dyDVj dVuh ds le{k dksbZ fyf[kr mÙkj izLrqr ugha fd;kA mlus dksbZ ,slk fofufnZ"V fnukad dks gqvk FkkA mlus dyDVj dVuh ds le{k fyf[kr mÙkj izLrqr fd;k Fkk tks mikca/k ih&6 dh Hkk¡fr vfHkys[kxr gSA fyf[kr fuosnuksa esa Hkh pkSFks f‘k‘kq ds tUe dh dksbZ rkjh[k fofufnZ"V ugha FkhA ;kph dk izfrokn fcuk fdlh fofufnZ"V vk/kkj ds ek= izR;k[;ku dk FkkA nwljh vksj] fpfdRld dk izek.ki= mikca/k ih&10 vfHkys[kxr gS ftlesa izekf.kr fd;k x;k gS fd pkSFks f‘k‘kq dk tUe 13-5-2003 dks gqvk FkkA ;g izek.ki= mikca/k ih&9] ih&11 ls ih&14 ln`‘k vusd izkekf.kd vfHKys[kksa ij ls rS;kj fd;k x;k FkkA tUe jftLVj dh izfrfyfi vfHkys[kxr gS ftlea f‘k‘kq dk tUe 13-5-2003 dks gksuk crk;k x;k gSA Jherh MksjksFkh pkYlZ dh ijh{kk dh xbZ tks izkFkfed LokLF; dsanz fot;jk?kox<+ ij ,-,u-,e- ds in ij dk;Z dj jgh FkhaA fpfdRlk vf/kdkjh] uker%] Mk- fouksn dqekj dh Hkh ijh{kk dh xbZ gS ftUgksaus lR;kfir fd;k gS fd ;kph dh vafre larku dk tUe 13-5-2003 dks gqvk FkkA bl izdkj] vfHkys[kxr lk{; ds izdk‘k esa ;g ik;k tkrk gS fd dyDVj dVuh us ;g vfHkfu/kkZfjr djus esa fd ;kph dh vafre larku dk tUe 26-1-2001 ds i‘pkr~ gqvk Fkk] dksbZ foi;ZLr fu"d"kZ vfHkfyf[kr ugha fd;k gSA blds vfrfjDr] Jheku dYiuk frokjh dh Hkh ijh{kk dh xbZ gS tks xzke cMkjh esa vk¡xuokM+h dk;ZdrkZ FkhA dyDVj dVuh ds le{k ekeys esa dk;Zokgh vf/klaHkkO;rk dh izcyrk ds vk/kkj ij dh xbZ rFkk ;kph dh vksj ls fdlh lk{; ds vHkko esa] dyDVj }kjk dksbZ foi;ZLr fu"d"kZ fudkyk x;k ugha ik;k x;k gSA ¿ iSjk 13
¼2½ iapk;r jkt ,oa xzke Lojkt vf/kfu;e] 1993 ¼e-iz-½ && /kkjk 36¼1½¼³½ && e-iz- jktki= ¼vlk/kkj.k½ vnukad 1-9-2006 esa izdkf‘kr e-iz- iapk;r jkt ,oa xzke Lojkt la‘kks/ku vf/kfu;e }kjk gVk;k x;k && Hkfo";y{kh izHkko ls gVk;k x;k && 1-9-2006 ds iwoZ fuokZpu laiUu gqvk] ifj.kke ?kksf"kr fd;k x;k rFkk ‘kiFki= izLrqr fd;k x;k && leLr fu.kkZ;d fnukadksa dks [kaM ¼M½ izHkko‘kh Fkk && fujgZrk mixrA ¿ iSjk 12
¼3½ iapk;r jkt ,oa xzke Lojkt vf/kfu;e] 1993 ¼e-iz-½ && /kkjk 36¼1½¼M½ rFkk 36¼d½ rFkk 122 && /kkjk 36¼1½¼M½ ds v/khu fujgZr ljiap }kjk fNikbZ xbZ && /kkjk 122 ds v/khu dh xbZ fuokZpu vthZ esa fofuf‘pr ugha dh xbZ && /kkjk 36 ds v/khu fofuf‘pr fd, tkus dk dyDVj dks funsZ‘k esa dksbZ dkuwuh ck/kk ugha gSA ¿ iSjk 10 ,oa 11
¼4½ iapk;r jkt ,oa xzke Lojkt vf/kfu;e] 1993 ¼e-iz-½ && /kkjk 36 rFkk 122 && /kkjk 122 ds v/khu fuokZpu vthZ /kkjk 36 ds v/khu dh Hkk¡fr ekuh xbZ && ifjlhek ykxw ugha gksrhA ¿ iSjk 14
¼5½ Hkkjr dk lafo/kku && vuq-227 && fjV ;kfpdk igys&gh xzg.k dh xbZ && vkuqdYih mipkj ds vk/kkj ij [kkfjt ugha dh tk ldrhA , vkb vkj 1971 ,l lh 33 vuqlfjr rFkk 1986 ,e ih ,y ts 561 voyafcrA ¿ iSjk 6
1. Petitioner has challenged the order dated 16.1.2007 (Annexure P-1) passed by the Collector, Katni disqualifying thereby the petitioner from the, post of Sarpanch.
2. Facts in brief are that the election for the post of Sarpanch of Gram Panchayat Badari, Tahsil Vijayraghavgarh, District. Katni was held on 23.1.2005. Petitioner was elected as Sarpanch in the result declared on 27.1.2005. Respondent No.5, a defeated candidate on the post of Sarpanch submitted WP No.947/2005 which was withdrawn on 29.3.2005 with liberty to file an election dispute. Thereafter on 5.5.2005 he submitted a petition (Annexure P-3) in the form election petition under section 122 of the M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as "Panchayat Raj Adhiniyam" for brevity) before the Sub-Divisional Officer, Vijayraghavgarh on the ground that the petitioner on 29.12.2004 had submitted nomination form, affidavit and declaration. In paragraph 7 of the affidavit, he admitted to have four children. His fourth child was born on 13.5.2003 whereas in the affidavit the child is shown to have been born before 26.1.2001 which being a false statement, he has committed an offence. This was objected to in writing by respondent No.5 before the Collector alongwith documentary proof. However, the nomination form of the petitioner was accepted contrary to law by respondent No.2 under political pressure. Accordingly, it was prayed in the petition that the election of the petitioner on the post of Sarpanch may be declared null and void.
3. Since, the petition involved a question of disqualification on ground under section 36(1)(m) of Panchayat Raj Adhiniyam and jurisdiction to decide such a dispute vested in Collector by virtue of sub-section (3) of Section 36, learned SDO Vijayraghavgarh vide order dated 5.8.2005 referred the matter to the Collector, Katni. Collector, Katni after receipt of the case did not take requisite steps in the matter, therefore, respondent No.5 submitted WP No. 13747/2006. It was disposed of on 4.10.2006 vide Annexure R-l with the following operative portion:
"Considering the short grievance of the petitioner, matter is pending before the Collector, Katni as referred by the SDO by the order Annexure P-5 dated 5.8.2005 which deserves to be heard and decided by the Collector, Katni expeditiously. This petition is finally disposed of with following directions:
(i) Petitioner may file an application for expeditious hearing of the matter to the Collector, Katni. Alongwith the application, petitioner shall enclose copy of this petition and order dated 5.8.2005 of the SDO Vijayraghavgarh for ready reference of the Collector, Katni.
(ii) On filing aforesaid application, the Collector, Katni shall look into the matter and expedite the hearing of the case and shall make all endeavour to decide the matter expeditiously as far as possible within three months from the date of receipt of the aforesaid application."
4. In pursuance of Annexure R-1, learned Collector, Katni recorded the evidence and passed a final order on 16.1.2007 which is impugned herein as Annexure P-1.
5. Shri Rohit Arya, learned Senior Advocate, Shri G.P. Singh, learned Government Advocate and Shri R.S. Verma, learned Advocate made their extensive submissions.
6. As a preliminary objection, it is contended that the order under section 36 of the Panchayat Raj Adhiniyam is appealable. The petitioner ought to have availed the alternative remedy under the provisions of M.P. Panchayat (Appeal and Revision) Rules, 1995. Suffice it to say, that the writ petition having been admitted on 12.3.2007, it would not be proper to dismiss the petition on the ground of availability of alternative remedy. This is a settled position of law as laid down by the apex Court in the case of Hirday Narain v. Income Tax Officer, Bareilly [AIR 1971 SC 33]. Division Bench of this Court also following the decision of the apex Court in Hirday Narain's case (supra) held in the case of Tata
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