Munshi Singh vs The Additional District Judge and Others

Ashok Bhan, J.—Elections for the post of Sarpanch and Panches of various Gram Panchayats in the State of Haryana ware held in the year 1988. Nomination papers for Gram Panchayat Kharak Kalan were to be filed before 12 00 Noon on 5-8-1988. Scrutiny of the nomination papers was to be held between 12-00 Noon to 1-00 p. m. on the same day. Election, if any, was to be held on the next day i. e. 6-8-1988.

Munshi Singh petitioner and respondents No. 5 to 8 filed their nomination pipers for the post of Sarpanch. Block Development and Panchayat Officer (for short B D & P O ) supplied a list of defaulters to the Returning Officer in which the name of the petitioner did not find mention. Petitioner''s nomination papers were thus entertained initially. At 12 30 p.m. when the scrutiny was going on, a letter written by B. D. & P. O. respondent No. 4 was produced before the Returning Officer purporting to be a notice in which some articles of Panchayat i.e. 13500 bricks, 5 RCC pipes, 30 empty cement bags 17 spades (Kassis) and 17 Taslas were shown to be due towards the petitioner. It was claimed by respondent No. 5 Ram Kumar who was ultimately elected as Sarpanch that the petitioner is not eligible to contest the election as he stood disqualified in terms of Section 5(5) (p) of the Punjab Gram Panchayat (Haryana Amendment) Act, 1980 (hereinafter referred to as the Act). Section 5(5) (p) of the Act is reproduced below : -

"Amendment of Section 5 of Punjab Act 4 of 1953 :-

In sub section (S) of Section 5 of the Punjab Gram Panchayat Act, 1952 (hereinafter referred to as the Principal Act)-

(i) after clause (o) the following clause shall be Inserted namely:-

(p) being a Sarpanch or Panch, has in his custody prescribed records and registers and other property belonging to, or vested in, the Panchayat and does not hand over the same in pursuance of a general or special order of the Block Development and Panchayat Officer within the time specified in the order, and

(ii) "shall, so long as the disqualification remains, be entitled to stand for election as, or continue to be, a Sarpanch or Panch."

Munshi Singh petitioner offered to deposit the price of the goods mentioned in the notice Ex. PW 5/3 under protest but his offer was not accepted as estimate of the goods had not been prepared. Munshi Singh petitioner thereafter was asked to go to the B D. & P.C. but- the B. D. & P. O. did not pass any order and the nomination papers of Munshi Singh petitioner were rejected. Thereafter, Munshi Singh petitioner filed a written application Ex. P W. 4/A for depositing the amount which was rejected by the Returning Officer, lime put on this application is 1 4 5 p m.

Ram Kumar respondent No. 5 was declared elected. Munshi Singh petitioner filed an election petition u/s 13-B of the Act on two grounds that his, nomination papers of the petitioner had been wrongly rejected and that the nomination papers of Ram Kumar were wrongly accepted. Prescribed Authority accepted the election petition on the ground that the nomination papers of Munshi Singh petitioner were wrongly rejected. No finding was recorded by the Prescribed Authority regarding the second ground that is the improper acceptance of the nomination papers of Ram Kumar respondent No. 5 The election of Ram Kumar respondent No. 5 as Sarpanch was set aside by the Prescribed Authority.

Being aggrieved, Ram Kumar elected Sarpancha carried an appeal before the Additional District Judge, Rohtak, who is the Appellate Authority under the Act against the order of Prescribed Authority. He challenged the finding of the Prescribed Authority on point No. 1 only. Munshi Singh petitioner did not file any cross-objection against the orders of the Prescribed Authority on the second point regarding wrongful acceptance of nomination papers of Ram Kumar. It is recorded by the appellate Authority in its order that second point regarding wrongful acceptance of nomination papers of Ram Kumar was not pressed before him in appeal. This point has not been argued before me either. Appellate Authority set aside she finding of the Prescribed Authority on the first ground and held that nomination papers of Munshi Singh petitioner were rightly rejected on the ground that being Ex. Sarpanch he had retained in his custody the property belonging to Gram Panchayat. It was held that Munshi Singh petitioner was served with a notice dated 13-7-1984 Ex P.W. 5/3 whereby he was called upon to deposit the articles mentioned in the said notice, i. e. 13500 bricks, 5 RCC pipes. 30 empty cement bags, 17 spades (Rassis) and 17 Taslas, by 20-7-1985. Munshi Singh petitioner did not comply with the said direction and hence he stood disqualified for the election to the post of Sarpanch in terms of Section 5(5) (p) of the Act. Aggrieved against the order of the Appellate Authority. Muashi Singh petitioner has come before this Court by way of the present writ petition under Article 226 of the Constitution.

Learned counsel appearing for the petitioner has argued that u/s 5(5) (p) of the Act only such Panch or Sarpanch who has in his custody the property belonging to or vested in, the Panchayat and does not hand over the same in pursuance of a general or special order of the Block Development and Panchayat Officer within the time specified in the order, is disqualified from contesting the election. His submission is that no order had been passed by the B D. & P. O. after hearing and determining the rights of the parties holding that petitioner was in custody of the property belonging or vested in the Panchayat and that he did not hand over the same to the Panchayat Officer within the time to be specified The petitioner had contested the notice EX. P. W: 5/3 issued to him and pleaded that nothing was due from him. No enquiry was held after that reply had been filed by the petitioner and no order thereafter was passed by the Block Development and Panchayat Officer In the absence of any such order having been passed, petitioner could not he held to be disqualified from contesting the election to the office of Sarpanch. I find force in the submission of learned counsel for the petitioner. Until and unless B. D & P. O. had passed an order after hearing the person concerned holding that he was in possession of the property belonging to or vested in the Panchayat and did not hand over the same to the Panchayat Officer within the time to be specified asking him to deposit the same, only then he could have been held to be disqualified from contesting the election within the meaning of Section 5(5) (p) of the Act. No action was taken by the Block Development and Panchayat Officer for a period of three years and in fact the name of the petitioner did not find mention in the list of defaulters which was sent by the Block Development and Panchayat Officer to the Returning Officer responsible for holding the election. A notice dated 13-7-1985 Ex. P. W. 5/3 purporting to have been issued by B. D. & P. O. to the petitioner was produced before the Presiding Officer after the nominations were closed who on the basis of that notice held the petitioner to be disqualified for contesting the election. Petitioner offered to deposit the estimated value of the goods under protest to enable him to contest the election. Even this genuine offer of the petitioner was not accepted. In my view, fox P. W. 5/3 was only a notice issued to the petitioner asking him to deposit the goods mentioned in the notice within one week. Petitioner had contested his liability to do the same. 8. D.& P O. should have after hearing the parties, pissed an order determining the rights of the parties. In my view, bad he been held guilty that would have been the order the non-compliance of which would have disqualified the petitioner to contest the election within the meaning of Section S(5) (p) of the Act.

Petitioner''s name did not find mention in the list of defaulters and objections regarding his ineligibility to contest the election was taken by Ram Kumar respondent at the eleventh hour and the petitioner sought the permission of the Returning Officer to deposit the estimated cost of the articles mentioned in the notice subject to petitioner''s right to contest his liability to pay the same Returning Officer on the peculiar facts of this case should have permitted the petitioner to deposit the estimated cost of articles mentioned in the notice as the petitioner did not have any time at his disposal to get his name cleared from the office of B. D. & P. O. Valuable right of the petitioner to contest the election could not be taken away under the facts and circumstances of the present case.

In addition to this, petitioner had not remained Sarpanch since June 1983 after his defeat.

Section 105 (4) of the Act is reproduced below : -

"(4) Notwithstanding anything contained in this section, no person shall be called upon to explain why he should not be required to make good any loss, after the expiry of six year from the occurrence of the loss, waste or misapplication, or after the expiry of two years from his ceasing to be a member whichever is earlier".

No recovery could be made from a Panch or Sarpanch after two years from relinquishing the office. The petitioner in this case had relinquished his office in June 1983 whereas the notice u/s 105 (4) of the Act was issued to him in July, 1985, i. e. after a lapse of more than two years from the petitioner''s ceasing to be a Sarpanch. Since the petitioner could not be fastened with the liability that he was in possession of the property belonging to the Panchayat, in my view, he could not held to bi in custody of the property belonging to the Panchayat which he failed to deposit on being asked to do the same by the Block Development and Panchayat Officer by passing an order. Since the petitioner could not be fastened with that liability under the Act, he could not be held to be ineligible to contest election and the order dis- qualifying him from contesting the election to she office of Sarpanch u/s 5(5) (p) of the Act, is invalid. In my view, the nomination papers of the petitioner had been illegally rejected.

It is well settled proposition that illegal rejection of Domination papers of a candidate leads to the vitiation of election and the sama deserves to be set aside as illegal rejection of the nomination papers materially effects the result of the election.

For the reasons recorded above, this writ petition is accepted. Order of the Appellate Authority is set aside and that of the Prescribed Authority is restored Election of the officer of Sarpanch Gram Panchayat Kharak Kalan is set aside. No costs.