Omprakash Dewangan vs Chhattisgarh State Election Commission and Others

Dhirendra Mishra, J.—The Petitioner by the instant petition has questioned the legality and validity of the order dated 1 -5-2009 (Annexure-P/1) and the order of Annexure-P/20 dated 1-5-2009 whereby the State Election Commission (for brevity ''the Commission''), Respondent No. 1, has disqualified the Petitioner, who was elected as President of Municipal Council, Birgaon, for a period of 5 years from being the President or Member of the Municipal Council u/s 32C of the Chhattisgarh Municipal Council Act, 1961 (for short the Act'').

The facts necessary for adjudication of this petition are that the Petitioner was elected as President of Birgaon Municipality on 19-12-2004. He submitted account of election expenses before the Chief Municipal Officer (for short ''the CMO'') on 17-1-2005, which was forwarded to the District Election Officer, Raipur (for short ''the DEO'') on 18-7-2005. The Petitioner was served with a show cause notice dated 19/21 -4-2005 by the Commission (Annexure-P/4). The Petitioner replied to the said notice on 1 -8-2006 (Annexure-P/5) and stated that he has already submitted his election expenses account on 17-1-2005. The DEO vide his memo dated 5-11-2005 (Annexure-P/6) addressed to the Commission communicated that the Petitioner had submitted election expenses account to the CMO, Birgaon on 17-1-2005, which was forwarded by him to his office on 18-7-2005. The Commission by its order in the note-sheet dated 14-8-2006 (Annexure-P/7) accepted the election expenses account submitted by the Petitioner.

Respondent No. 5 filed a complaint on 9-11 -2006 (Annexure-P/] 0) before the Commission and prayed for taking action against the Petitioner u/s 32C of the Act whereupon another show cause notice dated 14-3-2007 (Annexure-P/11) was issued to the Petitioner, which was replied by the Petitioner vide Annexure-P/12. The Commission vide its order dated 11-4-2007 rejected the complaint of Respondent No. 5.

Respondent No. 5 filed a Writ Petition No. 2846/2007 and challenged the order dated 11-4-2007 passed by the Commission whereby his complaint against the Petitioner was rejected. The same was allowed vide order dated 17th March, 2009 (Annexure-P/16). Quashing the order dated 11-4-2007, the Commission was directed to take a decision by passing an appropriate order keeping in mind the provisions of Sections 32A, 32B and 32C of the Act end Clause-7 of the Election Expenses (Maintenance and Lodging of Account) Order, 1997 (hereinafter referred to as ''the Order''), within a period of 60 days. After passing of the above order, the Commission issued a notice of Annexure-P/17 dated 24th April, 2009 and intimated the Petitioner that in compliance of the High Court''s order (Annexure-P/16), a date for personal hearing has been fixed on 30-4-2009. The Petitioner appeared before the Commission on 30 April, 2009 and prayed for filing of the case in view of the order dated 14-8-2006 passed by the Commission. However, the Commission vide its impugned order dated 1st May, 2009 (Annexure-P/1 and Annexure-P/20) held that the Petitioner did not submit his election expenses account within the stipulated period under the Act and he did not have any good and justified reason for such failure. Accordingly, the Petitioner is disqualified u/s 32C of the Act for a period of 5 years from the date of order from being elected as President or Member of the Municipal Council on account of his failure in lodging the election expenses account u/s 32B of the Act.

Shri Manindra Shrivastava, learned Senior Advocate with Shri Sanjay K. Agrawal, Advocate, appearing on behalf of the Petitioner would submit that u/s 32C of the Act the order of future disqualification for 5 years can be passed only after recording a finding that the Petitioner is disqualified for his failure to lodge the account of election expenses within time and in the manner prescribed by or under this Act and that too, by order published in the official gazette. However, from perusal of the impugned order, it is evident that the Commission has not recorded any finding and, therefore, the above order of future disqualification, not fulfilling the statutory requirement, is contrary to law.

Reliance is placed in the matter of Sadashiv H. Patil Vs. Vithal D. Teke and Others, .

It was further argued that the action of the Commission in disqualifying the Petitioner for a period of 5 years suffers from the vice of discrimination. One Hon Lal Dewangan has contested the election as BJP nominee. He too submitted his election expenses account in the office of Municipal Council, which was forwarded to the District Election Officer and the same has been accepted by the Commission. The Commission being a constitutional body cannot discriminate between the two similarly situated persons and thus, the order of Anneuxre-P/1/ Annexure-P/20 is also hit by Article 14 of the Constitution of India.

The impugned order has been passed without assigning any reason and without application of mind. From bare reading of Section 32C, it is clear that the State Election Commission has to record the satisfaction that the person concerned had no good reason or justification for the failure. However, the Commission has passed the impugned order by non-speaking and unreasoned order, which is liable to be set aside.

Reliance is placed in the matters of Jawahar Lal Gupta Vs. The Rajya Nirvachan Ayog and Another, , Nandlal Jaiswal Vs. Bandhu Jaiswal and Others, , Shantilal (Bum Bum) Vs. State of M.P. and Others, (3) MPHT 326 and Mahendra. s/o R.S. Palariya v. M.P. State Election Commission and Ors. 2005 (1) MPLJ 245.

The order of future disqualification for 5 years of the Petitioner has civil consequences of depriving the Petitioner from elected office and, therefore, the Commission was obliged to afford reasonable opportunity of hearing before passing the impugned order as required under sub-order (4) and (5) of Order 10 of the Order. The Petitioner was issued notice for hearing on 30-4-2009 and only on the next day the impugned order has been passed and no show cause notice as required under sub-order (5), (6) and (7) of Order 10 of the Order has been served upon the Petitioner.

In view of the amendment in Section 32C which came into force with effect from 1-1-2005, the Commission has wide discretion to decide the period of disqualification which may not exceed 5 years. The Commission has mechanically passed the impugned order disqualifying the Petitioner for a period of 5 years from the date of order without applying its mind. The result of the impugned order is that the Petitioner is disqualified for a period of 2 terms and the Petitioner is not eligible to participate in the election to be held in the year 2009.

It was argued that the Commission in its alleged detailed order has not considered the established circumstances existing in the present case that the election expense account submitted by the Petitioner to the CMO within time was belatedly forwarded to the DEO and the DEO recommended for acceptance and it was finally accepted by order dated 14-8-2006 by the Commission, as is evident from their stand before this Court. The Commission without applying its mind to the aforesaid facts has mechanically observed that there is no good cause or justification for failure to lodge the election expenses account within the prescribed time and in the manner as prescribed under the Act.

Shri Prashant Mishra, learned Senior Advocate with Shri B.D. Guru and Shri Shashank Thakur, Advocates appearing on behalf of the State Election Commission argued that the contention of the Petitioner that the Commission has passed two separate orders Annexure-P/1 and Annexure-P/20 is incorrect. The Petitioner was disqualified u/s 32C of the Act for a period of 5 years and the order of Annexure-P/1 is only a declaration issued by the Commission as a follow-up action in pursuance of the detailed order passed by the Commission on the same date. The above fact can be verified from the original record of the Commission. Admittedly, the Petitioner did not submit Ms account before the DEC. From the enquiry report, it is further established that the Petitioner submitted his account only in the month of July, 2006 and the CMO was forced to put his signatures of acceptance on 17-1-2005 and thus, he failed to lodge his account within time and in the manner specified in law. Once a candidate fails to lodge the election expenses account as provided under the Act, disqualification u/s 32C of the Act is automatic by operation of law and separate and reasoned order and opportunity of hearing are not required to be given.

Reliance is placed in the matters of Capt. Chanan Singh Sidhu Vs. The Election Commission of India, New Delhi and others, and Keshav Jadhav Vs. Election Commission of India, Delhi and Others, .

The Commission has passed a detailed order after considering all the aspects of the matter and there is no violation of any provision of law. The argument of the Petitioner that the order is discriminatory, as account submitted by another candidate namely, Hori Lal Dewangan has been accepted whereas, the Petitioner has been disqualified, has also no force, as the Petitioner cannot claim negative equality. The grievance of the Petitioner that the Commission did not apply its mind while disqualifying the Petitioner for a period of 5 years is also without any substance. Even otherwise, the Petitioner has an alternative remedy of approaching the Commission u/s 32D of the Act.

Dr. N.K. Shukla, learned Senior Counsel with Shri A.K. Yadav, Advocate, appearing on behalf of Respondent No. 5, referring to the relevant provisions contained in the Order of 1997 and the provisions of Representation of People Act, 1951, argued that a contesting candidate is duty bound to lodge his account of election expenses to the DEO within 30 days from the date of election. The account submitted to any other authority is invalid. The DEO is obliged to submit report to the Commission soon after the expiration of time prescribed for lodging the account with his opinion. After the receipt of the report, if the Commission decides that the contesting candidate has failed to lodge the account within time and in the manner, it shall call upon the candidate to show cause as to why he should not be disqualified for such failure. The candidate, in turn, may submit his representation in writing to the Commission with a copy to the DEO together with complete account of his election expenses, if he had already not furnished such account within the prescribed period. The DEO shall forward the same to the Commission with such comments as he wishes to make thereon. Where the Commission is satisfied that the candidate has no good reason or justification for the failure to lodge his account, it shall declare him disqualified for a specified period from the date of order and cause the order to be published in the official gazette.

Reiterating the arguments advanced by learned Counsel for the Petitioner, Dr. Shukla submitted that submission of account to the Chief Municipal Officer and not to the District Election Officer cannot be construed to be compliance within the meaning of Section 32B of the Act. The question of following principles of natural justice, affording opportunity of hearing to the Petitioner and conducting enquiry by the Commission is not necessary since the Petitioner himself failed to lodge the election expenses account to the competent authority, as the Petitioner incurred disqualification automatically on his failure to lodge the election expenses account.

Similar arguments were advanced by learned Counsel for the State.

I have heard learned Counsel for the parties. I have gone through the pleadings and the documents relied upon by the parties.

Initially, the Petitioner had impugned the order of Annexure-P/1 dated 1-5-2009. After the return was filed by the Commission, the Petitioner filed rejoinder to the return and also filed an application for amendment in the writ petition on 3rd September, 2009 and the same was allowed on 5th October, 2009. The Petitioner has since amended the writ petition.

It was vehemently argued that the detailed order passed by the Commission on 1-5-2009 was never supplied to the Petitioner at the time as on 1-5-2009 and the same was dispatched to the Petitioner only on 15-5-2009 (Annexure-P/20) after passing of the interim order dated 14th May, 2009 to fill up the lacuna. The interim order was passed in the presence of counsel for the Commission, who appeared on advance copy as also Respondent No. 5, who had caused his appearance on caveat. In the rejoinder to the return by the Commission, the Petitioner has averred that one Ashwini Baghel applied to the Information Officer of the Commission for supplying the complete copies of the order sheets on 1-5-2009 whereupon he was supplied with the information on 6-5-2009 (Annexure-P/19), however, only the order of Annexure-P/1 was supplied to him. Subsequently, the Commission vide its memo dated 13th May, 2009 supplied the said Ashwini Baghel a copy of the detailed order dated 1-5-2009 with an explanation that inadvertently copy of the detailed order dated 1 -5-2009 could not be supplied on 6-5-2009. The interim order dated 14-5-2009 was passed in the presence of learned Counsel for the Commission and Respondent No. 5 considering the arguments of the Petitioner that the impugned order is non-speaking order, however, the existence of any separate detailed order passed on 1-5-2009 by the Commission was not disclosed on 14-5-2009. On these grounds, it was argued that the detailed order of Annexure-P/20 is an afterthought and the same has been brought on record to fill up lacuna of the Commission. The argument of learned Counsel for the Commission in this regard is that the order of Annexure-P/1 is, in fact, a follow-up action in compliance of the order of Annexure-P/20, as per directions of the Commission, as would be evident from the original order sheets of the Commission. The order of Annexure-P/1 does not bear the signature of the Commission and the same has been passed as directives by the Commission for the purposes of publication of notification in the official gazette.

The original record of the Commission was produced on being requisitioned. From the original record, it appears that notice for personal hearing for 30th April, 2009 was served on the Petitioner on 27-4-2009. The Petitioner appeared on that date before the Election Commission and he was heard and the matter was fixed for 1st May, 2009.

The order of Annexure-P/1 reads as under:

Copies of the order have been forwarded to the various authorities including the Petitioner. Inpara-8.8 of the petition, the Petitioner has pleaded that on 1-5-2009 Respondent No. 1 disqualified the Petitioner vide order of Annexure-P/1. The Commission in para-12 of its return has replied to the averments made from paras 8.7 to 8.9 of the petition. However, the Petitioner has not specifically contraverted the averments made in para-8.8. There is no pleading that the order of Annexure-P/1, which has been passed, is a declaration issued by the Commission as a follow-up action in pursuance of the detailed order passed by the Commission on the same date. Even plain reading of Annexure-P/1 clearly reveals that the same has been passed u/s 32C whereby the Petitioner has been declared disqualified from being elected as President or Member of the Municipal Council for a period of 5 years.

From close scrutiny of the original record, it emerges that on 1-5-2009 itself the order disqualifying the Petitioner has been dispatched to the various authority indicated in Annexure-P/1. One Ashwini Baghel was supplied with the copy of the order of Annexure-P/1 with complete order sheets on 6-5-2009 (Annexure-P/19) on his application under the Right to Information Act. He was not given copy of order of Annexure-P/20 and the same was supplied to him only on 13-5-2009 with an explanation that inadvertently the same could not be supplied to him on 6-5-2009. The copy of order (Annexure-P/20) was dispatched to the Petitioner with a memo dated 15-5-2009 (Annexure-P/20) mentioning therein that copy of the "detailed order" passed by the Commission on 1 -5-2009 is being enclosed with the memo.

The instant writ petition has been filed by the Petitioner on 4-5-2009. Respondent No. 5 appeared on caveat on 7-5-2009 and filed his reply to the application for interim relief and stated on oath that the Commission passed the impugned order of Annexure-P/1 in pursuance of the order passed by the Division Bench of this Court. There is no mention that any detailed order was passed by the Commission on 1 -5-2009. The interim order was passed on 14-5-2009, on mat date the Commission appeared through its counsel on advance copy, however, on this date also, it was not brought to the notice of this Court that any detailed order was passed by the Commission on 1 -5-2009.

From perusal of the order dated 16-7-2009 passed by the Hon''ble Supreme Court in SLP No. 14776/09 filed by Respondent No. 5, it appears that a submission was made on behalf of Respondent No. 5 that the Petitioner herein has not brought to the notice of this Court about the detailed order disqualifying the Petitioner, which has clearly misled the Court. Whereas, the interim order was passed in the presence of learned Counsel for Respondents No. 1 and 5. Respondent No. l and 5 also did not disclose about any detailed order passed on 1 -5-2009 on 14-5-2009 and admittedly, the order was dispatched by the Commission to the Petitioner only on 15-5-2009.

In view of the above facts emerging from the record, I find it difficult to accept the argument of learned senior counsel for the Commission that detailed order of Annexure-P/20 was passed on 1-5-2009; the order of Annexure-P/1 is a declaration issued by the Commission as a follow-up action in pursuance of the detailed order. The circumstances detailed above lends credence to the submission of the Petitioner that he was disqualified by order of Annexure-P/1 on 1 -5-2009 and reasons were subsequently supplied by order of Annexure-P/20 to fill up the lacuna.

Next question for my consideration is - whether the orders of Annexure-P/1 and Annexure-P/20 have been passed after following the statutory requirement of Section 32C of the Act and the Order?

To appreciate the rival contentions of the parties, it would be appropriate to refer to the various legal provisions in this regard in the Act and the Order.

Section 32A of the Act cast a duty upon every candidate at an election of the President that he shall maintain a separate and correct account of all expenditures in connection with the election incurred or authorized by him or by his election agent between filing of nomination and the date of declaration of the result of election.

Sections 32B and 32C read as under:

Section 32B. Lodging of account of election expenses - Every contesting candidate at an election of President shall, within thirty days from the date of election of the returned candidate lodge with the officer notified by the State Election Commission an account of his election expenses which shall be a true copy of the account kept by him or by his election agent u/s 32A.

Section 32C. Disqualification for failure to lodge account of election expenses. - If the State Election Commission is satisfied that a person -

(a) has failed to lodge an account of election expenses within the time and in the manner required by or under this Act; and

(b) has no good reason or justification for the failure, the State Election Commission shall by order published in the Official Gazette, declare them to be disqualified and any such person shall be disqualified for being chosen as, and for being a member of Municipal Council or Nagar Panchayat as the case may be, for a period not exceeding five years from the date of the Order.

The State Election Commission in exercise of its powers under Article 243ZA of the Constitution of India and in pursuance of Section 32A of the Act made the Election Expenses (Maintenance and Lodging of Account) Order, 1997.

Paragraphs 4,5,7 and 10 of the aforesaid order read as under:

Maintenance of day to day account of election expenses.

(1) The account of election expenses shall be maintained by a candidate or his election agent from day to day, in a register in Proforma A, which shall be supplied to him by the Returning Officer immediately after his nomination.

(2) The particulars of every item of expenditure shall be entered in the register referred to in sub-paragraph (1), from day to day in the same chronological order in which the expenditure is incurred or authorized and the vouchers or bills relating to the expenditure shall be maintained along with the register.

Production of the record of day to day account election expenses for inspection.- The register of day to day account of election expenses together with the supporting vouchers and bills shall be produced for inspection at any time during the process of election, by the candidate or his election agent, on demand by the Returning Officer, District Election Officer or an Observer of Officer authorized by the Election Commission in this behalf, forthwith and failure to do so shall be deemed to be a major default on the part of the candidate to comply with this order.

Lodging of the account of election expenses.-(1) Every contesting candidate or his election agent shall lodge the account of election expenses with the District Election Officer, within the time specified in the Act, that is 30 days from the date of election.

(2) The account of election expenses shall comprise the following documents, namely:

(a) the register of day to day account of election expenses referred to in paragraph 4 in original.

(b) vouchers relating to the entries made in the register of election expenses, and

(c) abstract statement of election expenses, referred to in paragraph 6.

(3) The register of day to day account of election expenses and the abstract statement of election expenses shall be authenticated and countersigned by the candidate in case they have been prepared and signed by his election agent and the vouchers shall also be counter-signed by him, before being lodged.

(4) The account of election expenses shall be accompanied by an affidavit of the candidate in Proforma C and shall not be regarded as complete without such an. affidavit.

Report by the district election officer as to the lodging of the account of election expenses and the decision of the Election Commission thereon.

(1) As soon as may be after the expiration of the time specified in the Act for the lodging of the account of election expenses the District Election Officer shall send a report to the Election Commission about every contesting candidate on the following points:

(a) The name of the contesting candidate.

(b) Whether such candidate has lodged his account of election expenses and if so, the date on which such account has been lodged; and

(c) Where in his opinion such account has been lodged within the time and in the manner required by the Act and this order.

(2) Whether the District Election Officer is of the opinion that the account of election expenses of any contesting candidate has not been lodged in the manner required by the Act and this order, he shall with every such report forward to the Election Commission the account of election expenses of that candidate.

(3) Immediately after the submission of the report referred to in subparagraph (1) the District Election Officer shall publish a copy thereof by affixing the same to his notice board.

(4) As soon as may be after the receipt of the report referred to in sub-paragraph (1) the Election Commission shall consider the same and decide whether any contesting candidate has failed to lodge the account of election expenses within the time and in the manner required by the Act and this Order.

(5) Whether the election commission decides that the contesting candidate has failed to lodge his account of election expenses within the time and in the manner required by the Act and this Order, it shall by notice in writing call upon the candidate to show cause why he should not be disqualified u/s 14C of the Madhya Pradesh Municipal Corporation Act, 1956 or as the case may be, Section 32C of the Madhya Pradesh Municipalities Act, 1961 for the failure.

(6) Any contesting candidate who has been called upon to show under paragraph (5) may within fifteen days of the receipt of such notice submit in respect of the matter a representation in writing to the Election Commission, and shall at the same time send to the District Election Officer a copy of his representation together with a complete account of his election expenses if he had not already furnished such an account.

(7) The District Election Officer shall within five days of the receipt thereof, forward to the Election Commission the copy of the representation and the account, if any, with such comments as he wishes to make thereon, for further appropriate action.

From careful reading of the aforesaid provisions of the Act and the Order, it can be deduced thus:

(i) Every candidate in the election of President is obliged to maintain a separate and correct account of all expenditures in connection with the election incurred by him or by his election agent during election.

(ii) Every contesting candidate has to lodge his election expenses account within 30 days from the date of election of returned candidate with the officer notified by the Commission, which is to be a true copy of the account kept by him or his election agent u/s 32A.

(iii) If the Commission is satisfied that a person has failed to lodge the account within the time and in the manner prescribed under the Act and is further satisfied that he has no good reason or justification for the failure, he may declare such person to be disqualified for being chosen as President and for being a Member of the Municipal Council for a period not exceeding 5 years from the date of order.

(iv) Sub-para (1) of Para-10 of Order casts a duty upon the District Election Officer of sending a report to the Election Commission about every contesting candidate after expiration of time specified for lodging of the account detailing whether the candidate has lodged his account of election expenses and if so, the date on which the account has been lodged; whether in his opinion account has been lodged within time and in the manner required by the Act.

(v) Sub-para (2) of Para-10 requires that where the District Election Officer is of the opinion that the account of election expenses of any contesting candidate has not been lodged in the marine required by the Act and this Order, he shall forward the account of election expenses to the Commission with his report. After the receipt of the report from the District Election Officer, the Commission shall decide whether any contesting candidate has failed to lodge account of election expenses within time and in the manner. Where he decides that the candidate has failed to lodge his account of election expenses within time and in the manner, he shall call upon the candidate to show cause as to why he should not be disqualified u/s 32C of the Act for the failure. On receipt of such notice, the candidate is to submit his representation within 15 days to the Commission with a copy of representation together with the complete account of his election expenses if he had not already furnished to the District Election Officer.

(vi) Sub-para (7) of para 10 further casts a duty upon the District Election Officer that he shall within 5 days of the receipt thereof, forward to the Election Commission a copy of the representation and the account, if any, with such comments as he wishes to make thereon for further appropriate action.

I have already reproduced the impugned order of Annexure-P/1 in the foregoing paragraphs. From perusal of the same, it is clear that the Petitioner has been disqualified for a period of 5 years from being elected as President or Member of the Municipal Council on account of his failure to lodge election expenses account in the manner prescribed u/s 32B of the Act. The order does not conform to the requirement of Section 32C.

The findings recorded in the detailed order of Annexure-P/20 may be summarized as under:

Every candidate of the President of Municipal Council is required to lodge election expense account within 30 days before the District Election Officer nominated by the Commission. Om Prakash Dewangan was elected on 19-12-2004. He failed to lodge election expense account within 30 days before the District Election Officer. According to the Petitioner, he lodged his account on 17-1-2005, which was forwarded by the CMO on 18-7-2005 to the DEO. CMO was never authorized to receive election expense account either by the Commission or by the District Election Officer. On candidate''s own admission, he never lodged his account before the District Election Officer and he lodged account before the CMO. Though the above contention of Om Prakash Dewangan was found incorrect on enquiry by the District Election Officer, however, even if the contention of Om Prakash Dewangan that he lodged his account before the CMO on 17-1-2005 is accepted to be correct, the same does not conform to the requirement of Section 32B read with para 7(1) of the Order. Thus, the Commission is satisfied that the Petitioner did not lodge election expense account within the prescribed time and in the manner and he has no good reason or justification for such failure. With these findings, the Petitioner has been disqualified for a period of 5 years from the date of passing of the order from being elected as President or Member of the Municipal Council.

From pleadings of the respective parties, documents available on record and perusal of the original record of the Commission, it is undisputed that the Petitioner was elected on 19-12-2004; the last date for lodging election expense account as per Section 32B was 18th January, 2005; the election expense account was lodged by the Petitioner before the Chief Municipal Officer and the same was forwarded by the Chief Municipal Officer to the District Election Officer on 18-7-2005. The Election Commission issued show cause notice to the Petitioner through the District Election Officer on 19/21-4-2005 as to why he should not be disqualified u/s 32C of the Act for his failure to lodge election expense account within time and in the manner. From the original record, it is also found, that the District Election Officer vide his memo dated 12-8-2005 forwarded the election expense account submitted by the candidates who were earlier served with show cause notice by the Commission along with his report. In the said report, the District Election Officer has mentioned that the account was submitted on 18-7-2005 in the prescribed manner, not within time. The District Election Officer in response to the memo of the Commission dated 19-10-2005 submitted his report dated 5-11-2005 and informed the Commission that the Petitioner had submitted his account before the CMO on 17-1-2005 and the same was forwarded on 18-7-2005 to his office. The DEO vide his memo dated 28-4-2006 addressed to the Commission submitted his opinion that the election expense account lodged by the Petitioner on 17-1-2005 through the CMO deserves to be accepted. The above proposal of the Collector was placed before the Commission for orders on 14-8-2006 with a recommendation for acceptance. The Commission signed under the proposal indicating its acceptance.

Respondent No. 5 lodged a complaint before the Commission on 9-11 -2006 (Annexure-P/10) and requested to disqualify the Petitioner u/s 32C of the Act. The complaint was forwarded to the District Election Officer, who, in turn, authorized Deputy District Election Officer to enquire into the complaint, who submitted his report on 19-12-2006 (Annexure-R/2) with a recommendation for taking action u/s 32C of the Act against the Petitioner. The District Election Officer forwarded the said report through his memo dated 27-12-2006 (Annexure-R/3) for necessary action. After receiving the aforesaid complaint, a notice was issued to the Petitioner on 14-3-2007 calling upon him to show cause as to why he should not be disqualified u/s 32C (Annexure-P/11). The Petitioner submitted reply to the above show cause notice on 28-3-2007. He further submitted a detailed reply on 9-4-2007 (Annexure-P/ 12). Along with his reply dated 9-4-2007 he also sent photocopies of the enclosures which he had already forwarded with his reply to the show cause notice.

The Commission intimated Respondent No. 5 vide its memo dated 11 -4-2007 that further action is not possible on his complaint in the absence of proper legal provision (Annexure-P/12-A). The writ petition filed by Respondent No. 5 was allowed by the Division Bench of this Court and the memo dated 11-4-2007 (Annexure-P/12-A) was quashed and the Commission was directed to take a decision by passing an appropriate order keeping in view the provisions of Section 32A, Section 32B, Section 32C of the Act and para-7 of the Order within 60 days.

In Sadashiv H. Patil Vs. Vithal D. Teke and Others, , the Hon''ble Supreme Court in para-14 held thus:

A finding as to disqualification under the Act has the effect of unseating a person from an elected office held by him pursuant to his victory at the polls in accordance with the democratic procedure of constituting a local authority. The consequences befall not only him as an individual but also the constituency represented by him which would cease to be represented on account of his having been disqualified. Looking at the penal consequences flowing from an elected councillor being subjected to disqualification and its repercussion on the functioning of the local body as also the city or township governed by the local body the provisions have to be construed strictly. A rigorous compliance with the provisions of the Act and the Rules must be shown to have taken place while dealing with a reference u/s 7 of the Act.

In Jawahar Lal Gupta Vs. The Rajya Nirvachan Ayog and Another, , the High Court of Madhya Pradesh interpreting Section 32C of the Act held thus:

A reading of Section 32C of the Act of 1961 makes it clear that State Election Commission is enjoined to record a satisfaction that a person has failed to lodge the account of election expenses within the time and the manner required under this Act, and further mind has to be applied by the State Election Commission mandatorily as to the "reasons", and the finding has to be recorded that a person has "no good reason or justification" for the failure. The State Election Commission shall, by order published in the Official Gazette, declare such person to be disqualified and such a person shall be disqualified for being chosen as and for being a member of the Municipal Council or Nagar Panchayat, as the case may be, for a period not exceeding five years from the date of the order. Serious consequences are enumerated in Section 32C of the Act.

In Nandlal Jaiswal Vs. Bandhu Jaiswal and Others, , the Madhya Pradesh High Court quashed the order of disqualification passed u/s 32C of the Act on the ground that the order was passed without application of mind and without affording opportunity of hearing to the Petitioner.

In Shantilal (Bum Bumf, the High Court of Madhya Pradesh interpreting Section 32C of the Act held thus:

Perusal of aforequoted section clearly indicate that Election Commission is under legal obligation to record its satisfaction whether a person has failed to make out any good reason or justification for his failure in not submitting the accounts within time prescribed. In other words, if the person is required to make out a good reason or justify as to why and for what reasons, he could not submit the accounts in time, it is equally obligatory upon the State Election Commission to examine as to whether grounds, and/or cause stated in reply constitutes good reason. It requires application of judicial mind to the facts of each case and then a reasoned order as to why the reasons stated in reply by a concerned person do not make out a case of good reasons or why it makes out a case of good reasons. In either case, the order passed by the Election Commissioner must indicate its reasoning. The use of the word "is satisfied" in Section 32C ibid is significant. It contemplates judicial application of mind to be applied by Election Commissioner to the facts of each case and secondly, it must appear from the order that the satisfaction reached has some factual and legal basis. It involves an element of exercise of discretion and when one speaks of exercise of discretion it always means judicial discretion as is well known in judicial parlance. Since, the consequences of adverse order are quite disastrous because it results in vacation of the office secured by democratic way, the issue must be dealt with care and judiciously.

In Mahendra 2005 (1) MPLJ 245, a show cause notice was issued u/s 32C in the year 2000 and he was disqualified after 4 years from the date of submitting explanation. The High Court was of the opinion that had the Commission taken a decision in the year 2000 the disqualification would have come to an end till the next election. Accordingly, it has been held that disqualification cannot be sustained under the law and it was quashed.

In Capt. Chanan Singh Sidhu Vs. The Election Commission of India, New Delhi and others, , the Petitioner contested Parliamentary election in the year 1989. The result was declared on 28th November, 1989. The District Election Officer informed the Election Commission as required under Rules 89 (1) of the Rules that the Petitioner had not lodged his account of election expenses. The Petitioner was served with a show cause notice under Rule 89 (5) on 25th April calling upon him to show cause as to why he should not be disqualified u/s 10A of the Act. He was also required to submit requisite account within 20 days of the receipt of the notice along with explanation for his failure. He submitted his account to the District Election Officer, however, the account was not submitted in the prescribed proforma and in the manner prescribed. He was directed to rectify the defects by another notice by the Commission. The Commission further enquired from the District Election Officer whether he had rectified the defects, however, on his failure to respond to the subsequent notice and defect in the account, he was disqualified for a period of 3 years for his failure to lodge the election expense account in the manner and that he had no good reason and justification. The Punjab and Haryana High Court dismissed the petition with an observation that ''An authority acting judicially, quasi-judicially as also an administrative authority performing constitutional functions is duty bound to comply with the principles of natural justice while adjudicating upon the rights of the parties and while considering the explanation or before taking any penal or disciplinary action against a citizen by rejecting his explanation. But where a candidate fails to submit account of election expenses in prescribed form and time, he automatically incurs disqualification and it is not necessary for the Election Commission to afford reasonable opportunity to the candidate before passing order of disqualification nor necessary to pass reasoned order. The disqualification contemplated by Section 10A of the Act is a necessary consequence flowing from his failure to lodge the account of election expenses within the stipulated period and in the prescribed manner.

In Keshav Jadhav AIR 2001 AP 38 , the Petitioner in response to the notice under Rule 89 (5) of the Rules submitted representation to the Commission that he has submitted the account of election expenses with the Returning Officer on the polling day itself. The representation was forwarded to the District Election Officer. The District Election Officer in his supplementary report informed the Commission that the Petitioner has not lodged the account of election expenses with the District Election Officer. In view of the above report, the Petitioner was disqualified u/s 10A of the Act along with 64 other candidates. On these facts, the Division Bench of the Andhra Pradesh High Court relying upon the judgment of the Punjab and Haryana High Court in the case of Capt. Chanan Singh Sidhu Vs. The Election Commission of India, New Delhi and others, held that on failure of the candidate to submit account of election expenses within stipulated period to specified authority; his further failure to submit explanation for the same after the receipt of show cause notice; question of holding enquiry or observing the principles of natural justice does not arise and the order disqualifying the candidate on that ground is proper.

The facts of the present case are distinguishable from the facts of judgments cited by learned Counsel for the Commission. In the instant case, I have already reproduced the entire sequence of events that has followed after the declaration of the result of the election of the Petitioner. Indisputably, the Petitioner submitted his election expense account to the Chief Municipal Officer which was forwarded to the District Election Officer. The District Election Officer in compliance of the directions of the Commission issued show cause notice to the Petitioner and other candidates who failed to lodge their election expenses account within time.

After receiving the election expenses account through the Chief Municipal Officer, the District Election Officer forwarded the same with his opinion that the explanation offered by the Petitioner in response to the show cause notice for delay in lodging the account deserves to be accepted. Accordingly, the Election Commission accepted the proposal in this regard by the officers of the Commission based on the report of the Collector dated 14-8-2006 (Annexure-P/7), which is also evident from the return filed by the Commission in the earlier writ petition filed by Respondent No. 5. It is also not in dispute that after receiving the complaint of Respondent No. 5 enquiry was conducted and on the basis of enquiry report, show cause notice was issued to the Petitioner u/s 32C. The Petitioner replied to the show cause notice and along with reply, he again forwarded his earlier reply and other documents which he had already submitted in the earlier proceedings. However, the complaint was dropped on the ground that the Commission has already taken a decision and dropped the proceedings on 14-8-2006 and there is no provision of review.

While allowing the writ petition of Respondent No. 5, the Commission was directed to take a decision by passing appropriate order keeping in view the provisions of Section 32A, 32B and 32C of the Act and para-7 of the Order. Reading of Section 32C of the Act makes it clear that the State Election Commission is enjoined to record a satisfaction that a person has failed to lodge the account of election expenses within the time and the manner required under this Act and further the State Election Commission mandatorily has to assign reason and the finding that a person has "no good reason or justification" for the failure. In other words, if the person is required to make out a good reason or justify as to why and for what reasons, he could not submit the accounts in time, it is equally obligatory upon the State Election Commission to examine as to whether grounds, and/or cause stated in reply constitutes good reason. It requires application of judicial mind to the facts of each case and then a reasoned order as to why the reasons stated in reply by a concerned person do not make out a case of good reasons for accepting explanation.

In the instant case, after receiving the complaint of Respondent No. 5 though enquiry was conducted and a report was submitted to the effect that the Petitioner did not lodge his account before the CMO on 17-1-2005 as stated in the memo of CMO to the District Election Officer, however, the impugned order is not based on finding of the report. The order simply reads that even if it is accepted that the Petitioner lodged his account on 17-1-2005 before the CMO, the same cannot be construed to be compliance of Section 32B read with para 7(1) of the Order. The Commission did not consider the fact that the account so lodged by the Petitioner before the CMO was subsequently forwarded in the month of July, 2005 by the CMO to the District Election Officer and the District Election Officer considering the same to be sufficient compliance of Section 32B recommended for acceptance of explanation of the Petitioner. No reason has been assigned by the Commission for not accepting the explanation for delay in lodging the election expenses account before the District Election Officer. This attains significance particularly when the stand of the Commission at the first instance was that the opinion of the Collector based on explanation of the Petitioner was accepted. That apart, in the case of other similarly situated candidate i.e. Hori Lal Dewangan, who also contested the election, submitted his report to the Chief Municipal Officer in the month of January, 2005, the same was forwarded by the CMO to the District Election Officer. Lodging of election expenses account by the above candidate has been accepted by the Commission whereas, the Petitioner has been disqualified though he also submitted his account within time before the CMO which was forwarded by the CMO on 18-7-2005.

In view of the aforesaid discussion, I am of the opinion that order passed by the Election Commission disqualifying the Petitioner for the election with further disqualification for five years from the date of order cannot be sustained under the law.

In the result, the petition is allowed. The impugned orders of Annexure-P/1 and Annexure-P/20 dated 1-5-2009 passed by the State Election Commission are hereby quashed.

No orders as to costs.