Ramcharan vs State Of M.P.

The petitioner before this court has filed this present petition being aggrieved by the order dated 27-11-2017 passed by the Sub-Divisional Officer

(Revenue) Khilchipur-Jeerapur, District Rajgarh.

The facts of the case reveal that the petitioner before this court participated in the election for the post of 'Sarpanch' and the election took place on

09-02-2015. The petitioner in respect of election in question submitted an affidavit on 07-01-2014 stating that he has attained the age of 21 years and

based upon his affidavit he was permitted to contest the election. Later on, election petition was preferred by the respondent No.4 u/s 122 of the

Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 and the election petition was dismissed by order dated 18-01-2016. The

reasoning assigned in the order reflects that the Presiding Officer has dismissed the election petition on the ground that the objection was not raised at

the time the nomination paper was submitted. The matter has earlier traveled to this court and this court by an order dated 05-10-2017 passed in Writ

Petition No. 1169/2016 has passed the following order :-

“The petitioner has filed the present petition being aggrieved by the order dated 18.01.2016 by which the Sub Divisional Officer, Khilchipur has

dismissed his election petition filed under Section 122 of the Madhya Pradesh Panchayat Rajya Evam Gram Swaraj Adhiniyam'1993.

The petitioner and respondent Nos.1, 2, 3 & 4 contested the election of Sarpanch of Gram Panchayat, Amanpura, District Rajgarh held on 05.02.2015.

In the said election, the respondent No.1 was declared elected as Sarpanch and his election was also notified.

Being aggrieved by the election of respondent No.1, the present petitioner filed the election petition under Section 122 of the Madhya Pradesh

Panchayat Rajya Evam Gram Swaraj Adhiniyam'1993 on the ground that at the time of filing of nomination form, respondent No.1 has not completed

21 years of age because his date of birth is 04.03.1994 and at the time of nomination on 07.11.2015, he was aged about 20 years, 10 months and 3

days. Even at the time of declaration of result, he has not completed 21 years of age to establish his age proof. He filed photocopy of mark sheet of

8th class as evidence in which date of birth was recorded as 04.03.1994.

The election petition was registered as Case No.9/C-144/2014-2015 and notices were issued to the respondents. After notice, respondents filed reply

and thereafter issues were framed and all the parties recorded their evidence in support of their pleadings.

The learned SDO has discussed the entire evidence came on record but declined to give finding on the issue of age of respondent No.1 on the ground

that the petitioner did not submitted objection at the time of acceptance of the nomination paper, therefore, the objection cannot be considered for the

second time in the election petition and vide order dated 18.01.2016, dismissed the election petition. Hence, present writ petition before this Court.

In exercise of power conferred under Section 95(1) read with Section 43 of the Madhya Pradesh Panchayat Rajya Evam Gram Swaraj

Adhiniyam'1993 the State Government has framed Rules called as Madhya Pradesh Panchayat NirvachanNiyam 1995. Under Rule 35 of the said

Rules the Returning Officer scrutinizes the nomination paper and if any objection is submitted in respect of nomination of the candidature, then he is

required to decide all objection. That sub-rule 6, the Returning Officer shall record his decision and he may reject the nomination paper also. Under

sub-rule 6, the order passed by the Returning Officer shall subject to the result of revision, if any under rule 36 be final, therefore, under Rule 36

remedy is available only against the rejection of the nomination paper. There is no such remedy to the person who raise such objection and his

objection is rejected by the Returning Officer.

The State Government has framed rules in exercise of power under Section 95(1) read with Section 122 of the Madhya Pradesh Panchayat Rajya

Evam Gram Swaraj Adhiniyam' 1993 called as The Madhya Pradesh Panchayats (Election Petitions, Corrupt Practices and Disqualification for

Membership)Rules'1995 (for short,hereinafter referred as ""Rules of 1995""). That under Rule 21, the specified officer i.e. SDO in respect of election of

Gram Panchayat may declare the election to be void on the ground mentioned in Rule 21. That Rule 21 (1)(a) provides grounds for declaration of

election as void as on the date of his election, the returned candidate who was not qualified or was disqualified to be chosen to fill the seat under the

Act. The election can be declared void on the ground of improper acceptance of any nomination under Rule 21(1)(d) also. Under Section 122 as well

as under Rules of 1995, there is no bar for filing the election petition, if any person has not raised any objection before the Returning Officer in respect

of acceptance and rejection of nomination paper. There is no provision that if objection is not raised then he would be non suitor. If election petition is

filed then election officer is required to record the finding under Rule 21 of the Rules of 1995. The election petition was filed mainly on the ground that

at the time of election, respondent No.1 was not qualified to contest the election and his form was improperly accepted without holding any enquiry on

this ground alone, the election can be declared as void.

Hence, order dated 18.01.2016 is not sustainable, hence, hereby set aside. The case is remitted back to the SDO, Khilchipur to decide on merits.

Since, the entire evidence has already came on record after framing the issues, hence, only final arguments are required to be heard.

Learned SDO is directed to decide election petition within 30 days. The petitioner and respondent No.1 shall appear before the SDO, Khilchipur on

25.10.2017. Petition is accordingly disposed of.â€​

Thereafter, the Sub-Divisional Officer (Revenue) in light of the aforesaid judgment has passed the impugned order setting aside the election. This

court in the earlier round of litigation has categorically held that in the election petition the only objection raised was that the returned candidate was

not qualified to contest the election as he was less than 21 years of age. Meaning thereby, the issue was crystallized by this court and the matter was

remanded back to the Sub-Divisional Officer to decide the election petition within a period of thirty days. The petition has been decided within thirty

days. Undisputed facts of the case reveal that the date of birth of the petitioner was mentioned in the Scholar Register as 04-03-1994, in the VIII

Class Certificate Exhibit-P-11 it was mentioned as 04-031994 and the petitioner has himself submitted an application for inclusion of his name in the

voter list and in the application date of birth was mentioned as 04-03-1994. The petitioner by declaring the date of birth as 04-03-1994 has became a

voter. Exhibit-P14 was the document which was brought before the Sub-Divisional Officer. Thus, there were three documents produced before the

Sub-Divisional Officer i.e. VIII class certificate Exhibit-P-11, inclusion of voter list Exhibit-P-14 and the Scholar register Exhibit-P-17, and in all the

three documents the date of birth was mentioned as 04-03-1994. The petitioner came up with a case that he has later on submitted an affidavit for

correction of his date of birth and based upon the affidavit submitted by the petitioner his date of birth was corrected to 03-08-1993 and the petitioner

based upon his affidavit and the consequential correction of date of birth has stated before the Sub-Divisional Officer (Revenue) that he was 21 years

of age.

This court has carefully gone through the order passed by the Sub-Divisional Officer (Revenue). Undisputedly the petitioner while getting his name

included in the voter list with open eyes has declared his date of birth as 04-03-1994. In the Scholar Register it is mentioned as 04-03-1994, in the VIII

class Certificate it mentioned as 04-03-1994 and inclusion of voter list (Exhibit-P-11, Exhibit-P-14, and Exhibit-P-17). It was only later on, he has

submitted an affidavit and the date of birth was corrected. Based upon the affidavit and consequential correction the petitioner got a 'Adhar' card

prepared. The 'Adhar' card is prepared based upon information submitted by a candidate. If a candidate gives a wrong date of birth on affidavit

certainly the wrong date of birth will reflect in the Adhar Card, but the fact remains that for the first time when the voter list was prepared it was the

petitioner who has declared his date of birth as 04-03-1994. This court is witnessing for the first time such type of correction in date of birth based

upon the affidavit. Such type of practice is never heard and, therefore, subsequent correction if any has got no meaning. Not only this the statutory

provisions governing the field provides for 21 years of age for contesting an election. Article 243-F reads as under:-

“Article243-Falso mandates disqualifications, both for the purpose of being chosen as Member of the Panchayat and continuing as a Member of

the Panchayat. Those disqualifications are dealt under Clauses (a) and (b) of Article 243-F. Clause (a) declares that a person is disqualified for being

chosen as and for being a Member of the Panchayat, if he is so disqualified by or under any law for the time being in force, for the purpose of

elections to the Legislature of the State concerned. In our view, this clause means, if a person is disqualified to contest the election to the Legislature,

such a person is equally disqualified either for contesting the election as a Member of the Panchayat or for continuing as a Member of the Panchayat.

Under Clause (b) if, by or under any law made by the Legislature of the State, a person is disqualified, for being chosen as or for being a member of

the Panchayat.

The statutory provision as contained under the Constitution of India provides for 21 years of age for contesting the election and which is the subject

matter of the present petition. Undisputedly, the petitioner was less than 21 years of age and in those circumstances on a limited issue which was to be

adjudicated by the Presiding Officer, the Presiding Officer has allowed the election petition, setting aside the election of the petitioner.

Learned counsel for the petitioner has placed heavy reliance upon a judgment delivered in the case of Makhan Lal Bangal Vs. ManasBhunia and

others reported in (2001) 2 SCC 652, wherein the apex court has held that the issue should be framed while deciding election petition. In the present

case the sole issue which was in dispute has been crystallized by this court by remanding the matter and parties were a given change to lead evidence

and based upon the evidence produced by the parties the election has been set aside and therefore the judgment relied upon by the learned counsel is

of no help to the petitioner.

Reliance has also been placed upon a judgment delivered in the case of Fakhruddin Vs. Fazal Khan reported in 1997 (1) MPWN 214 and the

contention is that age of returned candidate cannot be determined solely on the basis of age shown in electoral roll. In the present case it was the

petitioner who has submitted an application for inclusion of his name in the voter list. Only electoral roll is not on record as (Exhibit-P-14), but the

application was also on record, VIII class certificate (Exhibit-P-11) was on record and the scholar register was also on record (Exhibit P-17) and,

therefore, again the judgment is of no help to the petitioner.

Reliance has also been placed in the case of Basanti bai Vs. PremawatiBai passed by this court reported in 2012 (5) MPHT 386. It was a case where

there was a birth certificate in existence and there was certificate issued by School Authorities and therefore in those circumstances the learned

Judge has held that the birth certificate issued by the competent under the Registration of Births and Deaths Act, 1969 would prevail. In the present

case there is no such contingency involved. The evidence appreciated by the S.D.O ( Revenue) reflects that the petitioner's date of birth was entered

in his school record as 04-03-1994, the scholar register Exhibit-P-17 reflects his date of birth as 04-03-1994, VIII Class Certificate Exhibit-P-11

reflects his date of birth as 04-03-1994, the application submitted by him for inclusion in the voter list reflects his date of birth as 04-03-1994 and voter

list also reflect is date of birth as 04-03-1994 and on the date of submission of nomination form i.e. 07-01-2015 he was admittedly not of 21 years of

age. Resultantly, the order passed by the Presiding Officer does not warrant any interference.

The writ petition is accordingly dismissed.

Certified copy as per rules.