Raminder Singh Kalra vs Kanhaiya Tiwari and Others

S.R. Alam, C.J.—With the consent of parties, the matter is heard finally.

This intra-Court appear arises from the order dated 10.8.2010 passed by learned Single Judge, by which the writ petition preferred by Respondent No. 1 has been disposed of with certain directions.

Facts giving rise to filing of the writ appeal, briefly stated, are that the Respondent No. 1 had filed a writ petition inter alia, alleging that the Appellant herein by suppressing the fact of disqualification contested the election of member of Janpad Panchayat, Ghansaur and was elected. It was further averred that Respondents No. 2 to 4 have failed to take any action against the Appellant herein notwithstanding the fact that he was disqualified from contesting election for a period of six years in view of order dated 13.1.2005 passed by the competent authority u/s 40 of Madhya Pradesh Panchayat Avam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as ''the 1993 Act'').

Learned Single Judge vide order dated 10.8.2010 held that the Respondent No. 1 has the remedy of approaching the Collector u/s 36(3) of the 1993 Act for redressal of his grievance. Accordingly, the writ petition was disposed of with liberty to Respondent No. 1 to approach the Collector under Sub-section (3) of Section 36 of the 1993 Act by filing an application. It was further directed that in case the Respondent No. 1 submits an application within a period of 15 days, the Collector shall consider and decide the application submitted by Respondent No. 1 in accordance with law after giving due opportunity of hearing to all concerned expeditiously preferably within a period of three months.

Being aggrieved by the aforesaid order the Appellant who was arrayed as Respondent No. 6 in the writ petition has preferred the writ appeal.

Learned Senior Counsel appearing for the Appellant vehemently contended that learned Single Judge erred in holding that Respondent No. 1 has the remedy of approaching the Collector u/s 36(3) of the 1993 Act and in consequently issuing the impugned direction. It was further submitted that the provisions of Section 36(3) of the 1993 Act have no application in the obtaining factual matrix of the case and the order under the provisions of 36 could be passed only when a person incurs disqualification which is mentioned in Sub-section (1) of Section 36 of the 1993 Act. Admittedly, in the instant case the Appellant has not incurred any disqualification which has been enumerated in Sub-section (1) of Section 36 of the Act.

It was further contended by learned senior Counsel that notice, which has been issued by the Collector pursuant to the direction passed by the learned Single Judge is ab initio void. In support of his submission learned senior Counsel placed reliance on the decisions of Supreme Court reported in Dwarka Prasad Agarwal (D) by LRs. and Another Vs. B.D. Agarwal and Others, and Ashok Leyland Ltd. Vs. State of Tamil Nadu and Another,

On the other hand learned Counsel for Respondent No. 1 while opposing the submissions made by learned Counsel for the Appellant submitted that by order dated 13.1.2006 passed in exercise of powers u/s 40 of the 1993 Act the Appellant was disqualified from contesting the election for a period of six years. The aforesaid period would expire on 12.1.2011, therefore, the Appellant was not eligible to contest the election. However, by suppressing the fact with

regard to his disqualification, the Appellant contested the election. However, the learned Counsel for the Respondent No. 1 during the course of his submissions could not point out that Appellant has incurred any disqualification as enumerated in Sub-section (1) of Section 36 of the Act.

We have considered the submissions made by learned Counsel for the parties. In order to adjudicate the controversy involved in the instant writ appeal it is necessary to refer to Section 36 of the 1993 Act, which reads as under:

"36. Disqualification for being office bearer of Panchayat:

(1) No person shall be eligible to he an office-bearer of Panchayat who-

(a) has, either before or after the commencement of this Act, has been convicted.-

(i) of an offence under the Protection of Civil Rights Act, 1955 (No. 22 of 1955) or under any law in connection with the use, consumption or sale or narcotics or any law corresponding thereto enforce in any part of the State, unless a period of five years or such lesser period as the State Government may allow in any particular case has elapsed since his conviction; or

(ii) of any other offence and had been sentenced to imprisonment for not less than six months, unless a period of five years or such less period as the State Government may allow in any particular case has elapsed since his release; or

(b) is of unsound mind and stands so declared by a competent Court; or

(c) is an applicant to be adjudged an insolvent or is an undischarged insolvent; or

(c-a) even after one year of being elected, does not have flush latrine in his residential premises; or

(ff) has not paid all the dues which are recoverable by Panchayat and has not filed with nomination paper, the declaration of such intention that no money is due to be paid by him on any account payable to the Panchayat; or

(gg) has encroached upon any land or buildings of the Panchayat and Government; or

(d) hold an office of profit under any Panchayat or is in the service of any other local authority or Co-operative Society or the State Government or Central Government or any Public Sector Undertaking under the control of the Central Government or the State Government:

Provided that no person shall be deemed to have incurred disqualification under this Clause by reason of being appointed as Patel under the Madhya Pradesh Land Revenue Code, 1959 (No. 20 of 1959); or

(e) has been dismissed from the service of the State Government or Central Government, or a Panchayat, or any other local authority, or a Co-operative Society, or any Public Sector undertakings under the control of the Central Government or the State Government for corruption or for disloyalty; or

(f) has directly or indirectly any share or interest in any contract with, by or on behalf of the Panchayat, while owning such share or interest:

Provided that a person shall not be deemed to have incurred disqualification under Clause (f) by reason of his-

(i) Having share in any joint stock company or a share or interest in any Association registered under the Madhya Pradesh Society, Registrikaran Adhiniyam, 1973 (No. 44 of 1973) or in any Co-operative Society which shall contract with or be employed by or on behalf of the Panchayat; or

(ii) having share or interest in any newspaper in which any advertisement relating to the affairs of the Panchayat is inserted; or

(iii) holding a debenture or being otherwise concerned in any loan raised by or on behalf of the Panchayat;

(g) is employed as paid legal practitioner on behalf of the Panchayat; or

(h) is suffering from a variety of leprosy which is infectious; or

(i) has voluntarily acquired the citizenship of a Foreign State; or is under any acknowledgement of allegiance or adherence to a Foreign State; or

(j) has been disqualified under the Act repealed by Section 130 during the period of five years preceding the date of filing a nomination paper in any election to be held for the first time under this Act and the period of such disqualification has not elapsed or the disqualification has not been removed; or

(k) is disqualified by or under any law for the time being in force for the purpose of election to the State Legislative Assembly;

Provided that no person shall be disqualified on the ground that he is less than 25 years of age if he has attained the age of 21 years.

(l) is so disqualified by or under any law made by the legislature of the State.

(m) has more than two living children one of whom is born on or after the 26th day of January 2001.

(2) If any person having been elected as an office bearer of Panchayat:

(a) subsequently becomes subject to any of the disqualification mentioned in Sub-section (J) and such disqualification is not removable or being removable is not removed (or becomes office bearer concealing his disqualification for it which has not been questioned and decided by any election petition u/s 122);

(b) accepts employment as legal practitioner against the Panchayat;

(c) absents himself from three consecutive meetings of the Panchayat or its Committee or does not attend half the number of meetings held during the period of six months without the leave of the Panchayat; he shall, subject to the provisions of Sub-section (3), cease to be such office bearer and his office shall become vacant:

Provided that where an application is made by an office bearer to the Panchayat for leave to absent himself under Clause (c) and the Panchayat fails to inform the applicant of its decision on the application within a period of one month from the date of receipt of the application, the leave applied for, shall be deemed to have been granted by the Panchayat.

(3) In every case the authority competent to decide whether a vacancy has occurred under Sub-section (2) shall be Collector in respect of Gram Panchayat and Janpad Panchayat and Commissioner in respect of Zila Parished who may give his decision either on an application made to him by any person or on his own motion. Until, the Collector or the Commissioner, as the case may be, decides that the vacancy has occurred, the person shall not cease to be an office bearer:

Provided that no order shall be passed under this Sub-section against any office bearer without giving him a reasonable opportunity of being heard.

(4) Any person aggrieved by the decision of Collector or Commissioner, as the case may be, under Sub-section (3) may, within a period of 30 days from the date of such decision appeal to Commissioner or Board of Revenue respectively whose orders in such appeal shall be final.

From conjoint reading of Sub-sections (1) and (2) of Section 36 it is evident that if any person incurs any of the disqualification as has been enumerated in Sub-section (1) of Section 36 of the 1993 Act. then the consequence which is provided in Sub-section (2) follows i.e. the person concerned subject to provisions of Sub-section (2) of Section 36 shall cease to be such office bearer and his office shall become vacant. Admittedly, in the instant case the Appellant has not incurred any of the disqualification which has been mentioned in Section 36(1) of the 1993 Act. The sine qua non for applicability of Section 36 of the 1993 Act is that a person must incur the disqualifications as has been enumerated in Sub-section (1) of Section 36 which is condition precedent for invoking Sub-section (3) of Section 36 of the 1993 Act. Thus, for the aforementioned reasons we have no hesitation in holding that no action against the Appellant u/s 36(3) of the 1993 Act could be taken.

Accordingly, the order passed by the learned Single Judge is set aside. However, it is provided that in case the Respondent No. 1 makes a complaint in respect of the alleged disqualification of the Appellant, the competent authority may initiate appropriate proceeding against the Appellant in accordance with law under the provisions of the 1993 Act.

In the result the writ appeal succeeds and is hereby allowed but without costs.