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Judgment
Vivek Rusia, J, Rajendra Kumar Vani, J
Both the appeals arise out of the order dated 12/02/2024 whereby W.P. No.2101/2024 has been disposed of.
Both the appellants are aggrieved by paragraphs 16 and 17 of the impugned order, which are reproduced below:
“16. This Court after going through the entire record finds that certain serious allegations were levelled against the petitioner with regard to the defalcation of money of Public Exchequer, though the said defalcation was initially found proved against the petitioner but at present since the said orders have already been set aside by the Commissioner, the findings arrived at therein cannot be gone into but looking to the overall allegations and the remand of the matter by the Commissioner vide order dated 08.04.2024 on technical grounds, this Court deems it appropriate to direct the committee which has been directed to be formulated by the Commissioner to conclude the enquiry within a period of 15 days from the date of receipt of a certified copy of this order and thereafter the competent authority shall pass appropriate order within next seven days. Till then the appointment of any of the party to the post of Sarpanch shall be kept in abeyance.
It is needless to observe that the aforesaid exercise as directed by the Commissioner, by the committee shall be in strict compliance of and adhering to the principle of natural justice as directed by the Commissioner and parties present before this Court are directed to cooperate in the said enquiry.”
The facts of the case, in short, are as under:-
(i) Smt. Rachna Jatav was elected as Sarpanch of Gram Panchayat Andori and notification was issued on 14/7/2022. The Chief Executive Officer, Jila Panchayat, Bhind vide order dated 28/7/2023 removed Smt. Rachna Jatav from the post of Sarpanch and disqualified for a period of six years on the ground of financial irregularity of Rs.11,37,945/- along with the Panchayat Secretary regarding the construction work of Aanganwadi and Dung Tank. By virtue of provisions of S.38 of the M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (for short “the Adhiniyam”), in order to fill up the vacancies of Sarpanch by way of by-election, a notification dated 8/12/2023 was issued. Meanwhile, Smt. Rachna Jatav challenged the order dated 28/7/2023 before the Commissioner, Chambal Division, Morena. Vide order dated 8/1/2024, the appeal was disposed of by directing the Collector/CEO, Jila Panchayat, Bhind to constitute an enquiry committee comprising of technical officer, accounts officer and administrative officer to carry out the spot inspection and obtain a report. It was further directed that if any financial irregularity is found as per the enquiry report, then a show-cause notice would be issued and thereafter the matter would be decided on merits as per law. However, the Commissioner refused to stay the election process initiated under section 38 of the Adhiniyam. The operative part (paragraph 7) is reproduced below:-
7- mi;qZDr foospUk ds izdk’k esa izLrqr vihy va’kr% Lohdkj dh tkrh gSA v/khuLFk U;k;ky; dysDVj@eq[; dk;Zikyu vf/kdkjh ftyk iapk;r }kjk ikfjr vihyk/khu vkns’k fof/klEer u ik;s tkus ls vikLr fd;s tkrs gSa rFkk dysDVj@eq[; dk;Zikyu vf/kdkjh] ftyk iapk;r fHk.M dks fuEu funsZ’kksa ds lkFk izR;kofrZr fd;k tkrk gS fd%&
1@& mDr izdj.k esa dysDVj fHk.M }kjk ,d tkap ny xfBr fd;k tkos a] mDr tkap ny esa ,d rduhdh vf/kdkjh] ys[kk vf/kdkjh ,oa iz’kklfud vf/kdkjh lfEefyr djrs gq,] ekSdk LFky dh tkap djkbZ tkdj] dk mDr ny ls izfrosnu ysaA
2@& tkap ny }kjk izLrqr tkap izfrosnu ds vk/kkj ij vfu;ferrk ikbZ tkrh gS rks lacaf/krksa dks dkj.k crkvks uksfVl tkjh djsaA
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pwafd mDr xkze iapk;r ds fuokZpu dh izfdz;k izkjEHk gS vr% fuokZpu izfdz;k ij jksd yxkuk oS/kkfud ugha gksxkA vr% fuokZpu izfdz;k ds jksd laca/kh vkosnu dks fujLr fd;k tkrk gSA
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(ii) Meanwhile, the election for the post of sarpanch was held in which Smt. Sunita Jatav has been elected as Sarpanch and notification dated 9/1/2024 was issued. On 18/1/2024, an order was issued by CEO, Janpad Panchayat, Gohad directing Secretary, Gram Panchayat, Andori to ensure the handing over of charge to Sunita Jatav. The aforesaid order was challenged by Smt. Rachna Jatav by way of W.P. No.2101/2024 seeking a declaration that the election of Smt. Sunita Jatav be declared void ab initio. She further sought a direction that the charge of Smt. Sunita Jatav be handed over to her. The relief clause is reproduced below:-
“7- RELIEF SOUGHT
In view of the facts mentioned in Para 6 above the petitioner prays that a writ of mandamus or any other suitable writ, or direction may kindly be issued and following relief may kindly granted to the petitioner.
7.1 That, the letter annexure P/1 dated 18-01-2024 passed by respondent no. 4, may kindly be quashed and further may kindly held that the election of respondent no. 6 of the office of Sarpanch Gram Panchayat Andori, Janpad Gohad Distt. Bhind is illegal and void ab-initio.
7.2 That, respondent kindly further directed to grant the charge of the Sarpanch of the office of Gram Panchayat Andori Janpad Gohad Distt. Bhind to the petitioner immediately.
7.3 That, other relief doing justice including cost be ordered.”
(iii) Vide order dated 12/2/2024, the writ petition was disposed of by directing the Committee constituted by the Commissioner to conclude the enquiry within fifteen days and thereafter the competent Authority to pass appropriate order within seven days. Till then the appointment of any of the party to the post of Sarpanch has been kept in abeyance.
(iv) Being aggrieved by the aforesaid order, the newly elected Sarpanch Smt. Sunita Jatav filed W.A. No.556/2024 that being elected Sarpanch she could not be restrained from working as Sarpanch. Smt. Rachna Jatav filed W.A. No.581/2024 on the ground that once the order of the Commissioner has been set aside, her status as Sarpanch of the Gram Panchayat was restored, therefore, the writ Court ought to have directed the respondents to hand over the charge to her.
Learned counsel Shri Prashant Sharma appearing for Sunita Jatav submits that the election of Sunita Jatav to the post of Sarpanch has not been challenged by way of election petition. It is settled law that an election can be set aside only by way of an election petition, not by a writ petition under Article 226 of the Constitution. Therefore, the writ Court has wrongly restrained Smt. Sunita Jatav from working as Sarpanch of Gram Panchayat.
Learned counsel appearing for Smt. Rachana Jatav submits that before the issuance of notification of the election of Smt. Sunita Jatav on 9/1/24, the Commissioner had set aside the order of removal vide order dated 8/1/24. Therefore, the said election is void and Rachna Jatav has the right to work as Sarpanch. In support of his contention, learned counsel has placed reliance on the judgment passed by the Division Bench of the Allahabad High Court in the case of Smt. Jayantri Devi Vs. State of U.P. and 5 others (2023: AHC:34775-DB), in which the Division bench has held that the filling-up of vacancy occurred due to removal of office bearer is dependent upon the availability of the vacancy itself, which arises out of the ‘No-confidence motion’. The question of the validity of a ‘No-confidence motion’ or the consequent vacancy occurring after the meeting cannot be the subject matter of an election petition. The result is that there would be no removal of the petitioner and, thus, no vacancy if the passed resolution is quashed. Learned counsel has also placed reliance on the judgment passed by the Apex Court in the case of Poonam Vs. State of U.P. ((2016)2 SCC 779) in which the Apex Court gave an example of the legislation pertaining to Gram Panchayat or Panchaat Samiti about the removal of Sarpanch or Chairman. Against the order of removal, an appeal, revision or writ petition lies to the High Court and after removal if by way of indirect election from amongst the members of Panchayat, a new Sarpanch is elected and if the removal of Sarpanch is set aside and the tenure is there, then the newly elected Sarpanch cannot oppose the order of removal assailed by the affected Sarpanch.
Heard, learned counsel for the parties.
The President and Vice President are liable to be removed under section 35 of the Adhiniyam by way of no-confidence motion. S.36 provides disqualification for being office bearer of the Panchayat. Sub-section (4) of S.36 provides the remedy of appeal within thirty days against the order of removal. S.37 provides resignation by office bearer of Panchayat. Section 40 provides for the removal of office bearers of Panchayat that the State Government or the prescribed authority may remove an office bearer if he has been guilty of misconduct in the discharge of his duties or if his continuance is undesirable in the interest of the public. Sub-section (2) says that a person who has been removed under sub-section (1) shall forthwith cease to be a member of any other Panchayat and shall also be disqualified for a period of six years. Thereafter, the provision of filling-up vacancies by way of S.38 comes into operation which says that in the event of death, resignation, no-confidence motion or removal of an office bearer of a Panchayat or on his becoming a member of State Legislative Assembly or a member of either House of Parliament before the expiry of his term, a casual vacancy shall be deemed to have occurred in his office and such vacancy shall be filled as soon as may be by election in accordance with the provisions of the Act and the rules made thereunder. Thereafter, the election shall be held to fill up the vacancies under the provisions of the Panchayat Act and the rules made thereunder. Once the election has been held under the provisions of the Adhiniyam and the Rules made thereunder, such election shall be called into question only by a petition presented in the prescribed manner under section 122 of the Adhiniyam. As per sub-section (2) no such petition shall be admitted unless it is presented within thirty days from the date on which the election in question was notified. Article 243O(b) of the Constitution provides that no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by under any law made by the legislature of the State.
In this case, although the Commissioner passed an order on 8/1/2024 in favour of Smt. Rachana Jatav but in the same order, the learned Commissioner declined to interfere with the election process which had already started. Smt. Rachana Jatav did not seek quashment of the order dated 8/1/2024 to that effect in the writ petition. She has also not made any specific prayer in the writ petition seeking quashment of that part of the order dated 8/1/2024 passed by the Commissioner and because of that observation the election was held and Smt. Sunita Jatav was elected. Despite the order passed by the Commissioner and this Court, to date, the enquiry has not been concluded, therefore, Smt. Sunita Jatav has the right to hold the post of Sarpanch and Rachana Jatava has no right to hold that post.
Consequently, W.A. No. 556/2024 is allowed and W.A. No. 581/2024 is dismissed. The direction contained in the impugned order – “Till then the appointment of any of the party to the post of Sarpanch shall be kept in abeyance” is set aside. The rest of the order is maintained.
A copy of this order be retained in the connected appeal.