'•^ SKS •'K ^ HiCxH COURT up eHHATTlSGARH AT BILAsFUR rBTmOjNBR Verstas REsPQnDBSTS .l^iy>^w WRITPEmiONl22?IWO. 196(6/2008 Chliotelal •1:.:. State of ChhattfsgaitL and otliers OrderDOstffbr2)-7-200^ Sd/- DhirendraMishra Judge \^ llili.! •'^^u^.s iS^i^ •^^1; ^•. '^/MMWJi'9S ^l ,^^ HlGH €;OURTOF OHHAmSGARH AT BILASPUR WmTPEnTION(22'nNo.l9>6fi/3008 FBTiTIGNER Chhotelal, son ofShri Ramdas, aged APPLICANT about 29 years, Saj-panch, Grain Paiicuayal Buudlitibiiarda, Block Dougai^aDU, Distt. Rajnandgaon (CG) Versus KESFQNiJKWTS 1. State ] of Chhattisgaiii, through Cellec|tor, Rajnandgaon (CG) 2, DiTectprPaiichayat,Raipur(CG) 3" Sub J Divisional OfBcer (Kevenue) Rajnandgaou (CG) Present: Slid virendra Shanna^ Advocate for fhe pet^ SIiri Shashaiik TTiakxir.Pai^ . Shri H,S. AUiuwalia, Aavocate, for fhe mtervener. WRITPETmON UNDERARTICLE 227 OF THE CONSTrTUTiON OF INDIA i ORDBR C>3 -7-2008 DHIRENDRA MISHRA.J , The petitioner is elected: Sarpaiicli of GTQSSL Panchayat Buddhubharda, Block Dongargaon, |Distt, Kajnandgaon, Notlficatbn of his election was issued on 30th Uec€Biber, 2004. On the basis of a compiaiat dated 13tsl Jiine, 2006 by sonie viil^gers fh.at the petitioner was not eligible for election as Sarpanch firoBi Gram Panchayat Buddhubharda as tip | does not belong to Scheduled Tribe category, the SuJb DivisiDnal Ofiicer- rcspODdeut No.3 registered a case agamst the petttioner aad renioved hiin \ • • . • • . . , • . ' • J • •' • •' :-• . ". (' . •:- '' '. ^ '. .'' • . .^ ' " 1 .-• / • ? from the post exercisuig powers under Section 122 of the Paiichayat Raj A<lh.iaiyam, 1993 (For shortj herciaaiter referred to as 'the Act?) with an: observatton tihLat fhe petitiouer has obtained \ caste certificate showiag his caste to be Halba whereas he origHiaIly belongs fo Kosti caste aiid, therefbre, lie was not eUgible to coiitest the electiQn froin a constituencyJreservedfbrSclied^^ Tribe. Apart itoin mis, he waa fn^ns, me year 2004, which is aiso ndt ia acco^i^ appeal preferFed by tiie petitioner agaiiist th^ onler of Sub k~^ r il^'i. ^:- JllitlilSI :?1®I KI Divisional Qfiicer was ateo rejlected by the Collector, Rajnandgaon vide order dated 14-1-2008 (Annexure P-2). The petitioner filed a revision petition against the order ofm application for sfay before the Director Panchayat, however, the appUcation for stay was rejected by tiie impugned order of Annexure P-1. 2. The petitioner has filed fhe iristarLt petitk)n on ttie ground that the Sub Divisional Ofticer has passed the above order in fhe purported exercise of powers under Rule 21 of tlie Panchayats (Electton Petitbns, Comipt Practices and Disquaiificatton for Meiabership) Rules, 1995 (ior sliort, hereinafter rcferred to as <?the Rules of 1995) read wifii Sectton 122 of fhe Act, however ffae procedure prescnbed under Uie niles iias not been foUdwed as the petition under Secfton 122 oftlie Acf coiiid not be entertamed after •\ ..' , / stx Biontiis as per sub-sectiDn (2) ofSection 122 offheActTherc is total non-compiiaace of Rules 3, 4,5 ao4 Rule 7 of tfae Rules of 1995 and, fherefore/ me petitbn deserves to be ^ismissed iinder Rule 8 of fhe Rules of 1995. Tbe Subi Divisional OfHcer had also 110 jurisdicfiou to disqualtfy Uie petttionermider Sectiion 36 of fhe Act as competent authority under fhe aforcsaid provision to oiider disqualijGcation is Collector, The proceedmg was also registered on the basis of the coxsiplaiiit before fhe Collector, fhe Sub Divisibnal OfEcer directed fhe Naib Talisildar to comluct enquiry, On fhe basis of the report of fhe Naib Talisildar, show cayse notice was issued to the petitioner under Sectton ]40 of the Act aad, Uiereafter his election was declared void under Sectioii 122 of tiie Act without Uiere beiag aiiy election petifcion, The Naib Taiisildar had issued caste certificate to the petitiouer, on fhe basis ofwliich, J^ .<»••- ^^(?n? •^- -^- his nomtaation was accepted by the R^tiimnig OfEcer aiid he was declared unopposed Sarpancfc of the Gram Paacliayat. The caste certificate issued to tiie petitioner could be caucelted by fiie High Power Caste Scrutmy ComBiittee coustituted by fhe State Goveminent, however the Sub Divisional Ofiicer, on U^ basis ofan enquiry conducted behmd his back, Iias reached to fhe coucliision ffaat the petittoner contested ekction on the basis ofthe fake caste certi&cate. 3. Shri Shashank Thakur, Paael Lawyer, appearuig for me respondeuts/ State and Shri H. S, Ahluwalia, Advocate appeariug for tlie intei'vener-Mukesh Tiiakur, veheniently ai-gued fhat the Sub Divisional Ofifcer/ affcer issuing show cause notice to the petitioner, conducted enquiiy fhrough fh.e Naib Talisildar and, tliereafter found that fiie petitioner does not belong to me Scheduled Tribe azid he coutested eleetion on fhe basis of fhe fake caste ceitificate and "mus, he was not eUgible to contest election froni the coustituency reserved for Schedul|ed Tribe. if was argued fhat even if the Sub Divisional OfBcer has set aside tiEie election of the petitioner whfle exercisiug tiie powers under Rule 21 of fhe Rule of 1995 read wifh Sectton 122 ofme Atetwimout followmg the procedure prescnbed tliereii^ he could not have declared tlie petitioner disqualiiied under Section 36(2)(a) of fhe Act also, as the coiEipeteut auftiority under the Act is Collector, tooknig to tlie undisputed fact mat the petitiDner does DjQt beloag tb Selieduled Tnbe and he contested election on Uie basis of false caste certtficate, no Hiterference is called fbr iu^^^^^^t^ junsdictiQnunderArtfcle 226/227 oftheConsti^^ ^^wm¥^:ss ^'^ ^y' ^ 4. ReUaiice is placed ia the judgiuents in. the iiiatters of Amrendra SiafiSh -v- State of U.P. 1. and Rosfaaa Deen -v- Preeti La!2 . : -:1. ! • '1 ^: ; ' , 1 . ' '. ' . . '. '• 11;.;11' 5, ' I have heard leanied counsel for fhe parties, 6. iii Uie matter of Ammn^m ^z^i^ ^m^ contested aiid elected as GiB^ia Prs^haii by supprcssing his coriv the N.D.P.S. Act, a complaint was lodged fhat fhe petitioiier was disquajified Iiavmg been coiwictea aiid, merefore,^^^^^^te have been declared elected as Gram. Pi'adtiaii, The coinplaHit was enquired uito by Uie State Election ComBiission, who declared the election of ttie petitioner as iiiegal and ^ountermaaded the saaie, f the Gram Pmdhan impugned fhe decision of fhe State Election Coisimissiou by writ petition under Article 226 of tlie Corisfitution of ludia. Leamed Siagle Judge declmed to exercise its discrctiouaiy jurisdictbii under Articie 226 of fhe Constitutbn of india with an observation fiiat fhe coutention of the petittoner tliat he was iiot disqualified to contest election to^^^^^^^ nicorrect The appeal preferred by me Gram Pradhaa wasaiso dismissed by tlie Diyi3ional Bench withtheobservationasunder:- , s{20. In the Hght of the czforesmd nature of ?7ff/if ?n issue, considenng the righi of the petitioner io mctirztcun tfzis wm petiiion (^za{le?u}i?zg theorder i tfwrein, pwtieuiartjf when it is eviderct frmn reoDrd,' %cd ne d?d sz^fer me discjuaufioation imder Section 5-A qftfie Ad, it (xmnot be said tfzat he had a iegal cind enfarceable TicjM to <»ntmtie m the qffzce qfterbeing declcired electeder^ ' 2008(2) AJ.J 260 (DB) 2AIR2002SC33 ^ ^,£- to fault or ignorance or mistofce qftfw aumomz/ c^nc^yned by ignoring the discjuahfic^fion possessed bi^ ihe petitioner CMUI pennitting him to cQntest the etection, but me ^zcf remams/ thatonce he is disguaiifted ufider Section 5-A qf the Act, it cannot be said ikai he kas a legal righi and mat too 1 .•'. ' •;, • ~. ^ •' ejzforceable io contmue in the office Wl H is cutjudiaited or dedded by some authonii) uhder the Act He is not entitled to enforce the swd right ^n lazu whicn, ad?mttedly he hcts usurped bjj contesting the €iection\ for whi(3z he was discfucdified under me stcnute, Issue No. 2 is onswered aoDordinfil^ 1 7. liitheiiiQ.tterolRoslwnDeen2, Hon'bl^Supreme Gourtwhile consideniig fhe scope of jurisdiction of Article 226/227 oftihLe Cpustitution of India, has held that the power conferred on Uie High Court under Articles 226 aad 227 of the Constitution is to advance justice aiid not to thwart it RefeiTUig to fhe judgiaent ui Uie matter of State of IJ.P. -^- Dlstricti Jiidge, Uaxlao ax&d ottters3 it has been observed fhat the veiy purpose of such constitatk)nal powers beiiig conferrcd on fhe High Courts is fhat no laaii should be subjected to injustice by jviolstiag tlie law, Tiie k?ok out of fhe High Court is, ftierefore, not nierely to piclc out arsy error of law mrough aa acadeinic angle ibut to see wliether nijustice has resutted on account pf aay erroneous interpretation oflaw. Ifjustice became me byproducf ofaii jeiToneous view^^^^^^o^ iaw, fhe High Court is not expected to erase sueh justice irt fiie naine ofcorrectiiig the erroroflaw, ; 3AIRI984SC1401 •'^ .& <^..<'.,.-. 8. After careml scriitiiiy ofm the onler of tlie Sub Divisional Ofiicer as also the oider passed by fhe Collector, foUowing picture eiiiei^es fhat:- (i) The complamt was lodged alleguig fhat tiie petitioner has contested the electfon from me constitaency reserved tor ScheduledT^ibe on Uie basis of the fake caste cerfciiicate; aiid (ai) The petitioner replied to tlie show cause nofice issued by the Sub Divisional OfBcer aad denied the allegatk^n aad stated that he belongs to Halba caste aiid the Naib Tahsildar, Rainaridgaon after due vGrification, has issued the caste certificate, The Sub Divisional Officer conducted enquiiy regardiag caste of fhe petitbuer aad reached to Uie jconcmsion that Iie is originaUy a resideut of Mah.arashtra/ lie belongs to Kosti communify, he stiidied ia school by showmg him Halba aiid obtamed a caste cerfificaXeiiDmtlieNaibrTahsMarwherea^^h^ origtiialiy belongs to Kosti caste. His name isj registered ia fhe voter list of two pla.ces wAich is also against the rules aad with fhis observation, declarcd tiiat Uie petitioner was elected ia contravention of Ruk 21 offhe Rules of 199b and accordin^gjy, his election was declared void uiider Section 122 ofthe AGt aiid liewas reisioved from the post of Sarpaiich and & Divisioual Officer was fdrth^r <x?nfiniied by the Coliector HI appeal aad the Director Panchayat rejected the application of stay prcferred by the petmouer ia revision, 9. There is nD dispiite that the Sub DwijsiDnal Oj^ foliowed the proceduTe prescribed under the Rule of 1995 or Sectton 122 of ftie Act. He Iias also no jurisdiction to cieclare^^ & petitbner disqualified under Sect^ under Section 36 of the Act vesfs with tlie Uollector. '^ ft^ ;^- ^- 10, FroHL the undisputed fact, it is also evident fhat ffae petitioner contested electton on fhe basis of the caste certificate issued by fhe Naib TahsiMar, The Sub Divisional OfEcer has also not lueutioned whether Uie caste of fhe petitioner ui Uie voter list is shown as Halba, Scheduled Tribe or not However, on fhe basis of tlie coBiplaiiit filed by tlie Halba conimuiiity, Uie Siib Divisional Officer has conducted enquuy Uirough the Naib Tahsildar and reached to the conclusion Uiat Uie caste certmcate issu^^^^ to fiie petitioner by Uie Naib Talisildar is contrary to the niles ui this regard, 1 11. Once the caste certificate is issued by a conipetent aufh.ority, fhe saine caii be questioned before a Higli Power Caste Scrutuiy Committee constituted by fhe State Goverament. No roviiig enqiiuy, that too, on a coniplaiiit agaia.st Uie eiectiontothe post of Sart^aiich canbe conducted by Uie Sub DMsional OfB.cer. 12. ln tfae matters of Amrendnx S^zgh^ idisqualificatbn was on account of conviction ia an ottence underiN.D,P.S. Act, The State Election Coinmission consideriiig the undisputed fact of conviction, set aside the election offhe petitioner as GraEa Pradhaii in the purported exercise of power under Article 243-K of the Constitutk^n of india read with Section 12-BB of SaByukt Prant Paiichayat Raj Act, 1947. 13, The objectbn of the petitioner mat after his elect^ the post of Grain Pradhaa^, the saoie niay be iaipugned ouly by way of fiiing electton petitiou, was not considered aiid fhe leanied Smgle Judge declined to exercise jxnisdictton iiiider Articie 226 of tl^ Constitution ofindia, which was siibsequently aitiuBed ih th^ writ 8 /@ ;.^ M -<...—• appeal by the Division Bench with an observation Uiat fhe petitiDner has UQ enforceable rigm after bemg disqualified, 14. in the matter of jRosnan|Dee?25also, considermg tto the above case, the Honl3le ^uprenie Court held that the power under Article 226/227 of tlle C<3nstitutk)ii of India is fo toe exercised to advaiice fiie justfce and not to fhwart it aiid set aside the oider passed by the High (Dourt and restQred fhe order passed by fiie CoBimissioner and directed hiai to expedite the proceediiig aad decide me claiai ofthe petitionerwimout any mrthe 15. in the instant case, as already pointeei out in the forcgoing paragraphs, fhe vaUdity of the certilicate issued to the petitk)ner could be questioned by fhe aggrieved party before me High Power Caste Scnitmy Committee constituted by t3ie State Goveninient, The Sub Divisional ufBcer could not have undertalcen enquiiy regarding the caste of the petitioner, fhat j too, in a proceediqg which was drawu on a complaint agamst Uie election of the petnioner to the post ofSarpaacIi, | 16, In these circumstances, the Director Panchayat was^^n^ justified in rejectmg the application of the petltbnerfbr stay as th^ pefrtioner was elected unopposed to fhe post of Sarpanch. No electton petition was filed against him within tthe stipulated period, 17. in the resutt, fhe petition is aUowed, The pider dated 7-3- / / 2008 is set aside and the effect aiid opei^tion of fhe order dated 14-1-2008 (Annexure P-2) is stayed tiU me disposal of the rcvision petition No. 100/A-89/07.08. Sd/- DhirendraMishra Judge