HIGH COURT OF CHHATTISGARH, BILASPUR“ ’ * D.B. HON’BLE SHRI RAJEEV GUPTA, C.J. 85 / HONB’LE SHRI SUNIL KUMAR SINHA, J. (947 WRIT PETITION (C) No.2846 of 2007 Aivez Kumar Dewangan, son of Phul Singh, aged about 32 years, R/o Trimurty Nagar, Ward No.5, Birgaon, Up—Tahsil Dharsiwa, Tahsil Raipur (C.G). PETITIONER Versus State of Chhattisgarh — RESPONDENTS Through the Secretary, Urban Administration Department, D.K.S. Bhawan, Raipur (C.G). Chhattisgarh State Election Through its Deputy Secretary, Mahanadi Commission — Block VSecretariat, Raipur (C.G). The Collector, Raipur (C.G) Om' Prakash Dewangan, s/o Kanhaiyalal Dewangan, aged about 38 years, President Birgaon Municipality, Birgaon, Distt. Raipur (Chhattisgarh. Appearance: Mr. P. Diwakar, Sr. Advocate with Mr. RR. Patankar, counsel for the petitioner. Mr. Sumesh Bajaj, Govt. Advocate for the State/ respondents no.1 85 3. Mr. Prashant Mishra, Sr. Advocate with Mr. Varunendra Mishra, counsel for respondent no.2. Mr. Jitendra Pali, counsel for respondent no.4. . ________________________________________________________________________ ) \ 2 W.P.(C).No.2846/2007 JUDGMENT (g .03.2oo9) Following judgment of the Court was delivered by SUNIL KUMAR SINHA, J, (1) The election for the post of President of Nagar’ Palika, Birgaon, Distt. Raipur (C.G) was held in the year 2004. Respondent no.4 along-with 5 other persons contested for the said post. The result of the election was declared on 19. 12.2004 and respondent no.4 Dr. Omprakash Dewangan was elected as President of Nagar Palika, Birgaon. As per section 32—C of the Chhattisgarh Municipalities Act, 1961 (hereinafter referred toas “the Act of 1961”), the candidates have to lodge an account of election expenses within 3O days from the 'date of election of the returned candidate. The allegations are that respondent no.4, along-with 4 other candidates who also c0ntested the election, did not submit the details of.e1ection expenditure well within time, therefore, a show—cause notice dated 20.4.2005 (Annexure P—2) was issued by the State Election Commission to respondent no.4 as to why he may not be declared disqualified, facing such disqualification for being chosen as and for being a member 'of the Municipal Council for a period of 5 years. The other persons who had contested the election were also served with identical notices and orders in relation to their disqualification were passed on 02.5.2006 (Annexure P—3), however, no action was taken against respondent no.4. The petitioner further alleges that as soon as respondent no.4 could come to know about his weak 3 W.P.(C).No.2846/2007 position and could realize the seriousness of the problem, he played a fraud by compelling the Clerk of Municipal Council to accept his memo of election expenditure in back date. The so— called election expenditure of respondent no.4, shown to be submitted before the Clerk on 17.1.2005 (Annexure P—4))was not in fact submitted on the said date which would be clear from the diary and dispatch register of the Council, in which, entries have been made subsequently at Serial No.1838. The petitioner further alleges that thereafter, respondent no.4 compelled and pressurized the Chief Municipal Officer (C.M.O.) to forward his election expenditure details purported to be filed on 17.1.2005 (Annexure P-4) and Vide letter dated 18.7.2005 (Annexure P—6), the C.M.O., forwarded the expenditure of respondent no.4 to the Election Commission. Since the petitioner came to know about the above fraud, he made a written complaint on 09.11.2006 (Annexure P—7) before the Election Commission giving all the facts seeking enquiry and justice. Thereafter, an enquiry was conducted by the Up—Jilla Nirwachan Adhikari (Addl. Collector in the capacity of Addl. District Election Officer) as per the directions of the Nirwachan Adhikari (the District Collector in the capacity of District Election Officer), who submitted his report on 19.12.2006 (Annexure P~8). The District Election Officer vide his letter dated 27. 12.2006 (Annexure P—9) forwarded his report to the Election Commission. The petitioner makes allegations that though the Election Commission, after receiving the said report, issued a show cause notice to respondent no.4 \ 4 W.P.(C).No.2846/2007 on 22.1.2007 (Annexure P-ll) and thereafter, another notice dated 14.03.2007 (Annexure P-l2) making mention of section 32- A of the Act, 1961 as also giving reference of C.M.O., Mr. Anil Sharma, who stated on affidavit that under the pressure of respondent no.4, he has forwarded the election expenditure details on 18.7.2005 and calling respondent no.4 as to why he should not be declared disqualified under the above provisions, but, inspite of above show cause notices, the respondent no.2 did not take any action u/s 32—C of the Act, 1961. However, the petitioner received a memo dated 11.4.2007 (Annexure P—l3) that no action can be taken on the application of the petitioner as there are no provisions under the Act of 1961 or the Rules of 1994 to take such actions. It is at this stage, the petitioner has filed this writ petition seeking the following relief(s): “7.1 That, the impugned order dated 11.4.2007 (Annexure P/ 13) passed by the respondent no.2 be set aside / quashed. 7.2 That, the respondent no.2 be directed to take appropriate action as per Municipalities Act, 1961 against the respondent no.4. 7.3 That, this Hon’ble Court may kindly be pleased to call for the entire record relating to the case of the petitioner lying with respondent no.2. 7.4 Any other relief(s) may also be given to the petitioner, which this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.” 5 W.P.(C).No.2846/2007 (2) Initially this petition was filed in the individual capacity of the petitioner. However, on 09.8.2007, by allowing I.A.No. 4, this Court passed an order that now this writ petition is being treated as Public Interest Litigation (PIL). (3) The Election Commission/respondent no.2 in its return took objection that PIL would not be maintainable in such matters. It also took objection that the petitioner has not challenged the earlier order dated 14.8.2006 whereby the accounts of election expenses submitted by respondent no.4 was accepted by respondent no.2, therefore, this writ petition is not maintainable. In sum and substance, the Election Commission came with a defence that the expenditure sent by respondent no.4 was already accepted by the Commission on 14.8.2006 and the orders were passed under the provisions of section 32-A, 32- B and 32—C of the Act, 196.1 and the Election Expenses (Maintenance and Lodging of Account) Order, 1997. It further contended that the representation of the petitioner was received on 09.11.2006 after passing of the order of acceptance of the election expenses on 14.8.2006. Though the Commission sought a report from the District Election Officer and the District Election Officer after enquiry submitted his report to the Election Commission on 27.12.2006, but no orders were possible on such report as there is no provision in law which authorizes the Commission to review its own earlier order, whereby, the accounts of expenditure submitted by a candidate has been \ 6 W.P.(C).No.2846/2007 accepted. Since the review of earlier order dated 14.8.2006 was not permissible under the law, therefore, the impugned memo dt.11.4.2007 (Annexure P—13) was issued to the petitioner and the matter was clo’sed. (4) Respondent no.4 also raised an objection regarding maintainability of a public interest litigation in such matters. He further contended that the petition is politically motivated and it is not bonafide. So far as factual aspects are concerned, respondent no.4 reiterated that he had already submitted his election expenses within the statutory period on 17.1.2005. The District Election Officer in his report dated 05.11.2005 has reiterated the position. The said account was forwarded to the Election Commission and it was ultimately accepted on 14.8.2006 in exercise of statutory powers and after due application of mind. It is‘after all this, the petitioner submitted representation dated 09.11.2006 and the same was sent to the District Election Officer for enquiry and the above enquiry report was received. In sum and substance, he supported the contention of the Election Commission that once the accounts of election expenditure were accepted by passing an order dated 14.8.2006, the same became’final and it was not possible for the Commission to take a different View than that. (5) We have heard learned counsel for the parties at length and have also perused the records of the writ petition as also the ’ \ \ \\ 7 W.P.(C).N0.2846/2007 original records of the Election Commission made available to us by Senior Counsel for the Commission. (6) At the arguments, learned counsel appearing on behalf of respondent no.4, firstly, raised the ground of locus standi of the petitioner to file the instant writ petition. He argued that the petitioner was neither an aggrieved party nor his rights have been affected, therefore, the writ petition at the instance of the petitioner would not be maintainable. He referred to the decision of the Supreme Court rendered in the matter of Jasbhai Motibhai Desai —vs- Rashan Kumar, Haji Bashir Ahmed and others, (1976) 1 SCC 671. ”x (7) In the said matter, the question was “whether the proprietor of a cinema theatre holding licence for exhibiting cinematograph films was entitled to invoke the certiorari jurisdiction ex debito justitiae to get a ‘No-Objection’Certificate’, granted under Rule 6 of the Bombay Cinema Rules, 1954 by the District Magistrate in favour of a rival in the trade, brought up and quashed on the ground that it suffers from a defect of jurisdiction '9”. It is in this context referring to the various earlier decisions, the Apex Court held in paragraph 37 as under: "‘It will be seen that in the context of locus, standi to apply for a writ of certiorari, an applicant may ordinarily fall in any of these categories: (i) ‘person aggrieved’; (ii) ‘stranger’; (iii) busybody or meddlesome interloper. Persons in the last category are easily distinguishable from those coming under the first two categories. Such persons interfere in 8 W.P.(C).No.2846/2007 things which do not concern them. They masquerade as crusaders for justice. They pretend to act in the name of pro bono publico, though they have no interest of the public or even of their own to protect. They indulge in the pastime of meddling with the judicial process either by force of habit or from improper motives. Often, they are actuated by a desire to win notoriety or cheap popularity; while the ulterior intent of some applicants in this category, may be no more than spoking the wheels of administration. The High Court should do well to reject the applications of such busybodies at the threshold.” ¢ (8) The said matter was a matter in between two business rivals having no connection with the interest of public or a class of it. Here the matter relates to alleged continuance of usurpation of public office or perpetuation of an illegality. The fact in issue is whether respondent no.4 suffered alleged disqualification by reason of not filing his election expenses in time u/s 32—C of the Act of 1961. The allegations are about holding of a post by a person, without any lawful authority after incurring a disqualification which is a definite consequence. Even if the petitioner is not allowed to raise the cause, any other member of the concerned Municipal Council, may be a voter to whom the oblique motives and the allegations regarding political motivations are not made, could file such a writ petition even at present for the same relief since the alleged usurpation of the office is continuing. This being the allegations, the reliefs ' claimed by the petitioner in his writ petition are in the nature of 9 W.P.1 C ).No.2846/2007 ‘class action’ Without seeking any relief personal to him and in this situation the motive or conduct alleged against the petitioner can be relevant only for denying him the cost, even if his claim succeeds, but it cannot be a justification to refuse to examine the merits of the question raised therein, since this is a matter of ‘public concern’ and relates to good governance of the Municipal Council constituted through a democratic process. (9) Such matters are matters of ‘public concern’ and they are in the nature of a ‘class action’ and therefore they relate to good governance of the State have been held by the Apex Court in the matter of Dr. Kashinath G. Jalmi and another —vs- The sQeaker and others, (1993) 2 scc 703. In the said case, three persons, two members of the council of ministers and one Who assumed the office of Chief Minister of the State, were declared disqualified by the then Speaker on the ground of defection. The writ petitions were filed by them challenging the orders of disqualification. After the then Speaker was removed from the office, the Deputy Speaker functioning as Acting Speaker, allowed the applications filed by them for review of the earlier orders of 'disqualifications and made the orders in purported exercise of power of review under 10th Schedule setting aside the orders of disqualification. This led to filing of writ petitions challenging the orders of review. The writ petitions were summarily dismissed by the High Court upholding the r \ preliminary objection on the ground of laches. The Apex Court while allowing the appeals of the said orders held that exercise \ 10 W.P.(C).N0.2846/2007 of discretion by the Court even Where the application is delayed, is to be governed by the objective of promoting ‘public interest’ and ‘good administration’ and on that basis discretion cannot be exercised in favour of interference where it is_ necessary to prevent continuance of usurpation of public office or perpetuation of an illegality. The Apex Court held that the situation continues unaltered, since these persons continue to hold the public offices, to which they are alleged to be disentitled, is sufficient to hold that the writ petitions ought not to have been dismissed merely on the ground of laches at the admission stage, ;without examining the contention on merits that these offices including that of the Chief Minister of the State, are being held by persons without ahy lawful authority. For the locus, the Apex Court said that any other member of the public, to whom the oblique motives are not alleged, could file such a writ petition, even subsequently to that one since the alleged usurpation of office was continuing and this disability on the ground of oblique motive and conduct would not attach to him because the reliefs claimed by the appellants in their writ petitions filed in the High Court being in the nature of a ‘class action’ without seeking any relief personal to them and the motive and conduct of the appellants, as alleged by the respondents, in such a situation can only be relevant for denying them the costs even if their claim succeeds, but it cannot be a justification to refuse to \ examine the merits of the question raised therein, since that is a \ / / 11 W.P.(C).No.2846/2007 matter of ‘public concern’ and relates to the good governance of the State itself. (10) In the present case, the petitioner is the husband of’ward member of Ward No.5 of Birgaon Municipality. Even if the writ petition is allowed, the petitioner is not going to get any benefit. As we have already held that the petition appears to be one in the nature of ‘class action’ and there appears to be an element of ‘public concern’ and good governance, therefore, the petition filed for such cause cannot be dismissed at the threshold on the ground of oblique motive or political reasons attributed to the petitioner by respondent no.4 and we hold it accordingly. (11) So far as ‘public interest’ is concerned, according to the Advanced Law Lexicon by P. Ramanatha Aiyar, (3rd Edn., 2005) Pg. 3832, it means those interest which concern the public at large. We may say that expression ‘public interest’ is not capable of precise definition and has not a rigid meaning and is elastic and takes its colours from the statute in which it occurs, the concept varying with the time and state for society and its needs. (Please see State of Bihar -vs- Kameshwar Singh, AIR 1952 SC 252). The public interest is always concerned with the public injury or public wrong. In this regard, we may quote the observations in the judgment of the Apex Court rendered in the matter of S.P.Gupta and others -vs- President of India and ' others, AIR 1982 SC 149. 12 W.P.1C2.No.2846/2007 “If the State or any public authority acts beyond the scope of its power and thereby causes a specific legal injury to a person or to a determinate class or group of persons, it would be a case of private injury actionable in the manner discussed in the preceding paragraphs. So also if the duty is owed by the State or any public authority to a person or a determinate class or group of persons, it would give rise to a corresponding right in , such person or determinate class or group of persons and they Would be entitled to maintain an action for judicial redress. But if no specific legal injury is caused to a person or to a determinate class or group of persons by the act or omission of the State or any public authority and the injury is caused only to public interest, the question arises as to who can maintain the action for Vindicating the rule of law and setting aside the unlawful action or enforcing the performance of the public duty if no one can maintain an action for redress of such public wrong or public injury, it would be disastrous for the rule of law, for it would be open to the State or a public authority to act with impunity beyond the scope of its power or in breach of a public duty owed by it.” due to alleged action of the State, (12) In the present case, the State Election Commission, though specific especially injury to a person or to a determinate cl has not been cause \\actionable in law, but, by the alleged act or the omission of the \ legal ass or group of persons d, leading to a case of private injury \x 13 \X‘X W.P.(C).No.2846/2007 State or the concerned public authority the injury is allegedly caused to the public interest, as according to the decision of Dr. Kashinath G. Jalmi (supra), it is a matter of public concern because it concerns the public at large that means all the voters of the concerned Municipality which further means that the biggest possible group of persons who may be concerned by such action. Therefore, the ‘public concern’ and ‘public interest: are interlinked and such a petition on the above principles would be maintainable. 4 (13) Now we shall examine the defence raised by the Election Commission as also respondent no.4. We may make it clear at the very outset that we are not factually examining the rival claims. We are only examining as to whether the Election Commission has taken a decision u/s 32—C of the Act of 1961 or not ?, because, the respondents have contended that a decision u/s 32—C has already been taken on 14.8.2006 by the Election Commission, therefore, review of the said decision was not possible on the application/complaint of the petitioner on the allegations made by him. A perusal of the records of the Election Commission would show that on 14.8.2006 only a proposal was made for passing an order by the Commission but no order was passed on such proposal. The contents of the entire order sheet recorded on 14.08.2006 in form of a proposal, which the respondents are saying that it is an order of acceptance of election expenditure, reads as under: awwn— ®>d£ pom 3595 $ dmwgosao doom.w.$veg“.Rwogem 33 no vomwwm mg» Hucgo on Jo& E “H33 303m 3 meowwEE wmEv. FE.» EEE E5 Ev? WEE m\$ u\$ a}: AEV.E VEVE AEVEVM AVE/55% emtgiopw Ev ”3 ég EE Ewg ELw Eb E5 E E @EwwymEEE_mEE Eu E5 E. WE «wSalt: $F£ Eww Em REM Em gag r5 ”Ew _E& WME Em mcaNITwF E ¢ EwE .Em— E «aEww Em Em E5 EEKE Kym:5 E Ea .¢E Eb EEKE F mocNITt $F£ Eww Em E Em Egg, .mw m 5r E Ew k gowiTww 5E E MwEE _EE5EMME EEMmWEEEEmEE wyu@wg¢¢wwEw§r/&kw §EwE_mWF$EF%EwE %K£_§EWEEEE§3¢~ .F.2E¢E§§£5WE EE.E.EME&WEE% kEEEmtwgwgE FFEw Ebiarhw twwpmw 8\w\F é 52: .B gag gig .Ekvcw 1E ES vEu :Ew E Ewwa PEw Em Ew $ER5 $ w: E§w\vEww 33 WEE E EELE WE E WE 959w wax tum nocN\$wN.oz. O Ms? E & E 15 W.P.(C).No.2846/2007 written at the end as " 3Tla¥1T9fF We would have treated it as an order if words like “approved” or “proposal accepted” etc., would have been written there by the concerned authority, which are not there. (14) Incidentally, we are unable to understand that if the order itself was passed on 14.8.2006 as contended by the respondents, where was the occasion for the Commission to issue show cause notices to respondent no.4 u/s 32 of the Act 1961 on 22.1.2007 ‘, and 14.3.2007 regarding declaration of the statutory disqualification against him. The actions taken by the Election Commission appear to be conflicting. Therefore, factually, we are not able to hold that the Election Commission has accepted the election expenditure of respondent no.4 as per the order dated 14.8.2006. (15L. Section 32-C of the Act 1961 reads as under: “32-C. 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 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 him to be disqualified and any such person shall be disqualified for being chosen as, and for being a 16 W.P.(C)‘No.2846/2007 member of the Municipal Council or Nagar Parlchayat, as the case may be, for a period not exceeding five years from the date of the order.” Sub-clause (a) of section 32C emphasite on two factors (i) failure to lodge the account of election expenses Within the time, and (ii) failure to lodge it in the manner required under the Act. Sub— clause (b) says that if a person has no good reason or justification to do so, he shall have to face consequences referred to in the said clause and for all this, a satisfaction has to be recorded by the State Election Commission. This indicates that if a person has good reasons or justification to not lodge th account in time or in the manner required by or under the Act, the Commission has a power to condone the same but this can only be done on the satisfaction of the Commission in that behalf. It would be the domain of the Commission to examine such cases. Clause 7 of the Election Expenses (Maintenance and Lodging of Account) Order, 1997 provides that 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, 3O days from the date of election. After a conjoint reading of section 32-C of the Act and Clause 7 of the Order, 1997, it is very much clear that the accounts are to be lodged before the District Election Officer within the time prescribed i.e. 3O days, and if it is not lodged within the said period before the said authority, a good reason or justification for the failure may be put forward and if the Commission desires to K i..y,,._‘ $0 e 17 W.P.( C ).No.2846/2007 condone the lapses, it must reach to a satisfaction and if the Commission is not satisfied, it shall, by order published in the official gazette, declare the person to be disqualified and any such person shall be further 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 5 years from the date of the order. We may further