-- A !p < HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petition (0 No.2343 of 2009 PETITIONER: RESPONDENTS: -Versus- Omprakash Dewangan Chhattisgarh State Election Commission and others POST FOR ORDER ON J?=1 1 -2009 Sd/- Dhirendra Mishra Judge 1^-11-2009 ^ HIGH COURT OF CHHATTISGARH: BILASPUR Writ Petition (C) No.2343 of 2009 PETITIONER: Omprakash Dewangan, son of Shri Kanhaiyalal Dewangan, aged about 39 years, President, Municipal Council, Birgaon, Tahsil and District Raipur, Chhattisgarh -Versus- RESPONDENTS: 1. Chhattisgarh State Election Commission, through Secretary, Chhattisgarh State Election Commission, Mahanadi Khand, Mantralaya Parisar, Raipur, Chhattisgarh 2. State of Chhattisgarh, Through The Secretary, Department of Urban Administration, D.K.S. Bhawan, Raipur (Chhattisgarh) 3. Collector and District Returning Officer, Raipur, District Raipur, Chhattisgarh 4. Municipal Council, Birgaon through the Chief Municipal Officer, Municipal Council, Birgaon, District Raipur, Chhattisgarh 5. Aivez Kumar Dewangan, Son of Shri Phoolsingh Dewangan, aged about 32 years, R/o Trimuthy Nagar, Ward No.5, Tahsil and District Raipur (Writ Petition underArticle 226 ofthe Constitution of India) Present: ShriManindra Shrivastava, Sr. Advocate with Shri Sanjay K. Agrawal & Shri Amrito Das, Advocates for the petitioner. Shri Prashant Mishra, Sr. Advocate with Shri B.D: Guru & Shri Shashank Thakur, Advocates for respondent No.1. Shri Arun Sao, Govt. Advocate for respondents No.2, 3 & 4. Dr. N.K. Shukla, Sr. Advocate with Shri A.K. Yadav, Advocate for respondent No.5. y^ O RD E R (Passed on 1~y November. 2009) DHIRENDRA MISHRA.J. 1. The petitioner by the instant petition has questioned the legality and validity of the order dated 1-5-2009 (Annexure-P/1) and the order of Annexure-P/20 dated 1-5-2009 whereby the State ElectionCommission (for brevity 'the Commission'), respondent No.1, has disqualified the petitioner, who was elected as President of Municipal Council, Birgaon, for a period of 5 years from being the President or Member of the Municipal Council under Section 32-C of the Chhattisgarh Municipal Council Act, 1961 (for short 'the Act'). 2. The facts necessary for adjudication of this petition are that the petitioner was elected as President of Birgaon Municipality on 19-12- 2004. He submitted account of election expenses before the Chief Municipal Officer (for short 'the CMO') on 17-1-2005, which was forwarded to the District Election Officer, Raipur (for short 'the DEO') on 18-7-2005. The petitioner wasserved with a show cause notice dated 19/21-4-2005 by the Commission (Annexure-P/4). The petitioner replied to the said notice on 1-8-2006 (Annexure-P/5) and stated that he has already submitted his election expenses account on 17-1-2005. The DEO vide his memo dated 5-11-2005 (Annexure-P/6) addressed to the Commission communicated that the petitioner had submitted election expenses account to the CMO, Birgaon on 17-1-2005, which was forwarded by him to his office on 18-7-2005. The Commission by its order in the note-sheet dated 14-8-2006 (Annexure-P/7)accepted the election expenses account submitted by the petitioner. 3. Respondent No.5 filed a complaint on 9-11-2006 (Annexure-P/10) before the Commission and prayed for taking action against the petitioner under Section 32-C of the Act whereupon another show cause notice dated 14-3-2007 (Annexure-P/11) was issued to the petitioner, which was replied by the petitioner vide Annexure-P/12. The Commission vide itsorder dated 11-4-2007 rejected the complaint of respondent No.5. ^^ -.^,^^^ 4. Respondent No.5 filed a Writ Petition No.2846/2007 and challenged the order dated 11-4-2007 passed by the Commission whereby his complaint against the petitioner was rejected. The same was allowed vide order dated 17th March, 2009 (Annexure-P/16). Quashing the order dated 11-4-2007, the Commission was directed to take a decision by passing an appropriate order keeping in mind the provisions of Sections 32-A, 32-B & 32-C of the Act and Clause-7 of the Election Expenses (Maintenance and Lodging ofAccount) Order, 1997 (hereinafter referred to as 'the Order'), within a period of 60 days. After passing of the above order, the Commission issued a notice of Annexure-P/17 dated 24l April, 2009 and intimated the petitioner that in compliance of the High Court's order (Annexure-P/16), a date for personal hearing has been fixed on 30-4-2009. The petitioner appeared before the Commission on 30th April, 2009 and prayed for filing of the case in view of the order dated 14-8-2006 passed by the Commission. However, the Commission vide its impugned order dated 1 May, 2009 (Annexure-P/1 & Annexure-P/20) held that the petitioner did not submit his election expenses account within the stipulated period under the Act and he did not have any good and justified reason for such failure. Accordingly, the petitioner is disqualified under Section 32-C of the Act for a period of 5 years from the date of order from being elected as President or Member of the Municipal Council on account of his failure in lodging the election expenses account under Section 32-B of the Act. 5. Shri Manindra Shrivastava, learned Senior Advocate with Shri Sanjay K. Agrawal, Advocate, appearing on behalf of the petitioner would submit that under Section 32-C of the Act the order of future disqualification for 5 years can be passed only after recording a finding that the petitioner is disqualified for his failure to lodge the account of election expenses within time and in the manner prescribed by or under this Act and that too, by order published in the official gazette. However, from perusal of the impugned order, it is evident that the Commission has not recorded anyfinding and, therefore, the above order offuture disqualification, not fulfilling the statutory requirement, is contrary to law. - <?i:'i;S%;'5'"x ^>?WU3"S<?: • ^—a •^'s 6. Reliance is placed in the matter of Sadashiv H. Patil Vs. Vithal D. Teke and others . 7. It was further argued that the action of the Commission in disqualifying the petitioner for a period of 5 years suffers from the vice of discrimination. One Hori Lal Dewangan has contested the election as BJP nominee. He too submitted his election expenses account in the office of Municipal Council, which was forwarded to the District Election Officer and the same has been accepted by the Commission. The Commission being a constitutional body cannot discriminate between the two similarly situated persons and thus, the order of Anneuxre-P/1/ Annexure-P/20 is also hit by Article 14 of the Constitution of India. 8. The impugned order has been passed without assigning any reason and without application of mind. From bare reading of Section 32-C, it is clear that the State Election Commission has to record the satisfaction that the person concerned had no good reason or justification for the failure. However, the Commission has passed the impugned order by non-speaking and unreasoned order, which is liable to be set aside. 9. Reliance is placed in the matters of Jawahar Lal Gupta Versus Rajya Nirvachan Ayog, Bhopal2, Jaipal Singh Vs. M.P. State Election Commission & Others3, Shantilal (Bum Bum) Vs.State of M.P. and others and Mahendra, s/o R.S. Palariya Vs. M.P. State Election Commission and others . 10. The order of future disqualification for 5 years of the petitioner has civil consequences of depriving the petitioner from elected office and, therefore, the Commission was obliged to afford reasonable opportunity of hearing before passing the impugned order as required under sub- order (4) & (5) of Order 10 of the Order. The petitioner was issued notice for hearing on 30-4-2009 and only on the next day the impugned order has been passed and no show cause notice as required under 1 (2000) 8 SCC 82 2 2003 (I)MPLJI 80 32006(4)MPHT10(NOC) 4 2003 (3) MPHT 326 5 2005(1)MPu 245 .•.::i^j^^ •;^i^tt';'^--'.: ^l sub-order (5), (6) & (7) of Order 10 of the Order has been served upon the petitioner. 11. In view of the amendment in Section 32-C which came into force with effect from 1-1-2005, the Commission has wide discretion to decide the period of disqualification which may not exceed 5 years. The Commission has mechanically passed the impugned order disqualifying the petitioner for a period of 5 years from the date of order without applying its mind. The result of the impugned order is that the petitioner is disqualified for a period of 2 terms and the petitioner is not eligible to participate in the election to beheld in the year 2009. 12. It was argued that the Commission in its alleged detailed order has not considered the established circumstances existing in the present case that the election expense account submitted by the petitioner to the CMO within time was belatedly forwarded to the DEO and the DEO recommended for acceptance and it was finally accepted by order dated 14-8-2006 by the Commission, as is evident from their stand before this Court. The Commission without applying its mind to the aforesaid facts has mechanically observed that there is no good cause or justification for failure to lodge the election expenses account within the prescribed time and in the manner as prescribed under the Act. iS.Shri Prashant Mishra, learned Senior Advocate with Shri B.D. Guru and Shri Shashank Thakur, Advocates appearing on behalf of the State Election Commission argued that the contention of the petitioner that the Commission has passed two separate orders Annexure-P/1 and Annexure-P/20 is incorrect. The petitioner was disqualified under Section 32-C of the Act for a period of 5 years and the order of Annexure-P/1 is only a declaration issued by the Commission as a follow-up action in pursuance of the detailed order passed by the Commission on the same date. The above fact can be verified from the original record of the Commission. Admittedly, the petitioner did not submit his account before the DEO. From the enquiry report, it is further established that the petitioner submitted his account only in the month of July,2006 and the CMO was forced to put his signatures of acceptance on 17-1-2005 and thus, he failed to lodge his account within time and in ^ the manner specified in law. Once a candidate fails to lodge the election expenses account as provided under the Act, disqualification under Section 32-C of the Act is automatic by operation of law and separate and reasoned order and opportunity of hearing are not required to be given. 14. Reliance is placed in the matters of Capt. Chanan Singh Sidhu Versus The Election Commission of India, New Delhi, and others,6 and Keshav Jadhav V. Election Commission oflndia, Delhi and others7. l5.The Commission has passed a detailed order after considering all the aspects of the matter and there is no violation of any provision of law. The argument of the petitioner that the order is discriminatory, as account submitted by another candidate namely, Hori Lal Dewangan has been accepted whereas,the petitioner has been disqualified, has also no force, as the petitioner cannot claim negative equality. The grievance of the petitioner that the Commission did not apply its mind while disqualifying the petitioner for a period of 5 years is also without any substance. Even otherwise, the petitioner has an alternative remedy of approaching the Commission under Section 32-D of the Act. l6.Dr. N.K. Shukla, learned Senior Counsel with Shri A.K. Yadav, Advocate, appearing on behalf of respondent No.5, referring to the relevant provisions contained inthe Order of 1997 and the provisions of Representation of People Act, 1951, argued that a contesting candidate is duty bound to lodge his account of election expenses to the DEO within 30 days from the date of election. The account submitted to any other authority is invalid. The DEO is obliged to submit report to the Commission soon after the expiration of time prescribed for lodging the account with his opinion. After the receipt of the report, if the Commission decides that the contesting candidate has failed to lodge the account within time and in the manner, it shall call upon the candidate to show cause as to why he should not be disqualified for such failure. The candidate, in turn, may submit his representation in writing to the Commission with a copy to the DEO together with ! AIR 1992 PUNJAB AND HARYANA183 7 AIR 2001 ANDHRA PRADESH 538 -^ complete account of his election expenses, if he had already not furnished such account within the prescribed period. The DEO shall forward the same to the Commission with such comments as he wishes to make thereon. Where the Commission is satisfied that the candidate has no good reason or justification for the failure to lodge his account, it shall declare him disqualified for a specified period from the date of order and cause the order to be published in the official gazette. 17. Reiterating the arguments advanced by learned counsel for the petitioner, Dr. Shukla submitted that submission of account to the Chief Municipal Officer and not to the District Election Officer cannot be construed to be compliance within the meaning of Section 32-B of the Act. The question of following principles of natural justice, affording opportunity of hearing to the petitioner and conducting enquiry by the Commission is not necessary since the petitioner himself failed to lodge the election expenses account to the competent authority, as the petitioner incurred disqualification automatically on his failure to lodge the election expenses account. 18. Similar arguments were advanced by learned counsel for the State. 19. l have heard learned counsel for the parties. l have gone through the pleadings and the documents relied upon by the parties. 20. Initially, the petitioner had impugned the order of Annexure-P/1 dated 1-5-2009. After the return was filed by the Commission, the petitioner filed rejoinder to the return and also filed an application for amendment in the writ petition on 3rd September, 2009 and the same was altowed on 5 October, 2009. The petitioner has since amended the writ petition. 21.1t was vehemently argued that the detailed order passed by the Commission on 1-5-2009 was never supplied to the petitioner at the time as on 1-5-2009 and the same was dispatched to the petitioner only on 15-5-2009 (Annexure-P/20) after passing of the interim order dated 14th May, 2009 to fill up the lacuna. The interim order was passed in the presence of counsel for the Commission, who appeared on advance copy as also respondent No.5, who had caused his appearance on caveat. In the rejoinder to the return by the Commission, the petitioner has averred that one Ashwini Baghel applied to the Information Officer of the Commission for supplying the complete copies of theorder sheets on 1-5-2009 whereupon he was supplied with the information on 6-5- 2009 (Annexure-P/19), however, only the order of Annexure-P/1 was supplied to him. Subsequently, the Commission vide its memo dated 13 May, 2009 supplied the said Ashwini Baghel a copy of the detailed order dated 1-5-2009 with an explanation that inadvertently copy of the detailedorder dated 1-5-2009 could not be supplied on 6-5-2009. The interim order dated 14-5-2009 was passed in the presence of learned counsel for the Commission and respondent No.5 considering the arguments of the petitioner that the impugned order is non-speaking order, however, the existence of any separate detailed order passed on 1-5-2009 by the Commission was not disclosed on 14-5-2009. On these grounds, it was argued that the detailed order of Annexure-P/20 is an afterthought and the same has been brought on record to fill up lacuna of the Commission. The argument of learned counsel for the Commission in this regard is that the order of Annexure-P/1 is, in fact, a follow-up action in compliance of the order of Annexure-P/20, as per directions of the Commission, as would be evident from the original order sheets of the Commission. The order of Annexure-P/1 does not bear the signature of the Commission and the same has been passed as directives by the Commission for the purposes of publication of notification in the official gazette. 22.The original record of the Commission was produced on being requisitioned. From the original record, it appears that notice for personal hearing for 30 April, 2009 was served on the petitioner on 27-4-2009. The petitioner appeared on that date before the Election Commission and he was heard and the matter was fixed for 1st May, 2009. 23. The order of Annexure-P/1 reads as under:- "y^fl^^i<o ^T^T Pfcifri-i srraN *161Tl41 ^?u^, ^l<?1^ LlR\-l^ ^PT^ - ^^oo<1 ^QO ^TT^T (f^TT^ oq/0(^/^00^ ZfTT qrf^T) ^Rt^/W-^/^r3TT/^TT/-5T^^T/^R^TT/o^/^^ ^ ^KT tP<^'{-l'll<o 7PN mf^T^T STiWpT'FT, <)^c{ ^ff STRT-^^ TT ^ H^T Sn^T f^TT UTKTT t f^, f^fsR ^oo^ ^ -l<l^^l[o1^T ^Rqc,, '^rrra' ^ 3T£3T^T ^" ^ f^Tq ^KF'T P|C)IT|-| ^ ST'^rsff ^f ^l^ychl^l •^TPT-T ^KT y^l^^l^ ^TKITTJ^T^T ST^rf^R, cl^9 ^t STKT ^-^ ^) gr^Ffcr p|c|I-c|^ ^pff ^T ^T f^r ^f ^^n^TK ^^T '•T^T ^^ ^ ^KUT ^T. sil^lMchl^l tcrfTFf zpf ^T STT^T ^ ^TT^ ^ <^ ^ ^t chldlcll^r ^ f^P? -;FR ^lf^lcht 3T£2TST ^ ^TT^ HQTT -^K^T ^ ^ f^R PlN'Rd "qtf^T f^TT ^n?TT t I yaTl^l^Ko ^T^T Picil-q'1 3TPTt7T ^ 311^11^-11^! (3TTcF)K ^f?) 'd^r y><^t^JI(A ^T3?T plcli-d^ 3TPTM" ^n^ 24.Copies of the order have been forwarded to the various authorities including the petitioner. In para-8.8 of the petition, the petitioner has pleaded that on 1-5-2009 respondent No.1 disqualified the petitioner vide order of Annexure-P/1. The Commission in para-12 of its return has replied to the averments made from paras 8.7 to 8.9 of the petition. However, the petitioner has not specifically contraverted the averments made in para-8.8. There is no pleading that the order of Annexure-P/1, 10 ^ ..f--..; "^SK^. ^^^•^ .•^.^ ,.J which has been passed, is a declaration issued by the Commission as a follow-up action in pursuance of the detailed order passed by the Commission on the same date. Even plain reading of Annexure-P/1 clearly reveals that the same has been passed under Section 32-C whereby the petitioner has been declared disqualified from being elected as President or Member of the Municipal Council for a period of 5 years. 25. From close scrutiny of the original record, it emerges that on 1-5-2009 itself the order disqualifying the petitioner has been dispatched to the various authorities indicated in Annexure-P/1 . One Ashwini Baghel was supplied with the copy of the order of Annexure-P/1 with complete order sheets on 6-5-2009 (Annexure-P/19) on his application under the Right to Information Act. He was not given copy of order of Annexure-P/20 and the same was supplied to him only on 13-5-2009 with an explanation that inadvertently the same could not be supplied to him on 6-5-2009. The copy of order (Annexure-P/20) was dispatched to the petitionerwith a memo dated 15-5-2009 (Annexure-P/20) mentioning therein that copy ofthe "detailed order" passed bythe Commission on 1-5-2009 is being enclosed with the memo. 26.The instant writ petition has been filed by the petitioner on 4-5-2009. RespondentNo.5 appeared on caveat on 7-5-2009 and filed his reply to the application for interim relief and stated on oath that the Commission passed the impugned order of Annexure-P/1 in pursuanceof the order passed by the Division Bench of this Court. There is no mention that any detailed order was passed by the Commission on 1-5-2009. The interim order was passed on 14-5-2009, on that date the Commission appeared through its counsel on advance copy, however, on this date also, it was not brought to the notice of this Court that any detailed order was passed by the Commission on 1-5-2009. 27.From perusal of the order dated 16-7-2009 passed by the Hon'ble Supreme Court in SLP No. 14776/09 filed by respondent No.5, it appears that a submission was made on behalf of respondent No.5 that the petitioner herein has not brought to the notice of this Court about the detailed order disqualifying the petitioner, which has clearly misled the .0^ A'' '.^^^: J^p:;'^ 11 ' ^- Court. Whereas, the interim order was passed in the presence of learned counsel for respondents No.1 and 5. Respondent No.1 and 5 also did not disclose about any detailed order passed on 1-5-2009 on 14-5-2009 and admittedly, the order was dispatched by the Commission to the petitioner only on 15-5-2009. 28. In view of the above facts emerging from the record, 1 find it difficult to accept the argument of learned senior counsel for the Commission that detailed order of Annexure-P/20 was passed on 1-5-2009; the order of Annexure-P/1 is a declaration issued by the Commission as a follow-up actionin pursuance ofthe detailed order. The circumstances detailed above lends credence to the submission of the petitioner that he was disqualified by order of Annexure-P/1 on 1-5-2009 and reasons were subsequently supplied by order ofAnnexure-P/20 to fill up the lacuna. 29. Next question for my consideration is - whether the orders of Annexure- P/1 and Annexure-P/20 have been passed after following the statutory requirement of Section 32-C of the Act and the Order? 30. To appreciate the rival contentions of the parties, it would be appropriate to refer to the various legal provisions in this regard in the Act and the Order. 31. Section 32-A of the Act cast a duty upon every candidate at an election of the President that he shall maintain a separate and correct account of all expenditures in connection with the election incurred or authorized by him or by his election agent between filing of nomination and the date of declaration ofthe result ofelection. 32. Sections 32-B and 32-C read as under:- "Section 32-B. Lodging of account of election expenses - Every contesting candidate at an election of President shall, within thirty days from the date of election of the returned candidate lodge with the officer notified by the State Election Commission an account of his election expenses which shall be a true copy of the account kept by him or by his election agent under section 32-A." 12 ^ "Section 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 in 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 them to be disqualified and any such person shall be disqualified for being chosen as, and for being a member of Municipal Councilor Nagar Panchayat as the case may be, for a period not exceeding five years from the date of the Order." 33-The State Election Commission in exercise of its powers under Article 243ZA of the Constitution of tndia and in pursuance of Section 32-A of the Act made the Election Expenses (Maintenance and Lodging of Account) Order, 1997. Paragraphs 4, 5, 7 and 10 ofthe aforesaid order read as under:- "4. Maintenance of day to day account of election expenses.- (1) The account of election expenses shall be maintained by a candidate or his election agent from day to day, in a register in Proforma A, which shall be supplied to him by the Returning Officer immediately after his nomination. (2) The particulars of every item of expenditure shall be entered in the register referred to in sub-paragraph (1), from day to day in the same chronological order in which the expenditure is incurred orauthorized and the vouchers or bills relating to the expenditure shall be maintained along with the register. 5. Production of the record of day to day account election expenses for inspection.- Theregister of day to day account of election expenses together with the 13 />,^ supporting vouchers and bills shall be produced for inspection at any time during the process of election, by the candidate or his election agent, on demand by the Returning Officer, District Election Officer or an Observer of Officer authorized by the Election Commission in this behalf, forthwith and failure to do so shall be deemed to be a major default on the part of the candidate to comply with this order. 7. Lodging of the account of election expenses.- (1) 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 30 days from the date of election. (2) The account of election expenses shall comprise the following documents, namely:- (a) the register of day to day account of election expenses referred