..1.. WA No.1182/10 HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR (M.P.) Writ Appeal No.1182 of 2010 Smt.Nirmala Pathak, aged about 58 years, W/o Shri Satyendra Pathak, Mayor, Municipal Corporation, Katni R/o Pathak Ward, Katni (M.P.) …..Appellant/Petitioner Versus 1. The State of Madhya Pradesh, through the Secretary, Urban Administration Department (Mantralaya), Vallabh Bhawan Bhopal (M.P.) 2. The State Election Commission through the Chief Election Commissioner at Bhopal (M.P.) 3. The Collector-cum-District Electorate Registration Officer, District-Katni at Katni (M.P.) 4. The S.D.O.-cum-Registration Officer, Municipalities Election Katni at Katni (M.P.) 5. The Assistant Registration Officer, Katni at Katni (M.P.) 6. The Registration Officer (Panchayat Nirvachan/S.D.O. Vijayraghavgarh, District Katni (M.P.) 7. Kamendra Singh S/o Shri Bahadur Singh R/o Malviya Ganj, Distt. Katni (M.P.) .....Respondents PRESENT: Hon'ble Shri Justice Krishn Kumar Lahoti Hon'ble Justice Smt.Sushma Shrivastava Shri A.M.Trivedi, learned Senior Advocate with Shri Sampoorn Tiwari, Counsel for the appellant. Shri R.D.Jain, learned Advocate General with Shri Rahul Jain, Dy.AG for respondents No.1,3 and 6. Shri Pankaj Dubey, Counsel for respondent No.2. Shri Kishore Shrivastava, learned Senior Advocate with Shri Rakesh Jain, Counsel for respondent No.7. ..2.. WA No.1182/10 O R D E R (Passed on /2110/2011) Per : Justice Krishn Kumar Lahoti This appeal is directed against an order dated 26.10.2010 in Writ Petition No.12756/09, under Section 2 of the M.P. Uchcha Nyalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005. By the aforesaid order, learned Single Judge disposed of the writ petition, preferred by the appellant, for pressing remedy of appeal before the appellate authority against the impugned order dated 26.11.2009 Annexure P/12 passed by the Registration Officer, Municipal Corporation (Nirvachan), Katni. 2. By order dated 26.11.2009, the Registration Officer, Municipal Corporation, Katni directed deletion of the name of the appellant from the voter-list. It will be pertinent to mention that the order dated 26.11.2009 Annexure P/12 passed by the Registration Officer, Municipal Corporation (Nirvachan) Katni was stayed by the learned Single Judge and after the interim order passed by the learned Single Judge, the appellant herein contested the election of Mayor of Municipal Corporation, Katni and she defeated her nearest rival Smt.Alka Jain by a margin of votes of 5000. 3. This appeal was filed on 29.10.2010 and was placed before the Division Bench for consideration. On 8.11.2010, a Division Bench of this Court passed an order which reads thus:- “8.11.2010 Shri A.M.Trivedi, learned senior counsel assisted by Shri Ashish Trivedi, Advocate for the appellant. Shri Sanjay Dwivedi, learned Government Advocate for respondents No.1 and 3 to 6. Shri Pankaj Dubey, learned counsel for respondent No.2. Shri Rakesh Jain, learned counsel for respondent No.7. When the matter was taken up today, at the outset, Shri A.M.Trivedi, learned senior counsel appearing for the appellant, stated that the appellant has been advised to withdraw appeal preferred under Rule 9A(4) of the Madhya Pradesh Nagar Palika Nirwachan Niyam, 1994 before the Collector. He submitted that since pure question of law is involved in the case and in view of the fact that the appeal is pending before this Court against the order of the learned Single Judge, it is appropriate that the controversy may be decided by this Court. Learned Government Advocate appearing for the respondents No.1 and 3 to 6 and the learned counsel for respondent No.2 have no objection to the aforesaid prayer made by learned senior counsel appearing for the appellant. ..3.. WA No.1182/10 In view of the aforesaid submissions made before us, the appellant may seek leave of the appellate authority to withdraw appeal preferred under Rule 9A(4) of the Madhya Pradesh Nagar Palika Nirwachan Niyam, 1994 and file an application alongwith the order of the appellate authority permitting her to withdraw the appeal. Looking to the facts of the case and also in view of the interim order dated 26.11.2009 passed in W.P.No.12756/2009, it is directed that the operation of the impugned order dated 26.11.2009 passed by respondent No.4 shall remain stayed till 31st of January, 2011. List the matter in the second week of January, 2011.” 4. Thereafter, matter remained pending and is heard finally by this Court. The learned counsel appearing for the appellant challenged the impugned order dated 26.11.2009 on following grounds:- (i) That the name of appellant was entered in the voter list of Ward No.31Chhotelal Pathak Ward, Katni. Though there was some error in the name and age of the appellant in the said voter list but it was duly corrected by the Registration Officer under rule 9 of the M.P. Nagar Palika Nirvachan Niyam, 1994 (hereinafter referred to as 'Nirvachan Niyam). (ii) The appellant belongs to an old tradition congress party family. Her husband was a Cabinet Minister and MLA. Her son is also a sitting MLA. The appellant has made various allegations in respect of influence of another ruling political party. Because of the aforesaid, it had influenced the election officer posted at Katni, resulting an order directing deletion of her name by the election officer on 26.11.2009, the date on which nomination for the office of Mayor, Municipal Corporation, Katni was to be filed. The post of Mayor, Municipal Corporation, Katni was reserved for woman. (iii) That the name of appellant was included in the voter list of Gram Panchayat Barmani, Legislative Constituency Vijayraghavgarh because appellant was possessing agricultural land and a rural house there, while appellant was not the ordinarily resident of village Barmani and in fact is an ordinarily resident of Ward No.31 of Katni. The appellant was usually visiting village Barmani to take care of her agriculture but since last one year because of heart disease, she was continuously residing at her house situated at Ward No.31 Chhakodilal Pathak Ward of Katni. Late Chhakodilal Pathak happened to be her grand-father-in-law and there is an ancestral house of husband of the appellant at Ward No.31 of the Municipal Corporation, Katni. ..4.. WA No.1182/10 (iv) That, on 20.11.2009, the appellant moved an application for deletion of her name from the voter list of Gram Panchayat Barmani on the ground that since about one year, she was continuously residing in Ward No.31 of Katni. The Revenue Inspector recommended for deletion of her name from the voter list of the Gram Panchayat Barmani, but such application was rejected by the Registration Officer-cum-S.D.O., Vijayraghavgarh. Being aggrieved by the aforesaid, appellant had preferred an appeal before the Collector-cum-District Election officer, Panchayat, Katni who remanded the case to the S.D.O. and ultimately by an order dated 8.12.2009, the SDO, Vijayraghavgarh directed for deletion of name of the appellant from the voter- list of Gram Panchayat, Barmani vide order Annexure P/13. (v) That on 7.7.2009, M.P. State Election Commission had issued an order for appointment of Registration/Assistant Registration Officer for inviting claims and objection for preliminary/draft voter-list of Municipal Corporation, Katni. The last date of such correction was 24.10.2009 and last date of publication of final voter list was 11.11.2009. Appellant had found that particulars of her name were wrongly recorded in Part-3, Ward No.31 Katni at Sr.No.219 as “Nirmala W/o Jitendra Kumar, aged 47 years”. Appellant had moved an application for correction in the voter-list under rule 9 of the Nirvachan Niyam for correction of the entry as “Nirmala W/o Satyendra Kumar, aged 58 years”. The application was filed on the prescribed format Annexure P/15. An enquiry was made by an authorised officer. He had made recommendation and accordingly, the Registration Officer, on being satisfied from the preliminary enquiry report, on 20.10.2009 directed that the name of appellant be corrected. He ordered thus:- In place of 'Jitendra Kumar', 'Satyendra Kumar' and in place of age '47' years, age '58' years be corrected. (vi) That, under rule 6(4) of the Nirvachan Niyam, voter-list so amended was final subject to decision of appeal, if any. Rule 6(5) provides that any person aggrieved by the decision of the Registration Officer may prefer an appeal to the appellate authority within five days of such decision, but no provision is there for filing an appeal after publication of the final voter-list. As no appeal was filed within 5 days against order dated 20.10.2009, order of Registration Officer had attained finality. (vii) The appellant when inspected the final voter-list published on 11.11.2009 found that her name was not corrected because of some printing error or due to clerical mistake while aforesaid entry was already ..5.. WA No.1182/10 directed to be corrected by the Registration Officer on 20.10.2009. The appellant under the proviso of rule 9 moved an application to the Registration Officer for correction of such entry and the Registration Officer-cum-SDO, Katni directed correction of error in the name of appellant and the entry was directed to be corrected on 20.11.2009 in the final voter list. Against such an order, no appeal, revision or review is provided under the rules, as such final voter list had attained finality under rule 6(4). (viii) That, rule 9-A of Nirvachan Niyam provides for deletion of entry in the voter-list in certain exigencies, like a person concerned is registered in the voter-list of more than one ward of the Municipality concerned or of any other Municipality or of any Panchayat. Section 12 of the M.P. Municipal Corporation Act, 1956 (hereinafter referred to as 'the Act')specifically provides that no person shall be entitled to be registered in the electoral roll of more than one ward in the same city and no person shall be entitled to be registered in the electoral roll for any ward more than once. But registration of a person in any other Panchayat is not a disqualification under Section 13 of the Act. It is stated in para 9 of the memo of appeal that the provision as contained in rule 9-A providing deletion of the name, if registered, in the voter-list of any Panchayat is contrary to section 12 of the Act. (ix) That, respondent No.7 Kamendra Singh, a worker of rival political party, at the instance of some political leaders of ruling party, filed an appeal on 23.11.2009 directly before the Election Officer-cum-Collector under rule 9, 9-A read with 9-A(4)(5) of the Nirvachan Niyam. The appellate authority directed for issuance of the notice to the appellant on 23.11.2009 directing her appearance on 24.11.2009 at 12 O'clock. (x) That on 23.11.2009, the appellant was declared as an authorised congress party candidate for the election of office of Mayor and had submitted a nomination as an authorised congress party candidate. (xi) Respondent No.7 Kamendra Singh raised an objection that name of the appellant was registered in the Panchayat also and her name deserves to be deleted from the voter list of Ward No.31 of Municipal Corporation, Katni. (xii) That, respondent No.7 erroneously moved an application under rule 9-A before the Registration Officer-cum-SDO on the basis of same set of fact on which he had filed an appeal before the appellate authority-cum- ..6.. WA No.1182/10 Collector. On this appeal, the appellate authority directed for appearance of the appellant 24.11.2009 at 12 hours. On the application filed by the respondent No.7 under rule 9-A before the Registration Officer-cum-SDO, Katni, the Registration Officer summoned the appellant to appear on 24.11.2009 at 4 p.m. (xiii) The appellate authority who directed for appearance of the appellant at 12 O'clock again directed the appellant to appear before him at 5 p.m. Though he was apprised that the Registration Officer had fixed the case under rule 9(A) at 4 p.m. The appellant at 4 p.m. appeared before the Registration Officer. The appellant made an objection before the Registration Officer for supply of documents filed by the respondent No.7 alongwith the application. The Registration Officer fixed the case for 25.11.2009 at 10 a.m. Thereafter, when the appellant reached to the office of appellate authority-cum-Collector at 5.15 p.m., she became aware that the respondent No.7 Kamendra Singh had withdrawn the appeal filed before the District Election Officer. (xiv) On 25.11.2009, the Registration Officer heard both parties and passed an order at 7 p.m. Some allegations are also made in para 13 of the writ appeal that the leaders of rival ruling party had met with the SDO, Katni and in this regard, a Fax message was also sent to the State Election Commission against the Registration Officer. (xv) That, 26.11.2009 was the last date for filing nomination paper and to deter the appellant from contesting the election of Mayor, Katni, the Registration Officer-cum-SDO, Katni passed the impugned order on 26.11.2009 at 12 p.m. directing deletion of the name of appellant from the voter-list of Municipal Corporation, Katni on the ground that her name was entered in the voter-list of Gram Panchayat, Barmani. Though it was not a disqualification under Section 12 of the Act. (xvi) That, an appeal against such an order was filed before the District Election Officer, Katni, but the appeal was not registered by the District Election Officer and the appellant apprehending some bias of the District Election Officer, rushed to the High Court, filed a writ petition before the learned Single Bench on 26.11.2009. The aforesaid writ petition was heard on 26.11.2009 itself and ad interim writ was issued in W.P.No.12756/09. The order reads thus:- “26.11.2009 It is submitted that petitioner has been declared as a candidate for the office of Mayor for Katni district ..7.. WA No.1182/10 by the Indian National Congress political party and her name also exists in the voter-list of CLP Ward No.31 Katni, but the respondent No.4 by the impugned order dated 26.11.2009 Annexure P-12, has directed for the deletion of her name from the voter list. It has also been submitted that if the order dated 26.11.2009 will not be stayed, petitioner will be illegally deprived from contesting the prestigious election of Mayor as the date fixed for scrutiny of nomination papers is tomorrow. After hearing the learned counsel for petitioner, I deem it proper to stay the operation of impugned order dated 26.11.2009 Annexure P/12, and the operation of the order is accordingly stayed. It is, however, made clear that the election in question of petitioner will be subject to the final decision of this petition.” (xvii) Against the order passed by the learned Single Judge dated 26.11.2009, respondent No.7 Kamendra Singh filed a Writ Appeal No.1142/09 in which on 27.11.2009, a Division Bench of this Court passed an order which reads thus:- “27.11.2009 Having heard the learned counsel for the parties, we are of the considered opinion that the lis in question does require delineation both on fact and law. What has been canvassed before us from both sides is not such which apparently touches any jurisdictional factor but delving deep into the factual matrix, the provisions in entirety and law in the field. In view of the aforesaid, we are disposed to think that interference at this stage in appeal would not be appropriate especially when the learned single Judge has expressed the view the election in question would be subject to the final decision of the writ petition. However, we may hasten to clarify that we have not expressed any opinion on the merits of the case. Regard being had to the peculiarity of the case we would request the learned single Judge to dispose of the writ petition as expeditiously as possible. Accordingly, the writ appeal stands disposed of. (xviii) After ad interim writ issued by the learned Single Judge on 26.11.2009, the appellant contested the election of Mayor of Municipal Corporation, Katni as a candidate of Indian National Congress and defeated her nearest rival Smt.Alka Jain, a candidate of ruling party BJP by a margin of about 5000 votes. It is alleged that after declaration of the result, various appeals were filed before the District Election Officer which inspite of objection raised by the appellant, were entertained. (xix) That, Smt.Alka Jain has also filed an election petition against the appellant under Section 441 of the Act on the same grounds, which are raised in this case, which is pending before the Additional District Judge, Katni. ..8.. WA No.1182/10 On the aforesaid grounds, this appeal has been filed. 5. Respondents opposed the writ appeal on the following grounds:- (a) That, the appellant was in fact an ordinarily resident of village Barmani and was not entitled to contest the election of Mayor, Municipal Corporation, Katni. (b) That, in fact Nirmala W/o Jitendra Kumar is the wife younger brother of husband of appellant, the ordinarily resident of Ward No.31, Municipal Corporation, Katni and taking advantage of the same name, the appellant, just to get the benefit of reservation of seat of Mayor, Katni got the aforesaid manipulation. (c) That, upto 20.10.2009, no order as is filed as Annexure P/15 was passed, otherwise there was no question of filing another application on 20.10.2009 by the appellant for correction in the entry. (d) That appellant's application for deleting her name from the voter list of Gram Panchayat Barmani was already rejected, so she was not entitled to contest the election from Ward No.31 for the office of Mayor, Katni. (e) Against the impugned order dated 26.11.2009, the appellant had already preferred an appeal, so learned Single Judge rightly directed for disposal of the writ petition with liberty to the appellant to press the appeal pending before the District Election Officer. (f) That, on the date when the impugned order dated 26.11.2009 was passed, her name was appearing in both places namely at Gram Panchayat, Barmani and also at Ward No.31 of Municipal Corporation, Katni, so Registration Officer rightly directed deletion of the name of the appellant from the voter list of Ward No.31 of Katni. (g) That the appellant was ordinarily resident of village Barmani. By manipulation, she got entered her name in the garb of correction of entry which was not correct. In fact, younger brother of husband of the appellant namely Jitendra Kumar is ordinarily resident of Ward No.31. Other family members' names are also appearing in the voter list, so the Registration Officer rightly passed the order dated 26.11.2009 directing deletion of the name of the appellant from the voter list of Ward No.31 of Katni, in which there is no fault. (h) The appellant was not entitled to be registered at two places and her application for correction of the entry was not maintainable. It is submitted by the respondents that this appeal may be dismissed. ..9.. WA No.1182/10 6. From the perusal of the aforesaid facts, it is apparent that the appellant, after passing of ad interim writ by the learned Single Judge contested the election for the office of Mayor, Municipal Corporation, Katni and she was declared as a returned candidate and at present she is holding the office of Mayor, Katni. It is also not in dispute that the another candidate who was rival contestant of the appellant namely Smt.Alka Jain has filed an election petition against the appellant under Section 441 of the Act which is pending, for adjudication, before the Additional District Judge, Katni who has to look into the matter and after holding a due enquiry, to decide the matter in accordance with law. In this case, various disputed questions of facts are involved namely:- (a) Whether the appellant was the ordinarily resident of Ward No.31 of Katni or she was ordinarily resident of Gram Panchayat, Barmani ? (b) Whether Smt.Nirmala W/o Jitendra Kumar was a correct entry in the voter list or it was duly corrected at the instance of the appellant by the Registration Officer ? (c) Whether the order dated 20.10.2009 was duly passed by the Registration Officer and it was in existence even before passing of the order by the Registration Officer on 11.11.2009 ? (d) Whether the appellant was an eligible candidate to contest the election of Mayor, Katni. All these questions are to be examined by the Election Tribunal in the election petition filed by Smt.Alka Jain. The Election Tribunal while considering the election petition will have to record findings in this regard after receiving the evidence of both parties. The order of Election Tribunal deciding all the issues will supersede the orders passed by the Registration Officer or by the appellate authority in the matter. At this stage, if the matter is remanded back to the appellate authority to decide the appeal, which has already been withdrawn by the appellant will be a futile exercise in the matter. The Division Bench in this matter rightly permitted the appellant to withdraw the aforesaid appeal with liberty to raise all the contentions in this appeal on 8.11.2010. Any decision in this writ appeal will affect the decision of the election petition filed by Smt.Alka Jain who is not party before this Court. In this appeal, the contesting party is respondent No.7 who at present is not party in the election petition. In absence of Smt.Alka Jain, if any finding is recorded by this Court, naturally it will affect Smt.Alka Jain who has not been heard by this Court. In these circumstances, we find it ..10.. WA No.1182/10 appropriate to dispose of this writ appeal with a direction that matter be finally adjudicated by the Election Tribunal in the election petition filed by Smt.Alka Jain and till the matter is decided by the Election Tribunal, order dated 26.11.2009 passed by the Registration Officer be not given effect to and which shall be made subject to final decision by the Election Tribunal. 7. The matter may be examined from one more angle. If this appeal is dismissed, naturally order passed by the Registration Officer under rule 9-A of the Nirvachan Niyam will come into force and the appellant who has contested the election of Mayor will lose the seat only on the ground that she was not an eligible candidate to contest the election of Mayor on the reserved seat for woman at Municipal Corporation, Katni. If this appeal is allowed and the order passed by the Registration Officer is set aside, this Court has to record various findings which should be recorded only by the Election Tribunal. If those findings are recorded by this Court, naturally it will have an effect on the Election Petition filed by Smt.Alka Jain against the appellant and is still pending before the Election Tribunal, Katni. Article 243ZG of the Constitution of India provides that no election to any municipality shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the legislature of a State. Section 441 of the M.P. Municipal Corporation Act, 1956 provides thus:- 441.Election Petition- (1) No election or nomination under this Act shall be called into question except by a petition presented in accordance with the provision of this section. (2) Such petition may be presented on one more of the grounds specified in section 441-B- (a) by any candidate at such election or nomination; or (b)(i) in the case of an election of a Councillor, by any voter of the ward concerned; (ii) in the case of nomination of a Councillor, by any Councillor; (iii) in the case of election of Mayor, by any voter of the Municipal area to the principal Civil Court of original jurisdictional (hereinafter referred as the Court) within the local limits of whose jurisdictional the election or nomination was held. (3) No petition presented under sub-section (2) shall be admitted unless- (i) it is presented within thirty days from the date on which the result of such election or nomination was notified in the Gazette; and (ii) it is accompanied by a Government Treasury receipt showing a deposit of two hundred and fifty rupees. (4) A petitioner shall join as respondents to his petition- ..11.. WA No.1182/10 (a) where the petitioner, in addition to claiming a declaration that the election or nomination, as the case may be, of all or any of the returned candidate is void, claims a further declaration that he himself or any other candidate has been duly elected or nominated, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates;