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Sheokumar Balaram Pathak Vs. M.A. Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMadhya Pradesh High Court
Decided On
Case NumberLetters Patent Appeal No. 25 of 1957
Judge
Reported inAIR1960MP37
ActsCentral Provinces and Berar Panchayat Rules, 1948 - Rule 2; Central Provinces and Berar Panchayats Act, 1947 - Sections 13; Constitution of India - Article 226
AppellantSheokumar Balaram Pathak
RespondentM.A. Khan and ors.
Appellant AdvocateR.K. Pandey, Adv.
Respondent AdvocateH.L. Khaskalam, Addl. Govt. Adv. for Nos. 1 and 2, ;A.P. Sen and ;A.N. Mukherjee, Advs. for No. 5
DispositionAppeal dismissed
Cases ReferredGovind v. Ganga
Excerpt:
- - if, after such inquiry as he considers necessary, the depuy commissioner or his subordinate as the case may be is of opinion that the election complained of has been procured or induced or the) result of the election has been materially affected by corrupt or illegal: 15. under the rules made under section 144(2)(ii) of the central provinces and berar panchayats act regulating the settlement of election dispute, a challenge to the election of a sarpanch is available to a contestant if the election complained of was procured or induced or the election was materially affected by a corrupt or illegal practice......has power to set aside the election if the result has been materially affected by corrupt or illegal practice. as defined in section 13 of the act, the expression 'corrupt practices' is confined to certain actions on the part of the candidates only. however, the expression 'illegal practice' has not been defined in the act anywhere and must therefore be given its ordinary meaning. although the word 'practice' normally implies repetition of an action habitually, it is obvious that it has not been used in this sense in the rules. a single act falling within the acts specified in section 13 would be a corrupt practice. the word 'practice' therefore should be read as being synonymous with the word 'act.' it is contended on behalf of the petitioner that the whole expression 'corrupt or.....
Judgment:

Shrivastava, J.

1. This Letters Patent appeal has been filed by the petitioner Sheo Kumar against the order of Sen J, dismissing his petition (Misc. Petition No. 29 o 1957) in motion hearing on 5-2-1957.

2. The petitioner and respondent No. 5 Jagan-nath Prasad were Panchas of the Gram Panchayat of mouza Ghutku, Tahsil and District Bilaspur. A meeting was held on 7-1-1957 for electing a Sar-panch. It was presided over by Jhagruram (respondent No. 3). The petitioner and Jagannath Prasad (respondent No. 5) were candidates for the office of Sarpanch. The petitioner objected to the nomination of Jagannath Prasad on the ground that he was in arrears of taxes payable to the Gram Panchayat for one year and was not, therefore, duly qualified for contesting the elections. The objection was rejected by respondent No. 3, who as stated above, presided over the meeting. After the election. Jagannath Prasad (respondent No. 5) was declared duly elected. In the petition it was also stated that the election was invalid on the ground that the ballot papers were not properly marked.

3. At the time of arguments, an objection was raised on behalf of the respondents that the petition for issue of a writ quashing the election was not tenable, in view of the fact that a remedy is provided for challenging the election by way of an application to the Deputy Commissioner under rule 2 of the Rules framed under Section 144(2)(ii) of the Central Provinces and Berar Panchayats Act 1946 (No. I of 1947) -- hereinafter referred to as the Panchayats Act. It was urged that as the petitioner did not pursue the proper remedy, he was not entitled to any relief.

4. The rule relied upon is printed on p. 39 of the Central Provinces and Berar Panchayats Rules, 1948 (hereinafter referred to as the Panchayats Rules) and runs as follows:

'If, after such inquiry as he considers necessary, the Depuy Commissioner or his subordinate as the case may be is of opinion that the election complained of has been procured or induced or the) result of the election has been materially affected by corrupt or illegal: practice, he may declare it to be void and order a fresh election.'

The question is whether the Deputy Commissioner has been authorised by this rule to go into the question whether the candidates contesting the elections were duly qualified under the Panchayata Rules.

5. This question was considered by me in Chandulal Shvamlal Gupta v. Baldeo-prasad Bisahu, M. P. No. 362 of 1955, D/-14-1-1958 (MP). This is what I stated in that case:

'It is clear from the rules that the election of a Panch or a Sarpanch can be challenged onlyby a petition filed within 10 days after the publication of the result and the scope of, the inquiry is defined by rule 2, quoted above. The Deputy Commissioner Has power to set aside the election if the result has been materially affected by corrupt or illegal practice. As defined in Section 13 of the Act, the expression 'corrupt practices' is confined to certain actions on the part of the candidates only. However, the expression 'illegal practice' has not been defined in the Act anywhere and must therefore be given its ordinary meaning. Although the word 'practice' normally implies repetition of an action habitually, it is obvious that it has not been used in this sense in the rules. A single act falling within the acts specified in Section 13 would be a corrupt practice. The word 'practice' therefore should be read as being synonymous with the word 'act.' It is contended on behalf of the petitioner that the whole expression 'corrupt or illegal practice' refers to acts specified in Section 13. I do not agree with this interpretation as that would render the word 'illegal' superfluous. Nor do I agree with the contention that the word 'practice' should be restricted to acts committed by the candidates only. The principal verb in the, clause is in the passive voice without any reference to the agency by whom the illegality is committed. It thus appears to me that any contravention or non-compliance of any law or rule by authorities would also fall within the expression. If the result of the election has been materially affected by any such illegal act, if would be within the scope of the inquiry envisaged by R. 2.'

6. I still consider the expression 'corrupt or illegal practice' used in R. 2 to be equivalent to 'corrupt oractice or illegal practice.' According to the Oxford English Dictionary (pp. 1218-1219) the word 'practice' means 'The action of doing something; performance, execution; working, operation.' Similarly, in Webster's New International Dictionary, Pt. II (p. 1688) the meaning given to that word is 'Action; performance, operation;' Thus, I it is clear that the word applies even to a single act and is not confined to habitual repetition of an action. This conclusion is further supported by the use of the word in Section 13 of the Act. A single act of the nature given in that section would be corrupt practice. The expression 'illegal practice has not been defined anywhere in the Panchayats Act and must therefore be given the ordinary meaning to cover any 'illegal act,' that is to say, an act which is contrary to any law or rule.

7. Shri R.K. Pandey for the petitioner relied upon the decision in Salikram v. Q. M. A. Wahab, M. P. No. 402 of 1956, D/-16-4-1957 (MP) and contended that a contrary view has been taken in the following passage occurring in paragraph 4 of that order:

'This rule, therefore, is for the purpose or contesting the election which has been procured or induced Or the result thereof has been materially affected by corrupt or illegal practice. What constitutes such practice is to be found in section 13 of the Act, none of the clauses of which can be invoked in this case. An election petition was not, therefore, a proper remedy in this case.'

In that case, the election was challenged on the ground that the meeting in which it was held was invalid as it was not in accordance with the rules framed for the conduct of meeting under the Panchayats Act,

8. I do not see any conflict between the two decisions. In the first place, the import of 'illegal practice' was not pointedly considered in the latter case, (Salikram's case), Misc. Petn. No. 402 of 1956 D/- 16-4-1957 (MP). Secondly, the ground on which the election was challenged, in that case, did not really pertain to the process of election. In the decision in Chandulal Shyamlal Gupta's case Misc. Petn. No. 362 of 1955 D/-14-1-1058 (MP) (supra), after saying that the expression 'illegal practice' was wide enough to include any contravention or non-compliance of any law or rule, it was further stated in para. 7 as follows:

'It has been held in N. P. Ponnuswami v. The! Returning Officer, Namkhal Constituency, AIR 1952 SC 64 that the word 'election' connotes theentire procedure to be gone through to return a candidate. In other words, all stages beginning from the calling of nominations upto the declaration of results would be included within the con-notation of that expression. It is true that these observations occur in the context of parliamentary election, but that does not make any difference. In Jiwanlal v. Deputy Commissioner, Raipur, M. P. No. 436 of 1956 the same interpretation has been accepted in connection with the elections to Jan-pads under the C. P. and Rerar Local Government Act, 1948. There is no reason why the same meaning should not be given to the expression in the Context of the elections to Gram Panchayats. Accordingly it would be within the scope of the proceedings under Rule 2 to enquire into the contravention or non-compliance of any rule or law at any stage of the election starting from the calling of nominations to the stage of declaring results and the election can be set aside if the result of the election has been materially affected by such non-compliance or contravention.'

It is clear that the contravention or non-compliance of the law or rule which can be enquired into by the Deputy Commissioner under Rule 2 must arise at the stage of election. This stage starts from the calling of nominations and ends with the declaration of the results. The contravention of any law or rule during this stage would be a matter on which a petition could be filed before the Deputy Commissioner. Contravention of any law or rule at stages anterior to the stage of election does not fall within that rule. Questioning the validity of the electoral rolls on the ground that legal provisions had not been observed in preparing them was held, in that case, to be a matter which did not form part of the process of election and therefore the defects in preparing the electoral rolls could be challenged by a petition under Article 226 of the Constitution.

9. In Salikram's case. Misc. Petn. No. 402 of 1956, D/- 16-4-1957 (MP) (supra), the validity of the election was challenged on the ground that the meeting was illegal. This was a ground which did not arise during the process of election, but was anterior to it; therefore it could be considered in a petition under Article 226.

10. The question whether a candidate is duly qualified for contesting the office of Sarpanch is one relating to the process of election. The fact that nominations in the case of Gram Panchayat elections are made in a meeting of the panchayat would not make any difference. The process of election would commence, in such cases, when the names of candidates are proposed in the meeting and would end when the result is declared by the Chairman of the meeting after counting of votes. The non-compliance or contravention of any law or rule made during this process would appropriately form the subject matter of a challenge in an election petition before the Deputy Commissioner under R. 2, Accordingly, I hold that this petition under Article 226 to challenge the election on that ground cannot be entertained.

11. So far as the irregularity in counting the votes is concerned, Shri R.K. Pandey for the petitioner did not rightly contest that this matter related to the process of ejection and could, therefore be agitated only in an election petition,

12. Accordingly, it appears to me that an alternative remedy existed in this case and the petition was not, therefore, tenable. It was rightly dismissed. I would, therefore, dismiss this Letters Patent appeal with costs as incurred. The outstanding amount of the security shall be refunded to the petitioner.

Bhutt, C.J.

13. With respect I agree with the opinion of my Rrother Shrivastava J.

14. The nomination of Jagannath Prasad was objected to by the petitioner Sheo Kumar on the ground that he was in arrears of taxes payable to the Gram Panchayat tor one year. This objection was rejected by the Chairman, and in the election that was held Jagannath Prasad was declared duly elected as Sarpanch. The question whether or not Jagannath Prasad was in arrears of taxes is one of fact, and normally an enquiry on that point would not be proper in proceedings under Article 226 of the Constitution of India. It may not be proper to apply this rule strictly if there is no alternative remedy under the Central Provinces and Berar Panchayats Act, 1946. The question is whether that Act provides an alternative remedy by way of an election petition.

15. Under the rules made under Section 144(2)(ii) of the Central Provinces and Berar Panchayats Act regulating the settlement of election dispute, a challenge to the election of a Sarpanch is available to a contestant if the election complained of was procured or induced or the election was materially affected by a corrupt or illegal practice. The C. P. and Berar Panchayats Act while defining the term 'corrupt practice' in Section 13 does not provide any definition of the expression 'illegal practice. The question is whether the words 'corrupt' and 'illegal' have been used in the rules as synonymous Or whether they convey different meanings. Even if the latter is the case, there can be no doubt of the rule-making power of the State Government! under Section 144(2)(ii).

16. In M. P. No. 402 of 1956 D/-16-4-195? (MP) decided by me on 16-4-1957 this question did not come directly for consideration, because it was assumed by all concerned that the word 'illegal had the same connotation as 'corrupt'. So also in Govind v. Ganga, M. P. No. 106 of 1956, which was decided by me on 14-4-1956 (Nag) and which was referred to in Misc. Petition No. 402 of 1956 (MP), this question did not come up for consideration. This question was indeed considered by my learned Brother for the first time in Misc. Petn. No. 362 of 1955, D/-14-1-1958 (MP). It appears to me that his conclusion that these two words have different meanings is correct.

17. In the Representation of the People Act, 1951, before its amendment in the present form, 'illegal practices' and 'corrupt practices' were separately defined in sections 125 and 123 respectively. The present Act, however, confines the challenge to an election only on the ground of corrupt practices. The expression 'corrupt practice' both in the Central Provinces and Berar Panchayats Act and the new Representation of the People Act is one of art, as a distinctive meaning has been assigned to it by statute. The legislature may in certain cases, as in the old Representation of the People Act, also define what an illegal practice is; but in the absence of a definition it should have the ordinary connotation viz. 'that which is contrary to law or the rules made thereunder.'

If any act or omission of this nature falls with' in the definition of the expression 'corrupt practice' it would be deemed to be a corrupt practice for purposes of the Act, even though it may also be an illegal practice in the sense above given. However, an illegal practice may have a wide connotation and cover such acts or omissions which while not falling within the strict definition of corrupt practice may still be contrary to law or the rules made thereunder. With respect, therefore, I agree with the opinion, of my learned Brother that the expression 'corrupt or illegal practice' should mean 'corrupt practice' or 'illegal; practice,' and I further, agree that the expression 'illegal practice' should be given its ordinary connotation.

18. The defect in this case as regards the nomination of Jagannath Prasad was a matter covered by the rules made under the C. P. and Berar Panchayats Act. As it was alleged to contravene the rules on the point, it would be an illegal practice within the meaning of the rules made under the C. P. and Berar Panchayats Act. The process of election, as pointed out by my learned Brother, starts with the nomination of a candidate for election and therefore procurement by Jagannath Prasad of his nomination in contravention of the rules would amount to an illegal practice in relation to his election as a Sarpanch. In this view and as the dispute relates to a controverted question of fact, the proper remedy of the petitioner was to proceed under the rules by way of an election petition.

19. I agree that the appeal should be dismissed with costs to be borne as incurred.

ORDER

20. In view of theopinions recorded by us separately, the appeal is dismissed, with cost's to be borne as incurred. Theoutstanding amount of security shall be refundedto the appellant.


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