To dispel the misgiving that democracy proceeds on the count of figures rather substance, election laws with the passage of time have recognised the rights of electorate to be informed of the credentials of the candidates who offer their candidatures for being elected as public representatives. As to whether non-disclosure of requisite information (criminal history) in the affidavit that was to accompany with the nomination form for election as Gram Pradhan would entail a consequence of disqualification in the eye of law is the precise question that has cropped up in the present writ petition filed under article 226 of the Constitution of India challenging the removal of Gram Pradhan and replacing him by a Committee for the discharge of functions of Gram Pradhan.
FACTS Briefly stated facts of the case are that the election of Gram Panchayats in the State of Uttar Pradesh was notified by the State Election Commission in the year 2015 and the petitioner being an eligible candidate also filed his nomination on 20.11.2015 for the election of Gram Pradhan. In terms of the election notification issued by State Election Commission, a candidate was under an obligation to file an affidavit to disclose his past antecedents, the format of prescribed affidavit is extracted below:
izR;k'kh }kjk ukekadu ds lkFk miyC/k djk;k tkus okyk 'kiFk&i= fuokZpu vf/kdkjh ds le{k
-------------------------------- fuokZPku {ks= ls --------------------------- izR;k'kh ds fuokZPku ds fy;A ¼fuokZpu {ks= dk uke½ ¼lnu dk uke½ eSa ------------------------------iq= ---------------------------------------- mez -----------------------o"kZ fuoklh -------------------------------- ft0---------------------------------tks mi;qZDr fuokZpu esa izR;k'kh gwaW] lR;fu"Bk ls izfrKku c;ku djrk gwWa %& ¼tks ykxw u gks mls dkV nhft;s½ 1- eSa iwoZ esa fuEufyf[kr [email protected] esa vkijkf/kd d`R; ds fy;s nks"kfl) Fkk vkSj ftldk fooj.k fuEu gS%&
(i) vijk/k la[;k &
(ii) vf/kfu;e dh /kkjk vkSj ml vijk/k dk fooj.k ftlds fy;s nks"k fl) Fkk & 'x'
(iii) nks"k fl) dk fnukad & 'x'
(iv) U;k;ky; ftlds }kjk nks"kfl) gS & 'x'
(v) n.M ¼dkjkokl dh vof/k [email protected] vFkZn.M dh ek=k½ & 'x'
(vi) [email protected] dk fooj.k tks mifjdfFkr nks"kflf)@ flf);ska ds fo:) fd; x;s gSa& 'x' 2- ;g fd eSa iwoZ esa fuEufyf[kr izdj.kksa esa vkjksieqDr @mUeksfpr gks pqdk gwWa %&
(i) vf/kfu;e dh /kkjk RkFkk vfHk;ksx dk fooj.k ftlesa vkjksfir gS & 'x'
(ii) vijk/k la[;k & 'x'
(iii) U;k;ky; dk uke ftlds }kjk [email protected] fd;k x;k gS & 'x'
(iv) [email protected] dk fnukad & 'x'
(v) mi;qZDr [email protected] ds fo:) [email protected] izkFkZUk&i= ¼i=ksa½ dk fooj.k] ;fn dksbZ gks%& 'x' 3- ;g fd eSa orZeku ukekadu i= nkf[ky djus ds fnukad ls N% ekg dh vof/k ls iwoZ fuEufyf[kr vfHk;ksxkas ls vkjksfir gwWa ftlesa 2 o"kZ ;k vf/kd ds dkjkokl dk n.M gS vkSj ftlesa vkjksi rS;kj dj fy;k x;k gS vFkok U;k;ky; }kjk laKku esa ys fy;k x;k gS] ftldk fooj.k fuEu gS%& ¼uksV & ;g mi;qZDr ¼1½ rFkk ¼2½ esa of.kZr izdj.kksa ds vfrfjDr gS½
(i) vf/kfu;e dh /kkjk vkSj vfHk;ksx dk fooj.k ftlds fy;s vkjksfir [email protected] fy;k x;k gS& 'x'
(ii) U;k;ky; ftlus vkjksi rS;kj fd;k [email protected] fy;k gS & 'x'
(iii) vijk/k la[;k & 'x'
(iv) vkjksi rS;kj [email protected] ysus dk U;k;ky; ds vkns'k dk fnukad & 'x'
(v) mi;qZDr vkjksi rS;kj [email protected] ysus ds fo:) vihy ¼vihyksa½@iqufoZyksdu dk izkFkZuk&i= ¼i=ksa½ ;fn dksbZ gks rks mldk fooj.k & 'x' lgk;d ftyk fuokZpu vf/kdkjh iapk;r ,oa uxjh; fudk;
xks.Mk 4- eSa viuh ifjlEifRr vius [email protected] vkSj vkfJrksa* lfgr ¼vpy] py] cSad cSysal vkfn½ dk fooj.k fuEuror~ nsrk gWawA ¼v½ py lEifRr dk fooj.k ¼la;qDr uke ij ifjlEifRr;ksaa esa la;qDr LokfeRo dk Hkh mYYks[k fd;k tk,½ Ø0la0 fooj.k Lo;a [email protected] dk uke vkfJr&1 dk uke vkfJr&2 dk uke vkfJr&3 dk uke 1-
uxn 2-
cSad] foRrh; laLFkkuksa vkSj uku cSafdx foRrh; dEifu;ksa esa tek 3-
dEifu;ksa esa ck.M~l] fMosUplZ vkSj 'ks;lZ 4-
vU; foRrh; bULVªwesUV~l] ,u0,l0,l0] Mkd cpr] ,y0vkbZ0lh0 ikfyfl;k vkfn 5-
eksVj osfgfdYl ¼esd bR;kfn dk fooj.k½ 6-
tsojkr ¼Hkkj vkSj ewY; dk fooj.k lfgr½ 7-
vU; ifjlEifRr;kWa tSls Dyse dk ewY;@C;kt *;gkWa vkfJr dk vFkZ ml O;fDr ls gS tks izR;k'kh dh vk; ij iw.kZr% vkfJr gSA uksV%&lwphc) dEifu;ksa ds lEcU/k esa LVkd ,Dlpsat esa v|ru cktkj ewY; ds vuqlkj vkSj vlwphc) dEifu;ksa ds lEcU/k esa iqLrd ds vuqlkj ck.Mksa] 'ks;jksa vkSj fMcsapjksa dk ewY; fn;k tk,A ¼c½ vpy ifjlEifRr;ksa dk fooj.k %& ¼la;qDr LokfeRo dh ifjlEifRr;ksa esa la;qDr LokfeRo dk Hkkx Hkh bafxr fd;k tk,xk½ Ø0la0 fooj.k Lo;a [email protected] dk uke vkfJr&1 dk uke vkfJr&2 dk uke vkfJr&3 dk uke 1-
d`f"k Hkwfe &fLFkfr ¼fLFkfr;ka½ &losZ la[;k&la[;k;sa &foLrkj ¼iw.kZ eki½ &orZeku cktkj ewY;
2-
vd`f"k Hkwfe &fLFkfr &losZ uEcj &foLrkj ¼iw.kZ eki½ &orZeku cktkj ewY;
3-
Hkou ¼okf.kfT;d vkSj vkoklh;½ &fLFkfr &losZ edku la0 &foLrkj ¼iw.kZ eki½ &orZeku cktkj ewY;
4-
[email protected] edku vkfn &fLFkfr &losZ edku la0 &foLrkj ¼iw.kZ eki½ &orZeku cktkj ewY;
5-
vU; ¼tSls lEifRr ij C;kt½ 5- eSa uhps vius nkf;[email protected] foRrh; laLFkkvksa ds vfr'kks/; nkf;Roksa vkSj ljdkjh ns;ksa dk fooj.k nsrk gwWa %& ¼uksV % d`i;k izR;sd dk vyx&vyx fooj.k nsa½ Ø0la0 fooj.k [email protected]; [email protected]@ foHkkxksa dk irk fnukad -----------------------------------rd yfEcr /kujkf'k A-1 cSad ls _.k 2 foRrh; laLFkkvksa ls _.k 3 ljdkjh cdk;k ¼vk;dj rFkk lEifRr dj ls fHkUu½ ¼fdlh lkoZtfud dk;kZy; esa in /kkj.k vFkok in /kkj.k dj pqds gks rks vns;rk izek.k i= layXu djsa½ Ø0la0 fooj.k vkadyu yfEcr /kujkf'k fnukad ------------------------------ dks B-1 vk;dj vf/kHkkj lfgr ¼vkadyu o"kZ dks bafxr djsa tc rd dk vk;dj fjVUkZ nkf[ky fd;k gks rFkk LFkk;h ys[kk la[;k ¼ih , ,u½ Hkh nsa½ 2 lEifRr dj ¼tc rd lEifRr dj fjVuZ nkf[ky fd;k gks rc rd dk vkadyu o"kZ bafxr djsa½ 3 foØ; dj ¼dsoy LokfeRo O;kikj ds izdj.k esa½ 4 lEifRr dj 6- esjh 'kSf{kd ;ksX;rk fuEufyf[kr gS %& ¼fo|ky; vkSj fo'ofo|ky; f'k{kk dk fooj.k nsa½ ¼fo|ky; dk [email protected]'ofo|ky; dk uke vkSj o"kZ] ftlesa ikB~;Øe iw.kZ fd;k gS] dk fooj.k Hkh nsasa½
------------------------------------------
'kiFkh LkR;kiu eSa mi;qZDr 'kiFkh ,rn~}kjk lR;kfir rFkk ?kksf"kr djrk gwWa] fd bl 'kiFk i= esa mfYyf[kr rF; esjh LkEiw.kZ tkudkjh tkudkjh vkSj fo'okl ds vuqlkj lR; gS] bldk dksbZ Hkkx vlR; ugha gS vkSj u gh dksbZ lkj Hkwr rF; fNIkk;k x;k gSA fnukad --17.11-------- o"kZ ------2015------------------ dks -------------------------------------- ¼LFkku½ ij lR;kfir
------------------------------------
'kiFkh The petitioner while filling the affidavit marked 'x' against all the informations mentioned against items 1, 2 and 3 which related to his past and present criminal history. The filling up of the affidavit in the above form was not objected within the time schedule by any of the contesting candidates in writing and the nomination document being treated as valid entitled the petitioner to contest in the election wherein 518 votes were cast in his favour as against the runner candidate who obtained 498 votes. The petitioner was declared elected and the result was accordingly notified. Thereafter the petitioner on being administered oath took over as Gram Pradhan of Village Kochwa, Block Rupaideeh, District Gonda.
To embark on the impact of criminal history that the petitioner was convicted in a criminal case no. 27/1961 under Section 148, 324, 325 IPC in the year 1963 and underwent sentence is of no relevance for the reason that the statutory period of five years within which such a conviction would disqualify a person to contest for the election of Gram Panchayat is already over much before the year 1970 whereafter the petitioner has enjoyed several terms as Gram Pradhan and has come to be elected again fifth time in the year 2015. The conviction of the petitioner is an old story but its non-disclosure has surfaced for the first time in the election petition no. 3/15 (Om Prakash v. Ram Rang & others) filed by respondent no. 6 under Section 12-C of U.P. Panchayat Raj Act, 1947 before the Prescribed Authority and the same is pending. During the pendency of election petition, a complaint was chosen to be filed by the same person i.e. respondent no. 6 on 24.2.2016 before the District Magistrate on the basis of which a show cause notice was issued to the petitioner on 26.3.2016.
The show cause notice based on the complaint and making a reference to the non-disclosure of conviction in case crime no. 27/1961 u/s 148, 324, 325 IPC was issued to the petitioner construing it to be a violation of Section 5-A(g) of U.P. Panchayat Raj Act, 1947. The petitioner was called upon to explain as to why proceedings may not be taken against him for removal from the office of Gram Pradhan on the ground of filing false affidavit amounting to violation of Section 5-A (g) of the U.P. Panchayat Raj Act, 1947 (hereinafter referred to as the Act of 1947).
The petitioner submitted his reply to the show cause notice on 12.4.2016 explaining that the criminal case mentioned in the notice had lost its relevance once the period of five years had lapsed. It was further explained that opposite party no. 6 had already instituted an election petition, as such, the matter can not be taken up within the scope of Section 95 (1) (g) read with Section 5-A (g) of the Act of 1947.
It is evident from the record that the petitioner also questioned the legality of notice dated 26.3.2016 before this court in Writ Petition No. 15309 of 2016 which was disposed of by order dated 5.7.2016 providing that the District Magistrate shall consider all the objections and legal position into consideration. The order passed by the High Court on 5.7.2016 attained finality after the Special Appeal No. 299/2016 arising therefrom was dismissed by the Division Bench on 26.7.2016.
The District Magistrate thereafter proceeded to consider the matter and on having found that a false affidavit alongwith the nomination form was filed by the petitioner suppressing disclosure of the criminal case no. 27/1961 under Section 148, 324, 325 IPC and conviction arising therefrom, therefore, taking shelter of the judgement rendered by the apex court in the case of Krishnamoorthy v. Sivakumar and others, reported in AIR 2015 SC 1921, the impugned order removing the petitioner from the office of Gram Pradhan has been passed on 16.9.2016, thus the present writ petition.
This court at the initial stage passed an order on 20.10.2016, which reads as under:
"Supplementary affidavit filed by the petitioner and counter affidavit filed on behalf of respondent no. 6 are taken on record.
Sri Manish Mishra, learned Standing Counsel prays for a week's time and no more for filing counter affidavit to which rejoinder affidavit may he filed within three days positively. In the event of non-adherence of this time schedule, time for completion of pleadings may not be granted and the matter shall be proceeded for hearing as the issue involved in the present petition is purely a question of law.
List as fresh on 2.11.2016.
Till the next date of listing though the petitioner shall be allowed to hold the office of Pradhan but he shall not take any decision in respect of any matter having administrative and financial implications.
The record shall also be made available on the next date."
A counter affidavit was promptly filed by the State Government and the affidavit prescribed by State Election Commission extracted above was annexed therewith. It has been stated in the counter affidavit that the petitioner had marked 'x' against all the questions mentioned under item 1, 2 and 3 of the requisite affidavit and having verified the same under his own signature filed the same alongwith his nomination form.
In reply to this statement, the only explanation offered by the petitioner can be gathered from para-5 of his rejoinder affidavit filed against the counter affidavit of the State Government which is extracted below:
"5. That in reply to the contents of paragraph 7 of the counter affidavit it is submitted that the petitioner did not mention the fact relating to his conviction in Case Crime No. 22 of 1961 under bonafide belief/impression that the said conviction in the said case has lost its significance/existence by operation of law in view of provision of Section 5(1) (g) of U.P. Panchayat Raj Act, 1947 and U.P. Panchayat Raj (Computation of Period of Five years for Removal of Disqualification, Fixation of period of dues etc. and Settlement of Disputes of Disqualification) Rules, 1994. The petitioner submitted his bonafides through his explanation dated 12.4.2016 and the said bonafides cannot be faulted and exploited with a view to annul his lawful election of the post of Gram Pradhan. It is open to the respondent no. 6 to contest the election petition filed under Section 12-C of U.P. Panchayat Raj Act, 1947 which is pending."
It is apparent from para-5 of the rejoinder affidavit that there is a clear admission on the part of petitioner not to have disclosed the past criminal history under a bona fide belief/impression that the conviction in the said case had lost its significance/existence by operation of law.
It is to be noted that in his explanation filed on 12.4.2016 in response to the show cause notice or in the written submissions filed in support of his response to the show cause notice, the petitioner merely stated that the effect of alleged criminal case does not disqualify him to contest the election, hence it was insignificant to disclose the past history. The petitioner had also questioned the issuance of notice once the election petition at the instance of same very complainant was pending.
The show cause notice dated 26.3.2016, on the other hand, conceiving non-disclosure of correct information in the affidavit to be a violation of Section 5-A(g) of the Act of 1947 had required the petitioner to submit his reply.
Issues In view of the rival submissions put forth, the questions that crop up for consideration are :
a) whether disclosure of requisite information in the affidavit to be filed alongwith the nomination form is mandatory or not;
b) whether a criminal case upon undergoing the conviction and sentence after the lapse of statutory period (five years in the present case), would lose its existence;
c) whether non-disclosure of requisite information in the context of U.P. Panchayat Raj Act, 1947 and rules framed thereunder on being proved would disqualify an elected person to hold the office of Gram Pradhan;
d) whether the dispute of non-disclosure of requisite information effect whereof whether or not amounting to disqualification can be entertained under Section 95 (1) (g) of U.P. Panchayat Raj Act for the removal of Gram Pradhan.
e) The relief which the petitioner is entitled to.
Arguments Learned counsel for the petitioner Sri Ramesh Pandey, assisted by Sri Pankaj Shukla, Advocate argued on the above questions and submitted that the criminal history attached to the petitioner's career has lost its relevance once the statutory bar of five years was over. He further contends that the disclosure of criminal case would rather make the affidavit free from all the defects and in that event the nomination form could not be rejected at all. It is further argued that non-disclosure of criminal antecedents is not a disqualification envisaged under the Statute, hence the proceedings under Section 95 (1) (g) would not lie once the election petition is pending and lastly it was submitted that the petitioner marked 'x' against all the questions under item 1, 2 and 3 of the requisite affidavit under a bona fide belief that disclosure in response thereto was irrelevant, insignificant and unnecessary. In support of the arguments Sri Pandey cited the following case laws:
1. Nanhey v. State of U.P. and others, 2010 (111) RD 375;
2. N.P. Ponnuswami v. Returning Officer, Namakkal Constituency and others, 1954 SCR 218;
3. Shambhu Prasad Sharma v. Charandas Mahant and others, (2012) 11 SCC 390;
4. Mangani Lal Mandal v. Bishnu Deo Bhandari, (2012) 3 SCC 314;
5. Mahak Singh v. State of U.P. and others, 1999 (17) LCD 868;
6. Sunil Kumar v. State of U.P. (Writ Petition No. 4891 MS of 2014 decided on 4.9.2014 All. High Court);
7. Jitendra Prasad Yadav @ Jitendra v. State of U.P. and others; 2011 (29) LCD 1995;
8. Ganga Mishra, Advocate v. Chhedi Paswan and others, Election Petitioin No. 1 of 2014 decided on 28.7.2014 Patna High Court; and
9. Oil and Natural Gas Corporation Ltd. v. Official Liquidator of Ambica Mills Company Ltd.; and others, (2015) 5 SCC 300.
Per contra, Sri Manish Mishra, learned Standing Counsel has argued that truthful disclosure in the affidavit prescribed alongwith the nomination form is not an empty formality and entails a consequence of disqualification, hence the impugned order passed by the District Magistrate is well within its authority as envisaged under Section 95 (1) (g) of the Act of 1947. He further submitted that this Court may not shut its eyes as to the consequence of such a vital non-disclosure, once the petitioner has admitted the fact in para-5 of the rejoinder affidavit as to the manner in which the affidavit was filled up and the admission on the part of the petitioner would not prevent this Court to exercise its jurisdiction under Article 226 of the Constitution of India even if the election petition was pending. It was also urged that setting aside the impugned order would revive nothing but an illegality which may not be allowed to continue.
Sri Mishra in order to make out his point has relied upon the following case laws:
1. Wasim Raza Khan v. Board of Revenue and others, (Writ B No. 15248 of 2014 decided on 11.3.2014, Alld. High Court;
2. Sher Mohammed Khan v. Zila Adhikari, Sultanpur and others, 1998 (4) AWC 686;
3. Krishnamoothy v. Sivakumar & others, AIR 2015 SC 1921;
4. Maj. Tejendra Singh (Retd) v. Union of India and others, [Writ Petition No. 40014 of 2000] decided on 24.3.2006 All. High Court;
5. K. Venkatachalam v. A. Swamickan and another, (1999) 4 SCC 526; and
6. Sameera Bano (Smt.) v. State of Rajasthan and others, AIR 2007 Raj. 168.
Sri Atul Mishra, learned counsel was also heard on behalf of respondent no. 6 who, reiterating the stand adopted by the State has argued that the Statute provides for an action to be taken against a person who violates the law, therefore, once there is an admission on the part of petitioner that mandatory disclosure was not made, waiting for the outcome of election petition would be a mere formality and the law must take its own course. He has also emphasized on the judgement placed reliance upon in the impugned order.
Discussion Independence of a sovereign institution/office whether based on election or nomination or selection is sacrosanct till it is saved from the violation of law. If the violation of law is alleged, the scrutiny within the permissible remedial procedure ought to commence and once established, law must take its own course. The governance of our country under the Constitution of India is ideally backed by the process of democracy i.e. election and through this process instills the faith of people in the institutions ranging from Panchayat to Parliament.
Now coming to the core issue viz. as to whether disclosure of requisite information in the affidavit prescribed to be filed alongwith the nomination form is mandatory or not, it would be proper to have a look at the right of a candidate to contest the election and the corresponding duty adherence to which is concomitant to the exercise of such a right.
Right to contest the election, it is well settled, is a statutory right but the corresponding duties which the exercise of this right would attract can be traced to Article 51-A of the Constitution of India of which the relevant extract is reproduced below:
"51A. Fundamental duties It shall be the duty of every citizen of India:-
(a) to abide by the Constitution and respect its ideals and institutions, the national Flag and the National Anthem;
(b) to cherish and follow the noble ideals which inspired our national struggle for freedom;
(c) to uphold and protect the sovereignty, unity and integrity of India;
(d) ..........................................
(e) ..........................................
(f) ...........................................
(g) .........................................
(h) .........................................
(i) ..........................................
(j) to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement."
The constitutional provisions extracted above clearly postulate that a person who desires to exercise his right of election in the process of democracy to be a member of any constitutional office/institution must necessarily comply with the duties envisaged above and truthful disclosure of the past antecedents is inclusive of this duty which satisfies the right of electorate to know about the candidate who they may vote to elect as their representative. It is no more res integra that right of electorate to know about the antecedents of a contesting candidate in the election is a fundamental right envisaged under Article 19 (1) (a) of the Constitution of India. The authority to prescribe for the disclosure of past and present criminal history apart from other disclosures is vested in the respective election commissions by virtue of the above constitutional mandate and the state is bound to implement the constitutional obligations under the statutory laws. It is for this reason that conduct of elections by the State Election Commission is provided for under Article 243-K of the Constitution of India independently. The prescription of an affidavit by the State Election Commission to disclose the relevant particulars flows in the spirit of constitutional mandate envisaged under Article 51-A read with Article 19 (1) (a) of the Constitution of India. Reference may also be made to the Supreme Court decision reported in (2002) 5 SCC 294 (Union of India Vs. Association of Democratic Rules & another) in which the authority of election commission to prescribe for such disclosures has been upheld for welfare of the State. The Court may also take note of Rule 15 (1) of the U.P. Panchayat Raj (Election of Members, Pradhans and Up-Pradhans) Rules, 1994, which reads as under:
"15. Presentation of nomination papers.-- (1) A person who desires to be nominated as a candidate at an election shall deliver either in person or by is proposer to the Nirvachan Adhikari on the date and place and during the hours fixed for the purpose under sub-rule (2) of Rule 14, a nomination paper duly completed in the form specified by the State Election Commission."
A plain reading of the aforesaid rule would show that nomination papers duly completed in the form specified by the State Election Commission would only entitle a candidate to contest the election. It must be understood that the civil liberty of a citizen in order to balance the right of equality before law is according to the procedure established by law.
The Court would now proceed to consider the submission as to whether effect of conviction or criminal case would at all lose its existence after the lapse of statutory period prescribed for a purpose. The Court may observe that the statutory bar of five years is by way of a reformative measure so as to facilitate a person to join the mainstream after undergoing the pain and value of deprivation sanctioned by law and in this manner obedience to law and identity of law abiding citizens is ensured for the promotion of standards of excellence, peace and order. The existence of the past history may perish for the purposes of eligibility to contest but it shall not become extinct for the purposes of disclosure so as to obey the right to information at large in the democratic process once a person decides to contest the election in order to be a part of the sovereign system.
In view of the above discussion this Court holds that disclosure of all the prescribed information in the affidavit alongwith the nomination form is mandatory and the past criminal history of a candidate may though not disentitle him to contest but its existence remains for the purpose of disclosure so as to ensure a free and fearless vote of the electorate.
For the reasons recorded above and looking to the principles enunciated in the judgement reported in (2014) 14 SCC 162 (Kisan Shankar Kathore vs Arun Dattatraya Sawant & others), the argument put forth by the learned counsel for the petitioner that the past history of the petitioner had become non-existent and irrelevant is rejected. Section 125-A of the Representation of Peoples Act, 1951 provides for penalty if a candidate is found to have filed a false affidavit, which in addition to the civil consequences entails punishment of six months imprisonment or with fine or both.
Coming to the issue of disqualification, it would be necessary to look at the constitutional and statutory provisions and reference in this regard may be made to Article 243-F of the Constitution of India contained in Part IX that came to be introduced by 73rd Constitutional Amendment.
Article 243-F for ready reference is extracted below:
"243F. Disqualifications for membership (1) A person shall be disqualified for being chosen as, and for being, a member of a Panchayat
(a) if he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State concerned:
Provided that no person shall be disqualified on the ground that be is less than twenty five years of age, if he has attained the age of twenty one years;
(b) if he is so disqualified by or under any law made by the Legislature of the State (2) If any question arises as to whether a member of a Panchayat has become subject to any of the disqualifications mentioned in clause (1), the question shall be referred for the decision of such authority and in such manner as the Legislature of a State may, by law, provide."
By virtue of Article 243-F (1) (a) and (b), the Representation of the People's Act, 1951 (hereinafter referred to as the Act of 1951) insofar as it provides for disqualification in relation to a member of State Legislative Assembly becomes applicable in the matter of election of Gram Panchayat, apart from the disqualifications provided by or under any law made by the State Legislature. Chapter III of the Act of 1951 envisages the disqualifications on various grounds including the ground of corrupt practices embodied under Section 8-A. The disqualification arising out of corrupt practice would arise only when a person is held guilty of a corrupt practice by an order passed under Section 99 of the Act of 1951 i.e. an election petition. Once the disqualifications applicable to a member of State legislature are imported and made applicable to the panchayat election by virtue of Article 243-F (1) (a), there is no reason as to why such a disqualification may not be read in, under Section 12-C of U.P. Act of 1947 whereunder the election of Gram Pradhan can be challenged, inter alia on the ground of corrupt practice. Section 12-C of U.P. Act of 1947 is reproduced below:
"Section 12 C:- Application for questioning the elections-(l) The election of a person as Pradhan or as member of a [Gram Panchayat] including the election of [a person appointed] as the Panch of Nyaya Panchayat under Section 43 shall not be called in question except by an application presented to such authority within such time and in such manner as may be prescribed on the ground that -
(a) the election has not been free election by reason that the corrupt practice of bribery/ or undue influence has extensively prevailed at the election or
(b) that the result of the election has been materially affected-
(i) by the improper acceptance or rejection of any nomination or
(ii) by gross failure to comply with the provisions of this Act the rules framed thereunder.
(2) The following shall be deemed to be corrupt practices of bribery undue influence for the purposes of this Act.
(A) Bribery that is to say, any gift, offer or promise by a candidate or by any other person with the connivance of a candidate of a gratification to any person with the connivance of a candidate of gratification to any person whomsoever with the object directly indirectly of including-
(a) a person to stand or not to stand as, or withdraw from being a candidate at any election; or
(b) an elector to vote or refrain from voting at an election or as reward to.
(i) a person for having so stood or not stood or have withdrawn his candidature or
(ii) an elector for having voted or refrained from voting.
(B) Undue influence that is to say, any direct or in direct interference of attempt to interfere on the part of a candidate or of any other person with the connivance of the candidate with the free exercise of any electoral right:
provided that without prejudice to the generality of the provisions of the clause any such person as is referred to therein whomsoever
(i) threatens any candidate, or any elector or any person in whom candidate or any elector is interested with injury of any kind including social ostracism and excommunication or expulsion from any caste or community; or
(ii) induces or attempts to induce a candidate or an elector to believe that he or any person whom he is interested will become or will be rendered an object of divine displeasure or spiritual censure shall be deemed to interfere with the free exercise of the elections right of such candidate or elector within the meaning of this clause.
(3) This application under sub-section (1) may be presented by any candidate at the election or any elector and shall contain such particulars as may be prescribed.
(4) The authority to whom the application under sub-section (1) is made shall in the matter of -
i- hearing of the application and the procedure to be followed at such hearing;
ii- setting aside the election, or declaring the election to be void or declaring the applicant to be duly elected or any other relief that may be granted to the petitioner, have such powers and authority as may be prescribed.
(5) Without prejudice to generality of the powers to be prescribed under subsection (4) the rules may provide for summary hearing and disposal of an application under sub-section (1).
(6) Any party aggrieved by an order of the prescribed authority upon an application under sub-section (1) may, within thirty days from the date of the order, apply to the District Judge for revision of such order on any one or more the following grounds, namely -
(a) that the prescribed authority has exercised a jurisdiction not vested in it by law;
(b) that the prescribed authority has failed to exercise a jurisdiction so vested;
(c) that the prescribed authority has acted in the exercise of its jurisdiction illegally or with material irregularity.
(7) The District Judge may dispose of the application for revision himself or may assign it for disposal to any Additional District Judge, Civil Judge or Additional Civil Judge under his administrative control and may recall it from any such officer or transfer it to any other such officer.
(8) The revising authority mentioned in sub-section (7) shall follow such procedure as may be prescribed, and may confirm, vary or rescind the order of the prescribed authority or remand the case to the prescribed authority for re-hearing and pending its decision pass such interim orders as may appear to it to be just and convenient.
(9) The decision of the prescribed authority, subject to any order passed by the revising authority under this section, and every decision of the revising authority passed under this section, shall be final."
Once the ground of corrupt practice or other grounds are established, would result into the declaration of the election as void and the consequences beyond that unlike Section 8-A of the Act of 1951 are not provided under Section 5-A of U.P. Act of 1947. The disqualifications under U.P. Act of 1947 are envisaged under Section 5-A and the relevant provision for ready reference is extracted below:
"5-A. Disqualification for membership- A person shall be disqualified for being chosen as, and for being the Pradhan or a member of a Gram Panchayat, if he-
(a) is so disqualified by or under any law for the time being in force for the purposes of elections to the State Legislature:
Provided that no person shall be disqualified on the ground that he is less than twenty-five years of age, if he has attained the age of twenty-one years;
(b) is a salaried servant of the Gram Panchayat or a Nyaya Panchayat;
(c) holds any office of profit under a State Government or the Central Government or a local authority, other than a Gram Panchayat or Nyaya Panchayat; or a Board, Body or Corporation owned or controlled by a State Government or the Central Government];
(d) has been dismissed from the service of State Government, the Central Government or a local authority or a Nyaya Panchayat for misconduct;
(e) is in arrears of any tax, fee, rate or any other dues payable by him to the Gram Panchayat, Kshettra Panchayat or Zila Panchayat for such period as may be prescribed, or has, in spite of being required to do so by the Gram Panchayat, Kshettra Panchayat or Zila Panchayat failed to deliver to it any record or property belonging to it which had come into his possession by virtue of his holding any office under it;
(f) is an undischarged insolvent;
(g) has been convicted of an offence involving moral turpitude;
(h) has been sentenced to imprisonment for a term exceeding three months for contravention for any order made under the Essential Commodities Act, 1955;
(i) has been sentenced to imprisonment for a term exceeding six months or to transportation for contravention of any order made under the Essential Supplies (Temporary Powers) Act, 1946 or the U.P. Control of Supplies (Temporary Powers) Act, 1947;
(j) has been sentenced to imprisonment for a term exceeding three months under the U.P. Excise Act, 1910;
(k) has been convicted of an offence under the Narcotic Drugs and Psychotropic Substances Act, 1985;
(l) has been convicted of an election offence;
(m) has been convicted of an offence under the U.P. Removal of Social Disabilities Act, 1947 or the Protection of Civil Rights Act, 1955; or
(n) has been removed from office under sub-clauses (iii) or (iv) of Clause (g) of sub-section (1) of Section 95 unless such period, as has been provided in that behalf in the said section or such lesser period as the State Government may have ordered in any particular case, has elapsed;
Provided that the period of disqualification under Clauses (d), (f), (g), (h), (i), (j), (k), (l) or (m) shall be five years from such date as may be prescribed.
Provided further that the disqualification under Clause (e) shall cease upon payment of arrears or delivery of the record of property, as the case may be;
Provided also that a disqualification under any of the clauses referred to in the first proviso may in the manner prescribed, be removed by the State Government."
All the disqualifications enumerated under Section 5-A of U.P. Act No. 1947 are triable before the prescribed authority under Section 6-A which is reproduced below:
"6-A. Decision on question as to disqualifications - If any question arises as to whether a person has become subject to any disqualification mentioned in Section 5-A or in sub-section (1) of Section 6, the question shall be referred to the prescribed authority for his decision and his decision shall, subject to the result of any appeal as may be prescribed, be final."
Section 12-C carves out a mechanism to achieve the object of Section 6-A, meaning thereby, that challenge to an election on the ground of corrupt practice or election being materially affected by improper acceptance or rejection of nomination or by gross failure to comply with the provisions of the Act or rules framed thereunder, can only be gone into and decided in an election petition before an elected candidate is disqualified to hold the office of Gram Pradhan. All other matters can be gone into by the competent authority under Section 95 (1) (g) (i)(ii)(iii) and (iii-a) as soon as, on an inspection, the question may arise. In other words, all the grounds of challenge to an election of Gram Pradhan are envisaged under Section 6-A read with Section 12-C which is inclusive and exhaustive. The distinction between an election petition and other proceedings for trying removal lies in the procedure. The election petition shall be tried by following the procedure provided under U.P. Panchayat Raj (Settlement of Election Disputes) Rules, 1994 whereas summary procedure is permissible to be adopted in other matters.
It is also evident from Section 12-C (3) of the Act of 1947 that right to question the election of a person on the grounds mentioned in Section 12-C understood in the light of Section 6-A is not limited to a contesting candidate in the election but is available to the electorate as well. The legislative intention conferring locus on the electorate signifies that the ground of disqualification on the charge of corrupt practice or other grounds can only be established through an election petition. This proposition also holds good when we look at the scope of statute in the light of Article 243-O (b) of the Constitution of India which reads as under:
"243O. Bar to interference by courts in electoral matters.-- Notwithstanding anything in this Constitution,--
(a) ......................... ;
(b) no election to any Panchayat 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"
The proposition becomes more clear when we construe the same having regard to Section 12-I of the Act of 1947 which contemplates a bar on the jurisdiction of civil courts to entertain a question in connection with the election of Gram Panchayat.
Section 12-C (1) of the U.P. Act of 1947 classifies the grounds of challenge to an election into two parts (i) corrupt practice and (ii) affecting the election materially by improper acceptance or rejection of nomination or gross failure to comply with the provisions of the Act or Rules framed thereunder.
Corrupt practice has specifically been defined under Section 12-C (2) of the Act of 1947 as extracted above which does not include improper acceptance or rejection of nomination or gross failure to comply with the Act or Rules within its scope. The question that crops up is whether bona fide truthful non-disclosure of requisite information in the affidavit amounts to a corrupt practice or it would attract clause 12-C (1)(b) of the Act of 1947 and Rules framed thereunder which encompasses the scope of entire Section 6-A of the Act of 1947.
Before coming to the statutory provisions it would be apt to extract the following passage (Paragraph-83) of the apex court judgement in the case of Krishnamoothy v. Sivakumar and others, AIR 2015 SC 1921 being relevant for the present controversy:
"83. The purpose of referring to the instructions of the Election Commission is that the affidavit sworn by the candidate has to be put in public domain so that the electorate can know. If they know the half truth, as submits Mr. Salve, it is more dangerous, for the electorate are denied of the information which is within the special knowledge of the candidate. When something within special knowledge is not disclosed, it tantamounts to fraud, as has been held in S.P. Chengalvaraya Naidu (Dead) By LRs V. Jagannath (Dead) By LRs & Others60. While filing the nomination form, if the requisite information, as has been highlighted by us, relating to criminal antecedents, are not given, indubitably, there is an attempt to suppress, effort to misguide and keep the people in dark. This attempt undeniably and undisputedly is undue influence and, therefore, amounts to corrupt practice. It is to clarify here that if a candidate gives all the particulars and despite that he secures the votes that will be an informed, advised and free exercise of right by the electorate. That is why there is a distinction between a disqualification and the corrupt practice. In an election petition, the election petitioner is required to assert about the cases in which the successful candidate is involved as per the rules and how there has been non-disclosure in the affidavit. Once that is established, it would amount to corrupt practice. We repeat at the cost of repetition, it has to be determined in an election petition by the Election Tribunal."
The passage extracted above clearly opines that any attempt not to disclose the requisite information would amount to undue influence and, therefore, an inference of corrupt practice on that account can be drawn against a candidate. A bona fide non-disclosure like it is asserted in para-5 of the rejoinder affidavit, may, however, not be an undue influence but it cannot escape and save the candidate from being disqualified on the ground of affecting the election materially as defined under Section 12-C (1) (b) which as a matter of mandatory requirement provides that improper acceptance or rejection of nomination or gross failure to comply with the provisions of the Act or rules framed thereunder would equally render an election as null and void. In the present case, although disclosure of past criminal history may not have disentitled the petitioner from contesting the election of Gram Pradhan but its non-disclosure would not save the election, inasmuch as, even a bona fide non-disclosure would amount to obtain the nomination improperly and the ground of gross failure to comply with the provisions of the Act and rules framed thereunder would be made out in the light of Article 19 (1) (a) of the Constitution of India read with Rule-15 extracted above. The Court thus concludes that non-disclosure of requisite information howsoever bona fide it may be, shall be violative of Article 51-A read with Article 19 (1) (a) of the Constitution of India and the mandatory procedure prescribed under Rule 15 (1) of 1994 Rules and thus an elected candidate would be disqualified.
Now I come to the question, as to whether a ground that attracts proceedings under Section 6-A read with Section 12-C of the Act of 1947 would at all lie in the pale of jurisdiction vested in the State Government by virtue of Section 95 (1) (g) of the Act of 1947. To appreciate the issue, the relevant provision is reproduced below:
"95. Inspection.- (1) The State Government may -
(a) ...... (b) ..... (c) .... (d) ..... (e) ..... (f) ......
(g) Remove a Pradhan or member of a Gram Panchayat or a Joint Committee or Bhumi Prabandhak Samiti, or a Panch, Sahayak Sarpanch or Sarpanch of a Nyaya Panchayat if he --
(i) absents himself without sufficient cause for more than three consecutive meetings or sittings;
(ii) refuses to act or becomes incapable of acting for any reason whatsoever or if he is accused of or charged for an offence involving moral turpitude;
(iii) has abused his position as such or has persistently failed to perform the duties imposed by this Act or rules made thereunder or his continuance as such is not desirable in public interest;
(iii-a) has taken benefit of reservation under sub-section (20 of Section 11 or sub-section (3) of Section 12, as the case may be, on the basis of a false declaration subscribed by him stating that he is a member of Scheduled Caste, the Scheduled Tribes or the backward classes, as the case may be;
(iv) being a Sahayak Sarpanch of a Sahayak Sarpanch of the Nyaya Panchayat takes active part in the politics, or
(v) suffers from any of the disqualifications mentioned in clauses (a to (m) of Section 5-A:
Provided that where, in an enquiry held by such person and in such manner as may he prescribed, a Pradhan or Up-Pradhan is prima facie found to have committed financial and other irregularities such Pradhan or Up-Pradhan shall cease to exercise and perform the financial and administrative powers and functions, which shall, until he is exonerated of the charges in the final enquiry, be exercised and performed by a Committee consisting of three members of Gram Panchayat appointed by the State Government.
Provided that no action shall be taken under Clause (f), Clause (g) except after giving to the body or person concerned a reasonable opportunity of showing cause against the action proposed.
(2) A person removed nder sub-clause (iii) and (iv) of clause (g) of sub-section (1) of this section shall not be entitled to be re-elected or re-appointed to any office under this Act for a period of five years or such lesser period as the State Government may order in any case.
(3) No order made by the State Government under this section shall be called in question in any Court.
(4) Where any Gram Panchayat, Joint Committee or Bhumi Prabandhak Samiti is dissolved the State Government may appoint such person or persons to exercise and perform the powers and duties thereof as it may deem fit."
A plain reading of the above provision would demonstrate that Section 95 (1) (g) can essentially be read and understood in two parts. The external control vested in the State Government to remove a Gram Pradhan may either be exercised on any ground that becomes a valid cause after his election or there may be a cause which may invalidate his election altogether on a declaration being made under Section 6-A read with Section 12-C. The procedure for the exercise of jurisdiction to remove a Gram Pradhan on any or more grounds mentioned in Clause (i), (ii), (iii) and (iii-a) of Section 95 (1) (g) may be what it is provided in the provisos appended to Section 95 (1) (g) but on any other ground of disqualification traced to clause (v) of Section 95 (1) (g) or any provision of the Act of 1947, only an election petition under Section 12-C would lie which, by virtue of Article 243-O (2) of the Constitution of India is an exclusive remedy that serves the purpose of the Act and Rules framed thereunder. Therefore, the grounds on which an election petition would lie shall not be open to the State for the exercise of power under Section 95 (1) (g) of the Act of 1947 but the violation on being noticed, the matter shall be referred to the Prescribed Authority.
The proviso appended to Section 95 (1) (g) is a controlling provision as to the procedure to be followed in respect of other matters before a decision is taken. By virtue of Section 96-A of the Act of 1947, the State Government can delegate all or any of its powers under the Act to any officer or authority subordinate to it. In exercise of powers under Section 96-A of the Act of 1947, vide notification no. 1648/33-I-1997-124/97/Lucknow dated 30th April, 1997, the State Government has delegated its powers to the District Magistrates. This position is also evident from a judgement rendered by this Court on 22.12.1998 reported in 1998 (4) AWC 686 (Sher Mohammed Khan vs Zila Adhikari, Sultanpur and another).
Although the power exercisable by the State under the Act of 1947 is delegated to the District Magistrate yet on an issue covered under Section 95 (1)(g) (v) where the law conceives the remedy by way of an election petition, the District Magistrate would not have jurisdiction to initiate any proceedings to remove an elected Gram Pradhan subject, however, that on discovering a disqualification of the nature provided to be determined under Section 6-A, he shall refer the matter to the Prescribed Authority. It is thus held that in a situation where the law provides for the remedy of election petition, like the case at hand, initiation of proceedings by the District Magistrate is without authority of law. The view taken to an extent is also fortified by a Division Bench judgement reported in 2010 (111) RD 375 (Nanhe v. State of U.P. and Ors.).
Having expressed the view on question (i) (ii) and (iii) against the petitioner and on question (iv) in petitioner's favour, the Court would now proceed to consider the relief that can be granted in the present writ petition so as to uphold the mandate of law consistent with the observations made hereinabove.
From the perusal of notice dated 28.3.2016 and the order impugned, it is evident that the District Magistrate has exercised the power under Section 95 (1) (g) of the U.P. Panchayat Raj Act, 1947 read with Section 5-A(g). This Court has already held hereinabove that once the cause alleged arises within the scope of Section 5-A of the Act of 1947, the District Magistrate will have no jurisdiction. The petitioner has consistently questioned the jurisdiction of the District Magistrate to issue the notice and rightly so. Secondly, the petitioner having undergone the sentence as a consequence of his conviction, had also explained that it would not attract Section 5-A (g) after the statutory bar was over. To this extent the stand adopted by the petitioner does not suffer from any legal flaw.
In the case at hand, the necessity to go into the issues arose on account of a clear admission on the part of the petitioner as is evident from para-5 of the rejoinder affidavit. Moreover, non-disclosure of requisite information was sought to be justified terming it to motiveless and a bona fide mistake having no relevance with the election and on the ground of terming non-disclosure as insignificant and non-existent by the petitioner.
It is true that the notice dated 26.3.2016 essentially did not set out a case of mandatory violation of any statutory provision except Section 5-A (g) but the fact remains that during the proceedings before this Court, a material fact as regards non-disclosure of requisite information going to the root of the matter has surfaced and has been admitted by the petitioner. In such a situation the submission made by learned Standing Counsel on the strength of Division Bench judgement rendered by this Court in the case of Maj. Tejendra Singh (Retd) v. Union of India and others, [Writ Petition No. 40014 of 2000], becomes relevant and cannot be brushed aside. On the other hand, the proceedings of election petition where the parties have to lead evidence etc. can also not be frustrated so as to oust the prescribed forum of its jurisdiction simply because a writ petition has come to be filed in the background of previous order dated 5.7.2016 passed by this Court directing the District Magistrate to consider all the objections raised by the petitioner. The matter ought to have been closed on the mere objection raised by the petitioner and referred to the Prescribed Authority where the dispute was pending, but the District Magistrate proceeding contrary to the mandate of law went on to pass the impugned order giving rise to the present writ petition wherein the counter affidavit was called for vide order dated 20.10.2016 and in response to which a rejoinder affidavit was filed by the petitioner wherein admission made by him in para-5 has come to be noticed.
The statement made in the rejoinder affidavit cannot be ignored by this Court yet for another reason that there may be a situation where an election petition may not be filed by an electorate or a contesting candidate and the State Government on the discovery of a violation of law may question the election of a candidate by making a reference to the prescribed authority who shall decide the same after due notice to the elected candidate as well as the State Election Commission.
In the instant case, the election petition is undoubtedly pending. In the simultaneous writ proceedings, a prima facie violation of law is also visibly made out. A balance has to be struck in the interest of justice looking to the apex court judgement and law laid down in the case of N.P. Ponnuswami v. Returning Officer, Namakkal Constituency and others, reported in 1954 SCR 218.
In view of the above discussions, the Court proceeds to issue the following directions:
1). The hearing of election petition no. 3/15 pending before the Prescribed Authority is expedited and the Prescribed Authority shall decide the same within six months from the date a copy of this judgement is served/filed; and
2). Until decision on the election petition, all financial and administrative matters shall be decided by the Committee nominated by the District Magistrate, of which the Gram Pradhan (the petitioner) shall be a part. The continuance of the petitioner as Gram Pradhan shall depend on the outcome of election petition and the revised constitution of the Committee one way or the other shall accordingly be decided thereafter promptly by the District Magistrate.
Subject to the directions issued above, the writ petition is allowed and the impugned order is set aside.
No order as to cost.
Dated: Dec. 9, 2016 Fahim/-