Kedar
Singh Kushwaha Vs. Dhaniram & ANR. [2009] INSC 1371 (4 August 2009)
Judgment
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. OF 2009
(Arising out of SLP (C) No.19564 of 2005) Kedar Singh Kushwaha ... Appellant
Versus Dhaniram & Anr. ... Respondents
S.B.
Sinha, J.
1.
Leave granted.
2.
Appellant was the Sub-Divisional Officer Pichhore.
In the
said capacity, he was a Specified Officer for determination of election
disputes in terms of the provisions of Madhya Pradesh Panchayats (Election
Petition, Corrupt Practices and Disqualification for Membership) Rules, 1995
(for short, `the Rules') framed in terms of Section 122 of the Madhya Pradesh
Panchayat Raj Adhiniyam (for short, `the Act').
3.
Respondents 1 and 2 herein contested an election for the post of
Sarpanch of Gram Panchayat, Khadoya, Block; Tehsil Pichhore. The second
respondent was declared elected. Questioning the legality whereof, the first
respondent filed an application for setting aside his election in the Court of
Specified Officer, Pichhore. Upon hearing the parties, the Specified Officer
directed recounting of all the votes polled in the said election. Relying on or
on the basis of such re-counting, the election petition was dismissed.
4.
Questioning the legality and/or validity of the said order, the
first respondent filed a writ petition before the High Court contending that
the Specified Officer had no jurisdiction to direct re-counting of votes only
on the ground that no objection was raised by the parties as prior thereto and
that he was required to arrive at the conclusion that sufficient evidence had
been brought on record by the parties for the said purpose.
It was
also urged that such a judicial power could not have been delegated in favour
of the Tehsildar.
A learned
Single Judge of the High Court by reason of a judgment and order dated
24.7.1996 allowed the said writ petition, setting aside the order of the
Specified Officer and remitted the matter back to it directing the election
petition to be decided within two months. It was furthermore directed that the
Specified Officer should also decide the preliminary objections raised by the 3
respondent in the Election Petition. The parties were directed to appear before
it on 19.8.1996.
5.
Despite the said order, however, no action thereon was taken.
Notices were issued only on 23.10.1997.
By reason
of an order dated 30.12.1997, the appellant who was holding the post of the
Specified Officer/Sub-Divisional Officer at the relevant time, again directed
for recounting of ballot papers. On the premise that by reason thereof the
appellant had disobeyed the order of the High Court dated 24.7.1996, a contempt
petition was filed by the first respondent. It was pointed out that neither the
preliminary objection was heard nor any evidence was recorded. It was
furthermore pointed out that despite the fact that the period of two months
expired on or about 18.10.1996 but without obtaining an order of extension from
the High Court, he issued the said order for recounting of the votes.
6.
The High Court issued Rule Nisi on the said application. Appellant
was directed to remain present in the court. It, however, stands admitted that
for one reason or the other, he did not appear before the Court and bailable
warrants of his arrest were issued for his appearance on 6.5.1998.
Appellant
filed a show-cause in the said contempt proceedings. Upon hearing the parties,
the appellant was found guilty of willful disobedience of the 4 order of the
High Court and a fine of Rs.1,000/- and his detention till the rising of the
court, was directed.
7.
An intra-court appeal preferred by the appellant there against in
terms of Section 19 of the Contempt of Courts Act, 1971 was
dismissed by reason of the impugned order dated 17.5.2005.
8.
Mr. Banthia, learned counsel appearing on behalf of the appellant,
would submit that the High Court committed a serious error in passing the
impugned judgment insofar as it failed to take into consideration that the
matter came up before the appellant only in 1997 whereupon he took all
necessary steps to dispose of the proceedings before him. It was urged that
failure on the part of the appellant to appear before the high Court pursuant
to the directions issued was occasioned by non-grant of permission there for by
the higher authorities.
Our
attention in this behalf has, inter alia, been drawn to an intimation given by
the appellant to that effect before the Collector on 4.5.1998.
9.
Indisputably, the appellant was the Specified Officer and in the
said capacity was authorized to determine the election petition filed by the
first respondent. The Election Petition filed by him was dismissed only on the
basis of an order of recounting passed by the Specified Officer in respect
whereof allegedly no objection was raised. The High Court, however, in its
order dated 24.7.1996, in clear terms, pointed out that the prescribed
authority has no 5 jurisdiction in that behalf even with the consent of the
parties. Relying on or, inter alia, on the basis of a decision of this Court in
P.K.K. Shamsudeen v. K.A.M. Mappillai Mohindeen & Ors. [AIR 1989 SC 640],
the High Court made extensive reference to the Rules, to hold :
"From
the aforesaid rules, it is clear that any order of recounting can be passed
after conclusion of the trial and the recounting can only be ordered by the
Sub- Divisional Officer who is a prescribed authority to decide the dispute.
The sub-divisional officer has not acted properly, inasmuch as it acted
illegally in delegating the powers of recounting to the Tehsildar.
The
authority is described as Sub-Divisional Officer as the authority to decide the
election petitions, therefore, any act done by the Tehsildar of recounting cannot
be said to be proper and on the basis of recounting by the Tehsildar, the
Sub-Divisional Officer gravely erred in dismissing the election petition. The
order dismissing the election petition is hereby set aside with a direction to
Sub-Divisional Officer to decide the petition according to law and shall also
decide the preliminary objections raised by the respondents before him. He
cannot shirk from his responsibility and delegate his powers to subordinate
authority."
It was on
that premise that the aforementioned directions were issued.
10.
Indisputably, the said order was not complied with as the election
petition was not disposed of within the period specified there for by the High
Court.
Indisputably
again, pursuant to the order of the High Court, the parties appeared on
19.8.1996. The appellant, in his order sheet dated 3.12.1997, recorded that the
order of the High Court was received on 28.2.1997. Why, despite the same, 6 he
did not take any step to issue notices to the parties and proceeded to
determine the issue before him has not been explained. The appellant, in his
order dated 23.12.1997, proceeded on the basis that the High Court need not be
approached for obtaining further directions from it.
From a
perusal of the order dated 13.1.1998, it appears that proceedings started at 4
pm on that day, the ballot boxes were opened and a direction for recounting of
the ballot papers was made. Indisputably, preliminary objections of the parties
had not been determined. Why an order of recounting was passed despite the
clear finding of the High Court has not been explained. The effect of the
decision of this Court in P.K.K. Shamsudeen (supra) was also not taken into
consideration. The premise on which the High Court passed its judgment dated
24.7.1996 was neither noticed nor considered.
11.
It is now well settled that an order directing recounting must be
preceded by application of mind by the Prescribed Authority. [See M. Chinnasamy
v. K.C. Palanisamy & Ors. [(2004) 6 SCC 341] and Chandrika Prasad Yadav v. State
of Bihar & Ors. [(2004) 6 SCC 331] It is, thus, idle to contend that the
appellant did not understand the effect and purport of the order. The High
Court, in our opinion, has rightly arrived at a finding that as a responsible
and high ranking officer, the said plea was not available to him. He,
therefore, could not have committed the same error as 7 was done by his
predecessor in office. Even during the proceedings before the High Court,
appellant's conduct was not above board. Why he could not appear before the
High Court at the earliest possible opportunity has not been properly
explained. In terms of the Rules framed by the High Court under the Contempt of
Courts Act, the appellant has rightly been called upon to appear. He could not
have ignored the same on the premise that the Collector did not give him
permission therefor. Even otherwise, no order refusing such permission by the
Collector has been brought on record.
12.
Keeping in view the facts and circumstances of the case, we are of
the opinion that no case has been made out for interference with the impugned
judgment. This appeal is, therefore, dismissed. However, in the facts and
circumstances of the case, there shall be no order as to costs.
.....................................J. [S.B. Sinha]
.....................................J. [Cyriac Joseph]
New Delhi;
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