RAVI KUMAR MEHAR Vs. CHHATTISGARH STATE ELECTION COMMISSION

JUDGEMENT

(1.) In the present petition, challenge is to the order dated 16-9-2011 (Annexure P/1) passed by respondent No. 1 i.e. Chhattisgarh State Election Commission rejecting the application filed by the petitioner under Section 32-D of the Chhattisgarh Municipalities Act, 1961 and affirming the order dated 18-3-2011 (Annexure-P/2) passed by the Chhattisgarh State Election Commission. Briefly stated facts are that the petitioner was elected as President of Nagar Panchayat, Sakari, Bilaspur in the election conducted on 23-12-2009 of which notification was issued on 27-12-2009. On 8-3-2010 a show cause notice (Annexure-P/6) was issued to the petitioner by respondent No. 1, Chhattisgarh State Election Commission asking the petitioner that under Section 32-A Municipalities Act, 1961 every candidate at an election of President was required to submit account of election within 30 days form the date of declaration of the result but in the case of the petitioner no such account has been submitted to the District Election Officer and therefore he was asked to show cause as to why the proceedings under Section 32-C may not be initiated against him and he be disqualified for five years for failure to lodge account of election expenses and as to why he should not be declared to be disqualified for being chosen as, and for being a Councilor or President. According to the petitioner this notice was received by him on 11-3-2010 and on 15-3-2010 vide Annexure-P/7 he informed respondent No. 1 that as he was not aware about the procedure and fought the election for the first time, he had submitted photocopies of the accounts. He further replied that after receiving notice dated 11-3-2010 he again submitted the accounts details in original to the District Election Officer, Bilaspur and the acknowledgement of the same was also enclosed alongwith his reply. On 2-12-2010 vide Annexure-P/8 respondent No. 1 had informed the petitioner that he has already been served show cause notice of which reply has been submitted by him and if the petitioner is interested for the personal hearing he can appear before the authority on 29.12.2010 in the office of respondent No. 1. According to the petitioner he did appear before the said authority on 29th December, 2010. Further case of the petitioner is that on 18-3-2011 impugned order (Annexure-P/2) was passed by respondent No. 1 disqualifying the petitioner for 4 years and 6 months under Section 32-C of the Municipalities Act, 1961. According to the petitioner he filed the application under Section 32-D of the Municipalities Act seeking pardon from respondent No. 1 on the ground that non-submission of details of accounts was bona fide as he was not aware about the correct legal procedure and therefore his disqualification be set aside. In this application it has been stated by the petitioner that by mistake instead of submitting the account details to District Election Officer the same was submitted before the Naib Tahsildar and therefore the said mistake be pardoned. After receiving the above application respondent No. 1 issued letter dated 12-5-2011 to the petitioner asking him to appear before the said authority on 6-7-2011 for personal hearing and according to the petitioner he apprised respondent No. 1 of the correct factual position. On 16-9-2011 impugned order (Annexure-P/1) has been passed by respondent No. 1 under Section 32-D of the Municipalities Act affirming the order dated 18-3-2011 (Annexure-P/2) and holding that as the petitioner has failed to furnish the details of account within the stipulated period the order of his disqualification is in accordance with law and the same can not be altered.

(2.) Counsel for petitioner submits that while passing both the orders the respondent No. 1 has taken a very harsh view by not only disqualifying the petitioner for four years and six months but also disqualifying him for the post of President Nagar Panchayat, Sakri, District Bilaspur. He submits that conduct of the petitioner was bona fide where he submitted the details of account with the Naib Tehsildar instead of prescribed authority i.e. District Election Officer and having submitted the record within time before Naib Tehsildar, bona fides of the petitioner should have been seen by respondent No. 1 and the authority should not have taken a hyper technical approach. He further submits that after receiving the show cause notice dated 8-3-2010 (Annexure (P-6) which was received by the petitioner on 11-3-2010, on 15-3-2010 (Annexure P-7) the petitioner submitted his reply alongwith the complete copies of account. He submits that in view of sub-clause 6 of clause 10 of Election Expenses (Maintenance and Lodging of Account) Madhya Pradesh Order 1997, on receiving the show cause notice within 15 days the petitioner had submitted a representation in writing to respondent No. 1 and copy to District Election Officer together with complete account and therefore respondent No. 1 could not have passed the impugned orders. He further submits that the moment the show cause notice is issued and reply is filed within the stipulated period alongwith complete details of account it would amount to waiver of earlier default committed if any by the petitioner. He submits that as per sub-clause 7, the District Election Officer was obliged to forward the copy of the account to the Election Commission with comment but in the present case neither copy of the account was forwarded nor any comment was given by the District Election Officer as per the requirement of sub-clause 7 of clause 10 of Order 1997. He submits that the orders impugned are in violation of Election Expenses (Maintenance and Lodging of Account) Madhya Pradesh Order 1997. He further submits that after receiving the comment of the District Election Officer as per the requirement of Section 32-C of the Municipalities Act, 1961 the authority concerned should have applied its mind and then passed the order. He submits that from the orders impugned it is clear that no such reason has been assigned by the authority as required under the law. He placed reliance on the decisions of Madhya Pradesh High Court in the matter of Jawahar Lal Gupta v. Rajya Nirvachan Ayog, Bhopal and another, 2003 1 MPLJ 180, in the matter of Mahendra s/o R.S. Palariya v. M.P. State Election Commission and others,2005 1 MPLJ 245, in the matter of Hari Manohar v. State of M.P., 2011 1 MPWN 60, decisions of Chhattisgarh High Court in the matter of Omprakash Dewangan v. Chhattisgarh State Election Commission and others WP (C) No. 2343/2009 and in the matter of Smt. Pushpa Sahu v. State Election Commission and others WP (C) No. 1078/2011.

(3.) Replying to the arguments of the counsel for the petitioner, counsel for the respondents 1 and 3 submits that after declaration of the result of the election on 27-12-2009 a report dated 2-2-2010 was submitted by the District Election Officer to the State Election Commission informing that the petitioner had failed to submit the details of account within the stipulated period. He submits that after receiving the said report the State Election Commission issued a show cause notice dated 8-3-2010 (Annexure P-6) to the petitioner and on 15-3-2010 vide Annexure P-7 the reply was submitted by the petitioner categorically admitting the fact that as he was contesting election for the first time, he was not aware of the procedure of the election and therefore he could not submit the details of account. He submits that in this letter the petitioner has not even mentioned that earlier the details of account were submitted by him before any authority. He submits that the petitioner had sought pardon for his mistake and requested for accepting the details of account submitted by him. He further submits that on 2-9-2010 the comments were submitted by the District Election Officer to the State Election Commission about the failure of the petitioner in submitting the details of account within a period of 30 days. He submits that while sending the comments the District Election Officer had also recommended for personal hearing to the petitioner before passing any order and taking action in accordance with law. He submits that pursuant to this recommendation on 2-12-2010 notice was issued to the petitioner for personal hearing and after hearing him the order impugned dated 18-3-2011 (Annexure P-2) was passed. He further submits that while passing the order dated 18-3-2011 all the relevant points were considered by the State Election Commission including the recommendation made by the State Election Officer. He submits that as the details of account were submitted on 15-3-2010 i.e. much after the period as provided under the law, the petitioner has rightly been disqualified and the authority has also considered the point that ignorance of law is no defence. According to counsel for respondents 1 and 3 clause 10(7) of the Election Expenses (Maintainance & Lodging of Account) Order, 1997 is not mandatory in nature and even if the comments are not submitted by the District Election Officer within 5 days of the receipt of representation, it will not make any difference because the petitioner has failed to prove as to what prejudice has been caused to him. In respect of this submission, he placed reliance on the decision of the Supreme Court in the matter of Shivjee Singh v. Nugendra Tiwary and others, 2010 7 SCC 578. He submits that mere forwarding the comments by the District Election Officer to the State Election Commission would not mean that the Election Commission is bound to accept the same even the details of account have been submitted and ultimately it is the Election Commission which has to pass the order after considering the representation submitted by the petitioner. In support of this submission, counsel for respondents 1 and 3 placed his reliance on the decision of M.P. High Court in the matter of Mahendra s/o R.S. Palariya v. M.P. State Election Commission . He also relied on the decision of this Court passed in WP (C) 3108/2009. He submits that while passing the order dated 18-3-2011 the Election Commission has come to the conclusion that ignorance of law cannot be treated as a defence. He submits that this observation of the State Election Commission being well founded is in accordance with law more particularly when the petitioner is a law graduate and practicing lawyer. He submits that contention of the petitioner that he was contesting election for the first time and therefore was not aware of the procedure thereof, is liable to be rejected. He placed reliance on the decision of Supreme Court in the matter of Board of Directors, Himachal Pradesh Transport Corporation and another v. K.C. Rahi, 2008 11 SCC 502, Counsel for respondents 1 and 3 further submits that after passing the order dated 18-3-2011, an application dated 13-4-2011 (Annexure P-9) was submitted by the petitioner under Section 32-D of the C.G. Municipalities Act and after considering the said application again a very reasoned order was passed by the State Election Commission on 16-9-2011 affirming the previous order dated 18-3-2011. In respect of Clause 10(6) of the Election Expenses (Maintenance & Lodging of Account) Order, 1997, he placed his reliance on the decision of M.P. High Court referred to above. According to the counsel for respondents 1 and 3, even if the District Election Officer has not forwarded the copy of details of account submitted by the petitioner to the State Election Commission it will not make any difference in the present case because the fact remains that the petitioner himself had forwarded the said copy to the District Election Officer alongwith the letter dated 15-3-2011 (Annexure P-7) and the same was duly considered by the District Election Officer while passing the orders dated 18-3-2011 and 16-9-2011 Adopting the arguments of the counsel for respondents No. 1 and 3, it has been submitted by the State counsel that the action of the respondents is strictly in accordance with law.