RAJA RAM AHIRWAR Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) THIS is an appeal filed under Section 2 (i) of the M. P. Uchcha nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005, against the order dated 30-11-2007 passed by the learned Single Judge in Writ Petition no. 1890/2005 under Article 226 of the Constitution.

(2.) THE facts briefly are that the respondent No. 3 was enrolled in the voter list of Gram Panchayat, Lakhahar, published in the year 1999. He contested the election of Zila Panchayat, Sagar and was elected from Village lakhahar in the year 2000. The respondent No. 3 was also registered as a voter in the electoral roll of Shivaji Ward No. 50, Bina Municipality and he contested the election for the Bina Municipality and was declared elected as President of bina Municipality on 25-11 -2004. The appellant who is also a registered voter of shivaji Ward of Bina Municipality filed a writ petition under Article 226 of the constitution praying for a writ of quo warranto against the respondent No. 3 or for his removal from the office of the President of the Bina Municipality. The case of the appellant in the writ petition was that the respondent No. 3 could not have been registered as a voter in the electoral roll of Bina Municipality inasmuch as he was also registered as a voter in Gram Panchayat, Lakhahar and, therefore, her was not qualified to be a candidate for election for the post of president of Bina Municipality under Section 34 of the M. P. Municipalities Act, 1961 (for short 'the 1961 Act' ). In the impugned order dated 30-11-2007 the learned Single Judge held that under the relevant provisions of law and the rules, a person whose name was entered in the voter list of village was not disqualified from contesting the election and accordingly dismissed the writ petition. Aggrieved, the appellant has filed this appeal.

(3.) MR. Vivek Rusia, learned Counsel for the appellant and Mr. Naman nagrath, learned Counsel for the respondent No. 4 submitted that Rule 9-A of the M. P. Nagar Palika Nirvachan Niyam, 1994 (for short 'the 1994 Niyam') is clear that the name of any person who is registered in the voter list of any panchayat cannot be entered in the voter list of also a Municipality and, therefore, the respondent No. 3 who was registered as a voter in the voter list of gram Panchayat, Lakhahar, could not have been entered in the electoral roll of bina Municipality as a voter. They submitted that the learned Single Judge was not correct in holding in the impugned order that there was nothing in the 1961 act and the Rules made thereunder which disqualified a person whose name is entered in voter list of Gram Panchayat, from contesting the election of a municipality. They submitted that the language of Section 34 of the 1961 Act is clear that a person who is enrolled in the Municipal Electoral Roll as a voter, shall be qualified to be a candidate for the election of President of a Municipality and as the respondent No. 3 could not have been enrolled in the Municipal electoral Roll as a voter, having been enrolled as a voter for Gram Panchayat, lakhahar, he was not qualified to be a candidate for the election of the President of Bina Municipality. They submitted that it is, therefore, a fit case in which a writ of quo warranto should have been issued against the respondent No. 3, as in the meanwhile respondent No. 3 has resigned from the post of Zila Panchayat, sagar, and has assumed charge as the President of Bina Municipality. They cited the decision of Supreme Court in K. Venkatachalam Vs. A. Swamickan and another, (1999) 4 SCC 526, as well as the decision of Division Bench of this Court delivered on 15-11-2006 in Writ Appeal No. 87/2006 (Atar Lal Verma Vs. Suresh choudhary and others), in which similar writs of quo warranto were issued against persons who had been elected as Member of Legislative Assembly and member of Zila Panchayat respectively contrary to the provisions of law.