ANJANA MULKALWAR Vs. STATE OF M.P.

JUDGEMENT

(1.) GONE are the days of yore when a woman was required to playa secondary role in society and surrender to the injunctions and mandates of its high priests and tolerate the community commands with Himalayan calmness and pacific . poise. With the passage of time, scenario has changed and the woman, in addition to her duties in the domestic front, has also come out to undertake the responsibilities in the public field as permitted by the provisions of law and sustained by its majesty. History has many an example and the repetitions are bound to occur, for history repeats itself. Here is a petitioner who has refused to accept the infringement of her right to continue as the President, Zila Panchayat, Bilaspur and has called in question the warrantable -ness of the order (Ann. P -8) passed by the District Electoral Officer (Panchayat), respondent No.3 herein, and the sustainability of the order (Annexure P -10) passed by the Chief Executive Officer, Zila Panchayat, Bilaspur by which she has been deprived of the privilege of her continuance in the said elected post by invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India.

(2.) THE facts as have been uncurtained in the writ petition are that the petitioner is a resident of village Khamaria and her name finds place in the electoral roll of Gram Panchayat at Serial No. 770, Ward No. 14 of village Khamaria, Tahsil Takhatpur, District Bilaspur. The electoral roll was published in the year 1994. In consonance with the 73rd amendment of the Constitution the State of Madhya Pradesh in consultation with the State Election Commission announced elections to the three -tier Panchayat Raj system in the State of Madhya Pradesh. The M.P. Panchayat Raj Adhiniyam, 1993 (Act 1 of 1994) (hereinafter referred to as 'the Act') was published in the gazette extraordinary on 25.1.94 and under the said Act, M.P. Panchayat Election Rules, 1994 (hereinafter referred to as 'the Election Rules') were framed. As enjoined in the said Rules under Chapter III, a voters' list was published on 2.4.94 and after following due procedure as envisaged under the said Rules the voters' list was published and the petitioner's name was reflected at Serial No. 770 in the said list. It is pleaded that the petitioner had not applied for inclusion of her name in the electoral roll but the same was included on the basis of survey conducted by the Electoral Registration Officer. It is set -forth that as the petitioner is a resident of house No. 253 of village Khamaria, her inclusion in the electoral roll was quite natural. The said house belongs to one Sunder Das Manikpuri and has been let out on rent to the petitioner. On the basis of the aforesaid entry the petitioner was entitled to contest election for Ward No. 34 of Takhatpur and accordingly she contested and ultimately was elected as member of Zila Panchayat. It is stated that the post of President, Zila Panchayat. Bilaspur under the scheme of the Act has been reserved for a general woman candidate. The petitioner who is a member of backward class was entitled to contest in the election of President of Zila Panchayat. She contested for the post of President and was elected on 26.6.94. It has been pleaded that before filing nomination for election as member of Zila Panchayat, Bilaspur, she had applied for deletion of her name from the Electoral Roll of Bilaspur, Municipal Corporation on 11.2.94 and the said application was filed much before the election programme for the Panchayat was notified. After the petitioner was elected, an election dispute under section 122 of the Act was filed by one Bhanu Yadav calling in question the propriety of the election of the petitioner. One of the grounds urged in the petition was that petitioner's name was erroneously included in the electoral roll of Village Panchayat Khamaria as she is not ordinarily a resident of that village. The Revenue Commissioner, Bilaspur heard the Election Petition and framed a specific issue on the question as to whether the petitioner is ordinarily a resident of village Khamaria and her name has been duly included in the electoral roll of that village. the said issue was supported by the Returning Officer who was imp -leaded as a respondent to the Election Petition. However, the Election Tribunal on other grounds allowed the Election Petition and set aside the election of the petitioner. Feeling aggrieved by the aforesaid order the petitioner filed a writ petition before this Court forming the subject matter of W.P. No. 778/95 and this Court by order dated 10.5.95 set aside the order passed by the Tribunal. By virtue of the order of this Court the petitioner continued in the office of the President, Zila Panchayat Bilaspur. It is alleged in the petition as the Election Petition did not succeed against the petitioner the vested interests with the connivance of the District Administration contrived a design to dislodge the petitioner from the office of the President, Zila Panchayat. Accordingly, on 8.2.96 a notice was issued by the District Electoral Registration Officer (Local Elections) to the petitioner alleging that the name of the petitioner was included in the electoral roll of Village Panchayat Khamaria by fraud and she should show -cause as to why appropriate action should not be taken for correction of the entry in the electoral roll. A copy of the notice dated 8.2.96 has been brought on record as Annexure P -4. It is put -forth in the petition that the said notice was purported to have been issued in exercise of the powers conferred on the authority under rule 21 of Registration of Electoral Rules, 1960. It has also been stated that illegality was pointed out in relation to Panchayat Act, though the remedial measure was proposed to be taken under the Rules made under the Representation of Peoples Act, 1950. It is alleged that the notice was served on the petitioner on 14.2.96 and as it was not practically possible for her to produce her witnesses on the date i.e. 15.2.96, she appeared before the District Electoral Registration Officer and requested him to grant reasonable time for producing her witnesses. The said authority assured the petitioner that no proceeding would take place and the matter was adjourned to 26.2.96. However, the said Authority on 15.2.96 recorded the deposition of as many as 25 witnesses and all of them were examined behind the back of the petitioner and no opportunity was afforded to her to cross -examine the witnesses. The matter was, however, adjourned to 26.2.96. On the adjourned date the petitioner filed a reply controverting the allegations levelled against her. She filed affidavits of 26 residents of village Khamaria including the affidavit of 'Up -sarpanch' and seven 'Panchas' of Village Panchayat, Khamaria and the affidavit of the landlord to substantiate her stand that she is ordinarily a resident of Khamaria. She also requested the District Electoral Registration Officer for recalling of the witnesses examined on 15.2.% for the purpose of cross -examination. Thereafter the matter was adjourned to 2.3.96 on which date the petitioner was examined by respondent No.3. She filed receipts in relation to her house situate at village Khamaria. She also produced the order passed by the Election Tribunal. The matter stood adjourned to 4.3.96. Thereafter, on 14.3.96 a report was published in the newspaper that her name has been deleted from the electoral roll. After coming to know about the same from the newspapers she found out that the final order was passed by the District Electoral Registration Officer on 13.3.96. Challenging the aforesaid order the petitioner preferred an appeal before the State Election Commission which refused to accept the appeal on the ground that there was no provision under the Acts or Rules for filing of such appeal. Thereafter, the Chief Executive Officer of Zila Panchayat taking recourse to the provision enshrined under sub -section (2) of section 34 of the Act passed an order on 10.4.96 declaring the office of the President of Zila Panchayat, Bilaspur to be vacant. The said order has been brought on record as Annexure P -IO. On 18.4.96 a letter was issued to her directing her to return the vehicle which was allotted in her favour. The aforesaid orders are the cause of distress of the petitioner which are sought to be impugned before this Court.

(3.) A return has been filed by the respondent No.1, the Secretary in the Department of Panchayat Raj, that a detailed reply has been filed by the respondent No.3 which is the main contesting party. It is also put -forth that no relief has been claimed against the State Govt. hence it is not a necessary party. It is to be noted here in its reply to I.A. No. 4258/96, an application for taking subsequent facts on record for issuance of interim order the respondent No.1 had filed its reply stating its stand that the Collector (District Returning Officer) Panchayat under the supervision and control of State Election Commission had already filed a reply in W.P. No. 1428/95 indicating that the petitioner's name was not found in the provisional voters' list but was included in the final voters' list in a fraudulent manner.