Anugrah Narayan v. The State Election Commission (Panchayat)

3. Facts of the case, as presented by learned counsel for the petitioner, are that a Primary Agriculture Cooperative Society (in short, „the Society‟) of Narayanpur Gram Panchayat was functioning in the Block from before. Petitioner, being a resident of Tharthari Block and a farmer, is a member of the Society. In 2009 election was held in the Society in which petitioner was elected as Chairman. Subsequently, Government came up with a Patna High Court CWJC No.1501 of 2013 (6) dt.16-07-2013 decision to grant Public Distribution System (PDS) dealer‟s licence only to the primary agriculture cooperative societies, self- help groups etc. Since the Society of the petitioner was a registered Society, an application was therefore submitted for grant of licence to the Society to run a PDS shop in the Block. The application was pending when Panchayat elections were announced in the year 2011. Thereafter the State Election Commission came out with a communication, addressed to all the Collectors-cum-District Election Officers, vide letter contained in Memo No.635 dated 10.02.2011, laying down disqualification for a person to contest election as contained in sub-section (1) of Section 136 of the Act, with a clarification in reference to clauses (c), (d) and (i) of disqualification. The said clarification mentioned the specific posts, holders of which were held to be disqualified from contesting the elections. However, it also contained a proviso which clearly mentioned that retired Government personnel, licensees of PDS shops, commission agents, disengaged home guards as well as assistant government pleaders and additional public prosecutors, who were appointed to work only on fees, were eligible to become a member of a Panchayat Samiti. Clearly, as per this letter, petitioner was not disqualified to hold the post of member of panchayat samiti. Patna High Court CWJC No.1501 of 2013 (6) dt.16-07-2013 Hence he filed his nomination paper and was elected as Member of the Panchayat Samiti of Tharthari Block in the district of Nalanda. Thereafter, he filed nomination for the post of Pramukh of the Panchayat Samiti on which he was declared elected in May 2011, without any contest. While he was functioning as Pramukh of the Panchayat Samiti, the application on behalf of the Society for grant of PDS dealer‟s licence, pending since long, was considered in the meeting of the District Level Selection Committee held on 28.09.2011. The Selection Committee, after due consideration of the application, resolved in its favour and recommended for grant of licence to the Society.

4. When the matter came up before the Licensing Authority- cum-Sub-Divisional Officer, it transpired to him that petitioner was Chairman of the said Society and was also holding the post of Pramukh. Accordingly, he asked for guidelines from the District Magistrate in the matter. While the matter was pending, a letter was issued from the Department of Food & Consumer Protection addressed to all the Collectors, vide letter dated 14.02.2012 (Annexure-4), in which it was specifically clarified that in case a Chairman of a Primary Agriculture Co-operative Society (for short „PACS‟) is elected as MLA, Member of the Zila Parishad, Mukhiya of the Gram Panchayat or Pramukh, the Executive Patna High Court CWJC No.1501 of 2013 (6) dt.16-07-2013 Committee of the concerned society should nominate some other members of the society to run a PDS shop. They were instructed to act accordingly in the matter of issue of licence under PDS scheme. This letter was taken note of by the Executive Committee of the Society in its meeting held on 14.04.2012 and the name of one of the members of the Society, namely, Karyanand was approved for being appointed as manager of the Society. This resolution of the Managing Committee of the Society (Annexure- 2) was submitted before the Licensing Authority along with an application for issue of licence. The same was considered and the Licensing Authority, vide his order dated 29.07.2012 (Annexure- 5), directed for issue of licence.

5. At this stage, learned counsel for the petitioner referred to another letter of the Department, vide letter no.446 dated

23.01.2012 (Annexure-3) addressed to the Collector of Nalanda District, in which also it had been clarified that in case a society is granted licence under PDS scheme and its chairman gets elected as mukhiya or pramukh, the executive committee of the society should nominate some other member of the society to execute the work of PDS shop. He submitted that this letter was in response to a query which was made by the Collector in the light of the letter of the Licensing Authority seeking for guidelines, as mentioned in Patna High Court CWJC No.1501 of 2013 (6) dt.16-07-2013 his order dated 29.07.2012, vide Annexure-5. He submitted that after all these clarifications and after the Executive Committee of the Society resolved to appoint another member as Manager, the licence was issued to the Society under the PDS scheme. However, respondent no.6, who was elected as Up-Pramukh, filed a complaint before the Collector (Annexure-6) dated 06.09.2012, challenging the election of the petitioner as Pramukh. This complaint was referred by the Collector, through his letter dated

17.09.2012 (Annexure-7), to the Commissioner, State Election Commission, for a decision in respect of disqualification of Pramukh of the Panchayat Samiti, i.e. the petitioner, in reference to clauses (d) and (i) of sub-section (1) of Section 136 of the Act, which were quoted in the letter by the Collector. It appears that Respondent no.6 had also filed some complaint before the District Panchayat Raj Officer, who also, through his letter dated

04.10.2012 (Annexure-8), referred the complaint, against eligibility of the petitioner to hold the post of the Pramukh, to the Commission. The Commission, accordingly, issued notice to the petitioner, vide letter dated 05.12.2012 (Annxure-9), to which petitioner replied by letter dated 26.12.2012 (Annexure-10), enclosing letters of the Department as well as the order of the Licensing Authority. The matter was heard on 09.01.2013 and on Patna High Court CWJC No.1501 of 2013 (6) dt.16-07-2013 that very day, the impugned order was passed by the State Election Commissioner.

6. Learned counsel for the petitioner submitted that, first of all, the post of chairman of a PACS is not a salaried post or an office of profit under the Panchayat. He submitted that a PACS is a body corporate registered under the Cooperative Societies Act it has independent legal existence, apart functionaries. He submitted that apparently the respondents themselves had clarified that chairman of PACS was not disqualified from holding any post in a panchayat, even if the PACS was having a licence to run a shop under PDS scheme. He submitted that the Commission itself had clarified this, in very clear terms, in its communication issued to all the District Magistrates-cum-District Election Offices as far back as on

10.02.2011, vide Annexure-1, and even before the election was held. He submitted that when the petitioner filed his nomination for his election as member of the Panchayat Samiti, he was Chairman of the Society. He submitted that, in view of the said clarification of the Commission in specific terms, petitioner‟s nomination was accepted, he was allowed to contest the election and got elected. He submitted that the subsequent letters of the Department also made it clear that if a member of a panchayat Patna High Court CWJC No.1501 of 2013 (6) dt.16-07-2013 samiti, who happened to be Chairman of a PACS, got elected as Pramukh, the Executive Committee of the PACS had only to nominate its another member to take charge of the PDS shop and to run it. He submitted that the Government letter (Annexure-3) dated 23.01.212, which was specifically addressed Collector of the District Nalanda, and the general letter issued by the Department dated 14.02.2012, (Annexure-4), made this position clear and nowhere in the two letters it was even remotely suggested that a member of a panchayat samiti could not hold the post of pramukh and was not also eligible to be elected as member of the panchayat samiti if he was holding the post of chairman of a PACS. He submitted that in fact sub-clauses (d) and (i) are not applicable in the case of the petitioner at all, since petitioner is neither in service nor it has been established that the Society is receiving any aid from the Central or the State Government or any local authority. Likewise, he submitted that, it has not been established that petitioner was holding any salaried office or office of profit. He submitted that a PACS is not under Panchayat and is an independent legal juristic body registered under the Cooperative Societies Act. He submitted that the respondent-State Election Commissioner totally misdirected himself in entering into the question of validity and bona fide of the resolution of the Patna High Court CWJC No.1501 of 2013 (6) dt.16-07-2013 Executive Committee of the Society dated 14.04.2012 by entertaining the lis that nominated Manager Karayanand was father of the petitioner and petitioner has managed to keep hold of the Societies by getting him appointed as Manager and, on this ground only, holding that the petitioner was disqualified in terms of sub-clauses (d) and (i) of sub-section (1) of Section 136 of the Act.

7. Learned counsel for the State as well as learned counsel for respondent no.6 have appeared in this case. They submitted that the meeting of the Executive Committee of the Cooperative Societies was a farce. Since licence was not being issued by the Licensing Authority, petitioner managed his father to be appointed as Manager and thereafter obtained the licence. They submitted that in fact before petitioner filed his nomination for being elected as Pramukh of the Panchayat Samiti, he ought to have resigned from the post of Chairman of the Society, which he did not do. Hence, he was disqualified and the respondent-State Election Commissioner had rightly held him so. Learned counsels for the respondents in support of their submissions placed reliance upon the judgment of the Apex Court in the case of Jaya Bachchan Vs. Union of India & ors. (AIR 2006 Supreme Court 2119) and, in particular, on the observations made by the Apex Patna High Court CWJC No.1501 of 2013 (6) dt.16-07-2013 Court in paragraph 6 thereof.

8. The impugned order of the State Election Commissioner shows that he has reproduced the order of the Licensing Authority dated 29.07.2012, as contained in Annexure-5, in his order itself. He has noticed the facts of the case and stand of respondent no.6, the complainant, that petitioner was holding the post of office of profit. However, his consideration, appearing from the last paragraph at page 4 of his order and onwards, does not show as to in what manner he has found the petitioner covered by disqualifications laid down under the said sub-clauses (d) and (i) of sub-section (1) of Section 136 of the Act. It appears that he has found petitioner guilty of not informing the district administration that he was functioning as Pramukh also, when PDS dealer‟s licence was ordered to be issued to Society in September, 2011. Hence the shop was allotted. In this context, it can be pointed out that after the recommendation was made by the District Selection Committee for issue of licence to Society, the Licensing Authority knew about petitioner being Pramukh. Hence he had made enquiries and had written to the Collector for guidelines, who, in turn, sought for guidelines from the Departments, which was received by the Collector vide Annexure-3. These facts have been noticed by the respondent-Commissioner himself earlier in the Patna High Court CWJC No.1501 of 2013 (6) dt.16-07-2013 order, and also appears from the order of the Licensing Authority, reproduced by himself in his order. The respondent-State Election Commissioner has raised doubts about the correctness of decision of the Sub-Divisional Officer-cum-Licensing Authority in issuing licence on the ground that the member, who was given licence, was the father of the petitioner. Hence he has held that this was made possible by petitioner, only to get the licence of the PDS shop and keep his control over it also. Apparently, going into the propriety of decision of the Licensing Authority was not within the ambit of jurisdiction of the Election Commissioner under section 136 (2) of the Act. Moreover, he totally failed to take notice of the fact that, in view of the policy decision of the Government to run a PDS shop, licence is issued in favour of the Cooperative Societies, which are juristic persons, and not in favour of any member. Again, he failed to appreciate the Department letters dated 23.01.2012 and 14.02.2012 which made amply clear that in case of election of Chairman of a PACS to the Post of “mukhiya” or “pramukh”, the Executive Committee of the PACS was only required to nominate its any other member for running of the shop. He failed to appreciate the fact that this requirement was fulfilled by the Executive Committee of the Society and then only licence was issued by the Licensing Patna High Court CWJC No.1501 of 2013 (6) dt.16-07-2013 Authority. Nowhere it has been claimed that said Karyanand, father of the petitioner, was not a member of the Society in his individual capacity. In the circumstances, it was not within the jurisdiction of the respondent-Commissioner to raise a question of petitioner having managed or manipulated the decision of the Executive Committee. This he ought to have left for any competent authority empowered under the Cooperative Societies Act to enquire into. The Election Commissioner has raised the question of propriety of the petitioner having not resigned from the post of Pramukh or Member of the Panchayat Samiti on account of being Chairman of the Society or of getting his father nominated as a Member for running the PDS dealer‟s shop. By these acts, the Commissioner has formed an opinion that petitioner was trying to grab grass-root level institutions illegally in which he cannot be permitted. This is not the scope of enquiry under Section 136 (2) of the Panchayat Raj Act, 2006. The scope and limitation of enquiry by the State Election Commissioner in exercise of powers under sub-section (2) of section 136 is only in respect of disqualifications as per clauses (a) to (j) of sub-section (1) of section 136, and nothing beyond. In view of the clear language of sub-section (2) of section 136, his enquiry has to be limited only to the extent as to whether a member elected in Patna High Court CWJC No.1501 of 2013 (6) dt.16-07-2013 Panchayat at any level or as a Mukhiya before his election was disqualified under any of the clauses of sub-section (1) of Section 136 or had earned disqualification after his election under the said clauses. Hence, the question of propriety or impropriety in action of any elected representative or correctness or otherwise of actions/orders of any other government functionary not connected with panchayats or validity, or otherwise, of any proceeding of any independent body having independent legal existence not connected with any Panchayat is beyond the scope of enquiry by the Election Commissioner. In his order he has also given a finding that petitioner had kept the licence of the shop with him from 28.09.2011 to 29.07.2012. This is an error of record. Before

29.07.2012, the matter of issuance of licence was only under consideration by the Licensing Authority and on 28.09.2011 the Collector had only issued directions for grant of licence in view of the decision of the District Level Selection Committee. During this period, the matter had remained pending with the Licensing Authority who had sought for some guidelines. The development between this period has been noticed by the Licensing Authority in his said order dated 29.07.2012 and need not be repeated. Suffice it is to say, that the Election Commissioner has totally misread the order of the Licensing Authority, although he has Patna High Court CWJC No.1501 of 2013 (6) dt.16-07-2013 reproduced the same in his order itself. Concluding the order he has held that the decision of the Executive Committee of the Society was only a farce and in fact, petitioner had tried to keep the institution and the post of profit with him. Hence he has held that petitioner had earned disqualification to hold the post of Members of the Panchayat Samiti in terms of the said sub-clauses (d) and (i) of sub-section (1) of Section 136 of the Act and therefore the post of Pramukh also. In this connection, it may be noticed that the Election Commissioner has not at all discussed as to how petitioner can be held to be “in service of any such institution receiving aid from Central or State Government or any local authority”(clause-d), or “holds any salaried office or office of profit under the Panchayat”(clause-i). Obviously, the post of Chairman of a PACS is not under a Panchayat and there is absolutely no discussion or consideration by the Election Commissioner as to how the facts and circumstances of the case justify application of the said sub-clauses (d) and (i) in respect of the petitioner. On the other hand, this Court finds that the Election Commissioner has travelled beyond the scope of his enquiry, circumscribed by the Legislature under sub-section (2) of Section 136 with the following language used therein :- “If any question arises as to whether a Member of a Panchayat at any level or Patna High Court CWJC No.1501 of 2013 (6) dt.16-07-2013 Mukhiya of Gram Panchayat or Sarpanch of Gram Katchahri was before election or has become after election subject to any of the disqualifications mentioned in clause (1), the question shall be referred for the decision of State Election Commissioner…” (emphasis supplied)

9. In the circumstances, this Court finds that the respondent- State Election Commissioner has committed an error of jurisdiction in exercise of his powers under sub-section (2) of Section 136 of the Bihar Panchayat Raj Act and his order suffers from errors of non-consideration and wrong consideration of issues raised before him. In fact the judgment of the Apex Court in the case of Jaya Bachchan (supra), and, in particular, the observations made in paragraph 6 thereof, as relied upon by learned counsels for the respondents, should have been an eye- opener for the respondent Election Commissioner in the matter of extent and depth of enquiry called for a decision on the issue of an elected representative holding an „office of profit‟.

10. In the result, this writ application is allowed. The impugned order of the State Election Commissioner dated 09.01.2013 passed in Case No.35/2012 is hereby set aside and the complaint of respondent no. 6 filed before him is quashed. B.T/- (Jayanandan Singh, J)