WRIT PETtTION (Ct NO^^OF 2011 v. State of Chhattisgarh

Judgment

1. State of Chhattisgarh, through the Secretary Nagariya Prashashan and Vikas Vibhag, D.K.S. Bhawan, Mantralaya, Raipur (CG)

2. State Election Commission through the Secretary, Mahanadi Khand, Mantralaya Parisar, Raipur, District Raipur (CG) •^

3. District Election Officer, Korba, District Korba (CG)

4. Incharge Vyaytekha Churikata, Chhattisgarh^/ss-^, Hg-rfia.. Election Panchayat, Officer, Nagar WRIT PETITION UNDERARTICLE 226 OF THE CONSTITUTION OF INDIA^ L-— Tb. ^^*:*L-.— ^^ 3o-/-/J mOH COURT OF CHHATTISGARH AT BILASPUR WRJT PETITION (C) No. 5593 of2011 PETITIONER Govind Singh Rajput. RESPONDENTS VERSUS State ofChhattisgarh & Others. WRIT PETITION_UNDERARTICLE2260F THE CONSTITUTION OF FNDIA

SB: Hon'ble Shri Satish K. Aenihotri. J. Present: Ms. Naushina Ali, Advocate for the petitioner. Shri Pankaj Shrivastava, Panel Lawyer for the State/respondent No.l. Shri R.S.Marhas and Shri B.D.Gum, Advocate for the respondent No. 2 to 4. ORDER (OPEN COURT) (Passed on 30th day ofJanuary, 2013)

1. Being dissatisfied, the petitioner questions the legality and validity of the order dated 08.09.2011 (Annexure P/l) and order dated

10.05.2011 (Annexure P/2) passed by the State Election Commission.

2. The facts, in brief, are that the petitionerwas elected as President of Nagar Panchayat, Chhurikala, District Korba, in the result declared on 27.12.2009. Under the provisions ofsection 32-B of 'the Act, the Chhattisgarh Municipalities Act, 1961 [for short 7967'), the petitioner was required to lodge with the officer notified by the State Election Commission, an account of his election expenses within a period of30 days from the date ofthe election ofthe return candidate i.e. the petitioner. The petitioner lodged the account ofhis election expenses on 10.02.2010 wifh the respondent No. 1, after a delay of 13 days. Thereafter, petitioner received a show cause notice dated 26.02.2010 (Annexure R/2-2) by the Secretary, State Election Commission under clause (10) of the Election Expenses (Maintenance and 'the Order'). The Lodging of Account) Order, 1997 (for short petitioner did not submit any representation in writing to the election commission and also to the Dista'ict Election Officer with complete account of election expenses and also no response to the show cause notice was filed.

3. The Election Officer, by order dated 10.05.2011 (Annexure P/2) held that all the candidates including the petitioner had failed to lodge the account of election expenses under section 32-A(1) of the Act, 1961 read with section 32-B of the Act, 1961 with the officer notified by the State Election Commission, and also not filed any response to the show cause notice dated 26.02.2010 and accordingly, under the provisions of section 32-C(b) of the Acf, 1961, the petitioner was disqualified for a period of four years and four months from the date ofthe order i.e. 10.05.2011 to hold the post of President. It was also thereafter notified in the official gazette on 23.05.2011. Subsequent thereto, the petitioner made representations on 13.06.2011, 17.06.2011 and 02.08.2011. The petitioner also filed a writ petition being W.P.(C) No. 4418/2011 contending that the date of hearing was fixed on 25.08.2011, however, the petitioner could not make himself available, thus a new date should have been given so that he could appear in person and put forward his case. The said petition was disposed of directing to give a new date of hearing i.e. 05.09.2011 for appearance of the petitioner. The respondent No. 2 having considered the representations of the petitioner and his case as put forward by him, on the next date of hearing, held that ci^sidej ^ the representation ofthe petitioner filed under section 32-D ofthe Act, 1961, the petitioner is not entitled to any relief. As provided under clause (10) of the Order, 1997, the petitioner has not submitted auy representation, report or response pursuant to the show cause notice dated 20.06.2011 as mdisputably the petitioner had failed to lodge the account of election expenses wifhin the statutory period of 30 days and also no proper reasons in response to the show cause notice seeking condonation of delay in lodging the accoimt ofelection expenses, belatedly, was made. Ms. Ali, leamed eounsel appearing for the petitioner submits that since the petitioner had already lodged fhe account of election expenses before the show cause notice was issued and as such, it was thought not necessary to file reply to the show cause notice dated 20.06.2011 and accordingly, neither the reply was filed nor any representation was made. The respondent No. 1, without affording any opportunity decided his case ex-parte on 10.05.2011 and disqualified the petitioner for holding the post of President, as aforestated. The petitioner made representation under section 32- D ofthe Act, 1961 for reduction ofthe period of disqualification. The respondent No. 2, afforded an opportunity of appearance pursuant to the order dated 30.08.2011 passed by this Court in W.P.(C) No. 4418/2011, however, the case ofthe petitioner was not considered in its proper perspective and dismissed the application.

5. It is next contended by Ms. Ali that once the account of election expenses as required under section 32-A(1) read with section 32-B t-- ofthe Act, 1961, has been filed though belatedly, the respondent No. 2 ought to have considered the same and passed an order removing the order of the disqualification. The delay was on account ofbonafide beliefas not being aware ofthe legal position.

6. Ms. Ali further submits that the subsequent notice was pre- decisional and it could not have been issued. The petitioner had filed representation which was not duly considered. It is further contended that the time limit of30 days for lodging the account of election expenses is not with the objective to destroy the rights of the candidate. It is next contended that the delay in lodging the account of election expenses ought to have been condoned. In support of her contention, she relies on various decisions viz. I.J.Rao, Asstt. Collector ofCustoms & Others, v. Bibhuti Bhushan Bagh, Mohinder Singh Gill & Another v. The Chief Election Commissioner New Delhi & Others , Canara Bank and Others v. Debashish Das and Others , Viveka Nand Sethi v. Chairman, J.& K. Bank & Others , State ofPunjab and Others v. Constable Avtar Singh (dead) through LRs , Ku. Poonam & Others State of Chhattisgarh & Others , Collector, Land Acquisition Anantnag & Another v. Mst. Katiji & Others , Smt. Prabha v. Ramprakash Kalara , O.P.Kathpaliya v. Lakhmir Singh (dead) & Others , Amrit Lal Berry v. Collector ofCentral Excise Central Revenue &