R.S. Garg, J.
1. The original petitioner/appellant being aggrieved by order dated 10-4-2008 passed in Writ Petition No. 3140/2007 by the learned Single Judge, whereunder the petition filed by the petitioner/appellant against the order dated 6-1-2007 passed by the Collector has been dismissed, has filed this appeal under Section 2(1) of Madhya Pradesh Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005.
2. To put the records straight and crease out the wrinkles which are creating problems to all concerned, we are required to detail some facts.
3. The petitioner contested the election for the office of Sarpanch of Gram Panchayat, Badari. As the results were notified on 27-1-2005, any person aggrieved by the declaration of the result could certainly file an election petition within thirty days from the declaration of the results, i.e., on or before 26-1-2005.
4. One Vansh Gopal s/o Nand Gopal Dubey (respondent No. 5) filed Writ Petition No. 947 of 2005 submitting inter alia that the High Court should interfere in the matter but the learned Single Judge of this Court vide his order dated 29-3-2005 disposed of the petition observing that if petitioner files an election dispute before the Tribunal, the Tribunal shall consider the same and dispose of the matter within a period of six months from the date of receipt of the order passed in the said writ petition. It appears that said Vansh Gopal Dubey filed an election petition on 5-5-2005. Notices were issued to the parties but before anything else could be done in the matter, the Sub Divisional Officer vide his order dated 5-8-2005 referred the matter to the Collector with a submission that the question could be conveniently decided by the Collector under Section 36(3) of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 ('Act' for short). It appears that said Vansh Gopal Dubey again came to this Court in Writ Petition No. 13747/2006, which came to be disposed of by a learned Single Judge on 4-10-2006. Copy of the said order has not been filed before this Court by either side but a reference to the said order is found in the impugned order passed by the learned Single Judge. The said order reads as under:
Considering the short grievance of the petitioner, matter is pending before the Collector, Katni as referred by the SDO by the order Annexure P-5, dated 5-8-2005 which deserves to be heard and decided by the Collector, Katni expeditiously. This petition is finally disposed of with following directions:
(i) Petitioner may file an application for expeditious hearing of the mater to the Collector, Katni. Alongwith the application, petitioner shall enclose copy of this petition and order dated 5-8-2005 of the SDO Vijayraghavgarh for ready reference of the Collector, Katni.
(ii) On filing aforesaid application the Collector, Katni shall look into the matter and expedite the hearing of the case and shall make all endeavour to decide the matter expeditiously as far as possible within three moths from the date of receipt of the aforesaid application.
5. Said Vansh Gopal Dubey filed an application for expeditious hearing of the matter to the Collector, Katni alongwith the copy of the said writ petition and the order dated 5-8-2005 passed by the Sub Divisional Officer, Vijayraghavgarh. The Collector on the said application directed issuance of notice to the present petitioner-appellant to show cause as to why an action be not taken against him and he be not disqualified to hold the office in view of the disqualification incurred by him under Section 36(2) of the Act. The petitioner-appellant for the reasons best known to him did not file his written statement or reply but, however, took part in the enquiry and contended that the fourth child was born much before 26-1-2001 and not on 13-5-2003 as contended and alleged by Vansh Gopal Dubey. However, no evidence was led by him.
6. After hearing the parties, the Collector vide his order dated 16-1-2007 held that the petitioner begot a child on 13-5-2003 and to arrive to this finding he relied upon certain documents which were required to be maintained by the Gram Panchayat in which name of the petitioner's wife was shown as a pregnant and expecting mother and thereafter her name was again shown as lactating mother in yet another document. The Collector also relied upon the certificate issued by one Dr. Vinod Kumar who certified that the petitioner/appellant begot a child on 13-5-2003.
7. The petitioner being aggrieved by the said order dated 16-1-2007 had filed Writ Petition No. 3140/2007, which came to be dismissed by the impugned order dated 10-4-2008, therefore, the petitioner is before the Division Bench.
8. Shri Rohit Arya, learned Senior Counsel for the appellant submitted that if an election petition had already been filed and the Sub Divisional Officer assumed jurisdiction then for no good reason he could make a reference to the Collector for Collector's decision under Section 36(3) of the Act. It is also submitted that the Collector, Katni could not assume jurisdiction under Section 36(3) of the Act because the election petition was already filed and as the disqualification was already questioned in the election petition but not decided, therefore, also the Collector could not assume jurisdiction. It is also submitted that the findings of the Collector though have been approved by the learned Single Judge but from the records it would appear that the said findings are absolutely perverse. It is also submitted that vide first order, the High Court did not condone the delay for filing the election petition but simply disposed of the Writ Petition No. 947/2005 by its order dated 29-3-2005 permitting the petitioner to file an election petition. It is also his submission that as the election petition was already filed, the Collector could not assume jurisdiction under Section 36(3) of the Act in view of the language employed in Section 36(2) of the Act. It is also submitted that as the election petition was filed beyond limitation the question of limitation assumed importance and therefore in absence of decision on the question of limitation, the Collector could not assume jurisdiction.
9. Shri Jain and Shri Verma, learned Counsel for the respondents on the other hand submitted that the Collector could certainly assume jurisdiction under Section 36(3) of the Act especially in view of the fact that the Sub Divisional Officer thought fit that case on hand could be conveniently decided by the Collector in view of the disqualification incurred subsequently or as the petitioner was elected to the office after suppressing the material disqualification. It is also submitted by them that the Sub Divisional Officer acting as person could have made a reference to the Collector for exercising his powers under Section 36(3) and if such reference is made, no illegality can be found. It is also submitted by them that the words employed in Section 36(2) of the Act are 'questioned and decided' which would mean that not only an election petition has been filed where the disqualification is questioned but there must have been a conscious decision on such question raised before the Tribunal. It is also submitted by them that a perusal of Section 122 of the Act would make it clear that an election petition is to be filed within thirty days from the date of the notification of the returned candidate and as there are no powers to condone the delay in filing the election petition even otherwise filing of the election petition would not come in the way of any person to make a reference to the Collector for his decision under Section 36(3) of the Act.
10. We have heard the parties.
11. It is not in dispute before us that Section 36(1) (Clause 'm') as it was before its deletion provided that no person shall be eligible to be an office-bearer of Panchayat who has more than two living children one of whom is born on or after the 26th day of January, 2001. Undisputedly, this qualification has already been deleted by the State Government by amending the Act under Act 27 of 2006 with effect from 1-9-2006. It would be necessary to quote that the stand of the State Government all through had been that deletion of Clause (m) shall have perspective effect and would not have the effect of removing the disqualification.
12. Under the circumstances, one of the questions for consideration would be that whether the petitioner begot a child after 26-1-2001. For proper appreciation of the matter, we would refer to Section 36(1)(m) (excepting Clauses 'a to k') and Sub-sections (2), (3) and (4). The same read as under:
36. (1) is so disqualified by or under any law made by the Legislature of the State.
(m) has more than two living children one of whom is born on or after the 26th day of January, 2001.
(2) If any person having been elected as an office bearer of Panchayat:
(a) subsequently becomes subject to any of the disqualification mentioned in Sub-section (1) and such disqualification is not removable or being removable is not removed (or becomes office bearer concealing his disqualification for it which has not been questioned and decided by any election petition under Section 122);
(Underlined by us)
*** *** *** ****** *** *** ***(3) In every case the authority competent to decide whether a vacancy has occurred under the Sub-section (2) shall be Collector in respect to Gram Panchayat and Janpad Panchayat and Commissioner in respect of Zila Parishad who may give his decision either on an application made to him by any person or on his own motion. Until, the Collector or the Commissioner, as the case may be, decides that the vacancy has occurred, the person shall not cease to be an office bearer:
Provided that no order shall passed under this Sub-section against any office bearer without giving him a reasonable opportunity of being heard.
(4) Any person aggrieved by the decision of Collector or Commissioner, as the case may be, under Sub-section (3), may, within a period of 30 days from the date of such decision appeal to Commissioner or Board of Revenue respectively whose orders in such appeal shall be final.
13. It would also be profitable to quote Section 122 of the Act which provides for filing of an election petition. The said Section reads as under:
122. Election petition.- (1) An election under this Act shall be called in question only by a petition presented in the prescribed manner:
(i) in case of Gram Panchayat or Gram Sabha to the Sub Divisional Officer (Revenue);
(ii) in case of Janpad Panchayat to the Collector; and
(iii) in case of Zila Panchayat to the Divisional Commissioner and not otherwise.
(2) No such petition shall be admitted unless it is presented within thirty days from the date on which the election in question was notified.
(3) Such petition shall be inquired into or disposed of according to such procedures as may be prescribed.
14. According to Section 122, an election can be called in question only by a petition presented in the prescribed manner and not otherwise. Sub-section (2) provides a complete bar to entertainment of a petition which is filed beyond the period of thirty days. Sub-section (3) provides that the petition shall be inquired into or disposed of according to such procedures as may be prescribed.
15. During course of the argument, it was fairly conceded by Mr. Rohit Arya, learned Senior Counsel that the Prescribed Authority as provided under Section 122 shall have no jurisdiction to condone the delay or entertain the election petition filed beyond the period of limitation because Section 122(2) of the Act provides a complete bar against entertainment of the election petition.
16. The argument of Shri Rohit Arya, learned Senior Counsel is and the facts also certify that the election result was notified on 27-1-2005, therefore, an election petition could be filed within thirty days, i.e., on or before 26-2-2005. If the election petition was required to be filed on or before 26-2-2005, then in accordance with law, an election petition could not be entertained after 26-2-2005 and if such an election petition could not be filed or entertained then bar contained under Section 36(2), in our opinion, would not at all come into way. Such an election petition could be taken to be a representation to the Sub Divisional Officer and the Sub Division Officer finding that the Collector would be a Competent Authority to entertain such dispute could certainly refer the matter to the Collector and the Collector on receipt of such information on strength of the reference made by the Sub Division Officer could issue notices to the parties and make enquiry under Section 36(2) read with Section 36(3) and come to a finding that the allegations made against the returned candidate were or were not true.
17. In the present case, true it is that the Sub Divisional Officer issued notices to the parties but if the law is understood in its true perspective and the intention of the legislature is taken to be appropriate that an election petition cannot be entertained after thirty days then we must hold that filing of the election petition after expiry of thirty days in accordance with Section 122(2) of the Act was nothing but an exercise of futility and even if the Sub Divisional Officer issued notices to the parties, the same would not confer any jurisdiction upon him because he had no jurisdiction to condone the delay and proceed further with the matter.
18. Issuance of notice by any Court or Tribunal in a matter which is not maintainable or is barred by limitation would not amount to taking cognizance of the matter. In such a matter, on petitioner's application or request, a notice is required to be issued to the other side to show cause as to why the delay in taking the steps before the Court or Tribunal be not condoned. If an authority has power to condone the delay then such authority in exercise of its powers can condone the delay. If an authority, Court or Tribunal does not have the power to condone the delay and entertain the proceedings after the period of limitation has expired then issuance of notice to the other side would not make the proceedings/petition maintainable. In our opinion, election petition before the SDO was not maintainable as it was filed beyond the period of 30 days.
19. The question still would be of interpretation of Section 36 (2) of the Act. The aforesaid referred Section 36 clearly provides that if any person having been elected as an officer bearer of Panchayat- (a) - becomes office bearer concealing his disqualification for it which has not been questioned and decided by any election petition under Section 122; he shall, subject to the provisions of Sub-section (3), cease to be such office bearer and his office shall become vacant. Sub-section (3), if is read in its true perspective and in accordance with legislature then would clearly show that legislature wanted the Collector to exercise the powers to see that no disqualified person contests the election after concealing the disqualification or no person who has become disqualified after the elections are over is continued as an office bearer in the Panchayat. Not only this, the Collector also has to see that whether the disqualification is removable and if yes, but not removed then in such a case the Collector may declare that the office has become vacant.
20. According to Shri Arya, the language employed in Section 36(2)(a) is 'concealing his disqualification for it which has not been questioned and decided by any election petition under Section 122' would mean that filing of the election petition itself would arrest the jurisdiction of the Collector.
21. In our considered opinion, the words used 'questioned and decided' are to be read as one qualifying condition. The words 'questioned' and 'decided' are to be read as one. The word 'and' certainly can be read as 'or' if the intention of the legislature is not clear or the law requires the word 'and' to be used as 'or'.
22. In the present matter, though we have already held that the election petition was not maintainable being barred by limitation but even if we assume that the election petition was maintainable then the words 'questioned and decided' would not come into play because not only the question should have been raised by somebody in a validly constituted election petition filed within limitation but should have also been decided by the Competent Tribunal.
23. The effort of Shri Arya is to read the word 'and' as 'or'. His contention is that once the election is questioned in an election petition, whether the decision has been given or not, the bar would operate. We are unable to concede to this argument.
24. If the legislature wanted simple filing of an election petition to be a bar against exercise of the jurisdiction by the Collector under Section 36(3) of the Act, then the words could have been 'concealing his disqualification for it which has either been questioned or decided in any election petition under Section 122 of the Act'. The legislature could have easily used the phrase 'either has been questioned or has been decided' in place of 'has not been questioned and decided'.
25. If the argument of Shri Arya is accepted then it would lead to yet another fallacious situation because the question if has already been raised and decided by the election petition under Section 122 then question of jurisdiction of the Collector would not arise because the findings recorded in the election petition would bind the parties. Once the Competent Tribunal before whom a question is raised decides the question then such finding would bind the parties and if finding is binding upon the parties then the jurisdiction of the Collector is not required to be invoked. A fair understanding of Sub-section (2) would simply mean that the jurisdiction of the Collector is not required to be invoked in a case where the question was raised and finally decided by the Election Tribunal because contrary to the findings recorded by the Tribunal, the Collector could not proceed to make an enquiry and re-decide the issue under Section 36(3) of the Act.
26. The further questions which have been raised by Shri Arya in view of our findings recorded above are not necessary to be considered but as Shri Arya has found fault with the orders passed by the Collector and the learned Single Judge in dismissing his petition, we will proceed to take up the said question.
27. The question that the SDO after receiving the election petition if had issued notices then he abruptly could not make a reference to the Collector because the SDO does not have a power to make a reference. In our opinion, when an election petition was not duly constituted is filed before the SDO and the SDO finds that the question raised in the petition can be conveniently decided by a higher officer in exercise of the powers under Section 36 then a reference certainly could be made by him because Section 36(3) clearly provides that the Collector may give his decision either on an application made to him by any person or on his own motion.
28. In the present case, the SDO through referred the matter to the Collector but if we assume it to be an application made by the SDO, the reference was competent. In the alternative we can also hold that on the reference made by the SDO the Collector being satisfied that the person who was absolutely disqualified, was elected because of suppression of the disqualification then on coming to know of the facts, he could take action on his own motion. In either of the situation, the proceedings before the Collector were maintainable and if the SDO thought that an illegality should not be allowed to perpetuate then he could refer the matter to the Collector under Section 36 of the Act. Any person who is a subordinate in the system is required to be vigilant and alive to the legal position. If such an officer in some incompetent proceedings is unable to adjudicate the matter, then such officer always can refer the matter to a higher authority or in the alternative can always bring the facts to the notice of the Competent Officer that an illegality is continuing then in such a case the higher authority would certainly be entitled to exercise his powers.
29. At this juncture, we again would refer to Section 122(2) of the Act. If an election petition is filed beyond the period of limitation, the same would not be maintainable and from a perusal of such election petition the officer finds that he would otherwise be incompetent to exercise his jurisdiction but at the same time he finds that the illegality is floating on the surface of record then he can certainly refer the matter or bring to the notice of the higher authorities that an illegality is continued. In the present matter, we certainly would agree with Mr. Arya that the election petition submitted before the SDO was patently incompetent as the same was filed beyond the period of limitation.
30. We will again come back to Section 36(2) of the Act to consider argument of Mr. Arya who on one side submitted that in view of filing of the election petition where a question was raised but not decided, the Collector could not exercise the jurisdiction under Section 36(3) of the Act and on the other admits that proceedings before SDO were not maintainable. We must now hold that if incompetent proceedings were submitted before the SDO then the question 'questioned and decided by an election petition' would not come up as a bar because a question can be raised and decided in a validly constituted election petition.
31. In the present matter, it is not disputed before us that the question regarding the disqualification and suppression of the same was raised in incompetent proceedings and as the delay could not be condoned, the question could never be decided by the Election Tribunal. As a tale argument, Shri Arya submitted that so long the election petition was pending consideration, a reference could not be made by the SDO but if the election petition was dismissed as barred by limitation then the question could be raised before the Collector that whether the petitioner/appellant had suppressed the disqualification. In our opinion, the question of dismissal of election petition would not assume any importance because it is the case of all parties that the delay could not be condoned and SDO could not proceed with the matter.
32. It is also submitted by Shri Arya that the findings of the Collector in relation to child born on 13-5-2003 are patently illegal and are contrary to the records. In our opinion, the findings recorded by learned Collector cannot be found fault with because the learned Collector has referred to the Anganwadi Register wherein petitioner's wife Shanti Dixit, w/o Bhuneshwar Prasad is shown to be a pregnant mother in April, 2003 and May, 2003 and yet another entry shows that she had delivered a child on 13-5-03 and her name was recorded in the Anganwadi Register in June, 2003 as lactating mother. Not only this, one Doctor Vinod Kumar working at Community Heath Centre had also issued a certificate that the present petitioner/appellant begot a child on 13-5-03. Apart from this oral evidence has also been led by the complainant/respondent No. 5 to convince the Collector that the child was born on 13-5-03. A finding recorded by Subordinate Tribunal can be set aside by the High Court in its writ jurisdiction or writ appellate jurisdiction only if the finding is patently perverse which means that the finding is based on no evidence or the material evidence has been ignored by saying that there is no evidence on record or that the finding is so absurd which a prudent man cannot arrive at. In the present case, we are unable to hold that the findings recorded by the learned Collector are wrong, illegal, contrary to the records or perverse.
From the order passed by the Collector it would clearly appeal that Doctor Vinod Kumar, Medical Officer of the Society Health Centre, Vijay Raghavgarh was examined by the Collector on 13-6-06 and the said witness clearly stated that the petitioner begot a child on 13-5-03 and in his cross-examination he has stated that he had issued a certificate to that effect. Smt. Dorthi Charls had also stated before the Collector that in her present and with her assistance on 13-5-03 a child was delivered by wife of the present appellant/petitioner. Smt. Kalpana Tiwari, an Anganwadi Worker stated before the Court on the basis of the register that the date of birth of Ku. Kanchan Dixit, d/o Bhuneshwar Prasad is recorded as 13-5-03. From her evidence it would clearly appear that petitioner had four children, one of whom was born after 26-1-03. On this evidence, we can certainly hold that the original petitioner/appellant suppressed the disqualification which was attached to him in view of Section 36(1) Clause (m) (since repealed) of the Act. It is also to be seen that in rebuttal, the petitioner/appellant for the reasons best known to him did not lead any evidence.
33. It is trite law that if the positive evidence led by a particular party is not rebutted by the other party by leading cogent and reliable evidence then the case of first party would be accepted. The principle for appreciation of the evidence is that if the positive evidence is led by a party then the Court would say that the fact is proved. In case the evidence is not reliable then the Court may say that such fact remains unproved but if the other side or contesting side leads further evidence and convinces the Court that the evidence led by the first party is not reliable or not accepted and the evidence of the contesting party is accepted by the Court then the Court would record a finding that the fact stands disproved.
34. In the present case, in absence of any positive evidence from the side of the appellant, a finding recorded by the Collector and the learned Single Judge cannot be interfered with.
35. For the reasons stated aforesaid and taking into consideration the fact that the petitioner/appellant has suppressed the fact of his disqualification and contested the election, the Collector on the information received had jurisdiction to entertain and decide the matter in accordance with law.
36. We find no reason to interfere. The appeal deserves to and is accordingly dismissed.