Dharambir Vs. State of Haryana - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - in the circumstances as it is clearly made out that the process of reservation of various gram panchayats for the purpose of chairpersons women in general or women of scheduled castes category were completed prior to the issuance of notification for holding of elections. 10. as already indicated under the act as well as in the rules the reservation of different seats of chairpersons are to be reserved by rotation as well as by draw of lots, election of a male sarpanch against the reserved seat for a female (general category) would disturb the over all ratio of such reservations and as such the claim of the petitioner to the office is against the provisions of the haryana panchayati raj act and would defeat the very purpose of the reservation in favour of women candidates.a.s. gill, j.1. the petitioner claiming himself to be having been duty elected sarpanch of gram panchayat munimpur tehsil and district jhajjat, in the !ast panchayat election, seeks issuance of a writ under articles 226/227 of the constitution of india, directing the respondents to administer him the oath of office of the sarpanch, gram panchayat, munimpur. forthwith and for restraining the respondents from handing over the charge of the gram panchayat in the meantime to any panch of the gram panchayat, munimpur. the case of the petitioner is that he contested the election of sarpanch of the gram panchayat and was duly declared elected after having secured the highest number of valid votes in the election held on march, 2000. the returning officer prepared a report about hiselec-tion and forwarded the same to the block development and panchayat officer for onward transmission to the concerned authorities. the result of the elections were reported in the press and published in dainik tribune dated 15.3,2000 and the name of the petitioner having been elected as sarpanch of the panchayat, appeared in para 3 of the news item, copy annexure p-2 with the petition.2. the state government organised oath ceremony function on 26.4.2000 at jind and the chief minister of haryana administered oath to the newly elected sar-panches and panches of the respective villages. however, the petitioner was not administered oath. he made representation but was not given due consideration. in the last election, the post of sarpanch of village munimpur was reserved for schedule caste (female) and in the recent election, it was open for general category. it is the case of the petitioner that the panches of the village panchayat, have been administered the oath but the action of the respondents refusing to administer the oath to the petitioner, without disclosing any reason is unconstitutional and arbitrary.3. the respondents have filed the written statements denying the claim of the petitioner to the office of sarpanch of the village panchayat, on the ground that ihe office of sarpanch of the munimpur, to which the petitioner belongs, was reserved for female general category candidate and due to the mistake of the returning officer, nomination papers of the petitioner were wrongly accepted and thus the election of the petitioner in the circumstances was voidab initio, which does not vest any right to the petitioner and as such the post of sarpanch was shown vacant, in the result notified by the state.4. heard learned counsel for the parties.5. it is not disputed that the election to the gram panchayat was held in the year 1994 and the seat for the sarpanch of the village panchayat, munimpur district jhajjar, was reserved for female scheduled caste candidate. the reservation of the office of chairperson of the gram panchayat i.e. sarpanch is duly provided in the haryana panchayati raj act. 1970 section 9 of the said act provides as under :'section 9. reservation of fears in cram pimchayat.- (i) seats shall be reserved for the scheduled castes in every gram panchayat and the number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seals to be filled by election in that panchayat as the population of scheduled castes in the panchayat area bears to the total population of that area and such seats may be allotted to such wards having maximum population of persons belonging to scheduled castes.(2) not less than one-third of the total number of seats reserved under sub- section (1) shall be reserved for women belonging to the scheduled castes and such seats may be allotted by rotation and by lots to different wards reserved under sub-section (1).(3) not less than one third (including the number of seats reserved for women belonging to the scheduled castes) of the total number of seats to be filled by direct election in every panchayat, shall be reserved for women and such seats may be allotted by rotation and by lots to different wards in a panchayat except those falling under sub-sec-tions (i) and (2).'sub-section (2) above specifically provides that one third number of total vacancies to the office of sarpanch in the block have to be reserved for women from the scheduled castes and the reservation is to be provided by rotation as per third proviso above.6. the haryana panchayati raj (election) rules, 1994 by its rule 5 provides that the wards in which the seats shall be reserved for women and members of scheduled castes or backward classes shall be determined by the sub-divisional officer (c) in the case of gram panchayat. the procedure as to how the seats are reserved is provided in sub-rule (c) which is to be done by draw of lots and rule 6 provides for determ ination of reserved seats of chairpersons of panchayat, which reads as unde r:'(1) the gram panchayat, panchayat samities and zila parishads, in which the office of sarpanches in the gram panchayats in the block, the offices of the chairmen in the panchayat samities in the district and the offices of the presidents in the zila parishads in the state of haryana shall be reserved for the scheduled castes and women, by the sub divisional officer (civil), additional deputy commissioner and the director respectively. the offices reserved for women shall be determined by draw of lots.'it is not disputed that the state government vide notification dated 28.9.1999 decided to hold genera) elections of panches and sarpanches of the gram panchayats and members of the panchayat samities and zila parishad, by 31.3.2000 as specified by the state election commission and that the process be completed for the holding of such elections. necessary proceedings for reservation of seats, the sub divisional officer (civil), jhajjar, in compliance to the di-rections received from the deputy commissioner of the district dated 30.11.1999, proceeded to take steps for reservation of the office of sarpanches in various gram panchayats. as required under rule 6(1) of the haryana panchayati raj act and the election rules, 1994 (in brief election rules). he issued notices for the same informing all the voters of block jhajjar for holding meeting for ihe said purpose on 6.1.2000 for reservation of seats by draw of lots for scheduled castes (women) and reservation by draw of lots to the office of sarpanches for general (women). further informing that out of 71 gram panchayats 14 gram panchayats are to be reserved as per list enclosed by rotation. where the population of scheduled castes is more in percentage, five seats are to be reserved for schedufed castes (women) by draw of lot whereas 19 gram panchayats are to be reserved for general women by drew of lots. the seat of sarpanch of village munimpur was reserved for general category (women). a copy of the notice and the proceedings are placed on the record as annexures a to d.7. after receipt of necessary information in respect of reservation of the office of sarpanches, the election programme was duly notified by the state electioncommission on 1.3.2000. the returning officer was entrusted with the orders of the sub divisional officer dated 6.1.2000 in respect of reservation of the gram panchayats for the office of sarpanch for women. however, subsequently on receipt of information regarding the election of the petitioner as sarpanch against the said reserved seat from women (general), the deputy commissioner faxed message on 29.3.2000 to the state election commission, intimating that since the seat was reserved for women of general category, no male voter was entitled to file nomination papers for election to the office of sarpanch and as such the nomination papers were wrongly accepted by the returning officer and the election of the petitioner being void ab initio, he has no right to get his name notified. accordingly, the name of the petitioner was not notified.8. the counsel for the petitioner has mainly contended that since the petitioner has been declared elected in the report submitted by the returning officer, the validity of the election can only be determined in an election petition and his election cannot be cancelled otherwise, or not notified by the state election commission, for which it has no authority.9. we find no merit in the contention of the learned counsel for the petitioner. section 9 of the haryana panchayati raj act provides for reservation of seats for scheduled castes, state government (women), women of general category, for the offices of sarpanch or chairpersons of the gram panchayat and such reservation is to be made considering all the panchayats in one block. not less than one third of the total number of seats to be filled in by direct election of every panchayat is to be reserved for women and the seats are allotted by rotation and by draw of lots to different wards except those reserved for scheduled castes and women belonging to scheduled castes. besides the reservation of office of chairperson of the gram panchayats for scheduled castes women and women of general category, the process for election was notified vide notification dated 28.9.1999. the elections were to be completed by 31.3.2000. the deputy commissioner, jhajjar directed the sub divisional officer (civil) to (issue) process forthe reservation of the seats of sarpanches and the chairpersons in accordance with rules 6(1) of the election rules for which the sub divisional officer (civil), jhajjar, took proceedings on 6.1.2000. after the completion of the reservation of the seats, the election programme was duly notified on 23.2.2000, which was subsequently modified by another notification date 1.3.2000 in view of intervening matriculation examinations. it is the specific case of the respondents that the proceedings on 6.1.2000 were conducted after due publicity and list of the persons belonging to the different villages who have attended the said proceedings are also mentioned in the proceedings list, copy annexure b & c. the deputy commissioner, jhajjar, vide his letter dated 4.9.2000, copy of which is annexure r2/2 had sent time to time proceedings in respect of reservation ofthe seats forthe chairpersons of the gram panchayats in the election to the state election commission. as already indicated, the sub divisional officer (civil) had taken proceedings on 6.1.2000 and the state election commission was duly informed by the sub divisional officer on 31.1.2000 (copy annexure d). the copies of the list of reserved seats were duly notified on the notice board of the office of panchayat samities and also on the notice board of the block development and panchayat officer, jhajjar. in the circumstances as it is clearly made out that the process of reservation of various gram panchayats for the purpose of chairpersons women in general or women of scheduled castes category were completed prior to the issuance of notification for holding of elections. the returning officer who was to conduct the elections for the gram panchayat, was supposed to have necessary directions or information if the gram panchayat falls under the reserve category or not. however, the returning officer accepted the nomination papers of male candidates for the office of sarpanch reserved for general category (women). it is the specific case of the respondents that it was sheer mistake and negligence of the returning officer that the nomination papers of male candidates were accepted. since, the office of chairpersons of the gram panchayat, munimpur was reserved for a woman of general category candidate and no such election for woman candidate was held, the election of the petitioner in the circumstances was no election in accordance with the notification and it cannot give any right to the petitioner to hold the office of sarpanch for the same village.10. as already indicated under the act as well as in the rules the reservation of different seats of chairpersons are to be reserved by rotation as well as by draw of lots, election of a male sarpanch against the reserved seat for a female (general category) would disturb the over all ratio of such reservations and as such the claim of the petitioner to the office is against the provisions of the haryana panchayati raj act and would defeat the very purpose of the reservation in favour of women candidates. the contention of the learned counsel that the election of the petitioner can only be set-aside in the election petition is not available to him because no election to the office of chairperson of a woman of general category was held. the total exercise of voters and the election of the petitioner was an exercise in futility. the petitioner thus cannot maintain his claim for which he is not eligible, even though shown to have been elected the petitioner a male had no right to seek election to the office of sarpanch of the panchayat which was reserved for a female from general category. since, the petitioner's election does not clothe him with any legal right, he has no case for issuance of any directions, as prayed for.11. it is the specific case of the respondents that the returning officer committed grave and intentional mistake in accepting the nomination papers of the petitioner for an office which was reserved for a lady sarpanch and even declared the petitioner elected one,such a returning officer cannot escape necessary legal action against him. the petitioner has not im-pleaded the returning officer as one of the respondents. the respondent-authorities in the circumstances are required to fix responsibility and take necessary action against him in accordance with law for such glaring dereliction of duty in the conduct of the election to the gram panchayats.in view of the observation above, this writ petition is dismissed being without merit.12. petition dismissed.