Writ Appeal No.38/2010
29.01.2010
Shri Dilip Pandey, learned counsel for appellant.
Shri Kumaresh Pathak, Dy.A.G for respondents/State.
This is intra-court appeal under section 2(1) of the M.P. Uchcha
Nyayalaya (Khandnyaya Peeth Ko Appeal) Adhiniyam, 2005.
We have heard learned counsels for the parties and also perused
the order of the learned single Judge.
It appears that the appellant being aggrieved by the notification
dated 26.12.2009 under Rule 28 of M.P. Panchayat Nirvachan Niyam,
1995, for election of Sarpanch/Panch of Gram Panchayat Kalhari,
District Satna, filed a writ petition – W.P.No.14507/2009, for issuance of
a direction inter alia that the appellant may be allowed to continue as
Sarpanch till he completes the tenure of 5 years which would expire on
11.8.2010. The learned Single Judge having heard learned counsel for
the parties dismissed the writ petition vide order dated 12.1.2010, hence
this appeal.
Learned counsel for the appellant relying on section 9 of the M.P.
Panchayat Raj Adhiniyam, 1993, (hereinafter referred to as ‘the Act of
1993’) contended that the term of Panchayat is of 5 years from the date of
its first meeting. Therefore, an elected Sarpanch and the office bearer has
a right to continue in office unless they complete the term of 5 years. It is
submitted that the election of Sarpanch of Kalhari Gram Panchayat was
held in July, 2005, and the appellant was declared elected on 13.7.2005.
Consequently, he assumed the office on 13.8.2005 and, therefore, his
term would expire on 11.8.2010.
On the other hand, learned Deputy Advocate General opposed the
prayer and submitted that the term of office bearer of a Panchayat is 5
years from the date of its first meeting or till it is dissolved, as provided
under section 9 of the Act. He further submitted that the election since
has already been held, this petition deserves to be dismissed.
We have considered the submissions made on both the sides.
Article 243-E of the Constitution provides that every Panchayat, unless
sooner dissolved under any law for the time being in force, shall continue
for 5 years from the date appointed for its first meeting and no longer.
Therefore, a Panchayat normally shall continue for 5 years from the date
appointed for its first meeting but not beyond that. However, under any
law if it is dissolved, the term of the office bearer and Panchayat will
automatically come to an end.
The State of Madhya Pradesh has enacted the Act of 1993 to
consolidate and amend the law relating to establishment of Panchayats.
Section 9 of the Act of 1993 provides for the duration of Panchayats and
reads as under :
“9.Duration of Panchayat-
(1) Every Panchayat shall continue for five years from the date
appointed for its first meeting and no longer unless sooner
dissolved under this Act.
(2) An election to constitute a Panchayat shall be completed-
(a) before the expiry of its duration specified in sub-section
(1);
(b) before the expiration of a period of six months from the
date of its dissolution;
Provided that where the remainder of the period for
which the dissolved panchayat would have continued is less than
six months it shall not be necessary to hold any election under
this clause for constituting the Panchayat for such period.
(3) A Panchayat constituted upon the dissolution of a
Panchayat before the expiration of its duration shall continue
only for the remainder of the period for which the dissolved
panchayats, would have continued under clause (1) had it not
been so dissolved.”
From perusal of the aforesaid provision, it is evident that the life
of office bearers and the Panchayat is 5 years from the date appointed for
its first meeting or till it is dissolved, whichever is earlier. If the
Panchayat is dissolved before the expiry of 5 years, the term of Sarpanch
shall also cease with the dissolution of Panchayat. In other words, it
depends upon the duration of Panchayat and is co-terminus. It will come
to an end either on dissolution of the Panchayat or on expiry of five
years from the date appointed for its first meeting whichever is earlier.
It is well settled legal position that the right to be elected or to
hold the elected office is neither a fundamental right nor a common law
right. It is pure and simple a statutory right being creation of statute,
therefore, such right is subject to the statutory limitation imposed under
the statutes wherefrom the right flows. The apex court in N.P.
Ponnuswami Vs. Returning Officer, Namakkal Constitutuency, AIR
1952 SC 64, has held that the right to vote or stand as a candidate for
election is not a civil right but is a creature of statute or special law and
must be subject to the limitations imposed by it. Similar view was
reiterated in Jyoti Basu Vs. Debi Ghosal, AIR 1982 SC 983, wherein
their Lordships have held that the right created by statutes are subject to
statutory limitation. Therefore, after dissolution of the Panchayat the
appellant has no right to continue or remain in the office of Sarpanch.
In the case in hand, it is significant to note that the appellant has
nowhere claimed or disclosed, either in the writ petition or in the appeal,
as to whether the Panchayat of Kalhari Gram Panchayat has been
dissolved or not, therefore, in the absence of any pleading that Gram
Panchayat Kalhari has not dissolved, the petitioner cannot claim that he
has a right to continue for a period of 5 years as per provisions of the Act
of 1993. Besides that, since the election has now already been held,
therefore, the Hon’ble Single Judge rightly dismissed the writ petition.
We, therefore, do not find any reason to differ with the view taken
by the learned Single Judge. Appeal being without merit, is dismissed.
(S.R.Alam) (Arun Mishra)
Chief Justice Judge
HS
