HARI CHAND KHIMTA v. KARAM CHAND — 1983 DIGILAW 11 (HP)

JUDGMENT V.P. GUPTA, J :— By this petition under Article 227 of the Constitution of India the petitioner has challenged the order, dated 31st December, 1982, passed by the Deputy Commissioner, Simla, in ejection petition No. 33/3 of 1978. 2. An election of the Pardhan to Gram Panchayat, Mandhol, District Simla, was held on 17th November, 1978 under the provisions of the Himachal Pradesh Panchayat Raj Act, 1968 (hereinafter called the Act). The petitioner and respondent No. 1 Shri Karam Chand Azadi were contesting candidates for this election and the petitioner was declared elected. Respondent No. 1 challenged the election by filing an election petition before the Deputy Commissioner, Simla, on various grounds and also alleged that the petitioner had committed corrupt practices. 3. The petitioner contested the election petition. On the pleadings of the parties issues were framed and parties also produced evidence. The Deputy Commissioner, vide his order, dated 31st December, 1982 held that the petitioner had committed corrupt practice, and as a result thereof set aside the election of the petitioner, 4. Now the petitioner alleges that the order of the Deputy Com missioner is based upon no evidence and even according to the pleadings of respondent No 1 and the evidence of respondent No. 1, no corrupt practice is proved to have been committed. It is alleged that the order is not based on any legal evidence and the Deputy Commissioner has acted with material irregularity in the exercise of his jurisdiction. 5. I have heard Shri Devinder Gupta, counsel for the petitioner and Shri O. P. Thakur, counsel for respondent No. 1 6. The learned counsel for the petitioner contended that in paras 6 to 21 of the election petition several corrupt practices were mentioned. The Deputy Commissioner in his judgment found that the corrupt practices in paras 6 to 20 were not proved. It was however found that corrupt practice mentioned in para 21 was proved. According to the learned counsel the allegations in para 21 as well as the evidence is not sufficient to prove corrupt practice He referred to para (g) of the affidavit filed by the respondent wherein it is stated that "the particulars of corrupt practice given in paragraphs of the said petition are true on the information received which he believes true". It was contended that respondent No. 1 had no direct knowledge regarding this corrupt practice and the petitioner had denied the allegations in his reply. It was further contended that there was no evidence at all in support of these allegations. The learned counsel further contended that it is a fit case in which this Court should exercise the extraordinary powers, because no appeal, revision etc is provided against the orders of the Deputy Commissioner. In Support of his contentions he relied upon Warvam Singh and another v. Amarnath and another, AIR 1954 S. C. 215. Had Vishnu Kamath v. Ahmad Ishaque and others, AIR 1955 S. C. 233. The State of Orissa and another’s v. Murlidhar Jena, A.I.R. 1963 S. C. 404 and Gopal Ganu Wagale v. Shri Nageshwardeo Patas Abhishakh Anusthan Trust. Potas, AIR 1978 S. C. 347. 7. Shri O. P. Thakur appearing for respondent No. 1 contended that the order of the Deputy Commissioner is final under section H6 of the Act and this Court is not to appreciate the evidence and function as a court of appeal or revision. The only function of this Court is to see as to whether the authority deciding the matter had the Jurisdiction to decide the matter or not. He relied upon the Judgments in Narendra Nath Bora and another v. Commissioner of Hills Division and Appeals, Assam and others [AIR 1958 SC 398]. Nathumal Raichand, Oswal v. Laxmibai R. Tarta and another (1957) 1 SCC 858; M/s. India Pipe Fitting Co. v. Fakruddin M.A. Baker and another (1977) 4 SCC 587] and Mrs. Labhkuwar Bhagwani Shaha and others v. Janardhan Mahadeo Kalan and another [1982) 3 SCC 514)]. 8. I have considered the contentions of the learned counsel for the parties. 9. The petitioner was declared elected as a Pradhan on 17th November, 1978. This election was challenged by respondent No. 1. Under Section 180 (1) of the Act, an election is to be set aside if any corrupt practice is proved to have been committed by the elected person or his agent or by any other person with the consent of the elected person or his agent. The corrupt practices are defined in section 185 of the Act. Under Section 180 (1) of the Act, an election is to be set aside if any corrupt practice is proved to have been committed by the elected person or his agent or by any other person with the consent of the elected person or his agent. The corrupt practices are defined in section 185 of the Act. Under section 184 of the Act, on proof of the corrupt practice having been committed, the candidate is disqualified for membership of Gram Panchayat for a period of five years counting from the date on which the finding of the prescribed authority as to such practice has been given. Under section 186 of the Act, the Deputy Commissioner is the authority to decide a dispute regarding the election of a Pradhan and his order is final. It is an admitted position that nor remedy is provided under the Act against the order of Deputy Commissioner. 10. Under Article 227 of the Constitution, this Court has the power of Superintendence over all courts and tribunals of the State. This Article can only be invoked in exceptional cases and very sparingly and cannot be a substituted for ordinary revisional or appellate powers. The power of superintendence is given to the High Court with a view to keep the courts and tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner. The judgments cited by the learned counsel for the parties also enunciated the same law with respect to the applicability and scope of Article 227. 11. In Waryam Singh and anothers case [Supra], in was held that the power of superintendence conferred by Article 227 is to be exercised must sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting more errors. It was further held that where lower courts in refusing to make an order of ejectment acted arbitrarily although the lower courts realised the legal position but in effect declined to do, what was incumbent upon them to do and thereby refused to exercise Jurisdiction vested in them by law, it was a fit case for interference. 12. It was further held that where lower courts in refusing to make an order of ejectment acted arbitrarily although the lower courts realised the legal position but in effect declined to do, what was incumbent upon them to do and thereby refused to exercise Jurisdiction vested in them by law, it was a fit case for interference. 12. In Hari Vishnu Kamath’s case [supra]it was held that under Article 226.the High Court can only annul the decision of a tribunal while under Article 227 it can also issue further direction in the matter and that the Jurisdiction under Article 227 is both Judicial and administrative. 13. In the State of Orissa and anothers case [supra], it was held that the High Court Cannot sit in appeal over the findings of competent tribunal but if it is shown that the findings recorded by the tribunal are not supported by any evidence then the High court would be Justified in setting aside the said Bindings. 14. The case law under Article 227 was again considered in Gopal Ganu wagales case [supra] and it was held : "The limits of the High courts Jurisdiction under Act, 227 of the constitution are too well established to require any elaborate restatement The High court, in the exercise of its powders under Art, 227, cannot function as a court of appeal and is generally bound by the findings of fact recorded by the tribunal below. The facts were that before the revenue authorities the dispute was as to whether the appellant was in possession of the suit lands as a tenant of the respondent The fundamental infirmity in the appellants case consisted in his very plea that he was in possession of the lands as a sub-tenant. Section 27 of the Bombay Tenancy Act prohibited sub-tenancy and under section 14 a tenancy was liable to be terminated on the ground of sub-letting. As a result of the combined effect of operation of both these sections the cultivation of land by a subtenant could not be said to be lawful cultivation was and lawful an important ingredient As such, the sub-tenant could not be deemed to be a tenant. This case was under the Bombay Tenancy Act. As a result of the combined effect of operation of both these sections the cultivation of land by a subtenant could not be said to be lawful cultivation was and lawful an important ingredient As such, the sub-tenant could not be deemed to be a tenant. This case was under the Bombay Tenancy Act. It was held that a manifest error from which the concurrent findings of the three revenue authorities suffered was establish the their uncritical reliance on two circumstances, neither of which could help tenancy of the appellant. The High court has interfered under Article 227 with the concurrent findings of the revenue authorities and the supreme court confirmed this Judgment of the High court and dismissed the appeal. 15. In Nagendra Nath Bora and another’s [Supra], it was held that under Article 227 the power of interference is limited to see that tribunals function within the limits of its authority. 16. In Nathumal Raichand Oswal, and M/s India Pipe Fitting Co. cases [Supra] it was again held that the High court cannot in the guise of its Jurisdiction under Article 227 convert itself into a court of appeal and an error of fact even though apparent on the face of the record is not subject to correction by the High court under Article 227. The Jurisdiction of High court is limited only to see that the subordinate court functions within the limits of its authority. 17. In Mrs. Labkuwar Bhagwani Shaha and Others case [Supra] it was held that findings of fact whether relating to Jurisdictional issue or otherwise of the lower courts are not open to inteference by High court under Article 227. 18. Thus, this court is competent to look into the fact as to whether the Deputy Commissioner has acted within his authority and performed his duty in a legal manner. Interference can be done, if there is a flagrant abuse of elementary principles of justice or manifest error of law apparent on the face of the record. 19. It was contended that there is no evidence to supprt the allegations of para 21 of the election petition. Counsel for the respondent contended that there is evidence to prove the allegations. Interference can be done, if there is a flagrant abuse of elementary principles of justice or manifest error of law apparent on the face of the record. 19. It was contended that there is no evidence to supprt the allegations of para 21 of the election petition. Counsel for the respondent contended that there is evidence to prove the allegations. The Deputy Commissioner has held : " To my mind holding of rally at the time of election does not constitute corrupt practice because it is a common practice at the time of elections that meetings are held and processions are taken out in which the candid it is projected by his followers and he explains his policies and manifesto but after this rally serving of Halwa and Puns, that too in the premises of a temple was highly objectionable and is covered by section 185 of the H.P. Panchayat Raj Act, 196as a corrupt practice as an entertainment with the object of inducing the members of Gram Sabha directly or indirectly with a view to vote or refrain from voting at the impugned election. Serving of this entertainment in the temple premises is definitely undue influence by directly or indirectly interfering or attempting to interfere on the part of the candidate or his agent or any other person with the consent of the candidate with the free exercise of the electoral right of the members of Gram Sabha in the belief that they or any person in whom they are interested will become or will be rendered an object of divine displeasure. Narsing Devta is a local Devta and the people have unqualified belief and faith in him and once acceptance of the entertainment in the share of Parshad (i. e. Halwa and Puri) the participants are bound to vote in favour of the organiser i.e. the respondent by fear of divine displeasure. This is therefore patently a corrupt practice. The presence of the respondent at the time of entertainment and especially when the respondent is Mohtmim of the temple leads to the rebuttable conclusion that the corrupt practice was committed by the respondent himself. He has accepted his presence and factum of his being Mohtmim of the temple is proved." 20. This is therefore patently a corrupt practice. The presence of the respondent at the time of entertainment and especially when the respondent is Mohtmim of the temple leads to the rebuttable conclusion that the corrupt practice was committed by the respondent himself. He has accepted his presence and factum of his being Mohtmim of the temple is proved." 20. The allegations in para 21 of the election petition read as follows : "That on 15-11-1978 respondent-1 organised a rally of local voters which commenced at village Mandhole at about 8.00 A.M. and after passing through the village Umta, Maghara, Markandle and Astandli the rally reached village sari at about 2 p.m. where a free Longer of Halwa and Puri was held by respondent 1 within the premises of Devta Narsingh who is worshiped by the local Hindu community. At that place after feeding about 100 voters besides some children, the voters were put to pledge in the name of Devta Narsingh that they shall cast their votes in favour of respondent 1. At that time respondent-i also took up an oath that after having been returned as the pradhan he would donate an amount of Rs. 101 to the said Devta Narsingh in the joint found of the villagers of SARI. Thereafter the rally headed by respondent-1 moved through the Village of Bantari and ended at village Mandhole at about 6.00 P.M. Ail the said villages are within the area of the Gram Sabha/Gram Panchayat, Mandhole. In fulfilment of his above promise by oath, respondent 1 made the said donation of Rs. 101/- accordingly on 30.11.1978 at village SARI by handing over the amount to Shri Roshan Lal, son of Dhani Ram in a gathering of about 20 persons within the premises of Devta Narsingh. Thereby respondent 1 has committed the practice of bribery and undue influence with the free exercise of the electoral rights of about 300 voters with the inducement of divine displeasure and spiritual censure of violating the oath so taken in the name of Devta Narsingh. Respondent 1 has further committed the practice of seeking votes by making appeal to the voters on the ground of religion/community for the furtherance of his election prospects and to the prejudice of petitioners, election. 21. Respondent 1 has further committed the practice of seeking votes by making appeal to the voters on the ground of religion/community for the furtherance of his election prospects and to the prejudice of petitioners, election. 21. Under section 169 of the Act it is the duty of the respondent to narrate the allegations of corrupt practices specially and to support the same with an affidavit. 22. The learned counsel for respondent No. 1 could not show me any evidence regarding the fact that the voters were put to pledge. He referred to the statement of respondent No. 1 at page 71 of the file. Respondent No. 1 states "that Halwa puri was eaten by the persons comprising the rally and the voters in the temple premises. The petitioner asked them to vote for him and also administered the oath of Devta and told them that on his success he would give Rs. 101 in the Gram Sabha fund". At page 81 of the file, respondent No. 1 has admitted that he was informed by the people regarding the taking of pledge and also regarding promise to pay Rs. 101. In the affidavit and the election petition, respondent No, 1 has also stated that he only received the information of these facts which he believed. Thus, the statement of respondent No. 4 regarding the taking of any pledge in the temple is not sufficient to prove the fact. The persons from whom the respond derived this knowledge were not produced as witnesses. Besides this evidence, there is no other evidence to prove that the petitioner asked the voters or rally people to take such a pledge in the temple premises. The petitioner himself has denied this version on oath. 23. The Deputy Commissioner hold the petitioner for having committed a corrupt practice as is mentioned in section 185 (2) of the Act which reads as follows : "185. The petitioner himself has denied this version on oath. 23. The Deputy Commissioner hold the petitioner for having committed a corrupt practice as is mentioned in section 185 (2) of the Act which reads as follows : "185. The following shall be deemed to be corrupt practices for the purposes of this chapter :— (1) XXX XXX (2) Undue influence, that is to say, any direct or direct interference or attempt to interfere on the part of the candidate of his agent, or of any other person with the consent of the candidate or his agent, with the free exercise of any electoral right : Provided that— (a) without prejudice to the generality of the provisions of this clause, any such person as is referred to therein who— (i) threatens any candidate or a member of the sabha, or any person in whom a candidate or such member is interested, with injury of any kind including social ostracism and ex-communication or expulsion from any caste or community; or (ii) induces or attempts to induce a candidate or a member of the Sabha to believe that he or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure; shall be deemed to interfere with the free exercise of the electoral right of such candidate or a member of the Sabha within the meaning of this clause ; (b) A declaration of public policy, or promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this clause." 24. The learned counsel for respondent could only contend that a rally was held on 15th November, 1978 and Halwa and Puris were distributed in the temple premises. The Deputy Commissioner in his order has himself held that mere holding of a rally is not a corrupt practice. The Deputy Commissioner has further observed that after rally distribution of Halwa and Puris in temple premises is objectionable and is covered under section 185 of the Act. 25. I have not been able to appreciated this part of the order. There is no evidence on record to prove that the petitioner directly or indirectly interfered or attempted to interfere with the free exercise of any electoral right. 25. I have not been able to appreciated this part of the order. There is no evidence on record to prove that the petitioner directly or indirectly interfered or attempted to interfere with the free exercise of any electoral right. There is also no evidence that the petitioner induced or attempted to induce a candidate or a member or Sabha to believe that he or any person in whom he is interested will become or will be rendered ail object of divine displeasure or spiritual censure. 26. If the holding of rallies meetings and taking out processions in which a candidate is projected by his followers and the policies and manifestes are explained is not covered under section 185 of the Act then serving of Halwa and Puris in temple premises as ‘Parshad of Devta cannot be termed as an entertainment of the nature so as to attract the provisions of section 185 (2) of the Act. It is not shown or proved as to how and in what manner the petitioner has committed the corrupt practice of undue influence, as is mentioned in section 185 (2). Simply quoting the language of section 185 of the Act is not sufficient. 27. Thus, believing the evidence which is on record and considering the allegations made in the election petition, I find that undue influence, as mentioned in section 185 (2) is not proved. The Deputy Commissioner has acted upon conjectures and has derived conclusions which are not based upon the evidence produced on record. The Deputy Commissioner has, in fact, failed to perform his duty in a legal manner resulting in great injustice. Hence it is a fit case for interference under Article 227 of the Constitution. 28. In view of the above discussion this petition is accepted and the order of the Deputy Commissioner, dated 31st December, 1982 (Annexure P/D) is set aside. 29. Parties are left to bear their own costs. Petition allowed.