DHANI RAM v. STATE OF H. P. — 1998 DIGILAW 208 (HP)

JUDGMENT D. Raju, C.J.—These two writ petitions are dealt with together since they raise the common question of law though each case after the decision on the common question of law has to be dealt with on its own individual merits. CWP No. 392/98 : 2. The petitioner in this writ petition has been elected to the office of Up-Pradhan, Gram Panchayat, Sharyana, Solan Block, District Solan after contesting the election held for the said office along with respondent No. 4 and pro forma respondent No.7. The notification relating to the election I programme stipulated that the date for filing nomination papers is from 1.12.1995 to 4.12.1995, with 5.12,1995 fixed as the date for scrutiny of nomination papers and 7.12.1995 being the date fixed for publishing the list of valid nominations before the actual poll is to take effect. It appears that the petitioner, respondent No. 4 and pro forma respondents No. 5 to 8 have filed their nomination papers for the office in question and the Assistant Returning Officer who took up for scrutiny seems to have rejected all the nomination papers except that of pro forma respondent No. 7. There is no serious dispute over this factual position, but it appears on the next day i.e. 6.12.1995, the Assistant Returning Officer on realising the said mistake committed by him accepted all the nomination papers except that of pro forma respondent No. 8 and published the list of valid nomination duly accepted on 7.12.1995. On that basis the elections were held and, as noticed earlier, the petitioner was elected to the office and his success and election to the office of Up-Pradhan in question was duly notified. While the matter stood thus, the 4th respondent, who was one of the candidates, who contested the election and a voter by name Liaq Ram jointly filed an election petition under Section 175 of the Himachal Pradesh Gram Panchayati Raj Act, 1994 (hereinafter referred to as the Act) to set aside the election of the writ petitioner. While the matter stood thus, the 4th respondent, who was one of the candidates, who contested the election and a voter by name Liaq Ram jointly filed an election petition under Section 175 of the Himachal Pradesh Gram Panchayati Raj Act, 1994 (hereinafter referred to as the Act) to set aside the election of the writ petitioner. The main as well as substantial ground of challenge was that on account of certain defects in the nomination papers on 5.12.1995 except one nomination filed by pro forma respondent No. 7, the others were rejected and the same came to be unilaterally changed by accepting those nominations, which were rejected on 5.12.1995 also on 6.12.1995 and this vitiated the entire election process resulting in the declaration of the petitioner as having won the office in question. The said election petition was contested by the 1st respondent before the first authority below (the petitioner herein) by filing a detailed reply. The Sub-Divisional Officer (Civil), Solan by his order dated 30.12.1996 found substance in the allegations made about the initial rejection of the nominations and acceptance of such rejected nominations on the next day, which according to the authority below was in contravention of the Rules as also the programme notified for the election and, therefore, the election process stood vitiated and as a consequence thereof set aside the election of the petitioner as Up-Pradhan of the Panchayat in question. The said authority also directed consequential steps being taken further in this regard. 3. Aggrieved, the petitioner filed an appeal before the Deputy Commissioner, Solan and by an order dated 30.12.1997, the Appellate Authority also concurred with the findings recorded and the decision arrived at, as a consequence thereof by the original authority. Hence, the above writ petition. CWP No. 398/98. 4. The petitioner in this writ petition has been elected as the Pradhan of Gram Panchayat, Sharyana, Solan Block, District Solan. In this case also, as per the election programme notified, the dates for filing the nomination papers were from 1.12.1995 to 4.12.1995 and 5.12.1995 being the date fixed for scrutiny of nominations and 6.12.1995, the date for withdrawal and 7.12.1995 being the date for notifying the list of valid nominations for the purpose of proceeding with the conduct of election for the office in question. It is seen from the averments made that the petitioner who got successfully elected, the 4th respondent by name Smt. Asha and pro forma respondents No. 5, 6 and 7 filed their nomination papers to the office of the Pradhan of the Panchayat, that there is no dispute over the factual position that the Assistant Returning Officer in this case also rejected all the nomination papers except that of 4th respondent Smt. Asha on 5.12.1995, but at the same time, it appears realising certain mistake said to have committed, on the next following day, the Assistant Returning Officer passed orders accepting all the nomination papers. It is the case of the writ petitioner that respondent No.4 and pro forma respondent Nos. 6 and 7 withdrew their candidature and that the writ petitioner and respondent No.5 alone were the candidates left on the field and in the election conducted on that basis, the petitioner came to be elected defeating pro forma respondent No. 5. While the matter stood "thus, the 4th respondent, whose nomination was the only nomination held to be valid and accepted on 5.12.1995 joining together with Liaq Ram, an elector has filed an election petition to set aside the election held on 22.12.1995 declaring the writ petitioner to have been duly elected for the office of the Pradhan of the Gram Panchayat in question. Finding that the factual allegations made about the initial rejection and later variation of the said order by accepting all the rejected nominations also and on the view that there had been gross violation of the relevant rules governing the conduct of election to the officer in question, the Sub-Divisional Officer (Civil), Solan by his order dated 30.12.1996 set aside the election of the writ petitioner and issued consequential directions for taking further necessary action. Aggrieved, the writ petitioner filed an appeal before the Deputy Commissioner, Solan and the Appellate Authority by his order dated 30.12.1997 concurred with the findings as also the conclusion arrived at by the original prescribed authority and rejected the appeal. Hence, the above writ petition. 5. The common question of law raised in both the writ petitions turns on the interpretation of the relevant rules for the conduct of election to the respective offices of the Pradhan and Up-Pradhan of a Gram Panchayat. 6. Hence, the above writ petition. 5. The common question of law raised in both the writ petitions turns on the interpretation of the relevant rules for the conduct of election to the respective offices of the Pradhan and Up-Pradhan of a Gram Panchayat. 6. While Section 8 of the Act constitutes Gram Panchayats, Section 120 envisages elections to be held and the Himachal Pradesh Panchayati Raj (Election) Rules, 1994 (hereinafter referred to as the Election Rules) prescribes detailed procedure relating to the election to the various offices created under the Act. Rule 30 of the said Rules provides for appointment of Returning Officers and the Assistant Returning Officers besides the other Rules contemplating for the appointment of Presiding Officers and Polling personnel. Rules 32 and 33 contemplate the election programme being notified. Rule 35 provides for nomination of candidates whereas Rule 36 provides for manner in which the nomination papers have to be presented before the notified authority and the procedure to be observed to make the filing of the nomination papers complete. Rule 38 postulates the Returning Officer notifying in form No. 20 the details relating to the nomination papers filed and received by him. Rule 39 on which the fate of the present case depends to a larger extent provides for scrutiny of nomination. Sub-rule (4) of Rule 39 provides that the Returning Officer shall not reject any nomination paper on the ground of any defect "which is not of a substantial character". Sub-rule (6) of Rule 39 provides that "the Returning Officer shall record on each nomination paper his decision accepting or rejecting the same and, if the nomination paper is rejected shall record, in writing, a brief statement of reasons for such rejection". Sub-rule (8) provides that immediately after all the nomination papers have been scrutinized and the decisions accepting or rejecting the same have been recorded, the Returning officer shall prepare in Form 21, a list of validly nominated candidates, that is to say, the candidates whose nominations have been found valid and affixed it on the notice board at the office of the Returning Officer and of the Panchayats. Rule 40 of the Rules provides that any candidate may withdraw his candidature by notice in writing in Form 22 subscribed by him and delivered to the Returning Officer or the authority determined in this behalf under Clause (e) of Rule 33, before 3 Oclock of the afternoon on the date specified under Clause (iii) of Rule 32 and further stipulates that no person who has thus withdrawn his candidature shall be allowed to cancel notice of withdrawal. The notice of withdrawal could as per the Rules be given either by the candidate in person or by the propose or the election agent duly authorised in this behalf in writing by the candidate. There upon, the Returning Officer or the specified authority, who was expected to cause a notice in Form 23 to the said effect to be affixed in some conspicuous place in his office and at the office of the Panchayat concerned. Rule 41 of the Rules provides that on completion of the scrutiny of nomination papers and after the expiry of the period within which the candidature may be withdrawn under Rule 40, the Returning Officer shall forthwith prepare a list of contesting candidates in Form 24 and cause it to be affixed at some conspicuous place in his office and at the office of the Panchayat concerned. It is at that stage if the number of candidates is found to be more than one, the Returning Officer, was expected to allot to each candidate according to serial number in the list of contesting candidates, the approved symbols in accordance with the serial number of the symbol specified in the notification under Rule 34 and that there shall be no choice of symbol for the candidates. The other rules relating to the subsequent process of election, the conduct of the poll, the declaration of results, etc. do not call for our reference for the purpose of the cases on hand and the points to be decided therein. 7. Mr. The other rules relating to the subsequent process of election, the conduct of the poll, the declaration of results, etc. do not call for our reference for the purpose of the cases on hand and the points to be decided therein. 7. Mr. D.C. Jishtu, learned Counsel for the petitioners strenuously contended that the orders of the authorities below setting aside the election of the respective petitioners in both the writ petitions are illegal and liable to be set aside inasmuch as the infirmity alleged to have crept in the process of election, which has been accepted .by the authorities below as a justifying cause for interfering with the result of the election is not tenable in law and that they proceeded on a misconception as well as misunderstanding of the relevant rules as also the powers and duties of the Assistant Returning Officer and consequently the orders of the authorities below are liable to be set aside. The learned Counsel for the petitioners further submitted that the initial rejection of the nomination was made without complying with the mandatory requirements of the relevant rules and, therefore, there was no wrong in the Assistant Returning Officer concerned rectifying the matters by properly applying the rules and passing orders afresh and no exception whatsoever could be taken to the action of the Assistant Returning Officer in at least at a belated stage making amends and taking steps to act strictly in accordance with the rules and, therefore, according to the learned Counsel for the petitioners, no infirmity justifying the setting aside of the election, validly and properly held, could be said to have been proved in the manner required in law to warrant setting aside of the election. The learned Counsel while adverting to sub rules (4) and (6) of Rule 39 of the Rules specifically urged that no reasons whatsoever were assigned while intially rejecting the nomination papers and the Assistant Returning Officer could not have rejected the nominations except for reasons to be recorded not only in writing, but by further recording that the defects with which the nomination papers suffer were of a substantial character and in the absence of such reasons being recorded, no order of rejection could have been made and any order if made was not valid in law and such an order could not stand in the way of the Assistant Returning Officer rectifying and making amends for the mistake committed and consequently the elections held in the case under challenge are quite in accordance with law and the due election of the respective petitioners cannot be interfered with. 8. The learned Advocate-General while inviting our attention to the relevant rules and pointing out the irregularities committed by the authorities made available the records and also brought to our notice the decisions reported in Samar Singh v. Kedar Nath alias K.N Singh and others, 1987 (Supp) S.C.C. 663 and Jagjit Singh v. Dharam Pal Singh and others, 1995 Supp (1) S.C.C. 422, for our consideration. In 1987 (Supp) S.C.C. 663 (supra), it was observed that the Returning Officer had no jurisdiction to make any correction after the scrutiny of nomination paper is over and the list of validly nominated candidates has been prepared and notified. That was a case arising under the Representation of the People Act, 1951. In the decision reported in 1995 Supp (1) S.C.C. 422 (supra), it was held among other things that the absence of an averment in the election petition itself that the result of the election was materially affected by improper rejection or acceptance of votes is not fatal in every case, inasmuch as there may be cases where the obvious conclusion to be drawn from the circumstances proved is that the result of the election has been materially affected and, therefore, Section 100(1) (d) of the Representation of the People Act, 1951 is not intended to provide a convenient technical plea in a case where there can be no dispute at all about the result of the election being materially affected by the alleged infirmity. This decision was brought to our notice in order to answer the claim on behalf of the writ petitioners that there has been no specific plea in the election petition that the result of the election has been materially affected on account of the alleged infirmity in the process of election. In the light of the principle of law laid down by their Lordships of the apex Court, the technical objection sought to be raised for the petitioners has no merit. So far as the other decision relied upon by the learned Advocate-General reported in 1987 (Supp) S.C.C. 663, concerned, the same may not have relevance to the cases on hand, for the reason that in this case the retvacel of step by the Assistant Returning Officer in going back on the initial rejection and accepting the nominations was not subsequent to the notification of the list of validly nominated candidates, but was much earlier to even the time stipulated for the withdrawal of candidates and before actually the list of valid nomination was notified. It is not the case of the petitioners or the respondents for that matter that the Assistant Returning Officer has published any list of valid nominations on 5th or 6th December, 1995 as the case may be and no such material appears to have been brought on record before the authorities below or brought to our notice too. 9. Mr. Inder Singh, learned Counsel appearing for the contesting respondents in both the writ petitions forcefully and strenuously contended that the Assistant Returning Officer having once made a rejection of some of the nominations including that of the writ petitioners, thereafter there was no jurisdiction, power or authority in the said officer to review his earlier order and accept the nominations already rejected and that too without affording any opportunity to the other candidates before choosing to vary the earlier orders passed rejecting the nominations and deciding to accept such nominations. The learned Counsel also contended that the entire procedure followed by the Assistant Returning Officer in the matter of receiving, scrutinising the nominations and declaring the list of validly nominated candidates for further conduct of the election were also in gross violation of the relevant Rule 39 of the Rules and, therefore, the orders of the authorities below passed to set aside the elections which stood vitiated on account of serious infirmities in the process of election are well merited and do not call for our interference. The learned Counsel went to the extent of even contenting that as against initial rejection of the nominations, if at all the only remedy available for the persons, whose nominations came to be so rejected is to only challenge such rejection by means of an election petition and there was no other remedy to get the order of rejection of such nominations varied, cancelled or set aside. 10. We have carefully considered the submissions of the learned Counsel appearing on eith v side. There can be no two opinions about the fact that the Assistant Returning officers in these cases have not conducted themselves as is expected\of them and the Assistant Returning Officers concerned appear to have been totally oblivious to their powers, the manner of exercise of such powers expected of them and their duties and obligations in a vital matter like the one involving elections to public offices at the grass-root level of institutions, which are considered to be limbs of Local Self Government. The Assistant Returning Officer does not also appear to have been even alive to the seriousness of his job for the reason that any of his blunders and mistakes in observing the rules is also likely to cost the exchequer, for the re-conduct of the election. But in our view, the mistake, if any, committed has been rectified at the earliest and it does not at any rate vitiate the process upto the stage of notifying the list of validly nominated candidates in From No. 21, envisaged to be published under Rule 39(8) of the Rules. But in our view, the mistake, if any, committed has been rectified at the earliest and it does not at any rate vitiate the process upto the stage of notifying the list of validly nominated candidates in From No. 21, envisaged to be published under Rule 39(8) of the Rules. The provisions contained in sub-rules (4) and (6) of Rule 39 while enabling the Returning Officer concerned to accept or reject a nomination filed during the course of scrutiny specifically mandates that in case of rejection, the Returning Officer shall record on each nomination paper his decision with a brief statement of reasons for such rejection and the Returning Officer was obligated further not to reject any nomination paper on the ground of any defect, which is not of a substantial character. Consequently, it is not merely the rejection by one word, as we find in this case having been done by simply writing in Hindi a word saying rejected, that really would constitute a rejection in the eye of law. When the power to do a particular thing is ordained to be done in a particular manner and the procedure therefor is also stipulated by the statutory rules themselves, any other mode of doing it cannot be construed to be doing of such a thing in accordance with law. In this case not only there was absence of any reason given for such rejection, but in the absence of any such reason equally it was not possible to even find whether the rejection was for a defect which is of a substantial character. In this case not only there was absence of any reason given for such rejection, but in the absence of any such reason equally it was not possible to even find whether the rejection was for a defect which is of a substantial character. Though no doubt an order passed in contravention of a mandatory provision of law, which may otherwise be void ab initio also has got to be avoided and if such an order has been allowed to stand, the only remedy of the person, whose nomination came to be even rejected in contravention of law is to wait till the results of the election have been declared to vindicate his rights by means of an appropriate election petition, in these cases there was no need or necessity for resorting to such course for the obvious reason that the Returning Officer concerned, who appears to have bungled initially realised his serious mistake atleast by the next day and mended matters by rectifying the mistake by accepting nominations, which for no valid reason was earlier chosen to be summarily and perfunctorily rejected. The question now for our consideration would be as to whether the subsequent act of accepting the nomination, which though was perfunctorily rejected without observing the mandate of law would amount to review of the earlier decision to reject the nomination initially or could it be a case of mere correcting an error apparent on the face of record to straighten the record and make the matters to brought in conformity with law. In our view, once we come to the conclusion as we have done in this vase that the initial rejection of the nomination was in flagrant violation or the mandatory requirements of law without giving any reason and without making a further record that the defect with which the nomination suffer ofr which it was to be rejected is of a substantial character too, the one word rejection made could not be said to be an order of rejection in the eye of law and be of no force and effect, the question of any review of such an order does not arise at all. The concept of review will arise only when the initial order was otherwise an order made in accordance with law and proprio vigore had the force and effect of an order. The concept of review will arise only when the initial order was otherwise an order made in accordance with law and proprio vigore had the force and effect of an order. A perfunctory order of the nature passed in violation of the mandatory procedure prescribed therefor being no order in the eye of law, such an order did not constitute an impediment in the Assistant Returning Officer concerned to pass a fresh order in conformity with law. So far as the contesting respondent in the first writ petition No. 392/98 is concerned, there is no justification for him to file an election petition even, he having not only acquiesced in process of election by not only availing of the benefit of the similar order of rejection and subsequent acceptance passed in his favour, but also a strong the election and the poll and thereafter attempting to show his volte-face once he got snubbed by the electorats by defeating him in the contest. So far as the other elector, who has chosen to join the contesting respondent in CWP No. 392/98 is concerned, he appears to be a mere name lender who chose to oblige the other petitioner and who has no real interest either in the purity of the election or fairness of the election result. We even have a strong feeling and feel justified to observe that in joining with the 4th respondent in the said writ petition he has exposed himself to prove that it is a mere abuse of the process of election petition and allowing such persons to meddle with the elections will ultimately defeat the very abject of filing the election petition and defeat the very purpose of enabling an elector also to challenge the election. Be that as it may for the reason we have taken earlier that we see no infirmity whatsoever in the order of the Assistant Returning Officer accepting the nominations despite the initial irregular rejection, which was found to be an order perfunctorily passed, and which is void ab initio even assuming that the election petition filed by an elector also deserves consideration, he has not made out any valid ground to interfere with the results of the election on that ground alone. The authorities below have not chosen to interfere with the elections of the petitioner in CWP No. 392 of 1998 on any other ground except this only ground of initial rejection of the nomination and its subsequent acceptance. 11. The decisions of the apex Court reported in Paokai Haokip v. Rishang and others, AIR 1969 S.C. 663; Mahadeo v. Babu Uoai Partap Singh and others, AR 1966 S.C. 824; Viveka Nand Giri v. Nawal Kishore Sahi, AIR 1984 S.C. 856 and Birad Mai Singhvi v. Anand Pumhit, AIR 1988 S.C. 1796, would justify the view taken by us of the scope of Rule 39(4) that rejection of the nomination could be not only for the mere reason of a defect but it should be that the said defect should be of a substantial character, when alone it becomes permissible for such rejection, and no such defect has been found in this case to vitiate the nomination filed. In the light of the above conclusions arrived at by us that an order of one word initial rejection made perfunctorily in gross violation of the mandatory provisions of the statutory Rules did not stand in the way of the subsequent acceptance of the nominations at any rate before duly publishing the list of validly nominated candidates in Form 21, it becomes necessary for us to consider to what extent the election of the respective petitioners in these writ petitions stood vitiated if any, and whether it requires to be set aside as has been done by the authorities below or whether orders of the authorities below setting aside the election petitions in these cases have to be set aside. 12. So far as the petitioner in CWP No. 392/98 is concerned, his election came to be set aside only for the reason that initially the nomination of the petitioner was rejected, but came to be subsequently accepted and for no other reason. We also find from the records that no other infirmity was found to have vitiated also the election of the petitioner. Consequently, we are of the view that the order of the 2nd respondent, which has been further affirmed by the Deputy Commissioner on appeal is not justified and it is illegal. We also find from the records that no other infirmity was found to have vitiated also the election of the petitioner. Consequently, we are of the view that the order of the 2nd respondent, which has been further affirmed by the Deputy Commissioner on appeal is not justified and it is illegal. For the reasons, we have already assigned, the order of the 2nd respondent affirming the order of the Sub-Divisional Officer setting aside the election of the petitioner in this writ petition is set aside and his election to the office of the Up-Pradhan of the Panchayat in question will stand. 13. So far as the case of the petitioner in CWP No. 398 of 1998 is concerned, if it was for deciding the case only on the common issue alone, we would have interfered with the orders of the authorities below. But we find that in addition to the infirmity alleged in the other writ petition, a further serious infirmity is writ large in the process of election held subsequent to the stage of Form No. 21, being the stage of publication of the list of validly nominated candidates. As pointed out during the narration of facts relating to this writ petition also, it has been noticed that the nomination of the 4th respondent was the only valid nomination initially accepted. Unfortunately, in the list of validly nominated candidates and the subsequent list of contesting candidates to be published in Form No. 24, the name of the 4th respondent did not figure as a candidate in the field contesting for the office of the Pradhan of the Panchayat in question. The stand taken for the Assistant Returning Officer appears to be that the said 4th respondent has withdrawn her candidature and it is as a consequence thereof that her name has been omitted subsequently, and, therefore no grievance could be made of the same and this may not constitute an infirmity. We are unable to appreciate this stand of the Assistant Returning Officer. We are unable to appreciate this stand of the Assistant Returning Officer. As indicated earlier, he has been acting as law unto himself, totally oblivious of his powers or responsibility not only in the matter of the list of validly nominated candidates to be published in Form No, 21, in which the name of the 4th respondent should have been there, but in terms of Rule 40 if there had been a withdrawal of candidature, it should be in writing and at any rate in the prescribed Form No. 22. In addition to the same, Form No. 23 has been prescribed under Rule 40 (3) obligating the Assistant Returning Officer concerned to publish the notice of withdrawal of candidature not only in his office but also in the office of the Panchayat concerned. Thereafter, comes the publication of Form No. 24. If there has been no proper withdrawal in the prescribed Form and the manner as envisaged under the statutory Rules, no credence could be given to the plea of withdrawal set up by the Assistant Returning Officer and, therefore, the election held for the office of the Pradhan of the Panchayat concerned could not be said to be a valid election held in accordance with law. Consequently, though the authorities below have interfered with the election only on one ground, the order of the authorities below setting aside the election does not call for our interference, keeping into the account, the other serious infirmities, disclosed from the records which vitiated actually the election conducted in this case. The petitioner in CWP No. 398/98 cannot claim to retain for himself the benefit of such an illegal election conducted by keeping out the 4th respondent from the contest and consequently we see no reason to interfere with the order of the authorities below setting aside the election. Consequently, the order passed by the authorities below for conducting election afresh in this writ petition is quite in accordance with law in respect of the office of the Pradhan of the Panchayat in question. 14. Consequently, the order passed by the authorities below for conducting election afresh in this writ petition is quite in accordance with law in respect of the office of the Pradhan of the Panchayat in question. 14. The notification No. EP/34-95/121-1?1 dated 2nd May, 1998 issued by the Deputy Commissioner, Solan also, therefore, is allowed to stand only so far as it relates to the office of the Pradhan of the Gram Panchayat in question and will stand set aside and be of no effect insofar as the office of the Up-Pradhan of the Panchayat in question. 15. Before parting with this case, we cannot refrain from expressing our dismay or displeasure over the way in which the elections are made to handle by the officers, who have not been properly perhaps taught the procedure releating to the elections, though meticulous procedure has been prescribed under the Rules with all necessary forms therefor also. That apart we find that Administrative Officers are designated for the purpose of dealing with challenges to the election for public offices concerning Local Self-Government. We would consider it necessary, at any rate, commend for the serious consideration of the State Government as to the desirability of constituting ordinary civil courts in the State as authorities to deal with challenges to election by election petitions and if need be and acceptable to the Government to introduce appropriate legislation for the purpose which will ensure a proper and effective adjudication of such election disputes. CMP No. 769/98 in CWP No. 392/98 and CMP No, 779/98 In CWP No. 398/98 In view of the disposal of the writ petitions, these applications are also disposed of and the interim orders are vacated. Applications disposed of.