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2003 DIGILAW 326 (HP)

TAPINDER SINGH v. JAGIR SINGH

2003-11-11

A.K.GOEL

body2003
JUDGMENT Arun Kumar Goel, J.—This petition under Article 227 of the Constitution of India has been filed by the petitioner challenging the order dated 9.5.2003 passed by Director. Urban Development, Himachal Pradesh in Election Appeal No. 1 of 2002. By means of impugned order, while allowing the appeal filed by respondent No. 1 Jagir Singh, order passed by the Authorised Officer, i.e. S. D.O. (Civil), Paonta Sahib in Case No. 15/2001 on 13.7.2001, has been reversed. 2. With a view to properly appreciate and decide the controversy between the parties on the basis of respective submissions of learned Counsel for the parties, brief facts giving rise to this case need to be noted. These are as under. 3. Respondent No. 1 Jagir Singh and three others, i.e. Tapinder Singh, Raj Kumar and Smt. Gurjit Kaur contested election to become Member of Municipal Council from Ward No. 11, Paonta Sahib. Petitioner Tapinder Singh secured highest number of votes, i.e. 324 votes, Jagir Singh got 313 votes, Raj Kumar 159, Smt. Gurjit Kaur 251 and three votes were declared invalid. Petitioner was declared duly elected as Member of Municipal Council from the aforesaid ward. 4. According to respondent No. 1, [he was petitioner before the Authorised Officer, S.D.O. (Civil)], petitioner was ineligible to have contested election. Because he was having subsisting contracts with the Municipal Council, Paonta Sahib. These contracts are detailed in Paragraph 3(a) to 3(n) of the decision by the Authorised Officer. Besides this, number of other pleas were also raised challenging election of the petitioner. Reply to the election petition was filed by the petitioner controverting all the pleas on a number of grounds. This reply was filed oh 25.5.2001. In addition to this, an application was also filed by the petitioner for dismissal of the election petition on 21.6.2001. It may be noted here that issues were also framed by the Authorised Officer, i.e. Sub-Divisional Officer (Civil), Paonta Sahib. Issue No. 1 was tried as a preliminary issue. After hearing arguments on this issue, by means of order dated 13.7.2001, election petition was dismissed. 5. Having felt aggrieved and dissatisfied with the order of dismissal of his election petition, respondent No. 1. Jagir Singh filed appeal before the Director, Urban Development under Section 302 of the Himachal Pradesh Municipal Act, 1994 read with Rule 76 of the H.P. Municipal Rules, 1994. 5. Having felt aggrieved and dissatisfied with the order of dismissal of his election petition, respondent No. 1. Jagir Singh filed appeal before the Director, Urban Development under Section 302 of the Himachal Pradesh Municipal Act, 1994 read with Rule 76 of the H.P. Municipal Rules, 1994. After hearing parties, appeal has been allowed and as a result of it, case was remanded to the Authorised Officer, S.D.O. (Civil), Paonta Sahib to decide the election petition on its merits and in accordance with procedure / of law, at the earliest in order to avoid inordinate delay. It is against this order passed by Director, Urban Development that present petition before this Court under Article 227 of the Constitution of India has been filed. 6. Shri Kanwar, learned Senior Counsel appearing for the petitioner submitted that non-deposit of security prescribed under law, i.e. the H.P. Municipal Council Election Rules, is such a defect which goes to the root of the case. Per him, there is no power to make good such deficiency under the provision of either the Act of 1994 (supra) or Rules framed thereunder. Further, he submitts that even the Court does not have any such power to extend the same. He pointed out that the security had to be deposited strictly as per provisions of law. Further, as per Shri Kanwar, appellate Court below fell into error by ignoring this vital and important fact. Thus this petition under Article 227 of the Constitution of India deserves to be allowed and consequently impugned order set-aside and that of the Authorised Officer, i.e. S.D.O. (Civil), Paonta Sahib, restored. 7. On the other hand, Mr. Chauhan very vigorously contested all the pleas urged on behalf of the petitioner. Per him, deficiency in the deposit of security is not such a defect that goes to the root of the case so as to authorise Election Tribunal, i.e. respondent No. 2 have ordered the dismissal of the election petition. According to him, for fault of the Authorised Officer and/or his lawyer, his client could not be made to suffer. Per him, in case plea urged on behalf of petitioner is accepted, it being too technical, will thwart the process of justice. According to him, on the ground of deficiency in deposit of security money, his client could not be non suited. Per him, in case plea urged on behalf of petitioner is accepted, it being too technical, will thwart the process of justice. According to him, on the ground of deficiency in deposit of security money, his client could not be non suited. With a view to support this submission, order dated 28.1.2001 was highlighted by learned Counsel for respondent No. 1, wherein the Authorised Officer ordered for putting up the file after report. Instead of looking to the file, process was ordered to be issued straightway. Thus, omission, if any, is that of the Court. With a view to advance his submission further, Mr. Chauhan also placed reliance on Section 288 of the H.P. Municipal Act, 1994 and submitted that by virtue of this Section provisions of Sections 148, 149 as well as Order VII, Rule 11 of the C.P.C. are attracted so far present case is concerned, because an election petition was triable as a suit. Thus, according to Mr. Chauhan, before rejecting the election petition, Authorised Officer ought to have extended the time either under Sections 148, 149 and/or under his inherent powers, before rejecting the election petition by giving time to his client to make the deficiency good. He further submitted that deposit of security is an administrative matter and has nothing to do with the merits of the case. In order to further support his case that deficiency in the security deposit amount needs to be ignored, he placed reliance on a number of cases under Representation of Peoples Act, wherein defects regarding verification, supply of copies and name of oath commissioner, were found. Such defects were held not fatal so as to call for dismissal of the election petition. 8. After having heard learned Counsel for the parties ;and looking to the provisions of Sections 283, 284, 285, 286 and 288 of the H;P. Municipal Act, 1994, as well as Rule 72 of the Municipal Rules, 1994,/^s also for the reasons to be recorded hereinafter, I find that authority deciding election petition has no power in law either to absolve an election petitioner, like respondent No. 1 from security deposit or to reduce the amount which is required to be deposited under law, as has been done in the present case. Wherein per his own showing, security to be deposited is Rs. 500, respondent No. 1 had only deposited Rs. 300. 9. Wherein per his own showing, security to be deposited is Rs. 500, respondent No. 1 had only deposited Rs. 300. 9. This question is no more res integra in view of the decision of the Supreme Court in the case of Charan Lal Sahu v. Nandkishore Bhatt and others, AIR 1973 SC 2464. What was held by the Supreme Court in the judgment and is relevant (for the present petition), is being extracted hereinbelow: "2. It was contended before us that the petition can only be dismissed after the trial commenced and the trial commences only after notices are issued to the respondents. In support of this proposition, provisions of the repealed Section 85 of the Act are referred to. We are unable to appreciate how the repealed Section 85 of the Act furthers the submission of the petitioner or has any relevance. It is apparent that prior to repeal by Act 47 of 1966, Section 81 provided for the presentation of the election petition by any candidate aggrieved by the result of the election to the Election Commission; Section 83 prescribed what the contents of the petition should be and Section 85 provided: "If the provisions of Section 81, Section 83 and Section 117 are not complied with, Election Commission shall dismiss the petition: Provided that if person making the petition satisfies the Election Commission that sufficient cause existed for his failure to present the petition within the period prescribed therefore, the Election Commission may in its discretion condone such failure." Presentation of the petition under the repealed Section 81, beyond the period prescribed for its presentation could be condoned by the Election Commission in its discretion under the proviso to the repealed Section 85 of the Act, but there is nothing in Section 85 which permits the Election Commission to condone the non-compliance with the provisions of Section 117. Before the amendment of the Act in 1966, once the Election Commission finds the election petition to be in order and does not dismiss it under Section 85 for non-compliance with the requirement of Sections 81, 83 and 117, it has to appoint an Election Tribunal for the trial of the petition. Before the amendment of the Act in 1966, once the Election Commission finds the election petition to be in order and does not dismiss it under Section 85 for non-compliance with the requirement of Sections 81, 83 and 117, it has to appoint an Election Tribunal for the trial of the petition. The trial by the Tribunal therefore is only after compliance with the mandatory provisions prescribed in Sections 8(1, 83 and 117 so that the trial is unrelated to the non-compliance by the petitioner with the requirements of Section 117. After the amendment, the jurisdiction of both the Election Commission and the Tribunal in respect of election disputes has been abolished/and the High Courts of respective States have been vested with the jurisdiction in this regard. But the conferment of jurisdiction/co entertain, try and determine an election petition has not in any way materially affected the position stated by us, as will be presently indicated. 3. The right to challenge an election is a right provided by Article 329(b) of the Constitution of India/which provides that no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature. The right conferred being a statutory right, the terms of that statute had to be complied with. There is no question of any common law right to challenge an election. Any discretion to condone the delay in presentation of the petition or to absolve the petitioner from payment of security for costs can only be provided under the statute governing election disputes. If no discretion is conferred in respect of any of these matters, none can be exercised under any general law or on any principle of equity. This Court 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. This Court 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. In N. P. Ponnuswami v. Returning Officer, Namakkal Constituency, 1952 SCR 218 = AIR 1952 SC 64, it was pointed out that strictly speaking, it is the sole right of the Legislature to examine and determine all matters relating to the election of its own members, and if the Legislature takes it out of its own hands and vests in a special tribunal an entirely new and unknown jurisdiction, that special jurisdiction should be exercised in accordance with the law which creates it. 5. The argument of the appellants advocate that in view of the marginal note to Section 86 election petition can only be dismissed after the trial has commenced by the issue of a notice to the respondent is equally without substance. Amended Section 86 apart from subsection (1) provides for. several matters in sub-sections (2) to (7) such as for reference of the election petition or election petitions, where there is more than one in respect of the same election, to a Judge, the ordering of security for costs in case of the application by a candidate who is not already a respondent being made a respondent, the permission to amend or amplify particulars of any corrupt practice alleged in the petition, the continuance of the trial of the election petition from day today and its expeditous trial to be concluded as far as possible within six months from the presentation of the petitiort4o the High Court. The reference to trial is in a larger sense and deals with the steps in a trial rather than in a narrower sense of a trial commencing after the notice of the petition is directed to be served on the respondent. The marginal note of Section 86, namely, "Trial of election petition" does not indicate that under sub-section (1) of Section 86 an election petition cannot be dismissed for non-compliance with the provisions set out therein, unless notice is issued to the respondent. Where the language is clear and can admit of no other meaning such as is evident from sub-section (1) of Section 86, the marginal note cannot be read to control that power." 10. Where the language is clear and can admit of no other meaning such as is evident from sub-section (1) of Section 86, the marginal note cannot be read to control that power." 10. To say that deposit of security is an administrative act and the Authorised Officer had the power to extend the time for its deposit beyond the period of limitation as in the present case, will not be correct. Reason being that the object and purpose of getting the security deposit is to keep at bay frivolous litigation and only those who comply with the letter of law need to be allowed to file the election petition. In the case of Ishwar Rohal v. Mohinder and others, Latest HLJ 2003 (HP) 871, while invoking Article 227 of the Constitution of India, petition was allowed and case was sent back. On the basis of some observations made in the judgment, Mr. Chauhan urged that Article 227 of the Constitution of India is not meant to correct a wrong decision. 11. I am sanguine of the fact that distinction needs to be drawn between a wrong decision as well as non compliance with the provisions of law which goes to the root of the matter, as in the present case. Only care that has to be taken by the Court, is that while exercising powers under Article 227 of the Constitution of India, it does not act as an appellate authority. Only power that vests with this Court is of supervision with a view to keep the authority like respondents No. 2 and 3 within the bounds of their limits and nothing more. Number of decisions have been cited on behalf of respondent No. 1 under the Representation of Peoples Act. Those are not being noted for the simple reason that those cases were being considered and dealt with by the courts in the context of verification of the election petitions, non-supply of copies or the affidavits being not duly signed and authenticated as required under law as also where the name of the Oath Commissioner was lacking. None of these decisions advance the case of respondent No. 1. Looking to the observations made in the case of Charan Lal Sahus case (supra), I find that respondent No. 3 erred in passing the impugned order and thereby setting aside the order of the Authorised Officer, i.e. S.D.O. (Civil), Paonta Sahib. None of these decisions advance the case of respondent No. 1. Looking to the observations made in the case of Charan Lal Sahus case (supra), I find that respondent No. 3 erred in passing the impugned order and thereby setting aside the order of the Authorised Officer, i.e. S.D.O. (Civil), Paonta Sahib. Thus, impugned order cannot be sustained. 12. No other point is urged. 13. In view of the aforesaid discussion this petition is allowed and as a result of it, impugned order Annexure P\8 passed by respondent No. 3, i.e. Director, Urban Development, Himachal Pradesh, Shimla, in Election Appeal No. 1 of 2002 on 9.5.2003, titled Jagir Singh v. Tapinder Singh, is quashed and set aside and as a further consequence of it, order passed by the S. Director (Civil), Paonta Sahib, is restored. 14. Petition stands disposed of accordingly with no order as to costs.