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2007 DIGILAW 281 (UTT)

BHUPENDER SINGH v. RAM SINGH

2007-05-18

B.S.VERMA

body2007
JUDGMENT Hon’ble B.S. Verma, J. This writ petition has been filed for quashing the impugned judgment and orders dated 24.1.2005 and 11.5.2006 respectively passed by Sub Divisional Officer/S.D.M., Didihat district Pithoragarh (for short S.D.O.) and District Judge, Pithoragarh contained as Annexure Nos. 1 and 2 to the writ petition. 2. Brief facts, giving rise to the writ petition, are that the petitioner participated in the Village Panchayat election for the office of Gram Pradhan of village Khwakoat Block Kanalichina, District Pithoragarh, along with respondent nos. 2 and 3 and he was declared a winning candidate on 30.3.2003 in the election held on 27.3.2003. The respondent no. 1 Sri Ram Singh also filed his nomination papers on 28.2.2003 for the said election before the Returning Officer concerned, but the same was rejected by the returning officer on 12.3.2003 having been found without rhyme or reason. 3. Aggrieved by the order of rejection of nomination paper, the respondent no. 1 filed an Election Petition No. 2 of 2003, Ram Singh Vs. Bhupendra Singh and others before the Sub Divisional Officer, Didihat, District Pithoragarh under Section 12-C of the Panchayat Raj Act with a prayer to cancel and set aside the election of Gram Pradhan held on 27.3.2003. The sub Divisional Officer directed the respondents to file written statement. After recording the evidence and hearing the parties, the S.D.M. vide his order dated 24.01.2005 cancelled the election of the petitioner to the office of Gram Pradhan held on 27.03.2003. Aggrieved by the impugned order passed by the Sub Divisional Officer, Didihat the petitioner had preferred a revision before the District Judge Pithoragarh, which was registered as Civil Revision No. 1 of 2005, Bhupendra Singh Vs. Ram Singh and others. After hearing both the parties, the District Judge dismissed the revision vide order dated 11.05.2006, which gave rise to the present writ petition. 4. Counter affidavit has been filed by the respondent nos.1 and 2 refuting the allegations made by the petitioner. It was contended that the nomination paper of the respondent no. 1 was rejected in wholly illegal and arbitrary manner. The Sub Divisional Officer Didihat before whom the election petition was filed, recorded a categorical finding to the effect that the nomination of the respondent no.1 was rejected in arbitrary and illegal manner. It was further stated in paragraph no. It was contended that the nomination paper of the respondent no. 1 was rejected in wholly illegal and arbitrary manner. The Sub Divisional Officer Didihat before whom the election petition was filed, recorded a categorical finding to the effect that the nomination of the respondent no.1 was rejected in arbitrary and illegal manner. It was further stated in paragraph no. 6 that the Sub Divisional Officer categorically recorded a finding to the effect that he had perused the nomination paper of the respondent no.1. In column no. 8 which is meant for the proposer, the name of Chandra Singh S/O Nain Singh was mentioned but at the same place there were cuttings at four places but on all the cuttings initials were made by the deponent –respondent no. 1. The S.D.O. concerned observed that the Assistant Returning Officer endorsed that cuttings/corrections were made in the nomination paper fraudulently and the Returning Officer without examining the correctness of the endorsement accepted it. As regards the case of one of the candidates to the said election, Sri Bahadur Singh, the learned S.D.M. recorded a finding that in the case of respondent no. 3, Bahadur Singh, there were cuttings/corrections in the nomination paper at five places but he did not put any initial over the corrections in as many as three places, but the Assistant Returning Officer/Returning Officer had accepted the nomination paper of Bahadur Singh, the respondent no. 3. 5. Counter Affidavit has also been filed on behalf of the respondent nos. 4 to 6 and the affidavit has been sworn in by the Returning Officer. In paragraph D of the affidavit it has been stated by the deponent that the writ petition by the petitioner is not maintainable in view of the concurrent finding recorded by the two courts below. 6. Despite service, after filing written statement, the petitioner did not pursue the matter and did not appear even through counsel on a number of dates and deliberately he did not adduce any evidence in the election petition. Details of the dates have been mentioned in paragraph no. 8 of the counter affidavit by the answering respondent. Ultimately, the election petition was heard exparte and was allowed. The petitioner did not file any restoration or recall application before the Sub Divisional Officer. 7. Details of the dates have been mentioned in paragraph no. 8 of the counter affidavit by the answering respondent. Ultimately, the election petition was heard exparte and was allowed. The petitioner did not file any restoration or recall application before the Sub Divisional Officer. 7. The petitioner has filed rejoinder affidavit but has denied the statement made in the counter affidavit in general manner. 8. I have heard learned counsel for both the parties and perused the entire material on record including the impugned orders passed by the two courts below. 9. Learned counsel appearing for the petitioner Sri Vivek Shukla has vehemently argued that the nomination paper of the respondent no. 1 was rightly rejected by the Assistant Returning Officer/Returning Officer as the same was not in conformity with the Panchayat Raj Rules and the trial court not justified in allowing the election petition. Leartned counsel has urged that the nomination paper of the respondent no. 1 Ram Singh was rejected in accordance with sub-rule (2) of Rule 17 of the Panchayat Raj Rules, 1994. Much stress has been given to sub-clause (d) of Rule 17 (2) of the said Rules which provides that if the signature of the candidate or his proposer is not genuine or the same had been obtained by fraud, the Election Officer may reject the nomination paper of such candidate. 10. I have given my anxious thought to the controversy raised in the present writ petition vis-à-vis the impugned order passed by the Sub Divisional Officer, Didihat as well as the revisional court. 11. It is provided under Rule 17(2) of the Rules that the Election Officer shall not reject any nomination paper on the ground of any technical defect or other error which is not of a substantial character and may for the purposes of removing any such defect or error allow any entry to be corrected in the nomination paper. 12. The learned counsel for the respondent nos. 1 and 2 while supporting the impugned judgment and orders under challenge has submitted that if the Assistant Returning Officer had any doubt about the signature/initial of the proposer, he could have called upon the proposer of the respondent no. 12. The learned counsel for the respondent nos. 1 and 2 while supporting the impugned judgment and orders under challenge has submitted that if the Assistant Returning Officer had any doubt about the signature/initial of the proposer, he could have called upon the proposer of the respondent no. 1, Shri Chandra Singh to verify his signature/initials but this was not done and the Assistant Returning Officer held the same as a case of fraud and against the mandatory provisions of Rule 17 (2) of the Panchayat Raj Rules, 1994. 13. From a bare perusal of the order passed by the Sub Divisional Officer Didihat it is obvious that the trial court has mention at page 5 of the judgment that if the signature of the candidate or his proposer is not genuine and the same have been obtained fraudulently, the nomination paper may be rejected. It has been clearly observed by the trial court that there was no cutting in the signatures of the proposer and there was no evidence on record that the signatures were obtained by fraud. The election petitioner-respondent no. 1 Ram Singh had examined his proposer Chandra Singh. It was also observed by the trial court that no fraud was played by the respondent nos. 1. It was also mentioned that the defendant nos. 2 and 3 have also supported the claim of the petitioner Ram Singh before the trial court. After perusing the evidence on record the trial has found that the nomination of the election petitioner Ram Singh was wrongly rejected by the Election Officer endorsement to substantiate the fraud had been noted by the Election Officer/Assistant Election Officer. It is held that the respondent no. 1 was wrongly withheld from participating in the election of Gram Pradhan. The trial court has accordingly cancelled the impugned election of Gram Pradhan by his order dated 24.01.2005. 14. Before the revisional court, it was contended by the petitioner-revisionist that the order of the trial court was illegal and against the Panchayat Raj Rules. The revisional court has also observed that the cancellation of nomination paper of the respondent no. 1 by the Election Officer was against the principle of natural justice and the Returning Officer/Assistant Returning Officer had applied double standard in rejecting the nomination paper of the respondent no. 1 to oust him from participating in the election. 15. Learned counsel for the respondent no. 1 by the Election Officer was against the principle of natural justice and the Returning Officer/Assistant Returning Officer had applied double standard in rejecting the nomination paper of the respondent no. 1 to oust him from participating in the election. 15. Learned counsel for the respondent no. 1 and 2 further submitted that the petitioner after filing his written statement had not led any evidence before the trial court and despite sufficient opportunity, the petitioner had not put in appearance before the trial court to substantiate his case. Learned counsel has submitted that over all the cuttings, there were initials put in attestation of such cuttings, therefore, there was no fraud at all. 16. It is also pertinent to mention that in writ jurisdiction this Court cannot sit like a court of appeal and cannot re-appreciate or re-evaluate the evidence. The scope of writ jurisdiction is limited. Only perversity in the impugned orders can be examined. I am fortified in my view by the Apex court verdict in the case of Ranjeet Singh Vs. Ravi Prakash [2004 (3) S.C.C. Page 682]. 17. For the reasons aforesaid, I find that the impugned judgment and order dated 24.01.2005 passed by the Sub Divisional Officer/S.D.M. Didihat in Election Petition No. 02 of 2003, Ram Singh Vs. Bhupendra Singh and others as well as the order dated 11.05.2006 passed by the District Judge Pithoragarh in Civil Revision No. 01 of 2005 Bhupendra Singh Vs. Ram Singh and others do not suffer from any perversity or illegality. The orders under challenge do not call for any interference in the writ petition. The writ petition is liable to be dismissed outright. 18. The writ petition is dismissed with no order as to costs. 19. All application stand disposed of.