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2014 DIGILAW 1385 (HP)

Dever Nath v. Kedar Singh

2014-10-09

TARLOK SINGH CHAUHAN

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JUDGMENT Tarlok Singh Chauhan, Judge. (Oral) This petition under Section 227 of the Constitution of India seeks quashing and setting aside the order dated 02.08.2014 passed by the Deputy Commissioner (Appellate Authority) under the Himachal Pradesh Panchayati Raj Act, 1994, Kinnaur District at Reckong Peo, whereby the appeal filed by the petitioner has been dismissed thereby upholding the order dated 14.5.2014 passed by Hon’ble SDO(C)-cum-authorized Officer Kalpa at Reckong Peo, rejecting the claim of the petitioner for deleting his name from the election proceedings. 2. The facts in brief may be noticed, one Kedar Singh filed an election petition against Bhupinder Singh and others, wherein the present petitioner was arrayed as respondent No.8. Apart from other allegations in the petition, specific allegations were made against respondent No.8 who happened to be Assistant Returning Officer in the election. The petitioner initially approached the competent authority by moving an application under Order 1 Rule 10(2) read with Section 151 of Code of Civil Procedure for deletion of his name which was rejected by the competent authority on the ground that most of the allegations raised in the petitioner relate to the respondent and therefore, it would not be in the interest of justice to strike off the name of the petitioner from the list of the respondents. It was also held that there was no restriction placed under Section 163 (a) of the H.P. Panchayati Raj Act that Assistant Returning Officer or Returning Officer whose conduct is challenged can not be made a party. 3. This order was challenged before the Appellate Authority, who rejected the appeal by according the following reasons: 1. There is no provision in the Section 163-A of the H.P. Panchayati Raj Act as to arraying the Assistant Returning Officer as party to the election petition. There is also no restriction in the section ibid that the Assistant Returning Officer whose conduct is under challenge can not be made a party. 2. There is no provision in the Section 163-A of the H.P. Panchayati Raj Act as to arraying the Assistant Returning Officer as party to the election petition. There is also no restriction in the section ibid that the Assistant Returning Officer whose conduct is under challenge can not be made a party. 2. A perusal of record of the lower court reveals that allegations of manipulation and changing of record during the process of election for the post of Pradhan Gram Panchayat Powari by the then A.R.O. (present appellant) have been made in the election petition filed before the SDO (C)-cum- authorized officer and in view of the allegations, it would not be in the interest of justice to strike off the name of the present appellant from the array of respondents. 4. In this petition both the aforesaid orders have been challenged by the petitioner on the ground that impugned orders have been passed by the authorities without due application of mind and further the authorities have failed to taken into consideration the fact that the petitioner had no axe to grind and was carrying and discharging his duties in the capacity of a government servant and therefore, he can not be arrayed as a party respondent to the election petition. 5. I have heard Sh. B.N. Sharma, Counsel for the petitioner. 6. The petitioner vide order dated 15.9.2014 was directed to place on record the copy of the election petition which has now been placed on record. A perusal thereof shows that not only specific allegations, but serious allegations have been made against the petitioner who has been arrayed as respondent No.8 in this petition. Some of the specific allegations against the respondents are : 5. That as is evident from the record respondent No. 1 has deposited the nomination papers on 13.12.2010, but as per the receipt it alleged that the security deposit has been made on 13.12.2010 receipt has been issued for that date and as per the receipt for that is deposited the nomination papers the date mentioned in the receipt is 13.12.2010. It is pertinent to mention here that no nomination paper was filed on 13.12.2010 and as per the knowledge of the petitioner no nomination paper was filed even on 14.12.2010. It is pertinent to mention here that no nomination paper was filed on 13.12.2010 and as per the knowledge of the petitioner no nomination paper was filed even on 14.12.2010. The A.R.O i.e. respondent No. 8 on 14.12.2010 exhibited the list of candidates on the notice board in that the name respondent no. 1 did not figure in and after the scrutiny of the nomination papers also the final list for contesting candidates was exhibited in that also the name of respondent no. 1 was not there. It was on 18.12.2010 i.e. after the expiry of the period of withdrawal name respondent no. 1 figured and when the petitioner and the other respondents objected to this fact the A.R.O. i.e. respondent no. 8 who factually has connived with respondent no. 1 alleged that respondent no. 1 has filed the nomination papers and the nomination papers were shown to the petitioner and other contenting candidates but on that nomination paper the date for filing the nomination paper has been mentioned 14.12.2010. It is further pertinent to mention here that a representation to this effect was made to the Deputy Commissioner Kinnaur but no action was taken. The A.R.O i.e. respondent no. 8 thereafter has manipulated and changed the record in connivance with respondent no. 1. The election of respondent no. 1 as he has not filed the nomination papers in time is liable to be set aside for this reason that candidates withdrawn from this contest on 18.12.2010 and 6 nomination was reflected. 6. That there were seven candidates as per the bungling committed by the A.R.O. i.e. respondent no. 8 who contested the election for the post of Pradhan Gram Panchayat Powari and the total number of vote polled were 530. Respondent no. 1 as per the result got 202 vote respondent no. 2 got 62 votes respondent no. 3 got 70 votes respondent no. 4 got 75 votes, respondent no. 5 got 22 votes, respondent no. 6 got 20 votes and respondent no. 7 got 65 votes and 15 votes were declared invalid and thus rejected. Respondent No. was thus declared as winning candidate for the office of Pradhan Gram Panchayat Powari, but respondent no. 1 was not eligible in contest the election of Pradhan of the Panchayat for the reasons submitted. 7. That was submitted in the earlier paras there was no nomination papers of respondent no. Respondent No. was thus declared as winning candidate for the office of Pradhan Gram Panchayat Powari, but respondent no. 1 was not eligible in contest the election of Pradhan of the Panchayat for the reasons submitted. 7. That was submitted in the earlier paras there was no nomination papers of respondent no. 1 not the same were shown to the petitioner and other contesting candidates therefore, the factum of disqualification of respondent no. 1 were not brought forth at the time of scruitiny of the nomination papers through objections were raised on 18.12.2010 when the A.R.O. i.e. respondent no. 8 has added the name respondent no. 1 in the list of contesting candidates. The attitude and behavious of the A.R.O. i.e. respondent no. 8 is evidently biased and the inclusion of the name respondent no. 1 in the list of contesting candidates is ab-inition void, illegal and arbitrary. The election of respondent no. 1 is liable to be set aside for this reason. 10(a) That the A.R.O i.e. respondent no. 8 has cleverly and blatantly flouted the statutory rules envisaged under the H.P. Panchayati Raj Act and Rules in the circumstances narrated hereinabove which has resulted in the violation of the fundamental rights of the petitioner as the result of the election has caused grave prejudice to the petitioner and the electors of the Gram Panchayat Powari which thus is liable to be quashed and set aside. (b) That the A.R.O. i.e. Respondent no. 8 has acted most arbitrary, illegally and clandestinely in accepting the nomination papers of respondent No. 1 when the same were not filed in time as is evident from the date put on the nomination papers and as per the lists which were exhibited on the notice board in which the name of respondent no. 1 was not figure in. This aspect of the matter rather invites a thorough inquiry into the matter and appropriate action against the A.R.O. i.e. respondent no. 8 is liable to be initiated. The A.R.O has acted illegally when he has visited Recong Peo and the wrongful action has been taken by him in connivance with respondent no. 1 and his political bosses. The election thus is liable to be set aside for this reason. 7. 8 is liable to be initiated. The A.R.O has acted illegally when he has visited Recong Peo and the wrongful action has been taken by him in connivance with respondent no. 1 and his political bosses. The election thus is liable to be set aside for this reason. 7. In the teeth of such allegations, it does not lie in the mouth of the petitioner to claim that he was simply discharging his duties as government servant and, therefore, his name be struck off from the array of respondents. The competent authority has rightly held that most of the allegations raised in the petition in fact are against the petitioner and it would, therefore, not be in the interest of justice to strike off his name from the array of the respondents. The appellate authority has also not committed any illegality whereby it has affirmed the orders passed by the competent authority by observing that there is no restriction in Section 163 (a) of the H.P. Panchayati Raj Act for arraying the Assistant Returning Officer (petitioner) as a party to the election petition and further that the name of the petitioner cannot be strike off from the array of the respondents in view of the specific allegations levelled against him. 8. There is no illegality, irregularity or perversity in the orders passed by the authority below. Consequently, there is no merit in this petition and the same is dismissed in limine. 9. In view of the above, the petition stands disposed of, so also the pending application (s), if any.