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2014 DIGILAW 267 (UTT)

Bhupendra Singh v. State of Uttarakhand

2014-06-27

ALOK SINGH

body2014
JUDGMENT Alok Singh, J. 1. Mr. B.D. Upadhyaya, learned Senior Advocate, assisted by Mr. Sunil Upadhyaya, learned Advocate appearing for the petitioner, has handed over rejoinder affidavit of the petitioner in the Court, which is taken on record. 2. Present petition is preferred under Article 226 of the Constitution of India assailing the order dated 09.06.2014 passed by Returning/Election Officer, Block Betalghat, District Nainital, whereby nomination of the petitioner for the post of Member Kshettra Panchayat was rejected. 3. Brief facts of the present case, inter alia, are that in the State of Uttarakhand, three-tier Panchayat elections were notified and pursuant to the notification of three-tier Panchayat Election, District Election Officer, Nainital vide notification dated 28.05.2014 published election programme for different Blocks including the Block in question i.e. Betalghat, District Nainital. As per the notification/election programme dated 28.05.2014, Annexure No. 1 to the writ petition, nomination could be presented between 02.06.2014 to 05.06.2014 and 6th, 7th and 9th June, 2014 were fixed for scrutiny of the nominations, and 10.06.2014 was fixed for withdrawal of the nomination. Petitioner as well as respondent no. 5 submitted their nominations for the post of Member, Kshettra Panchayat, Betalghat, District Nainital. Nomination of the petitioner as well as that of respondent No. 5 were accepted on 07.06.2014. Thereafter, Respondent No. 5 preferred his objections against the acceptance of the nomination of the petitioner before the Election/Returning Officer/District Supply Officer on 09.06.2014 stating therein that the petitioner was having two shops, one grocery shop and another fair price shop, however, in column No. 3 of Annexure No. 1 of nomination paper only the word “shop” was written thus the petitioner was guilty of furnishing incomplete information as well as concealment of the important information, therefore, nomination of the petitioner ought to have been rejected. Along with the objections, respondent No. 5 had annexed information sought and received by respondent No. 5 to the effect that the petitioner was running one grocery shop and was running one fair price shop also. Along with the objections, respondent No. 5 had annexed information sought and received by respondent No. 5 to the effect that the petitioner was running one grocery shop and was running one fair price shop also. Election/Returning Officer, vide order dated 09.06.2014, Annexure No. 3 to the writ petition, was pleased to recall the order dated 7.6.2014 accepting the nomination of the petitioner and was further pleased to reject the nomination of the petitioner stating therein that the petitioner had furnished incomplete information and deliberately did not show that he was having two shops, one grocery shop as well as one fair price shop. In the order impugned herein reliance was placed on the instructions issued by State Election Commission dated 24.02.2003. Feeling aggrieved, the petitioner has approached this Court by way of present writ petition. 4. I have heard Mr. B.D. Upadhyaya, learned Senior Counsel assisted by Mr. Sunil Upadhyaya, Advocate, appearing for the petitioner, Mr. B.C. Pande, learned Senior Advocate with Mr. M.S. Pal, learned Senior Advocate assisted by Mr. D.S. Mehta, Advocate, for respondent No. 5 and Mr. Shailendra Singh Chauhan, learned Deputy Advocate General appearing for respondent Nos. 1, 2, 3 and 4, and have carefully perused the record. 5. Undisputedly, there were only two candidates for the post of Member of Kshettra Panchayat Betalghat i.e. petitioner and respondent No. 5. Nominations of the petitioner as well as respondent No. 5 were found to be in order, therefore, both the nominations were accepted on 07.06.2014. Undisputedly, thereafter on 09.06.2014, respondent No. 5 preferred an objection to the effect that the petitioner was running two shops, one fair price shop and another grocery shop, however, in Annexure No. 1 to the nomination paper filed by the petitioner, the petitioner had shown “shop” in column No. 3, therefore, the petitioner was guilty for furnishing incomplete information as well as concealment of the correct information. Consequently, nomination of the petitioner was rejected vide order impugned in the present petition. 6. Rule 18 of the Uttar Pradesh Kshettra Panchayats and Zila Panchayats (Election of Members) Rules, 1994 reads as under:- “18. Consequently, nomination of the petitioner was rejected vide order impugned in the present petition. 6. Rule 18 of the Uttar Pradesh Kshettra Panchayats and Zila Panchayats (Election of Members) Rules, 1994 reads as under:- “18. Scrutiny of nominations – (1) On the date and at the time and place appointed for the scrutiny of the nominations the Nirvachan Adhikari shall examine the nomination papers, not already rejected under sub-rule (3) of Rule 16 in the presence of candidates and their Nirvachan Abhikarta, if any, who may be present after giving them reasonable facilities for examining the nomination papers. (2) The Nirvachan Adhikari may reject any nomination paper on anyone or more of the following grounds – (a) That the candidate is not qualified under the Act to be chosen to fill the seat. (b) That the candidate is disqualified for being chosen to fill the seat under Section 13 or Section 26 of the Act. (c) That there has been failure to comply with any of the provisions of Rule 16. (d) That the signature of the candidate or his proposer is not genuine or has been obtained by fraud. The Nirvachan Adhikari shall not reject any nomination 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. (3) The Nirvachan Adhikari shall endorse on each nomination paper his decision accepting or rejecting the same and if the nomination paper is rejected, shall record in writing the brief statement of his reason for such rejection. (4) At the end of the scrutiny the Nirvachan Adhikari shall announce the names of candidates whose nominations he has accepted and shall prepare a list showing the names in Hindi alphabetical order with particulars as given in their nomination papers. (5) Where all nomination papers have been rejected, the Nirvachan Adhikari shall report the fact to the District Magistrate.” 7. As per sub-rule (1) of Rule 18, scrutiny of nomination papers shall be done by the Nirvachan Adhikari on the date and at the time and place appointed for scrutiny in the presence of candidates and their Nirvachan Abhikarta, who may be present after giving them reasonable facilities for examining the nomination papers. As per sub-rule (1) of Rule 18, scrutiny of nomination papers shall be done by the Nirvachan Adhikari on the date and at the time and place appointed for scrutiny in the presence of candidates and their Nirvachan Abhikarta, who may be present after giving them reasonable facilities for examining the nomination papers. Nomination papers may be rejected, if any or more grounds, as mentioned in sub-clause (a), (b), (c) and (d) of sub-rule (2) of Rule 18 are present. Sub-rule (2) of Rule 18 further provides that Nirvachan Adhikari 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. However, if defect or error in nomination is found to be of substantial character, nomination paper may be rejected. 8. Perusal of notification issued by the State Election Commission dated 24.2.2003 would reveal that State Election Commission has issued instructions to the effect that if any candidate is found guilty of furnishing incorrect or incomplete information or concealment of any important information, his nomination paper shall be rejected provided Election/Returning Officer finds that such incomplete or concealed information is of the substantial character. Instructions further provide that candidate who has furnished incorrect/incomplete information or has concealed an important information may also be prosecuted under the provisions of Indian Penal Code over and above the rejection of his nomination. 9. Word ‘substantial character’ as used in the Notification dated 24.02.2003 and in sub-Rule (2) of Rule 18 has its own importance. 10. Dictionary meaning of word ‘substantial’ means of considerable importance. 11. Language of Notification dated 24.02.2003 also provides that candidate, who has furnished incorrect or incomplete information or has concealed important information, may also be prosecuted under the provisions of Indian Penal Code. Therefore, in my considered opinion only such incomplete or incorrect (vague or ambiguous) information or concealment of such information would be of substantial character, which falls within the definition of ‘false evidence’ for which prosecution under IPC is permissible. There is another aspect of the matter. Word ‘substantial character’ can be understood to mean which can adversely affect the election or which may render the candidate disqualified to contest the election. 12. There is another aspect of the matter. Word ‘substantial character’ can be understood to mean which can adversely affect the election or which may render the candidate disqualified to contest the election. 12. Perusal of impugned order, Annexure No. 3 to the writ petition, dated 9.6.2014 reveals that Election/Returning Officer nowhere observes that incomplete information furnished by the petitioner is of substantial character. Therefore, rejection of the nomination of the petitioner is bad in law. 13. Now, second question arises in the present writ petition is – As to whether nomination paper once accepted can be rejected on the subsequent date by reviewing earlier order of acceptance? 14. I have carefully perused all the provisions of Act and Rules. Settled position of law is that one can proceed strictly in accordance with law and if law permits to do something in a particular manner, no diversion therefrom is allowed. Since Rule is silent about power of review of the decision on the nomination paper, therefore, it was not open to the Returning Officer to review order dated 7.6.2014 accepting the nomination paper and to reject the same on the subsequent date i.e. 9.6.2014. If nomination paper was wrongly accepted, respondent no. 5 could have waited till the result of the election and could have filed Election Petition against the petitioner after declaration of the result. Therefore, the order impugned does not sustain in the eyes of law. 15. Consequently, impugned order is hereby quashed. Writ petition is hereby allowed. 16. It is reported that election has already been held and today counting is going on. Therefore, counting of the election in question shall be done in accordance with law and result thereof shall be declared in accordance with law. 17. No order as to costs.