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2015 DIGILAW 1185 (PAT)

Santosh Kumar Singh v. State of Bihar

2015-09-10

JYOTI SARAN

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JUDGMENT : JYOTI SARAN, J. 1. Heard Mr. Shri Prakash Srivastava, learned counsel appearing on behalf of the petitioner, Mr. Ranjan Kumar, learned Assisting Counsel to Additional Advocate General No.4 for the State, learned counsel for the State Election Commission and Mr. Rajendra Narayan, learned senior counsel appearing on behalf of the respondent No.6. 2. Although notice was issued to other respondent nos.7 to 15 of whom respondent no.11 has appeared through counsel but the rest have not chosen to appear. 3. The petitioner is aggrieved by the judgment and order dated 12.6.2015 passed by the Munsif-III-cum-Election Tribunal, Bhojpur, in Election Petition No. 08 of 2011, whereby the election of the petitioner as Mukhiya of Gram Panchayat, Khajuria in the district of Bhojpur has been set aside for violation of mandatory provisions under section 125A of the Bihar Panchayat Raj Act, 2006 (hereinafter referred to as ‘the Act’) read with the provisions of section 139 thereof and the election petitioner has been declared elected under section 140 of the Act. 4. The facts are not in dispute rather are admitted. Indisputably the petitioner has failed to mention the criminal cases instituted against him in which cognizance was taken as well as charges were framed while filing his affidavit along with the nomination. The Election Tribunal taking note of the judgment of the Supreme Court rendered in the case of Krishnamoorthy vs. Sivakumar since reported in AIR 2015 SC 1921 and in view of the admitted position regarding non-disclosure of the criminal antecedent by the petitioner in respect of his involvement in Ara Muffasil P.S. Case No. 235 of 2001 has declared his election void and returned the election petitioner. The petitioner being aggrieved is before this Court. 5. Mr. Shri Prakash Srivastava has appeared on behalf of the petitioner and has referred to the election petition, a copy of which is placed at Annexure-3 to the writ petition to submit that there is no other relief prayed in paragraph 1 of the election petition except to set aside the election of the writ petitioner. He submits that the challenge is rather vague and except that the writ petitioner has been charged with concealment of the criminal case pending against him in which cognizance has been taken, there is nothing else present for questioning his election. Mr. He submits that the challenge is rather vague and except that the writ petitioner has been charged with concealment of the criminal case pending against him in which cognizance has been taken, there is nothing else present for questioning his election. Mr. Srivastava further with reference to the pleadings in the election petition submits that even though in the prayer portion of the election petition the election petitioner has made a prayer to declare the election of the writ petitioner void and also for a declaration in his favour as a returned candidate but the pleadings supporting such prayer are missing nor are there any grounds mentioned therein. He submits that in the circumstances where the election petition contained vague pleadings as regarding the challenge and the relief prayed, the Election Tribunal has gone beyond the jurisdiction while declaring the election of the writ petitioner void and directing the State Election Commission, Patna and the District Election Officer, Bhojpur to declare the next candidate having majority of valid votes as the Mukhiya. According to Mr. Srivastava, this exercise is without jurisdiction. With reference to the issues framed by the Election Tribunal more particularly one present at issue no.(x), he submits that although the Election Tribunal has framed an issue whether the election petitioner is entitled to be declared elected but while adjudicating on the issue at paragraph 28 he has not decided the same in favour of the election petitioner. He submits that the Election Tribunal has admitted that the pleadings were silent as regarding the votes secured by the contesting candidates. It is with reference to section 139 and 140 of ‘the Act’ submitted that the reliefs claimed have to be specifically stated and the grounds have to be specifically mentioned and in absence thereof no relief could have been granted to the election petitioner and the direction to the Election Officer to ascertain the position is a direction without jurisdiction. He submits that even if the petitioner was unseated in the light of the judgment of the Supreme Court rendered in the case of Krishnamoorthy (supra) but the election petitioner was not entitled to any relief. 6. The arguments of Mr. Srivastava has been contested by Mr. He submits that even if the petitioner was unseated in the light of the judgment of the Supreme Court rendered in the case of Krishnamoorthy (supra) but the election petitioner was not entitled to any relief. 6. The arguments of Mr. Srivastava has been contested by Mr. Rajendra Narayan, learned senior counsel appearing for the election petitioner to submit that in so far as the disqualification of the election of the writ petitioner is concerned no fault can be found in the order of the Election Tribunal and that the declaration in favour of the election petitioner is only the consequences of the direction of the Election Tribunal requiring the Election Officer to ascertain the position and take appropriate decision. He thus submits that in view of the provisions underlying section 140 of ‘the Act’ and in view of the prayer so made by the election petitioner seeking a declaration in his favour, there was no infirmity in the order of the Election Tribunal nor is there any infirmity in the resulting consequences. 7. I have heard learned counsel for the parties and I have perused the records. 8. As I have observed above the non-mentioning of criminal case by the petitioner is not in dispute rather is admitted. It is also no more an issue of contest that in these admitted circumstances the petitioner can be unseated in the light of the provisions under section 125A read with section 139 of ‘the Act’ for the issue stands concluded by the judgment of the Supreme Court rendered in the case of Krishnamoorthy (supra) and which has also been relied upon by the Election Tribunal to unseat the petitioner. The Supreme Court has come out heavily upon such contestants who have suppressed information while making their declarations. The Supreme Court was examining the statutory provisions of section 259 and 260 of the Tamil Nadu Panchayat Act which is pari-materia to section 125A of the Representation of the People Act and section 139 of the Bihar Panchayat Raj Act. The Supreme Court after examining the law on the issue has summarized the opinion in paragraph 86 of the judgment and I can do no better than to reproduce the same:- “86. The Supreme Court after examining the law on the issue has summarized the opinion in paragraph 86 of the judgment and I can do no better than to reproduce the same:- “86. In view of the above, we would like to sum up our conclusions:- (a) Disclosure of criminal antecedents of a candidate, especially, pertaining to heinous or serious offence or offences relating to corruption or moral turpitude at the time of filing of nomination paper as mandated by law is a categorical imperative. (b) When there is non-disclosure of the offences pertaining to the areas mentioned in the preceding clause, it creates an impediment in the free exercise of electoral right. (c) Concealment or suppression of this nature deprives the voters to make an informed and advised choice as a consequence of which it would come within the compartment of direct or indirect interference or attempt to interfere with the free exercise of the right to vote by the electorate, on the part of the candidate. (d) As the candidate has the special knowledge of the pending cases where cognizance has been taken or charges have been framed and there is a non-disclosure on his part, it would amount to undue influence and, therefore, the election is to be declared null and void by the Election Tribunal under Section 100(1) (b) of the 1951 Act. (e) The question whether it materially affects the election or not will not arise in a case of this nature.” 9. A cursory glance of the conclusion drawn by the Supreme Court on the identical issue at paragraph 86(d) of the judgment is a conclusion so arrived at also by the Election Tribunal while adjudicating the case of the petitioner. In the circumstances, the conclusion of the Election Tribunal in so far as it unseats the petitioner suffers from no infirmity requiring interference. 10. The next question which arises for consideration is whether there is absence of any pleadings in the election petition in seeking a declaration in his favour and whether the election petitioner was entitled to a relief for declaration in his favour. 11. The copy of the election petition is present at Annexure-3 and although there is no specific pleading made therein for supporting a declaration in his favour but then a prayer in this regard is indeed made in the prayer portion. 11. The copy of the election petition is present at Annexure-3 and although there is no specific pleading made therein for supporting a declaration in his favour but then a prayer in this regard is indeed made in the prayer portion. In these circumstances it is to be seen whether the election petitioner could have been granted any such relief. 12. The law on this issue is self eloquent and is present at section 140 of ‘the Act which inter-alia, provides that where the election petitioner in addition to calling in question the election of the returned candidate, also claims a declaration in his own favour and the prescribed authority is of the opinion that in fact the petitioner or any such other candidate has received majority of valid votes then he shall make a decision in this direction and which shall be final. 13. The only issue that is being raised by Mr. Srivastava is that in absence of foundational facts as to the successor in the event the election of the returned candidate is declared void, no relief could have been granted by the Election Tribunal. I am unable to accept the contentions advance by Mr. Srivastava and the answer is present in section 140 of ‘the Act’ itself where the discretion is vested in the Election Tribunal to come to a finding on the issue. Thus even if the election petitioner claims a declaration in his favour after questioning the election of a returned candidate, such declaration is not to be made on mere asking rather the claim is to be examined by the Tribunal to determine as to who amongst the contestants has secured the next highest valid votes and this is exactly what the Election Tribunal has done in the present case. In fact even if the claim for declaration under section 140 of ‘the Act’ would be supported by pleadings in the election petition yet the Election Tribunal could not mechanically grant such declaration without disclosing the onus cast under section 140 and satisfying itself as to who is the next candidate with valid votes. In fact even if the claim for declaration under section 140 of ‘the Act’ would be supported by pleadings in the election petition yet the Election Tribunal could not mechanically grant such declaration without disclosing the onus cast under section 140 and satisfying itself as to who is the next candidate with valid votes. The exercise undertaken by the Election Tribunal requiring the Election Officer to ascertain as to who amongst the contestants had secured next highest valid votes and which has resulted in favour of the election petitioner to receive a declaration in his favour, in my opinion suffers from no infirmity warranting any interference. 14. For the reasons aforementioned, the writ petition is dismissed.