Secretary State Election Commission v. Virender Kapil
2017-04-10
SURESHWAR THAKUR
body2017
DigiLaw.ai
JUDGMENT : Sureshwar Thakur, J. 1. Respondent No.1 herein/plaintiff Virender Kapil instituted a suit against the defendants/petitioners herein, for monetary damages comprised in a sum of Rs.15,00,500/- only arising from the purported statutory omissions besides breaches of official duty(ies) by defendant No.3, in omissions/breaches whereof, other defendants vicariously recorded their participation vis-a-vis the aforesaid co-defendant, statutory omissions/breaches whereof purportedly arose from theirs illegally rejecting the nomination papers of the plaintiff/respondent No.1 herein on account of his father holding government land as an encroacher, whereas, this Court while deciding CWP No. 8497 of 2010 pronouncing therein qua the order of the Returning Officer concerned, whereupon, he rejected the nomination papers of the plaintiff/respondent No.1, on the score qua his father unauthorisedly encroaching upon government land, conspicuously, when thereupon, the plaintiff stood not rendered to fall within the ambit of the coinage “family” occurring in Section 122 (1) (c) of the H.P. Panchayati Raj Act, thereupon, the apposite statutory ill consequences not warranting their befallment upon him, warranting hence theirs standing quashed. In sequel thereto, the plaintiff/respondent No.1 herein was permitted to contest elections to the post of Vice President (Up Pradhan), of G.P. Tatapani. However, he did not succeed in the elections. Subsequent, to the pronouncement recorded by this Hon'ble Court in CWP No. 8497 of 2010, pronouncement whereof attained finality, given the Hon'ble Apex Court on standing seized with a SLP, as arose therefrom, dismissing the apposite SLP, whereafter, the apposite civil suit stood instituted before the learned trial Court. 2. In the suit, instituted by the plaintiff/respondent No.1 herein against the defendants, he claimed pecuniary damages from them, arising from theirs committing statutory omissions besides breaches, comprised in the Returning Officer concerned while holding vicarious consensus ad idem with other codefendants, his illegally rejecting the nomination papers of the plaintiff/respondent No.1 herein, whereunder he aspired to contest elections to the post of Up Pradhan, Gram Panchayat, Tatapani.
Subsequent to the institution of the suit aforesaid against the co-defendants, the latter through an application constituted before the learned trial Court under the provisions of Order 7, Rule 11 of the CPC, sought the rejection of the plaint, on the score of the co-defendants holding statutory protection/immunity against theirs standing subjected to criminal prosecution besides theirs standing clothed with a statutory immunity against any rearing of any claim for damages against them, for any act or omission on their part in the performance of official duties by them or theirs committing breaches thereto, omissions/statutory breaches whereof stand imputed against them, reiteratedly, thereupon, they espoused therein qua the suit of the plaintiff warranting its dismissal. The aforesaid application stood dismissed by the learned trial Court. The co-defendants, on standing aggrieved, hence, motion this Court for seeking reversal of the verdict pronounced thereon. For resolving the aforesaid conundrum, it is apt to peruse the relevant provisions of Section 158 (L) of the H.P. Panchayat Raj Act, provisions whereof read as under: “Section 158-L- Breaches of Official duty in connection with election.- (1) if any person to whom this section applies is without reasonable cause guilty of any act or omission in breach of his official duty he shall be punishable with fine which may extend to five hundred rupees. (2)An offence punishable under sub-section (1) shall be cognizable. (3)No suit or other legal proceedings shall lie against any such person for damages in respect of any such act or omission as aforesaid. (4)The persons to whom this section applies are the district election officers, returning officers, assistant returning officers, presiding officers, polling officers and any other person appointed to perform any duty in connection with the receipt of nominations or withdrawal of candidatures or the recording or counting of votes at an election; and the expression “official duty” shall for the purposes of this section be construed accordingly, but shall not include duties imposed otherwise than by or under this Act.” A perusal of sub-section (4) whereof, explicitly affords a clincher for testing the signification borne by the words “ breaches of his official duties” or any act or omission, of/by any of the categories of the persons/officers/officials detailed therein, in categories whereof the co-defendants fall.
The apposite words occurring in sub-section (4) pointedly with utmost clarity pronounce qua the category of officers, as detailed therein, standing appointed for performance of official duties in connection with the receipt of nomination papers or withdrawal of candidature or the recording or counting of votes polled at an election. An echoing occurs therein qua the signification borne by expression “official duty” holding synonimity therewith besides gauging signification thereof emanating on its standing read in tandem therewith. Consequently, any ascription qua the signification borne by the statutory coinage “receipt of nomination” is to stand disintered besides is to ensue from the coinage borne by the expression “official duty”, in respect to breach whereof, no suit is maintainable against any of the categories of officials elucidated in sub-section (4) besides the aforesaid officers/officials are not thereupon amenable for facing criminal prosecution. For gauging besides fathoming of the signification borne by the coinage “official duty”, an allusion qua the preceding expression thereof is imperative, the expression preceding thereof conspicuously unveils qua the category of officials/officers marked in sub-section (4), standing pronounced therein qua theirs standing appointed to perform duties in connection with the “receipt of nominations”, wherefrom the inevitable corollary is qua on the aforesaid duties standing breached or not performed, would thereupon render the “officials/officers” concerned to stand clothed with a statutory immunity against his/theirs facing criminal prosecution also thereupon he/she/they would stand clothed with a statutory immunity against any suit for damages standing filed thereagainst. However, the coinage “receipt of nomination” warrants imputation of a signification qua the official/officer concerned standing obliged to on the aspirant concerned tendering before him/them, his nomination papers, to hence receive them. The aforestated signification borne by the coinage “receipt of nomination”, on refusals whereof by the officers/officials on its standing tendered therebefore, thereupon, the purported breach of the apposite official duty by him/them would hence ensue, cannot stand extended to cover an order made by the officers/officials concerned, whereupon, he/she/they rejects the apposite nomination papers, after their standing scrutinized nor also it can tantamount to breach of official duties nor also it can be held qua in respect thereto the apposite statutory immunities being available to the official/officer concerned. Consequently, the statutory immunity as claimed by the co-defendants is unaffordable vis-a-vis them, whereupon also they cannot seek rejection of the plaint. 3.
Consequently, the statutory immunity as claimed by the co-defendants is unaffordable vis-a-vis them, whereupon also they cannot seek rejection of the plaint. 3. For the foregoing reasons, there is no merit in the instant petition and it is dismissed accordingly. In sequel, the order impugned hereat is maintained and affirmed. The parties are directed to appear before the learned trial Court on 27th May, 2017. All pending applications also disposed of.