Himachal Pradesh High Court
Mam Raj vs The Divisional Commissioner And Others on 9 May, 2025
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH AT
SHIMLA
CWP No.11612 of 2024
Decided on 09th May, 2025
Mam Raj
...Petitioner
Versus
The Divisional Commissioner and others
...Respondents
Coram
Hon'ble Mr. Justice Ajay Mohan Goel, Judge
1
Whether approved for reporting? Yes
For the petitioner: Mr. Desh Raj Thakur, Advocate.
For the respondents: Mr. Sumit Sharma, Deputy Advocate
General, for respondents No.1 to 3.
Mr. Ganesh Barowalia, Advocate, for
respondent No.4.
Ajay Mohan Goel, Judge (Oral)
By way of this writ petition, the petitioner has, inter alia, prayed for the following relief:-
"That any appropriate writ/order or direction may kindly be issued and the impugned order dated 16.09.2024 may kindly b quashed and set aside"
2. Brief facts necessary for the adjudication of this petition are that the petitioner and private respondent contested election for the post of Member, Zila Parishad from Ward No.5 2 (Shilla), Tehsil Kamrau, Development Block Paonta Sahib, District Sirmour, H.P. The elections were held on 17th, 18th and 21st January 2021. The counting of the votes was held on 22.01.2021 and the result was declared on 23.01.2021. The petitioner herein was declared as elected, having secured 8469 votes, whereas, the private respondent herein was stated to have secured 8296 votes, since 304 votes were declared as rejected and 165 votes were NOTA.
3. Feeling aggrieved by the election of the present petitioner, the private respondent herein preferred an election petition under Section 163 (1) of the Panchayati Raj Act. The election petition was primarily filed on the grounds that the process was vitiated because, as the relatives and family members of the elected person were permitted to remain in the counting hall; as counting officer/staff the same materially affected the election; no proper procedure was followed by the Assistant Returning Officer in the counting of the votes; valid votes were incorrectly rejected by the Counting Officer; and there was a violation of Rules 72 and 73 of the Himachal Pradesh Panchayati Raj Election Rules 1994. In terms of order (Annexure 3 P-4) dated 05.04.2022, the election petition was dismissed by Deputy Commissioner, District Sirmour, Nahan, H.P.
4. Feeling aggrieved, the private respondent preferred an appeal. The appeal was allowed vide Annexure P-7 by the Appellate Authority on 16.09.2024. The appeal was primarily allowed by the learned Appellate Authority on the ground that as the relatives of the elected members were allowed in the counting hall and as it was a standard operating procedure that no unauthorized person was to be allowed in the counting area, therefore, the election of the petitioner was bad. Appellate Authority also held that the Deputy Commissioner had relied upon the definition of joint family under the Panchayati Raj Act, but, the presence of Uncles and Cousins of the Election Member indeed seriously damaged the impartiality of the counting process and it was incumbent upon the Returning Officer to have had changed such counting staff and replaced them from amongst reserve staff in random manner to preserve the impartiality and sanctity of the counting process. Learned Appellate Authority after holding that no concrete illegalities as alleged were proved, went on to hold that mere presence of the relatives created the 4 room for suspicion about the purity of counting process. On these findings, the Appellate Authority set aside the order passed by the Deputy Commissioner and allowed the election petition. Feeling aggrieved, the petitioner has preferred this petition.
5. I have heard learned counsel for the parties as well as learned Deputy Advocate General and also carefully gone through the orders passed by the Deputy Commissioner as well as the pleadings and the relevant statutory provisions and rules.
6. The election of the petitioner has been set aside by the Appellate Authority on the ground that the presence of his relatives in the counting hall vitiated the election of the petitioner.
7. It is nobody's case that the so called relatives of the petitioner had barged into the counting room and no action was taken by the Returning Officer to ensure that they were not inside the room. The Appellate Authority itself has returned the findings that no illegalities as alleged were proved on record. It has also not been disputed before this Court that in terms of the record, no objection was raised by the private respondent herein during the counting process or after the declaration of the result about the inclusion of such persons from the staff 5
8. Be that as it may, what this Court has to take into consideration in this writ petition is as to whether the findings returned by the learned Appellate Authority that the election of the petitioner was vitiated on account of the presence of his relatives in the counting room are sustainable in law or not. For this, this Court has to fall back upon the provisions of the Himachal Pradesh Panchayati Raj (Election) Rules 1994, in general and Chapter 7 thereof in particular, which deals with the counting of votes.
9. Rule 72 of the Rules (supra) provides that at every election, where a poll is taken, votes shall be counted under the supervision and direction either of the Returning Officer or such other Officer as may be authorized by him in this behalf. Each contesting candidate, his election agent and his counting agents shall have a right to be present at the time of such counting. Rule 73 of the Rules reads as under:-
"73. Admission to the place fixed for counting.- (1) The Returning Officer or such other officer authorised by him in this behalf, shall exclude from the place fixed for counting of votes all persons except:-
(a) such persons as he may appoint to assist him in the counting;
(b) person authorised by the State Election 6 Commission or the District Election Officer (Panchayats);
(c) public servants on duty in connection with the election; and
(d) candidates, their election agents and counting agents.
(2) No person who has been employed by or on behalf of, or has been otherwise working for a candidate in or about the election shall be appointed under clause (a) of sub-rule (1). (3) The Returning Officer or such other officers authorised by him in this behalf, shall decide which counting agent or agents shall watch the counting at any particular counting table or group of counting tables.
(4) Any person, who during the counting of votes misconducts himself or fails to obey the lawful directions of the Returning Officer or such other officers authorised by him in this behalf may be removed from the place where the votes are being counted, by the Returning Officer, or by any police officer on duty or by any person authorised in this behalf by the Returning Officer."
10. Thus, a perusal of Rule 73 demonstrates that a Retuning Officer or such other Officer authorized by him in this behalf shall exclude from the place fixed for counting of votes all persons except (a) such persons as he may appoint to assist him in the counting; (b) persons authorized by the State Election Commission or the District Election Officer (Panchayats); (c) public servants on duty in connection with the election; and (d) candidates, their election agents and counting agents. 7
11. Sub Rule 2 of Rule 73 categorically provides that no person who has been employed by or on behalf of, or has been otherwise working for a candidate in or about the election shall be appointed under clause (a) of sub-rule (1).
12. In the present case, it was not the allegation of the election petitioner that here was a violation of sub-rule 2 of Rule 73 of the said Rules. In other words, it was not the allegation of the election petitioner that persons who were employed or who were otherwise working for a candidate, were allowed to be there in the counting room or were otherwise appointed under Clause
(a) of sub-rule 1 of Rule 73.
13. It is a matter of record that one uncle of the present petitioner and some cousins of his were in the counting room but in their capacity as employees, who were deployed for counting the votes. Now incidentally in terms of Rule 73, there is no bar that a relative of a contesting candidate cannot be deployed for counting in his capacity as an employee. That being the case, when evidently, there is no such bar in Rule 73, then one cannot read something in Rule 73 which expressly is not provided therein.
8
14. To be fair to the learned counsel appearing for the private respondent, he also in the course of his submissions as made before the Court conceded that Rule 73 does not envisages any bar on the relative of elected candidate in their capacity as employees of the Government from being deployed in terms of Sub-clauses (a) to (c) of Rule 73(1).
15. This extremely important aspect of the matter that there was no bar qua the relatives of contesting candidates from being associated in terms of Rule 73(1) (a) to (c) has been completely ignored by the learned Appellate Authority while passing the impugned order.
16. The Appellate Authority erred in not appreciating that when the Rule does not bars a relative to be there in his official capacity and as it was not the allegation against the relatives that they had forcibly barged into the counting room to unlawfully help the present petitioner and as it is the own findings of the learned Appellate Authority that it was not be proved that any illegality was committed by the said relatives of the petitioner, the appeal could not have been allowed by the Appellate Authority by holding that mere presence of relatives created suspicion. 9
17. When the legislature in its wisdom did not exclude relatives in terms of the provisions of Section 73 while the legislature expressly excluded person, who has been employee and who has been otherwise working for a candidate, the Appellate Authority could not have had allowed the election petition on this count. It is again emphasized that it was not the allegation of the election petitioner that the relatives of the petitioner were otherwise either employed by him or were otherwise working for in the election.
18. Accordingly, in the light of above observations, this writ petition is allowed. The order passed by the Appellate Authority dated 16.09.2024, is set aside with consequences the election of the petitioner is held to be valid in law. Pending miscellaneous applications, if any, also stand disposed of.
(Ajay Mohan Goel) Judge May 09, 2025 (Vinod)