Supreme Court - Daily Orders
Duni Chand vs State Of Himachal Pradesh on 28 October, 2014
Author: J.S. Khehar
Bench: Jagdish Singh Khehar, Arun Mishra
1
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9944 OF 2014
(Arising from SLP(C) No.22225 of 2014)
Duni Chand ..Appellant
versus
State of Himachal Pradesh and others ..Respondents
J U D G M E N T
J.S. KHEHAR, J.
Leave granted.
The issue, which is subject matter of consideration in the instant appeal, relates to the validity of the election of the appellant-Duni Chand as Pradhan, Gram Panchayat, Ghanala, Sub-Tehsil Sandhol, District Mandi, Himachal Pradesh. Nomination papers in the aforesaid election were to be submitted from 13th to 15th December, 2010. In the election programme issued vide notification dated 4.12.2010 (by the State Election Commission, Himachal Pradesh), 16.12.2010 was fixed for scrutiny of the nomination papers. It is not a matter of dispute, that the appellant submitted his nomination papers well in time on 15.12.2010.
Signature Not Verified
It is therefore apparent, that the submission of Digitally signed by nomination papers was in conformity with the election programme. Parveen Kumar Chawla Date: 2014.11.11 17:23:14 IST Reason:
The case set up against the appellant was, that his nomination papers were liable to be rejected on scrutiny.2
Insofar as the instant aspect of the matter is concerned, the assertion against the appellant was, that an ejectment order from government land was rendered against the appellant, by the Assistant Collector, 2nd Grade, Sandhole, on 12.4.2010. It was pointed out, that the above ejectment order rendered the acceptance of the nomination papers invalid. In this behalf, reliance was placed on Section 122(1)(c) of the Himachal Pradesh Panchayati Raj Act, 1994 (hereinafter referred to as the '1994 Act'). A relevant extract of the aforesaid provision is being reproduced hereunder:
“122(1) :-
(a) & (b) xxx xxx xxx
(c) – If he or any of his family member(s) has encroached upon any land belonging to, or taken on lease or requisitioned by or on behalf of, the State Government, a Municipality, a Panchayat or a Co-operative Society unless a period of six years has elapsed since the date on which he or any of his family member, as the case may be, is ejected there from or ceases to be the encroacher; or Explanation – For the purpose of this clause the expression “family member” shall mean the spouse, their son(s), unmarried daughter(s) and adopted son and unmarried daughter.
(bb) to (o) xxx xxx xxx
(2) xxx xxx xxx”
The fact that the above order of ejectment dated 12.4.2010 was indeed rendered against the appellant is not a matter of dispute. Despite the same, the nomination papers submitted by the appellant were accepted and he was permitted to contest the 3 election, scheduled for 1.1.2011. Election was indeed conducted on 1.1.2011. The appellant succeeded in the above election, inasmuch as the largest number of votes were cast in his favour.
A challenge to the election of the appellant was raised on the ground that the appellant's nomination papers could not have been accepted. This challenge was refuted by the appellant by asserting, that the Sub Divisional Officer(Civil), Sarkaghat vide order dated 20.12.2010 had stayed the operation of the ejectment order dated 12.4.2010. The order dated 20.12.2010 is available on the record of this case as Annexure P-1. Subsequently, the appeal preferred by the appellant against the ejectment order dated 12.4.2010 was also accepted, on 30.07.2011. The said order is also available on the record of this case as Annexure P-3. It was accordingly the contention of the learned counsel for the appellant, that disqualification of the appellant on the date of scrutiny of nomination papers stood wiped out, and as such, since the said disqualification did not exist, the determination of the Returning Officer, in accepting the nomination papers submitted by the appellant, could not be interfered with.
The question that arises for our consideration is, whether the appellant, whose disqualification was negated, firstly by the interim order dated 20.12.2010, and subsequently by the acceptance of his appeal on 30.7.2011, can be permitted to continue as Pradhan of the Gram Panchayat, consequent upon his being declared elected on 1.1.2011.
4
The contention of the learned counsel for the appellant is, that the election of the appellant could not be interfered with. Insofar as the instant aspect of the matter is concerned, learned counsel for the appellant placed emphatic reliance on a decision rendered by this Court in Shri Manni Lal vs. Shri Parmai Lal and others (1970) 2 SCC 462. Relevant extracts therefrom are being reproduced hereunder:
“1. This is an appeal by Manni Lal who was one of the candidates for election to the U.P. Legislative Assembly from Ahirori (Scheduled Caste) Constituency of Hardoi District, and who was defeated at that election by respondent No. 1 Parmai Lal. The election was challenged on two principal grounds. One ground was that respondent No. I was disqualified under section 8(2) of the Representation of the People Act, 1951 (hereinafter referred to as "the Act") for being chosen as a member of the Legislative Assembly, because he was convicted for offenses under sections 148 and 304 of the Indian Penal Code on 11th January, 1969, and was sentenced to imprisonment exceeding two years.
2. On the issue relating to disqualification, the facts that need be .noticed are that 9th January, 1969 was the last date for filing nominations in this constituency and respondent No. 1 was convicted two days later on 11th January, 1969 and sentenced, inter alia, to ten years' rigorous imprisonment under section 304, I.P.C. On 16th January, 1969, he filed an appeal against this conviction in the High Court. Polling took place on 9th February, 1969 and the result was declared on 11th February, 1969. Respondent No. 1 was declared as the successful candidate having secured the largest majority of votes. On 30th September, 1969, his appeal was allowed by the High Court and his conviction and sentence were set aside. At this time, the election petition was still pending. In fact, the judgment in the election petition was delivered on 27th October, 1969.
3. …....The argument on behalf of the appellant 5 was that, though respondent No. I was not disqualified at the time of filing of nomination, he was, in fact, disqualified on 9th February, 1969, the date of polling, as well as on 11th February, 1969, when the result, was declared,
-because his conviction had been recorded and he had been sentenced to ten years' rigorous imprisonment on 11th January, 1969. It was further urged that, though the appeal had been filed, that appeal did not have the effect of Wiping out this conviction. In these circumstances, it was urged that his election was void and should have been set aside on the ground of this disqualification.
4.This argument overlooks the fact that an appellate order of acquittal, takes effect retrospectively and the conviction and sentence are deemed to be set aside with effect from the date they were recorded. Once an order of acquittal has been made, it has to be held that the conviction has been wiped out and did not exist at all. The disqualification, which existed on the, 9th or 11th February, 1969 as a fact, was wiped out when the conviction recorded on 11th January, 1969 was set aside and that acquittal took effect from that very date. It is significant that the High Court, under section 106 ( 1) (a) of the Act, is to declare the election of a returned candidate to be void if the High Court is of opinion that, on the date of his election, a returned candidate was dot qualified, or was disqualified, to be chosen to fill the seat under the Constitution or the Act. It is true that the opinion has to be formed as to whether the successful candidate was disqualified on the date of his election; but, this opinion is to be formed by the High Court at the time of pronouncing the judgment in the elec- tion petition. In this. case, the High Court proceeded to pronounce the judgment on 27th October, 1969. The High Court had before it the order of acquittal which had taken effect retrospectively from 11th January, 1969. It was, therefore, impossible for the High Court to arrive at the opinion that on 9th or 11th February, 1969, respondent No. 1 was disqualified. The conviction and sentence had been retrospectively wiped out, so that the opinion required to be formed by the High Court to declare the election void could not be formed. The situation is similar to one that could have come into existence if Parliament itself had chosen to repeal s. 8 (2) of the Act retrospectively with effect from 11th January, 1969. Learned counsel conceded that, if a law had 6 been passed repealing s. 8 (2) of the Act and the law had been deemed to come into effect from 11th January, 1969, he could not have possibly urged thereafter, when the point came up before the High Court, that respondent No. 1 was disqualified on 9th or 11th February, 1969. The setting aside of the conviction and sentence in- appeal has a similar effect of wiping out retrospectively the disqualification. The High Court was, therefore, right in holding,, that respondent No. 1 was not disqualified and that his election was not void on that ground.” (emphasis is ours) Having given our thoughtful consideration to the aforesaid judgment, we are of the view that the same is wholly inapplicable to the facts and circumstances of this case. In Manni Lal's case (supra), on the date when the nomination papers were accepted, there was no impediment in the acceptance of the same. It is not so insofar as the present controversy is concerned. Here the scrutiny of the nomination papers was conducted on 16.12.2010. On the said date, the appellant suffered a disqualification in terms of Section 122(1)(c) of the 1994 Act. Be that as it may, relying upon various observations recorded in the aforesaid judgment, which have been extracted hereinabove, it is the vehement contention of the learned counsel for the appellant, that in this case also, as in Manni Lal's case (supra), the appellate order passed on 20.12.2010 should be deemed to have retrospective effect in setting aside the ejectment order dated 12.4.2010, as if no ejectment order was passed at all.
We have given our thoughtful consideration to the 7 solitary contention advanced by the learned counsel for the appellant, as has been noticed in the foregoing paragraphs. We are of the view that the present controversy has to be adjudicated in terms of Section 175 of the 1994 Act. Section 175 is being reproduced hereunder:
“175. Grounds for declaring elections to be void – (1) if the authorized officer is of the opinion:-
(a) that on the date of his election the elected person was not qualified, or was disqualified to be elected under this Act; or
(b) that any corrupt practice has been committed by the elected person or his agent or by any other person with the consent of the elected person or his agent; or
(c) that any nomination has been improperly rejected, or
(d) that the result of the election, in so far as it concerns the elected person, has been materially affected-
(i) by the improper acceptance of any
nomination, or
(ii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iii)by any non-compliance with the provisions of this act or of any rule made under this Act, the authorized officer shall declare the election of the elected persons to the void.
2. Subject to the provisions of section 175-A, when an election of an elected person has been declared to be void under sub-section (1), a fresh election shall be held under this provisions of this Act and the rules made thereunder.” (emphasis is ours) We are of the view that the controversy in hand is squarely covered by clause (d) (i) of Section 175 (1) of the 1994 Act. The question to be determined is, whether the nomination papers submitted by the appellant were improperly accepted by the 8 Returning Officer. The above acceptance was rendered by the Returning Officer on 16.12.2010. On the said date, the ejectment order dated 12.4.2010 was operative. There was no stay order passed by the appellate authority at that juncture. It was therefore imperative for the Returning Officer to consider the nomination papers by taking into consideration the ejectment order dated 12.4.2010. Had the said ejectment order been taken into consideration, there would have been no room whatsoever for the Returning Officer, but to reject the nomination papers submitted by the appellant. In case the Returning Officer had rejected the nomination papers of the appellant Duni Chand at the time of scrutiny on 16.12.2010, the order of rejection would have been valid. Learned counsel for the appellant does not dispute this position. In the above situation, Duni Chand could not have participated in the election process on 1.1.2011, and as such, there would have been no occasion for him to be elected. It is not possible for us to validate now, something which was not possible in the first instance. In Shri Manni Lal's case (supra), the nomination papers were validly accepted, as the appellant therein, had not suffered the disqualification of conviction at the time of scrutiny of the nomination papers. His participation in the actual election was therefore in consonance with law. Herein the position is otherwise. We are of the view, that all the parameters of Section 175(1)(d)(i) are met in the facts of this case. Since the appellant was elected, it is natural to conclude 9 that the improper acceptance of his nomination, has materially affected the result of the election.
In the above view of the matter, we are satisfied that the decision rendered by the High Court in setting aside the election of the appellant was fully justified, and in consonance with the provisions of Section 175(1)(d)(i) of the 1994 Act.
For the reasons recorded hereinabove, we find no merit in the instant appeal, and the same is accordingly dismissed.
…........................J.
[JAGDISH SINGH KHEHAR]
NEW DELHI; …........................J.
OCTOBER 28, 2014. [ARUN MISHRA]
10
ITEM NO.1 COURT NO.6 SECTION XIV
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s). 22225/2014
(Arising out of impugned final judgment and order dated 29/05/2014 in CWP No. 5117/2013 passed by the High Court Of H.p At Shimla) DUNI CHAND Petitioner(s) VERSUS STATE OF HIMACHAL PRADESH AND ORS Respondent(s) (with interim relief and office report) Date : 28/10/2014 This petition was called on for hearing today. CORAM :
HON'BLE MR. JUSTICE JAGDISH SINGH KHEHAR HON'BLE MR. JUSTICE ARUN MISHRA For Petitioner(s) Mr. J.S. Attri, Sr. Adv.
Mr. Sumeet Prakash, Adv.
for Mr. Rameshwar Prasad Goyal,AOR(NP) For Respondent(s) Mr. Suryanarayana Singh, AAG Ms. Pragati Neekhra,Adv.
Mr. Vivek Sharma, Adv.
For Mr. Kaushal Yadav,AOR(NP) UPON hearing the counsel the Court made the following O R D E R The appeal is dismissed in terms of the non-reportable judgment, which is placed on the file.
(Parveen Kr. Chawla) (Phoolan Wati Arora)
Court Master Assistant Registrar