Jharkhand High Court
Kumar Nishant (Male) vs The State Of Jharkhand on 4 August, 2023
Author: Sanjaya Kumar Mishra
Bench: Sanjaya Kumar Mishra, Ananda Sen
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 02 of 2023
Kumar Nishant (male), aged about- 35 years, son of Sri Birendra
Singh, Resident of Shanti Nagar, Steam Colony, Near Kalibari,
Patratu, P.O. and P.S. Patratu, District - Ramgarh (Jharkhand).
... ... ... Petitioner-Appellant
Versus
1. The State of Jharkhand
2. The State Election Commissioner, Jharkhand at Ranchi Office, at
Ratu Road, Near Bank of India, Ratu Branch, Judge Colony,
Indrapuri Colony, P.O. and P.S. Ratu, District - Ranchi.
3. The Secretary, The State Election Commission, Jharkhand at
Ranchi, Office at Ratu Road, Near Bank of India, Ratu Branch
Judge Colony, Indrapuri Colony, P.O. and P.S. Ratu, District -
Ranchi.
4. The District Election Officer (Panchayat)-cum-Deputy
Commissioner, Ramgarh, P.O. and P.S. Ramgarh, District -
Ramgarh.
5. The Returning Officer XVI, Ramgarh Zila Parishad Territorial
Constituency No.5 (Patratu), P.O. & P.S. Patratu, District -
Ramgarh.
... ... ... Respondents/Respondents
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CORAM: SRI SANJAYA KUMAR MISHRA, C.J.
SRI ANANDA SEN, J.
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For the Appellant: Mr. Shashi Bhushan Kr. Mangalam, Advocate
For the State: Mr. Ashutosh Anand, A.A.G.-III
For the Election Comm: Mr. Sumeet Gadodia, Advocate
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05/Dated: 04.08.2023
Upon hearing the learned counsel for the parties, this Court
passed the following, (Per Sanjaya Kumar Mishra, C.J.)
ORDER
1) By filing this intra-court appeal, the petitioner has prayed for setting aside the order passed by the learned Single Judge on 07.12.2022 in W.P. (C) No. 2185 of 2022.
2) The aforesaid writ petition was filed by the petitioner for issuance of a writ in the nature of certiorari for quashing the order dated 06.05.2022 passed by the State Election Commissioner, Jharkhand (respondent No.2) which has been communicated vide 2 L.P.A. No. 02 of 2023 Memo No.1049 of the said date under the signature of the Secretary of the State Election Commission, Jharkhand, Ranchi. By issuing such order, the State Election Commissioner in exercise of the powers conferred under Section 66(5) of the Jharkhand Panchayat Raj Act, 2001 has countermanded the election process of XVI, Ramgarh Zila Parishad Territorial Constituency No.5, Patratu (hereinafter referred to the 'constituency'). The petitioner has also prayed for issuance of a writ of mandamus upon the Returning Officer (respondent No.5) to declare the petitioner as a duly elected candidate of Zila Parishad from the said constituency in view of the provisions as contained in Rule 51(1) of the Jharkhand Panchayat Election Rules, 2001 (hereinafter referred to as the "the Rules"), as the petitioner was the only candidate who filed nomination for the said constituency which was found valid on scrutiny.
3) The District Election Officer, Ramgarh (respondent No.4) published a programme by way of a public notice to the Three-Tyre Panchayat (General) Election, 2022 for constitution of Ramgarh Zila Parishad and the detailed schedule of election to elect members of the said constituency was as follows:-
Date of publication of notification:- 25.04.2022 Last date of filing of nomination papers:- 02.05.022 Date fixed for scrutiny of nomination papers:- 04/05.05.2022 Date of withdrawal of nomination papers:- 06/07.05.2022 Date of allotment of symbols:- 09.05.2022 Date of voting:- 24.05.2022 Date of counting:- 31.05.2022
4) It is the case of the petitioner that he filed nomination before the respondent No.5 to contest the election from the said constituency. Some other persons also purchased nomination papers to contest the said elections, however, they did not submit their nomination papers till the last 3 L.P.A. No. 02 of 2023 date and the time fixed for filing of the same. During the process of scrutiny, the petitioner's nomination papers were found to be in order and valid and was accepted by respondent No.5. Since there was no other candidate to contest the election and the petitioner had not withdrawn his candidature till the last date and time fixed for withdrawal of candidature, he should have been declared elected uncontested by respondent No.5 immediately after 3.00 p.m. on 07.05.2022. Taking resort to Rule 51(1) of the Rules, the petitioner claimed that impugned order dated 06.05.2022 countermanding the election process of the said constituency should be quashed. s
5) It is submitted on behalf of the petitioner that there is no complaint from any officer either of the District Administration or the State Administration or any officer associated with the conduct of election of the said constituency that any person intending to file his/her nomination papers to contest the said election was prevented from filing nomination papers. However, after filing of the nomination papers, the petitioner was called to Patratu Police Station on 02.05.2022 at 9.30 p.m. by the Superintendent of Police, Ramgarh, whereupon he went there but was illegally detained by the Officer-in-Charge till 00:50 A.M. of 04.05.2022 despite the fact that he was not needed in connection with any criminal case.
On the basis of the self-statement of S.I. Sahshi Prakash, Officer-in-Charge of Patratu Police Station, an F.I.R. being Patratu P.S. Case No. 76 of 2022 was lodged on 04.05.2022 at 00.50 A.M. for the offences under Sections 342/171(E)/171(F)/504/506/120(B) of the Indian Penal Code, 1860, Section 68A of the Act of 2001 and Section 123(1) & (2) of the Representation of People Act, 1951. The petitioner further submitted that one Kanchan Devi, who had made complaint before the Superintendent of Police, Ramgarh against the petitioner did not even purchase the nomination paper. Moreover, the District Administration/Police showed extraordinary indulgence towards those persons who had purchased the nomination papers to contest election of the said constituency by 4 L.P.A. No. 02 of 2023 recording their statements wherein they alleged that a person namely Vikash Tiwary threatened them not to file their nomination papers and surrender those before the members of 'Pandey Group'. According to their statements, they were also told by Vikash Tiwary that since the brother of Nishi Pandey was to win the election uncontested, no one should file nomination papers in the said constituency. It was alleged that one Bittu Kumar Singh, who had purchased nomination papers to contest election from the said constituency, was illegally confined by the petitioner in his vehicle and was pressurized not to file his nomination papers. It was further submitted that that veracity of the allegations made in the F.I.R. against the petitioner is yet to be tested in the court of law and as such, issuance of the impugned order merely on the basis of allegation made in the F.I.R. is highly arbitrary and illegal. If the situation in the said constituency was that the petitioner was to be declared elected as per the provisions of Rule 51(1) of the Rules having filed the only valid nomination paper, there was no occasion for Patratu Police or Ramgarh Police to illegally intervene in the matter even if they were informed by some of the candidates that they were prevented from filing their nomination papers. The action taken by Ramgarh/Patratu Police on the basis of so-called secret information was an illegal intervention with the statutory process. The police called those persons from their respective houses who purchased the nomination papers and recorded their statements after lodging the F.I.R. against the petitioner. Otherwise also, the allegation made in the F.I.R. can only be termed as "corrupt practice" under Section 123 of the Representation of People Act, 1951 which may be a ground to get the election of the returned candidate declared as void under Section 152(1)(d)(ii) of the Act, but the same cannot be a ground 5 L.P.A. No. 02 of 2023 to countermand the election before ascertaining the real facts pursuant to the allegations made by the police against the petitioner.
6) It is submitted from the side of the respondents that respondent No.2 has rightly countermanded the election of the said constituency in exercise of powers conferred under Section 66(5) of the Act. It is also submitted that Section 66(5) of the Act confers specific power to the State Election Commission to initiate suitable action on examination of report submitted by Observer or on receipt of allegation of irregularities in Panchayat Election and such action may include countermanding the election, stay of election and stay on counting of votes. The District Election Officer (Panchayat)-cum-Deputy Commissioner, Ramgarh (respondent No.4) vide letter No. 423 dated 05.05.2022 reported the Secretary, State Election Commission, Jharkhand, Ranchi (respondent No.3) that as per information provided by the Superintendent of Police, Ramgarh, vide letter No. 2267/Go. dated 04.05.2022, the petitioner had forcibly prevented the other candidates from filing their nomination papers. The General Observer, Observer Cell, Ramgarh, vide letter No. 22 dated 05.05.2022 issued to the respondent No.3, also confirmed the report of respondent No.4 and recommended for taking action in accordance with law. Hence, it is submitted that the countermanding of the election of the said constituency was necessary to ensure free and fair election. Learned counsel for the aforesaid respondents has also relied upon the judgment of the Hon'ble Supreme Court in the case of Mohinder Singh Gill Vs. Chief Election Commissioner, (1978) 1 SCC 405, wherein the law relating to countermanding has been laid down.
7) The learned Single Judge took into consideration the case of Kuldip Nayar Vs Union of India, (2006) 7 SCC 1, and Ajay Pradhan Vs. State of M.P., (1988) 4 SCC 514, and held that Article 324 of the 6 L.P.A. No. 02 of 2023 Constitution of India empowers the Election Commission to act for the avowed purpose of ensuring free and fair elections. In this context, a very wide connotation commencing from the Presidential notification calling upon the electorate to elect and culminating in the final declaration of election result of the returned candidates. However, when the Parliament or any State Legislature has made valid law relating to or in connection with elections, the Commission shall act in conformity with and not in violation of such provisions. For the sake of convenience, we would take note of the exact words enacted by the Legislative Assembly, Jharkhand, in the Jharkhand Panchayat Raj Act, 2001, which read as under:-
"Section 66
1. xxx xxx xxx xxx
2. xxx xxx xxx xxx
3. xxx xxx xxx xxx
4. xxx xxx xxx xxx
5. The State Election Commission the suo moto, or shall have discretion to initiate suitable action on examination of report submitted by Observer or on receipt of allegations of irregularities in Panchayat elections and such action may include countermanding of election, stay on election and stay of counting of votes."
8) Thus, a plain reading of the aforesaid provision lays down that the Election Commission shall have the discretion to initiate suitable action on examination of report submitted by Observer or on receipt of allegations of irregularities in Panchayat elections and such action may include countermanding of election, stay on election, etc.
9) Thus, the Legislature has empowered the State Election Commission in very clear, unambiguous and settled terms to take suitable actions on examination of report submitted by the Observer, or, on receipt of irregularities in Panchayat Elections. Such action may 7 L.P.A. No. 02 of 2023 include countermanding, etc. The word "irregularities" has not been defined in the Act. However, it has a very wide scope. The constitutional scheme guarantees free and fair election and for that reason, the State Election Commission has been provided for free and fair elections in the sense that none of the intending candidates will be forced to not file nomination or to withdraw the nomination filed by them. Similarly, free and fair election also means that every voter of the constituency has the right to exercise their franchise without any kind of influence. The right of the voters in this connection is inviolable and, therefore, any action taken by the authorities in this regard has to be very strictly dealt with.
10) In that view of the matter, this Court is of the opinion that since the General Observer has reported to the Election Commission about irregularities allegedly committed by the petitioner and the fact that despite purchase of nomination papers, none of those persons filed their nomination, this Court is of the further opinion that the learned Single Judge has not committed any error in dismissing the writ petition filed by the petitioner. We find no valid reason to set aside or differ with the finding recorded by the learned Single Judge and, therefore, this Letters Patent Appeal is hereby dismissed being devoid of any merit. However, there shall be no orders as to costs.
11) Pending Interlocutory Applications, if any, stand disposed of.
12) Urgent Certified copies as per Rules.
(Sanjaya Kumar Mishra, C.J.) (Ananda Sen, J.) N.A.F.R. Manoj/-