Himachal Pradesh High Court
Bhup Ram vs Hp State Election Commission & Ors on 2 May, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No.381 of 2021
Date of Decision: 02.05.2024
_____________________________________________________________________
.
Bhup Ram .........Petitioner
Versus
HP State Election Commission & Ors. .......Respondents
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?
For the Petitioner: Mr. Ajay Chandel, Advocate.
For the respondents: Mr. Dalip Kumar Sharma, Advocate, for
respondent No. 1.
Mr. Anup Rattan, Advocate General with
r Mr.Rajan Kahol, Mr. B.C.Verma, Mr. Vishal
Panwar Additional Advocates General and Mr.
Ravi Chauhan, Deputy Advocate General, for
respondents-State.
Mr. Rajinder Thakur, Advocate, for respondent
No. 4.
Mr. Anirudh Sharma, Advocate, for
respondent No. 6.
___________________________________________________________________________
Sandeep Sharma, J. (Oral)
By way of instant petition filed under Article 226 of the Constitution of India, petitioner has prayed for the following main reliefs:
"(i) That Annexure P-2 dated 06.01.2021 i.e. the declaration of result as uncontested election and thereby declaring the respondent No. 6 as elected unopposed/uncontested to the post of Up-Pradhan, Gram ::: Downloaded on - 07/05/2024 20:32:36 :::CIS Panchayat Kot, Development Block Totu, Tehsil & District Shimla, HP, may kindly be quashed and set aside.
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(ii) That the respondents may kind be directed to hold the election of Up-Pradhan, Gram Panchayat Kot as the name of the petitioner as well as respondent No. 6 figure in the list of validly nominated candidates and they have not withdrawn their candidatures, as per the procedure given in the HP Panchayati Raj (Election) Rules, 1994.
(iii) That the respondents No. 1 & 2 may be directed to take appropriate action against the respondent No. 3 & 4 who has illegally issued declaration in Form No. 28 i.e. Annexure P-2 dated 06.01.2021 in violation of the HP Panchayati Raj (Election) Rules, 1994 and has mis-
conducted himself in the performance of public duties.
(iv) Entire record pertaining to the present case may kindly be summoned for the kind perusal of this Hon'ble Court."
2. Precisely, the grouse of the petitioner, as has been highlighted in the petition and further canvassed by Mr. Ajay Chandel, learned counsel representing petitioner is that though petitioner herein, who had also filed his nomination paper to contest the election for the post of Up-Pradhan, Gram Panchayat Kot, Development Block Totu, Tehsil & District Shimla, HP was declared eligible by the Assistant Returning Officer after verification of documents, but ::: Downloaded on - 07/05/2024 20:32:36 :::CIS subsequently respondent No. 6 was declared elected unopposed/uncontested to the post in question.
3. Having perused pleadings adduced on record by the .
respective parties, this Court finds that petitioner herein filed his nomination papers on 01.01.2021 for the posts of Up-Pradhan, Gram Panchayat Kot, Development Block Totu, Tehsil & District Shimla, HP. On 04.01.2021 Assistant Returning Officer i.e. respondent No. 4 after scrutiny of nomination paper declared the petitioner as well as other candidates including respondent No. 6 eligible to contest the election for the post in question and accordingly, displayed the list on notice board. On 06.01.2021 two candidates namely Dharmender Sharma and Parmod Kumar, who were also declared eligible and their names had appeared in the list of validly nominated candidates as per Form No. 21 of the HP Panchayati Raj (Election) Rules, 1994 withdrew their candidature, as a result thereof, only two candidates remained in fray. However, respondent No. 4 instead of issuing list of contesting candidates as per Form No. 24 of the HP Panchayati Raj (Election) Rules, 1994 declared respondent No. 6 as elected unopposed/uncontested as per Form No. 28 of the Rules illegally and arbitrarily and as such, petitioner has approached this Court in the instant proceedings. Having taken note of averments contained in the petition, this Court passed detailed order on 12.01.2021, which reads as under:
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"The petitioner herein is aggrieved by the rejection of his nomination. As per him, though, he was earlier held to be eligible in terms of the notification issued .
under Rule 39(8) of the Himachal Pradesh Panchayati Raj (Election) Rules, 1994, a copy of which has been appended with the petition as Annexure P-1, however, strangely thereafter vide Annexure P-2, Shri Som Mehta (respondent No. 6) was declared as duly elected and when the petitioner inquired as to how said Shri Som Mehta was declared as duly elected without any elections having taken place, he was informed that the nomination of the petitioner stood rejected and other two candidates had withdrawn their nominations.
In terms of order passed by the Hon'ble Division Bench of this Court on 08.01.2021, learned Advocate General, on instructions, has informed the Court that the name of the petitioner was never entered in the list of duly nominated members issued under Rule 39 (8) of the 1994 Rules. He has handed over a copy of the instructions imparted to him by District Election Commissioner-cum-Deputy Commissioner, Shimla, dated 10.01.2021, which instructions alongwith documents appended therewith, are ordered to be taken on record. Alongwith these instructions, another list of nominated members issued under Rule 39(8) of the Rules ibid has been appended, in terms whereof, only three candidates were declared ::: Downloaded on - 07/05/2024 20:32:36 :::CIS as duly nominated, which did not include the petitioner.
On the instructions of the Court, respondent .
No. 4, Shri Ramesh Chauhan, the Returning Officer, is present in the Court and he has pointed out that though both Annexure P-1 and the list of nominated candidates appended with the instructions handed over by learned Advocate General, bears his signatures, but the list appended with the petition as Annexure P-1 was got signed from him by the Secretary of the Gram Panchayat concerned, which he had bonafidely signed, however, contents thereof were not true as per the record, because he himself had earlier prepared the list of duly nominated members under Rule 39(8) of the 1994 Rules, which did not include the name of the petitioner, as his nomination was defective.
Be that as it may, the Court is not satisfied with the mode and manner in which the election process has been undertaken by the authorities concerned, which puts a question mark on the entire process of electing members and that too to the Gram Panchayats, which is the very foundation of the democratic setup of our nation.
Accordingly, it is ordered that the State Election Commission shall hold an inquiry into the issue of two nomination lists having been issued by the Returning Officer under Rule 39 (8) of the Rules (supra) in the present case and submit its inquiry report to the Court in sealed cover by the ::: Downloaded on - 07/05/2024 20:32:36 :::CIS next date of hearing. By the said date, respondents may file reply to the writ petition.
For the next date of hearing, notice be also .
issued to respondent No. 6. Steps for service be taken within as period of one week.
It is clarified that in the inquiry to be so held, all parties, including respondent No.4 shall be associated. The Court stands informed that respondent No. 6 already stands declared elected as unopposed. His election shall abide by decision of the writ petition.
r In addition, as prayed for by learned Counsel for the petitioner, the petitioner shall be at liberty to avail the statutory remedy of filing the election petition against the election of respondent No. 6. In the event of any such petition being filed, the authority concerned shall deal with the same uninfluenced by pendency of this writ petition. In any such proceedings, if initiated, notice be issued and pleadings etc. be ordered to be completed, however, hearing thereof be done either after the decision of this writ petition or with the leave of this Court."
4. Pursuant to aforesaid order, Sub Divisional Magistrate (Civil), Shimla, Urban, District Shimla conducted inquiry and submitted his report, which is on record (available at page 26), perusal whereof clearly reveals that Assistant Returning Officer wrongly declared respondent No. 6 as elected unopposed because documents ::: Downloaded on - 07/05/2024 20:32:36 :::CIS submitted by the petitioner at the time of filling up nomination papers were found correct as per requirement and Assistant Returning Officer had published his name alongwith other candidates in the list of .
validly nominated candidates on 04.01.2021. Since on 06.01.2021, two validly nominated candidates withdrew their candidature, two candidates i.e. petitioner and respondent No. 6 were left to contest. However, Assistant Returning Officer instead of issuing list of contesting candidates as per Form No. 24 of the HP Panchayati Raj (Election) Rules, r 1994 wrongly and unauthorizedly declared respondent No. 6 as elected unopposed and uncontested. Though, on inquiry petitioner herein came to be informed by the Assistant Returning Officer that his nomination stood rejected on 04.01.2021, which claim of respondent No. 4 has been found to be incorrect by the SDM (Civil). Having perused the inquiry report in its entirety, this court finds that nomination papers submitted by the petitioner were in order and on 04.01.2021 he was declared fit to contest the election. Inquiry report further reveals that one forged document was prepared by respondent No. 4 to demonstrate that list of three validly nominated persons was prepared by him prior to his declaring the respondent No. 6 as elected unopposed because two other validly nominated candidates had withdrawn their candidature.
5. Having perused inquiry report in its entirety, there appears to be merit in the claim of the petitioner that he was eligible to ::: Downloaded on - 07/05/2024 20:32:36 :::CIS contest the election, but was ousted by respondent No. 4 illegally with a view to give undue benefit to respondent No. 6, who ultimately came to be declared as elected uncontested/unopposed. But now question .
needs to be determined is "whether relief as prayed can be granted in the instant proceedings, especially when, petitioner has already filed election petition, laying therein challenge to election of respondent No.
6." Needless to say, once election is complete, challenge to the same can only be laid by way of election petition. Section 162 of HP Panchayati Raj Act clearly provides that no election under the Act shall be called in question except by election petition presented in accordance with the provision of this chapter. Since respondent No. 6 has already been declared successful and pursuant to his being elected against the post in question he is holding office, election can only be set aside, may be on the grounds as have been raised in this petition, by way of election petition. During proceedings of the case, learned counsel representing respondent No. 1 made available copy of election petition filed by the petitioner, perusal whereof clearly reveals that on same and similar grounds, as have been taken note herein above, election petition has been filed.
6. Consequently, in view of above, though this Court sees no reason to return finding with regard to legality of election to the post in question of respondent No. 6, which otherwise shall be determined by the competent authority in election proceedings pending before it, but ::: Downloaded on - 07/05/2024 20:32:36 :::CIS certainly having taken note of conduct of respondent No. 4, which is apparent from the inquiry report placed on record, this Court deems it fit to direct Deputy Commissioner, Shimla to take appropriate action .
in accordance with law against respondent No.4 as well as other persons responsible for illegal act as pointed out in the inquiry report in a time bound manner. Ordered accordingly. Needless to say, authority concerned, while doing the needful in terms of directions contained in the instant order shall afford an opportunity of being heard to respondent No. 4 and pass detailed speaking order and thereafter, report with regard to compliance of aforesaid direction shall be filed by the Deputy Commissioner after expiry of two months in the Registry of this Court. SDM Officer (Civil) (Rural), before whom election petition is pending, is also directed to proceed with the election petition and decide the same expeditiously, preferably within a period of two months. Learned counsel representing parties undertake to cause appearance of their respective clients before SDM (Civil), Shimla, enabling him to proceed with the matter in terms of directions contained in the instant order.
May 02, 2024 (Sandeep Sharma),
sunil Judge
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