Himachal Pradesh High Court
___________________________________________________ vs State Of Himachal Pradesh & Others on 13 November, 2018
Bench: Surya Kant, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
CWP No. 2540 of 2018
.
Date of decision: 13.11.2018
___________________________________________________
Sudesh Kumari .....Petitioner
Versus
State of Himachal Pradesh & others ...Respondents
___________________________________________________
Coram:
The Hon'ble Mr. Justice Surya Kant, Chief Justice
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 Yes
_____________________________________________
For the petitioner :r Mr. Anup Rattan, Advocate.
For the respondents: Mr. Ashok Sharma, Advocate General
with M/s J.K. Verma, Ranjan Sharma
& Nand Lal Thakur, Additional
Advocate Generals
Surya Kant, Chief Justice (Oral)
The petitioner seeks quashing of the order dated 16th May, 2017 (Annexure P-4), passed by Sub Divisional Officer (Civil), Amb, District Una, whereby election of the petitioner as Pradhan of Gram Panchayat Pirthipur, Tehsil Amb, District Una, held on 3rd January, 2016, was set aside, as well as the order dated 24th August, 2018 (Annexure P-6) passed by the Deputy Commissioner, Una, dismissing the petitioner's appeal against the above mentioned order of the Election Tribunal.
1Whether the reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 14/11/2018 22:57:19 :::HCHP -2-2. To be very precise, the Election Tribunal has set aside the election of petitioner as Pradhan of the Gram .
Panchayat in view of her conviction and sentence by the Sessions Judge, Kapurthala vide judgment dated 18th March, 2013, in a case under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, sentencing her to undergo rigorous imprisonment for 10 years with fine of `1,00,000/-
and because such conviction qualifies as 'Moral Turpitude' and is thus a disqualification under Section 8 of the Representation of People Act, 1951 read with Section 122 (i) (a) and (b) of the Himachal Pradesh Panchayati Raj Act, 1994.
3. There is no dispute on facts. The 6th respondent-
Sheela Singh filed an Election Petition under Section 163 of the Himachal Pradesh Panchayati Raj Act, 1994, seeking declaration to the effect that the election of the petitioner on the post of Pradhan, Gram Panchayat Pirthipur, Tehsil Amb, District Una, held on 3rd January, 2016, was void. She averred that the present petitioner alongwith two others was arrested by Punjab Police on 25th February, 2007, when they were found in possession of narcotic substances in polythene bags and FIR No. 47/2007, dated 25th February, 2007, under ::: Downloaded on - 14/11/2018 22:57:19 :::HCHP -3- Sections 21-61-85 of the NDPS Act was registered. The petitioner alongwith other co-accused was tried by the .
Sessions Judge, Kapurthala (Punjab) in Sessions Case No. 73 of 29.06 2007/RBT No. 112 of 17.11.2012 and having been found guilty, she was sentenced to undergo rigorous imprisonment for 10 years with fine of `1,00,000/- vide judgment dated 18th March, 2013.
4. The petitioner has filed Criminal Appeal in the Punjab and Haryana High Court, in which recovery of the fine was stayed but the petitioner was initially denied bail.
Subsequently, the High Court of Punjab and Haryana released her on bail on 24th March, 2014 after noticing the fact that she had already undergone actual sentence of 6 years and 11 months and the appeal was likely to take some time for its final disposal.
5. Meanwhile elections of the Gram Panchayats were held in the State of Himachal Pradesh in January, 2016. The petitioner contested the election of Pradhan, Gram Panchayat Pirthipur, Tehsil Amb, Disrict Una and having secured highest votes, she was declared elected. The 6th respondent also tried her luck in the said election, but she was badly defeated. In ::: Downloaded on - 14/11/2018 22:57:19 :::HCHP -4- fact, while the petitioner got 367 votes, the election petitioner (respondent No. 6) got only 15 votes. There were four other .
candidates in fray, out of whom the nearest rival of the petitioner was one Smt. Parkasho Devi, who got 292 votes.
The said election was assailed by respondent No. 6.
6. The 6th respondent in her Election Petition sought the following relief:
"It is, therefore, respectfully prayed that
(a) election of respondent No. 1 for the post of Pardhan, Gram Panchayat, Pirthipur held on 3rd January, 2016 may be declared void under section 175(1) (a) in view of Section 122 (1)(b) of Himachal Pradesh Panchayati Raj Act, 1994, as she is convicted and sentenced under NDPS Act for ten years and fine of Rs. 1,00,000/- and at present she has been released on bail granted by the Hon'ble High Court of Punjab & Haryana, during the pendency of the appeal."
7. As noticed at the outset, the Election Tribunal as well as the Appellate Authority have concurrently held that the conviction and sentence of the petitioner under the NDPS Act amounts to 'Moral Turpitude' and she having incurred disqualification under the Representation of People Act, 1951 read with Section 122(1) (a) & (b) of the Himachal Pradesh Panchayati Raj Act, 1994, her election was liable to be declared void.
::: Downloaded on - 14/11/2018 22:57:19 :::HCHP -5-8. Learned Counsel for the petitioner does not dispute the fact that by virtue of her conviction and .
consequential sentence, the petitioner has incurred disqualification to hold the post of Pradhan of Gram Panchayat. He, however, vehemently contends that the Election Petition filed by respondent No. 6 was liable to be dismissed at the threshold for non-observance of mandatory procedure contemplated under Section 163-A read with Section 165 of the Panchayati Raj Act, 1994.
9. With a view to appreciate the afore-noticed contention, it will be useful to reproduce Sections 163-A and 165 of the Panchayati Raj Act:-
163-A Parties to the petition: A petitioner shall join as respondent to his petition-
(a) where the petitioner, in addition to claiming declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; and
(b) any other candidate against whom allegations of any corrupt practice are made in the petition.
165. Procedure on receiving election petition:
If the election petition is not furnished in the prescribed manner, or the petition is not presented within the period specified in ::: Downloaded on - 14/11/2018 22:57:19 :::HCHP -6- section 163 the authorized officer shall dismiss the petition:
Provided that the petition shall not be .
dismissed without giving the petitioner an opportunity of being heard."
10. It is urged by learned Counsel for the petitioner that since respondent No. 6 in her Election Petition did not implead all the "contesting candidates" and the petitioner alone was arrayed as a respondent from amongst the candidates who had contested the election (besides official respondents), there is a complete violation of Clause (a) of Section 163-A of the Panchayati Raj Act and consequently, the Election Petition was liable to be dismissed without giving any opportunity of being heard to respondent No. 6, as provided under Section 165 of the Act.
11. We are, however, not impressed by the contention.
We say so for the reason that according to Clause (a) of Section 163-A of the Panchayati Raj Act, an Election Petitioner is required to implead all the contesting candidates as respondents in his petition only when, such Election Petitioner "claims a further declaration that he himself or any other candidate" be declared to have been duly elected. Similarly, if no such declaration is sought for his own or any other ::: Downloaded on - 14/11/2018 22:57:19 :::HCHP -7- candidate having been elected, then "all the returned candidates" are required to be impleaded as party .
respondents. In the election of a Pradhan of the Gram Panchayat, there will be only one returned candidate. The Legislature has consciously used the expression in plurality owing to the fact that some procedure, namely, as contemplated under Section 163-A of the Act, is to be followed even for challenging the election of members of the Gram Panchayat. Since there will be more than one returned candidates in the case of other than Pradhan/Up-Pradhan of a Gram Panchayat, all such candidates will have to be impleaded as party respondents if there is a challenge to the election of members of the Gram Panchayat. The only third eventuality is under Clause (b) of Section 163-A of the Act, where a candidate against whom allegations of any corrupt practice are made, is required to be impleaded as a party respondent.
12. In the instant case, respondent No. 6 sought only one declaration, namely, the election of the petitioner-returned candidate was void on account of her conviction and sentence in a case under the NDPS Act. There was no prayer made by ::: Downloaded on - 14/11/2018 22:57:19 :::HCHP -8- respondent No. 6 to declare her or any other candidate as the duly elected candidate of the Gram Panchayat. In the .
absence of any such prayer, the other four candidates, who were also in fray, were neither necessary nor proper party to be impleaded in the Election Petition.
13. We, thus, cannot accept the contention that the Election Petition was not presented in the prescribed manner.
Still further, no objection was taken by the petitioner in her reply regarding non-impleadment of the alleged necessary candidates.
14. For the aforesaid reasons, we do not find any merit in this writ petition. As such, the same is dismissed. Pending application(s), if any, also stands disposed of.
(Surya Kant) Chief Justice.
November 13, 2018 (Ajay Mohan Goel)
(hemlata) Judge.
::: Downloaded on - 14/11/2018 22:57:19 :::HCHP