Himachal Pradesh High Court
Shri Banshi Ram Chauhan vs State Of Himachal Pradesh And Others on 17 November, 2016
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No.: 2072 of 2011
Date of Decision: 17.11.2016
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______________________________________________________________________
Shri Banshi Ram Chauhan ....Petitioner.
Vs.
State of Himachal Pradesh and others .....Respondents.
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Coram:
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge
Whether approved for reporting?1 Yes.
For the petitioner: rt Mr. B.C. Negi, Senior Advocate, with Mr.
Narender Thakur, Advocate.
For the respondents: Mr. Vikram Thakur & Ms. Parul Negi,
Deputy Advocate Generals, for
respondents No. 1 and 2.
Mr. Debender Sharma, Advocate, vice
Mr. C.N. Singh, Advocate, for
respondents No. 3 to 5.
None for respondents No. 6 to 9.
Ajay Mohan Goel, Judge (Oral):
By way of this writ petition, the petitioner has challenged order dated 14.03.2011 (Annexure P-5) passed by respondent No. 2 {Sub-
Divisional Officer (Civil), Poanta Sahib, District Sirmour}, vide which the said respondent permitted an Election Petition filed by Shri Mohar Singh (respondent No. 3 in the present petition) to be withdrawn without Whether the reporters of the local papers may be allowed to see the Judgment?
::: Downloaded on - 15/04/2017 21:34:18 :::HCHP 2following the provisions of Rule-96 of Himachal Pradesh Panchayati Raj (Election) Rules, 1994.
2. Facts as are borne out from the file are that an Election .
Petition was filed by respondent No. 3 Mohar Singh against the election of respondents No. 4 and 5 as Chairman and Vice-Chairman, respectively of Panchayat Samiti, Shillai, which elections were conducted in the year 2010. Petitioner before this Court was also an elected Member of the of Panchayat Samiti, Shillai and was impleaded as a party respondent in the Election Petition, though he was impleaded only as a proforma rt respondent as his election was not under challenge. The Election Petition was heard by respondent No. 2 on 10.03.2011, on which date, after hearing the arguments, the case was fixed for 14.03.2011 for announcement of the order. However, on 14.03.2011 itself, Mohar Singh moved an application for withdrawal of the Election Petition so filed by him which was allowed by respondent No. 2 on 14.03.2011 itself without issuance of any notice to the respondents in the Election Petition including the present petitioner and without fixing a date of hearing of the application as per the provisions of Rule-96(2) of Himachal Pradesh Panchayati Raj (Election) Rules, 1994.
3. Feeling aggrieved by the same, the petitioner has filed this petition.
::: Downloaded on - 15/04/2017 21:34:18 :::HCHP 34. According to Mr. B.C. Negi, learned Senior Counsel appearing for the petitioner, Rule-96 of Himachal Pradesh Panchayati Raj (Election) Rules, 1994 lays down the procedure as to how an Election Petition filed .
under the Panchayati Raj Act can be withdrawn. Mr. Negi has submitted that an Election Petition so filed under the Panchayati Raj Act can be withdrawn only after the permission of the Authorized Officer to whom the petition has been presented and when an application for withdrawal of is in fact made, a notice thereof fixing a date for hearing of the application is mandatorily required to be given to all the parties to the petition.
rt According to Mr. Negi, the present petitioner, who was one of the respondents in the Election Petition which was filed by Shri Mohar Singh, was never served upon any notice for withdrawal of the petition which was filed by Mohar Singh and the appropriate authority, i.e. respondent No. 2 ordered the petition to be withdrawn without following the provisions contemplated in Rule-96 (supra), which order thus passed by respondent No. 2 was not sustainable in law and was liable to be quashed.
5. In counter to the arguments made on behalf of the petitioner, learned counsel for the respondents have submitted that no prejudice has been caused to the petitioner by the withdrawal of the Election Petition as neither the election of the petitioner was under challenge in the Election Petition and therein also he was only impleaded as a formal party/proforma respondent. It was further urged by learned counsel for ::: Downloaded on - 15/04/2017 21:34:18 :::HCHP 4 respondents that with the efflux of time, the petition has been rendered as infructuous.
6. I have heard the learned counsel for the parties and also .
perused the pleadings of the parties.
7. Keeping in view the fact that the elections which were assailed by Mohar Singh by way of Election Petition were held in December, 2010 and the term of the Members so selected in the said of elections is since over and thereafter fresh Panchayat elections have also been conducted in the entire State, no fruitful purpose shall be served by rt granting the prayers which have been prayed for by the petitioner in the present writ petition. However, this Court can also not ignore the fact that there is merit in the contention of the learned Senior Counsel for the petitioner that respondent No. 2 permitted the Election Petition to be withdrawn in utter violation of the provisions of Rule 96 (2) of Himachal Pradesh Panchayati Raj (Election) Rules, 1994. This Court is not even remotely suggesting that respondent No. 2 was not having authority to permit Shri Mohar Singh to withdraw the Election Petition, however, the said withdrawal should have been permitted by following the procedure laid down in Rule-96 of Himachal Pradesh Panchayati Raj (Election) Rules, 1994.
8. After receiving the application for withdrawal of the Election Petition, a notice thereof should have been given to all other parties to the petition by respondent No. 2 after fixing a date for hearing the ::: Downloaded on - 15/04/2017 21:34:18 :::HCHP 5 application. It is pertinent to take note of the fact that word used in Sub-
rule (2) of Rule 96 is "shall", meaning thereby that after receiving the application for withdrawal of Election Petition, it is not the discretion of .
the Authorized Officer whether or not to issue notice of the same to all other parties to the petition, rather it is mandatory for the Authorized Officer to issue notice thereof after fixing a date for hearing of the application to all other parties to the petition.
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9. Coming to the facts of the present case, the hot haste manner in which respondent No. 2 has acted in the matter is evident rt from the fact that not only the application for withdrawal of the Election Petition was filed by Mohar Singh on 14.03.2011, after taking the same on record, respondent No. 2 passed orders on the same at 10:15 a.m. itself. Respondent No. 2 has not even appreciated that before permitting the Election Petition to be withdrawn, there has to be an application of mind made by the Authorized Officer to the effect that as to whether the application so filed for withdrawal of the Election Petition was induced by bargain or consideration or not. This Court deprecates the manner in which the Election Petition was permitted to be withdrawn by respondent No. 2. However, as I have already mentioned above, keeping in view the fact that term of the Members whose election was under challenge has expired and new incumbents have come in their place, this Court is not interfering with the order passed by respondent No. 2, however, respondent No. 1 is directed to ensure that all Authorized Officers ::: Downloaded on - 15/04/2017 21:34:18 :::HCHP 6 contemplated under Rule- 96 of Himachal Pradesh Panchayati Raj (Election) Rules, 1994 are issued instructions that in future while dealing with application for withdrawal of Election Petition, the procedure .
prescribed under Rule-96 (supra) shall be strictly adheared to.
With the said directions, the present writ petition is disposed of. No order as to costs.
(Ajay Mohan Goel) of Judge November 17, 2016 (bhupender) rt ::: Downloaded on - 15/04/2017 21:34:18 :::HCHP