Himachal Pradesh High Court
Reserved On: September 12 vs State Of Himachal Pradesh on 16 October, 2024
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
2024:HHC:9838 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 2854 of 2023 Reserved on: September 12 , 2024 Decided on: October 16 , 2024 Basant Lal ...Petitioner Versus State of Himachal Pradesh through Secretary (Panchayati Raj) & ors. ...Respondents Coram:
Ms. Justice Jyotsna Rewal Dua, Judge 1 Whether approved for reporting? Yes.
For the petitioner : Mr. K.D. Sood, Senior Advocate with Mr. Mukul Sood & Mr. Het Ram Thakur, Advocates.
For the respondents : Mr. Y.P.S. Dhaulta, Mr. L.N. Sharma, Mr. Amandeep Sharma, Additional Advocates General and Mr. Sikander Bhushan, Deputy Advocate General for respondents No. 1 to 3- State.
Mr. V.B. Verma, Mr. Mukul Sharma & Ms. Anu Minhas, Advocates, for respondent No. 4.
Jyotsna Rewal Dua, Judge Under concurrent orders passed by the Authorised Officer and the Appellate Authority, the election of the petitioner to the office/post of Pradhan Gram Panchayat Pangna District Mandi was set aside mainly on the ground that he had furnished false & 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
2 2024:HHC:9838 incorrect particulars about his criminal antecedents in his nomination form. Feeling aggrieved, instant petition has been preferred.
2. Facts 2(i) Petitioner and respondents No. 4 to 7 i.e. five candidates contested the elections held on 17.01.2021 for the office/post of Pradhan Gram Panchayat Pangna, District Mandi, H.P. Petitioner with 474 votes was declared elected on 17.01.2021. His nearest rival respondent No. 5 got 365 votes. Respondent No. 4 with 241 votes (declared third in the election result) challenged petitioner's election by filing Election Petition No. 3/2021 on 17.02.2021. The Election Petition was filed under Section 161 read with Section 163 of the Himachal Pradesh Panchayati Raj Act, 1994 (in short the 'Panchayati Raj Act') before the Sub-Divisional Officer (C), Karsog, District Mandi - the Authorized Officer under Section 161(i) of the Panchayati Raj Act.
2(ii) The Election Petition was filed on 17.02.2021 primarily on the ground that:- The petitioner was involved in a criminal case; FIR No. 114/2017 was registered against him which led to registration of criminal case No. 38/2018 (State vs. Shanta Devi) in the Court of learned Judicial Magistrate First Class, Karsog, Distt. Mandi, under Sections 447, 143, 149 & 427 of the Indian Penal Code and Sections 32 & 33 of the Indian Forests Act; Petitioner had 3 2024:HHC:9838 knowingly, unlawfully and deliberately concealed this fact and furnished false affidavit alongwith his nomination form that no criminal case has been registered against him.
Prayer was made to declare petitioner's election void and to declare him disqualified from contesting the election. 2(iii) The Sub-Divisional Officer (C) Karsog conducted proceedings in the Election Petition. The petition was allowed on 25.04.2022. Petitioner's election was declared null and void. 2(iv) Against the aforesaid decision, petitioner preferred an appeal on 05.05.2022 under Section 181 of the Panchayati Raj Act before respondent No. 2 - the Deputy Commissioner, District Mandi. The appeal was dismissed on 01.05.2023.
2(v) Petitioner has now taken recourse to Article 226 of the Constitution of India in laying challenge to the aforesaid orders. Pursuant to an interim order passed in this matter on 18.05.2023, the petitioner is continuing as Pradhan Gram Panchayat, Pangna.
3. Submissions 3(i) Learned Senior Counsel for the petitioner submitted that:-
3(i)(a) Neither under the Panchayati Raj Act nor in the Rules framed thereunder, the alleged act of the petitioner - a contesting candidate in not giving information about registration of criminal case
4 2024:HHC:9838 against him, amounts to disqualification from contesting election under Section 122 of the Panchayati Raj Act.
Hence, even if there was a criminal case registered against the petitioner and he did not disclose this fact, the same would not come within the purview of disqualification under the Act so as to bar him from being elected as an office bearer of the Gram Panchayat.
3(i)(b) Petitioner had not been convicted of any offence. He did not suffer from any disqualification. Pendency of a criminal case had no effect upon his election. Petitioner did not intentionally conceal any fact or gave false information. The affidavit requiring declaration of criminal antecedents was meaningless and an empty formality. Furnishing such like affidavit has not been contemplated either under the Panchayati Raj Act or the Rules framed thereunder. Extraneous information sought by the respondents and incorrect response thereto by the petitioner is of no consequence. The response of the petitioner to such information would not affect his election.
3(i)(c) It was also submitted that election petition filed before respondent No. 3, the Sub Divisional Officer (C) Karsog - the Authorized Officer under the Panchayati Raj Act was not maintainable. Respondent No. 3 had no jurisdiction to try the 5 2024:HHC:9838 Election Petition after the declaration of result. The jurisdiction to determine such question lay with respondent No. 2 the Deputy Commissioner, District Mandi.
3(i)(d) Learned Senior counsel for the petitioner also elaborated interplay of different provisions of the Panchayati Raj Act and the Rules framed thereunder. It was emphasized that not giving correct information in respect of pendency of criminal case against the petitioner in the face of the provisions existing in the Panchayati Raj Act and the Rules would neither amount to disqualification nor it would amount to corrupt practice, the election result would not be vitiated.
3(ii) Countering the above submissions, learned Counsel appearing for respondent No. 4 as also the learned Additional Advocate General contended that:-
3(ii)(a) Respondent No. 3 - the concerned Sub Divisional Officer (C) was the Authorized Officer under the Panchayati Raj Act to hear and adjudicate the election petition. Presentation of the election petition by respondent No. 4 before respondent No. 3 was in accordance with Section 161 of the Panchayati Raj Act.
3(ii)(b) Petitioner had concealed the information required to be furnished in the affidavit which was part of the nomination form. Adherence to provisions of Section 122 of the Panchayati Raj Act is 6 2024:HHC:9838 sine qua non for filing nomination for contesting election to Panchayats while Section 175 details the grounds on which an election can be declared as null & void. The State Election Commission on 17.01.2004 promulgated the Himachal Pradesh Panchayats and Municipalities Elections (Disclosure of Specified Information by the Candidates) Regulations, 2004. These Regulations provide for an affidavit to be furnished by the contesting candidate in form of an annexure to the nomination papers. Petitioner concealed material facts regarding criminal case pending against him before the Court of learned Judicial Magistrate First Class, Karsog in the affidavit filed by him with his nomination papers for election to the post/office of Pradhan Gram Panchayat Pangna.
3(ii)(c) Charges had been framed in the criminal case registered against the petitioner on 20.04.2018 in the Court of learned Judicial Magistrate First Class, Karsog. The offences with which the petitioner has been charged can result in imprisonment of two years or fine or both. Reference was also made by the learned Counsel to the provisions of the Panchayati Raj Act, Rules, Notifications/ Instructions issued by the State Election Commission. Reliance was also placed upon several decisions on the subject matter.
7 2024:HHC:9838
4. Consideration Heard learned Counsel for the parties and considered the case file.
4(i) It will be appropriate to first refer to the provisions involved relating to disqualification under the H.P. Panchayati Raj Act.
Disqualification for being chosen and for being an office bearer of a Panchayat in relation to false declaration is provided under section 122(1)(n) as under:-
"122. Disqualification. - (1) A person shall be disqualified for being chosen as, and for being, an office bearer, of a Panchayat -
(a) to (m) ... ...
(n) if he has made any false declaration as required
under this Act or the rules made thereunder:
Provided that section 11 of the Himachal Pradesh
Panchayati Raj (Amendment) Act, 2005 shall not have the effect on the office bearers of existing Panchayats."
Section 122(1)(n) refers to the Rules made under the Panchayati Raj Act. Section 186 of the Panchayati Raj Act pertains to power of the State to make Rules and reads as under:-
"186. Power to make rules. - (1) The State Government may make rules for carrying out the purposes of this Act. (2) In particular and without prejudice to the generality of the foregoing powers, such rules may provide for all or any of the matters which under any provisions of this Act, are required to be prescribed or to be provided for by rules.
8 2024:HHC:9838 (3) All rules shall be subject to the condition of previous publication.
(4) All rules shall be laid on the Table of Legislative Assembly.
(5) In making any rule, the State Government may direct that a breach thereof shall be punishable with fine which may extend to two hundred and fifty rupees and in the case of continuing breach with a further fine which may extend to five rupees for every day during which the breach continues after the first conviction."
Learned Senior Counsel for the petitioner strongly urged there being no Rules in place to hold that non disclosure of information about pendency of a criminal case would amount to a disqualification, the allegation against the petitioner about his having not disclosed about pendency of a criminal case cannot be taken against him as a disqualification. Petitioner's withholding such information is not covered under 'disqualification' provided under Section 122 of the Panchayati Raj Act or the Rules framed thereunder. The disqualification can only be as per the provisions of the Act or the Rules and not otherwise.
It was also contended that instructions/notifications of the State Election Commission till the time these are made part of the Panchayati Raj Act or the Rules, cannot be held against the petitioner to disqualify him. The instructions/notification issued by 9 2024:HHC:9838 the State Election Commission on 17.02.2004 do not have statutory force. Petitioner's not furnishing affidavit in terms thereof cannot affect his election.
4(ii) At this stage, it would be worthwhile to notice that the act alleged against the petitioner is not a mere allegation. Rather, it is a fact which is not denied by him that at the time of contesting elections to the post of Pradhan Gram Panchayat, FIR No. 114/2017 had been registered against him. Not only that, charges had also been framed against the petitioner in the criminal case No. 38 of 2018 registered on the basis of the aforesaid FIR. The charges were framed under Sections 447, 143, 149 & 427 of the Indian Penal Code and Sections 32 & 33 of the Indian Forests Act. Petitioner can be imprisoned for a period of two years in case of conviction.
It is also a fact that petitioner furnished his nomination form, the portion thereof relevant to the controversy goes as under:-
"अनु बन्ध-1 (उम्मीदवार द्वारा रिटर्निंग अधिकारी के समक्ष नामांकन द्वार द्वारा रिटर्निंग अधिकारी के समक्ष नामांकना रिर द्वारा रिटर्निंग अधिकारी के समक्ष नामांकनटरि ं ग अधिकारी के समक्ष नामांकन अरि कार द्वारा रिटर्निंग अधिकारी के समक्ष नामांकनी के समक्ष नामांकन समक्ष नामांकन ामांक -पत्र के समक्ष नामांकन साथ प्रस्तुत रिकए जाने जा े समक्ष नामांकन वाला शपथ - पत्र / घोषणा-पत्र) तहसील कर द्वारा रिटर्निंग अधिकारी के समक्ष नामांकनसोग अधिकारी के समक्ष नामांकन रिवकास खण्ड कर द्वारा रिटर्निंग अधिकारी के समक्ष नामांकनसोग अधिकारी के समक्ष नामांकन रिजला मण्ड ी की .................
ग अधिकारी के समक्ष नामांकनर द्वारा रिटर्निंग अधिकारी के समक्ष नामांकनपारिलका/ ग्राम पं चायत / पं चायत सरिमरित/ रिजला परिर द्वारा रिटर्निंग अधिकारी के समक्ष नामांकनषद् के वार्ड के समक्ष नामांकन वाड /रि वाच क्ष नामांकने समक्ष नामांकनत्र ........... से समक्ष नामांकन रि वाच हे समक्ष नामांकन तु । ।
भाग-1 मैं बसन्त लाल ( ाम) सुपुत्र/सुपुत्री/ मपत् ी श्री ा क चन्द रि वासी ां ली (पांगना) (ग अधिकारी के समक्ष नामांकनांव, तह 0 और द्वारा रिटर्निंग अधिकारी के समक्ष नामांकन रिजला) ए जानेतद् के वार्डद्वार द्वारा रिटर्निंग अधिकारी के समक्ष नामांकना सत्यरि ष्ठा अथ वा शपथ पूवक घोषणा कर द्वारा रिटर्निंग अधिकारी के समक्ष नामांकनता हँ -ू --
10 2024:HHC:9838 (1) रिक मैं रिवग अधिकारी के समक्ष नामांकनत में आपराधिक मामलों में दोषी पाया गया हूं जिनका ब्यौरा निम्न है आपर द्वारा रिटर्निंग अधिकारी के समक्ष नामांकनारि क मामलों में दोषी पाया गया हूं जिनका ब्यौरा निम्न है में आपराधिक मामलों में दोषी पाया गया हूं जिनका ब्यौरा निम्न है दोषी पाया ग अधिकारी के समक्ष नामांकनया हं ू रिज का ब्यौर द्वारा रिटर्निंग अधिकारी के समक्ष नामांकना रि म् है :-
(क) अरि9योग अधिकारी के समक्ष नामांकन सं ख्या: कोई भी आपराधिक मामला दर्ज नहीं है। 9ी आपर द्वारा रिटर्निंग अधिकारी के समक्ष नामांकनारि क मामला दज हीं है । (ख) रिजस अपर द्वारा रिटर्निंग अधिकारी के समक्ष नामांकना में आपराधिक मामलों में दोषी पाया गया हूं जिनका ब्यौरा निम्न है दोषी पाया ग अधिकारी के समक्ष नामांकनया उसका रिववर द्वारा रिटर्निंग अधिकारी के समक्ष नामांकनण तथ ा अरि रि यम की ार द्वारा रिटर्निंग अधिकारी के समक्ष नामांकना....... (ग अधिकारी के समक्ष नामांकन) दोषी पाये समक्ष नामांकन जा े समक्ष नामांकन की रितरिथ ............... (घ) न्यायालय रिजस द्वार द्वारा रिटर्निंग अधिकारी के समक्ष नामांकना दोषी कर द्वारा रिटर्निंग अधिकारी के समक्ष नामांकनार द्वारा रिटर्निंग अधिकारी के समक्ष नामांकन रिदया ग अधिकारी के समक्ष नामांकनया............... (ङ) दी ग अधिकारी के समक्ष नामांकनई भी आपराधिक मामला दर्ज नहीं है। सजा / सा ार द्वारा रिटर्निंग अधिकारी के समक्ष नामांकनण कार द्वारा रिटर्निंग अधिकारी के समक्ष नामांकनावास या कठोर द्वारा रिटर्निंग अधिकारी के समक्ष नामांकन कार द्वारा रिटर्निंग अधिकारी के समक्ष नामांकनावास, कार द्वारा रिटर्निंग अधिकारी के समक्ष नामांकनावास की अवरि तथ ा/या जु । मा े समक्ष नामांकन की र द्वारा रिटर्निंग अधिकारी के समक्ष नामांकनारिश, दशाए जानें...................... (च) दोष रिसद्ध होने के विरुद्ध यदि कोई अपील हो े समक्ष नामांकन के समक्ष नामांकन रिवरुद्ध होने के विरुद्ध यदि कोई अपील यरिद कोई भी आपराधिक मामला दर्ज नहीं है। अपील / पु । र द्वारा रिटर्निंग अधिकारी के समक्ष नामांकनीक्ष नामांकनण/पु । रिवलोक यारिचका दायर द्वारा रिटर्निंग अधिकारी के समक्ष नामांकन की ग अधिकारी के समक्ष नामांकनई भी आपराधिक मामला दर्ज नहीं है। हो तो उसका ब्यौर द्वारा रिटर्निंग अधिकारी के समक्ष नामांकना तथ ा उसका परिर द्वारा रिटर्निंग अधिकारी के समक्ष नामांकनणाम..............
(2) रिक मैं रिवग अधिकारी के समक्ष नामांकनत में आपराधिक मामलों में दोषी पाया गया हूं जिनका ब्यौरा निम्न है आपर द्वारा रिटर्निंग अधिकारी के समक्ष नामांकनारि क मामलों में दोषी पाया गया हूं जिनका ब्यौरा निम्न है में आपराधिक मामलों में दोषी पाया गया हूं जिनका ब्यौरा निम्न है दोष मु । क्त या बर द्वारा रिटर्निंग अधिकारी के समक्ष नामांकनी हु ।आ हं ।ू रिज का ब्यौर द्वारा रिटर्निंग अधिकारी के समक्ष नामांकना रि म् है :--
(क) अरि9योग अधिकारी के समक्ष नामांकन सं ख्या: कोई भी आपराधिक मामला दर्ज नहीं है। 9ी आपर द्वारा रिटर्निंग अधिकारी के समक्ष नामांकनारि क मामला दज हीं है । (ख) रिजस अपर द्वारा रिटर्निंग अधिकारी के समक्ष नामांकना में आपराधिक मामलों में दोषी पाया गया हूं जिनका ब्यौरा निम्न है दोषमु । क्त या बर द्वारा रिटर्निंग अधिकारी के समक्ष नामांकनी हु ।आ उसका रिववर द्वारा रिटर्निंग अधिकारी के समक्ष नामांकनण तथ ा अरि रि यम की ार द्वारा रिटर्निंग अधिकारी के समक्ष नामांकना...... (ग अधिकारी के समक्ष नामांकन) न्यायालय रिजस े समक्ष नामांकन दोषमु । क्त अथ वा बर द्वारा रिटर्निंग अधिकारी के समक्ष नामांकनी रिकया हो.......... (घ) दोषमु । क्त अथ वा बर द्वारा रिटर्निंग अधिकारी के समक्ष नामांकनी हो े समक्ष नामांकन की रिद ांक.......... (ङ) दोषमु । क्त अथ वा बर द्वारा रिटर्निंग अधिकारी के समक्ष नामांकनी हो े समक्ष नामांकन के समक्ष नामांकन रिवरुद्ध होने के विरुद्ध यदि कोई अपील यरिद कोई भी आपराधिक मामला दर्ज नहीं है। अपील/पु । र द्वारा रिटर्निंग अधिकारी के समक्ष नामांकनीक्ष नामांकनण पु । रिवलोक यारिचका दायर द्वारा रिटर्निंग अधिकारी के समक्ष नामांकन की हो तो उसका ब्यौर द्वारा रिटर्निंग अधिकारी के समक्ष नामांकना तथ ा उसका परिर द्वारा रिटर्निंग अधिकारी के समक्ष नामांकनणाम.............
(3) निनम्ननि नि त अभियोग अनिभयोग, नि समें नियमानुसार दो वर्ष या उससे अधिक कारावास का निनयमानुसार दो वर्ष या उससे अधिक कारावास का दो वर्ष या उससे अधिक कारावास का या उससे अधिक कारावास का अनिधक कारावास का क कारावास का ार दो वर्ष या उससे अधिक कारावास का ावास क कारावास का ा प्रावधान है तथा त अभियोगथा मे अधिक कारावास का र दो वर्ष या उससे अधिक कारावास का े अधिक कारावास का निवरुद्ध न्यायालय में वि न्याया य में नियमानुसार दो वर्ष या उससे अधिक कारावास का निवचार दो वर्ष या उससे अधिक कारावास का ाधीन है तथा अथवा नि समें नियमानुसार दो वर्ष या उससे अधिक कारावास का न्याया य द्वार दो वर्ष या उससे अधिक कारावास का ा संज्ञान नि या गया है तथा ।
(क) अरि9योग अधिकारी के समक्ष नामांकन सं ख्या: क कारावास का ोई भी आपराधिक मामला दर्ज नहीं है। भी आपर दो वर्ष या उससे अधिक कारावास का ानिधक कारावास का माम ा द नहीं है तथा । (ख) रिजस अपर द्वारा रिटर्निंग अधिकारी के समक्ष नामांकना में आपराधिक मामलों में दोषी पाया गया हूं जिनका ब्यौरा निम्न है सं ज्ञा रिलया ग अधिकारी के समक्ष नामांकनया उसका रिववर द्वारा रिटर्निंग अधिकारी के समक्ष नामांकनण तथ ा अरि रि यम की ार द्वारा रिटर्निंग अधिकारी के समक्ष नामांकना........ (ग अधिकारी के समक्ष नामांकन) न्यायालय रिजस द्वार द्वारा रिटर्निंग अधिकारी के समक्ष नामांकना सं ज्ञा रिलया ग अधिकारी के समक्ष नामांकनया हो........... (घ) न्यायालय द्वार द्वारा रिटर्निंग अधिकारी के समक्ष नामांकना सं ज्ञा रिलए जाने जा े समक्ष नामांकन सम्बन् ी आदे समक्ष नामांकन श की रिद ांक.......... (ङ) न्यायालय द्वार द्वारा रिटर्निंग अधिकारी के समक्ष नामांकना सं ज्ञा रिलए जाने जा े समक्ष नामांकन सम्बन् ी आदे समक्ष नामांकन श के समक्ष नामांकन रिवरुद्ध होने के विरुद्ध यदि कोई अपील यरिद कोई भी आपराधिक मामला दर्ज नहीं है। अपील / पु । र द्वारा रिटर्निंग अधिकारी के समक्ष नामांकनीक्ष नामांकनण /पु । रिवलोक / रिर द्वारा रिटर्निंग अधिकारी के समक्ष नामांकनट यारिचका दायर द्वारा रिटर्निंग अधिकारी के समक्ष नामांकन की हो तो उसका ब्यौर द्वारा रिटर्निंग अधिकारी के समक्ष नामांकना.......
न्यायालय द्वार द्वारा रिटर्निंग अधिकारी के समक्ष नामांकना सं ज्ञा रिलया जा ा त9ी समझा जाए जानेग अधिकारी के समक्ष नामांकना जब न्यायालय े समक्ष नामांकन आर द्वारा रिटर्निंग अधिकारी के समक्ष नामांकनोप तय कर द्वारा रिटर्निंग अधिकारी के समक्ष नामांकन रिदये समक्ष नामांकन हों में दोषी पाया गया हूं जिनका ब्यौरा निम्न है अथ वा जहां न्यायालय द्वार द्वारा रिटर्निंग अधिकारी के समक्ष नामांकना आर द्वारा रिटर्निंग अधिकारी के समक्ष नामांकनोप तय रिकया जा ा आवश्यक हो, न्यायालय द्वार द्वारा रिटर्निंग अधिकारी के समक्ष नामांकना प् के वार्डर द्वारा रिटर्निंग अधिकारी के समक्ष नामांकनथ मदृष्ट्या अरि9यु । क्त के समक्ष नामांकन रिवरुद्ध होने के विरुद्ध यदि कोई अपील अरि9योग अधिकारी के समक्ष नामांकन चला े समक्ष नामांकन के समक्ष नामांकन प् के वार्डर द्वारा रिटर्निंग अधिकारी के समक्ष नामांकनयोज से समक्ष नामांकन आदे समक्ष नामांकन श जार द्वारा रिटर्निंग अधिकारी के समक्ष नामांकनी कर द्वारा रिटर्निंग अधिकारी के समक्ष नामांकन े समक्ष नामांकन का रि णय रिलया ग अधिकारी के समक्ष नामांकनया हो।"
Column No. 1 of Part-1 pertains to information about those criminal cases in which the candidate had been convicted. Under column No. 2 of Part-1, the candidate was to furnish information about the criminal cases in which he was convicted or acquitted.
Column No. 3 of Part-1 categorically required information from the candidate about any criminal case pending against him in which the 11 2024:HHC:9838 Court had taken cognizance and where the candidate - accused therein could be imposed punishment of imprisonment for two years or more. The petitioner's written response against this column was that no criminal case had been registered against him. The declaration was affirmed by the petitioner himself before the Returning Officer. The information was absolutely incorrect as the petitioner was facing criminal trial in the case detailed above which can result in his imprisonment for two years.
The point to be examined here is whether concealment of above facts in form of furnishing false particulars in the affidavit by the petitioner would amount to disqualification under Section 122 of the Panchayati Raj Act?
4(iii) The Himachal Pradesh State Election Commission had issued a Notification on 17.02.2004. The Notification has been issued in exercise of powers vested in the Commission under Articles 243-K and 243-ZA of the Constitution of India, Section 9 of the Himachal Pradesh Municipal Corporation Act 1994, Section 281 of the Himachal Pradesh Municipal Act 1994, Section 160 of the Himachal Pradesh Panchayati Raj Act 1994 and all other powers enabling it in this behalf.
Article 243-K of the Constitution of India pertaining to elections to Panchayats provides for vesting of superintendence, 12 2024:HHC:9838 direction and control of the preparation of electoral rolls and conduct of all elections to the Panchayats in the State Election Commission.
The Article reads as under:-
"243K. Elections to the Panchayats. -
(1) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor.
(2) Subject to the provisions of any law made by the Legislature of a State, the conditions of service and tenure of office of the State Election Commissioner shall be such as the Governor may by rule determine:
Provided that the State Election Commissioner shall not be removed from his office except in like manner and on the like ground as a Judge of a High Court and the conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his appointment.
(3) The Governor of a State shall, when so requested by the State Election Commission, make available to the State Election Commission such staff as may be necessary for the discharge of the functions conferred on the State Election Commission by clause (1).
(4) Subject to the provisions of this Constitution, the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the Panchayats."
Section 160 of the Panchayati Raj Act reads as under:-
"160. State Election Commission.- (1) There shall be a State Election Commission constituted by the Governor for 13 2024:HHC:9838 superintendence, direction and control of the preparation of electoral rolls for, and the conduct of all elections to the Panchayat bodies in the State under this Act and the rules made thereunder. The Commission shall consist of a State Election Commissioner to be appointed by the Governor. (2) The salary and allowances payable to, tenure of office and conditions of service of the State Election Commissioner shall be such as the Governor may by rule determine:
Provided that the State Election Commissioner shall not be removed from his office except in the like manner and on the like grounds as a judge of the High Court and the conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his appointment. (3) The Governor shall, when so requested by the State Election Commissioner make available to him such staff as may be necessary for the discharge of the functions conferred on him under this Act."
In terms of Notification dated 17.02.2004, the State Election Commission in exercise of powers vested in it under the aforesaid provisions has framed the Himachal Pradesh Panchayats and Municipalities Elections (Disclosure of Specified Information by the Candidates) Regulations, 2004:-
Clause 3 of these Regulations requires from a candidate contesting for election to the office of a Member or Pradhan of a Gram Panchayat to furnish alongwith his nomination paper the specified information indicated in the annexure appended with the Regulations including about those criminal cases 14 2024:HHC:9838 where charge has been framed against him or cognizance has been taken by a Court. The Clause reads as under:-
"3. Disclosure of Information by Candidates for election to Gram Panchayat. - Every candidate for election to the office of a Member or Pradhan of a Gram Panchayat shall furnish or cause to furnish along-with his nomination paper the specified information indicated in Annexure to these Regulations pertaining to his conviction or acquittal or discharge in criminal cases, if any, in the past, the criminal cases pending against him for which the maximum punishment provided in the relevant law is imprisonment for two years or more and in which charge has been framed or cognizance has been taken by a court, his assets and liabilities and the particulars of his children on the lines given in the Annexure."
Clause 5 of the Regulations states that a candidate seeking election to the office of Member or Pradhan of a Gram Panchayat shall submit the specified information in the Annexure in form of an affidavit in the manner described, in presence of a Gazetted Officer of the Government. The Clause is as follows:-
"5. Annexure to be in the Form of Affidavit or Declaration.- (1) A person seeking election to the office of Member or Pradhan of a Gram Panchayat shall submit the specified information in the Annexure in the form of an affidavit in the manner described in clause (2) next following or a declaration to be made and signed by him in the 15 2024:HHC:9838 presence of a Gazetted Officer of the Government of India or of the Government of the State or the official authorized to receive the nomination papers, who is hereby authorized to attest the same.
(2) A person seeking election to an office mentioned in Regulation 4 above shall submit the specified information in the Annexure in the form of an affidavit duly made and signed by him in the presence of a Magistrate or a Notary Public or an Oath Commissioner.
(3) The Candidate and attesting officer shall sign on each page of the Annexure."
Clause 11 of the Regulations provides the effect of failure or omission of the candidate in furnishing the specified information as under:-
"11. Effect of Non-furnishing of Annexure. - The failure or omission of a candidate to furnish the specified information in the manner laid down in these Regulations shall render the nomination paper of the candidate concerned liable to be rejected by the Returning Officer/Assistant Returning Officer concerned."
The Annexure - affidavit/declaration to be furnished by a contesting candidate alongwith nomination paper before the Returning Officer is as under:-
"ANNEXURE (Affidavit/Declaration to be Furnished by a Candidate alongwith Nomination Paper Before the Returning Officer) For............Election...........from............................Ward/Constituency of...............Municipality/Gram Panchayat/Panchayat/Samiti/Zila Parishad of................Tehsil/Development Block of ......... District......... .H.P. 16 2024:HHC:9838 Part-I I.............(Name),son/daughter/wife of Shri ..................... resident of .............(Village, Tehsil and District) do hereby solemnly affirm/state on oath and declare as under:
(1) That I have, in the past, been convicted of criminal offence in the cases the details of which are given below:-
(a) Case No.;
(b) Section of Act and description of the offence for which convicted;
(c) Date of conviction;
(d) Court by which convicted;
(e) Sentence imposed (indicating whether simple or rigorous imprisonment, the period of such imprisonment and/or the amount of fine imposed).
(f) Details of appeal/revision/review, if any, etc. filed against such conviction and indicating the result.
(2) That I have, in the post, been acquitted/discharged in the cases the details of which are given below:
(a) Case No.;
(b) Section of the Act and brief description of the offence in which discharged or acquitted;
(c) Name of the Court by which discharged/acquitted;
(d) Date of discharge/acquittal;
(e) Details of appeal/revision/review, if any, filed against such discharge/acquittal indicating the result thereof. (3) That the following case(s) in which the maximum imprisonment laid down by law is two years or more, is/are pending against me in which cognizance* has been taken by a court:-
(a) Case number:-
(b) Section of the Act and description of the offence of which
cognizance taken:
(c) The Court which has taken cognizance:
(d) Date of order of the Court taking cognizance:
(e) Details of appeal(s)/application(s) for revision/review/writ petition, if
any, filed against the aforementioned order of the court taking cognizance.
* A court shall be deemed to have taken cognizance of a case when it frames charges or, where the framing of a charge by a court is not necessary, where the court in a prima facie finding, decided to issue process to the accused with a view to proceeding with the trial."
17 2024:HHC:9838 The above Annexure/Declaration was to be submitted by the contesting candidate alongwith his nomination paper. It is an admitted fact that the petitioner had submitted the Annexure but the declaration made by him therein with respect to pendency of criminal cases pending against him in which cognizance had been taken by the Court, was false & misleading.
4(iv) The purport of contention urged by learned Senior counsel for the petitioner is that in context of the Panchayati Raj Act it was beyond the purview of State Election Commission to issue such Regulations requiring disclosure of criminal cases pending against the contesting candidate and further that non disclosure of such particulars or furnishing false information about these aspects cannot be stretched to be termed as disqualification more so when these acts have not been specifically termed as disqualification under the Panchayati Raj Act & the Rules made thereunder.
I am not in agreement with the above submission. It cannot be said that the State Election Commission could not have framed Regulations requiring the contesting candidate to furnish information about the criminal cases registered against him where charges had been framed involving offences wherein punishment of two or more years can be imposed upon him. Article 243-K of the Constitution provides for superintendence, direction & control of 18 2024:HHC:9838 the State Election Commission in conducting the elections to the Panchayat. It is not the case of the petitioner that the Regulations framed by the State Election Commission on 17.02.2004 in exercise of Article 243-K of the Constitution of India & Section 160 of the Panchayti Raj Act, are repugnant to any provision of the Panchayati Raj Act or the Rules framed thereunder. It is well settled where the Act is silent and the Rules also do not speak, the Regulations can govern the vacant field.
Ravi Namboothiri vs. K.A. Baiju & ors. 2, was a case where election petition was filed to declare election of the appellant in the Gram Panchayat as void on the grounds stipulated in Section 102 of the Kerala Panchayati Raj Act. The High Court declined to interfere with the order of the Additional District Judge declaring appellant's election as void on the premise that he had suppressed in his nomination form, his involvement in a criminal case thereby committing a corrupt practice. Hon'ble Apex Court, while allowing the appeal in the given facts, inter alia considered a previous judgment on the issue i.e. Krishnamoorthy vs. Shivakumar & ors.3 This was a case where the elected candidate had failed to disclose in the affidavit and declaration accompanying the nomination form, 2 Civil Appeal Nos. 8261-8262 of 2022 [Arising out of S.L.P. (Civil) Nos. 30849-30850 of 2018] 3 (2015) 3 SCC 467 19 2024:HHC:9838 the details regarding criminal cases pending against him. The details were to be furnished in terms of a notification issued by the State Election Commission in exercise of powers conferred by Articles 243K & 243ZA of the Constitution of India readwith provisions of the State enactments dealing with local bodies. The disclosure regarding criminal antecedent was made mandatory only under the notification of the State Election Commission. Non disclosure had not been made a ground in the Statute for declaring the election as void. Hon'ble Madras High Court held that the non-disclosure had an 'undue influence on the free exercise of choice of the voter - electoral right' - a provision existing in the Statute at that time. The history of election law relating to disclosure of criminal antecedents, discussed by the Madras High Court, was updated and formulated by the Hon'ble Apex Court in Ravi Namboothiri's2 case as under:-
"25. The decision of the Madras High Court in Krishnamoorthy, traces the historical perspective of the election law relating to disclosure of criminal antecedents, as follows:
(i) In the year 1999, the Association for Democratic Reforms filed a Writ Petition on the file of the Delhi High Court, seeking a direction to the Union of India to implement the recommendations made by the Law Commission in its 170 th Report and to make necessary changes under Rule 4 of Conduct of Election Rules, 1961. One of the recommendations made by the Law Commission was for debarring a candidate from contesting an election, if charges have been framed
20 2024:HHC:9838 against him by a Court in respect of certain offences and the necessity for the candidates to furnish details of the criminal cases pending against them. Apart from the recommendations of the Law Commission, the Association for Democratic Reforms (hereinafter referred to as "ADR" for the sake of brevity) also relied upon the Report of the Vohra Committee of the Government of India, Ministry of Home Affairs, which pointed out the nexus between politicians and those accused of criminal offences. In the light of the Reports of the Law Commission and the Vohra Committee, ADR sought, in the writ petition filed before the Delhi High Court, a direction to the Election Commission, to make it mandatory for every candidate to provide information, by amending Forms 2-A to 2-E prescribed under the Conduct of Election Rules, 1961.
(ii) Though the Delhi High Court held, by its judgment dated 02.11.2000, that it is the function of the Parliament and not that of the Court, to make necessary amendments in the Representation of the People Act, 1951, the Delhi High Court nevertheless issued a direction to the Election Commission to secure to the voters, the following information, from the contesting candidates:
"(a) Whether the candidate is accused of any offence punishable with imprisonment and if so, the details;
(b) The assets possessed by a candidate, his or her spouse and dependent relations;
(c) Facts giving insight into the candidate's competence, capacity and suitability for acting as an elected member, including details of the educational qualifications;
(d) Information considered necessary by the Election Commission for judging the capacity and capability of the political party fielding the candidate for election."
(iii) The above directions issued by the Delhi High Court was on the basis that a citizen of the country, whether an elector or 21 2024:HHC:9838 not, has a fundamental right to receive information regarding the criminal activities of a candidate. The High Court took the view that for making a right choice, it is essential not to keep the antecedents of the candidate in the dark, as it will not be in the interest of democracy and the well being of the country.
(iv) The judgment of the Delhi High Court was taken on appeal to this Court by the Union of India and it was taken up along with a Writ Petition filed by the People's Union of Civil Liberties (referred to as "PUCL" in short), under Article 32 seeking certain similar directions.
(v) After hearing elaborate arguments, this Court framed two questions, as arising for consideration in the matter and they are as follows:
"(a) Whether the Election Commission is empowered to issue directions, as ordered by the High Court?
(b) Whether a voter-a citizen of the country has a right to get relevant information, such as the assets, qualifications and involvement in offences, of candidates, for being educated and informed for judging the suitability of a candidate contesting the election as MP or MLA?"
(vi) After referring to various decisions, this Court summed up the legal position in paragraph-46 of its decision. The contents of paragraph-46 of the decision can be summarised in brief as follows:
"(a) The jurisdiction of the Election Commission is wide enough to include all powers necessary for the smooth conduct of the elections, including the entire process of election consisting of several stages and embracing many steps;
(b) The limitation on the plenary character of power is when Parliament or State Legislature has made a valid law. In case the law is silent, Article 324 is a reservoir of power. It is a residuary power and the phrase "superintendence, direction and control" appearing in Article 324 (1) should be construed liberally empowering the Election Commission to issue orders;
22 2024:HHC:9838
(c) Fair election contemplates disclosure by the candidate of his past, so as to give a proper choice to the candidate according to his thinking and opinion. Even if this stipulation is not very much effective for breaking a vicious circle, it will be a step-in-aid for the voters not to elect law breakers as law makers;
(d) To maintain the purity of elections and to bring about transparency, the Commission can ask details of the expenditure incurred by political parties;
(e) The right to get information in democracy is recognised throughout as a natural right flowing from the concept of democracy;
(f) If the field meant for Legislature and Executive is left unoccupied, detrimental to public interest, the Supreme Court would have ample jurisdiction under Article 32 read with 141 and 142 of the Constitution;
(g) Voters' right to know the antecedents including the criminal past of the candidate contesting in the election, is much more fundamental and basic for the survival of democ racy."
(vii) After summarising the law in paragraph-46, this Court issued certain directions in paragraph-48, which read as follows:
"48. The Election Commission is directed to call for information on affidavit by issuing necessary order in exercise of its power under Article 324 of the Constitution of India from each candidate seeking election to Parliament or a State Legislature as a necessary part of his nomination paper, furnishing therein, information on the following aspects in relation to his/her candidature:
(1) Whether the candidate is convicted/acquitted/discharged of any criminal offence in the past if any, whether he is punished with imprisonment or fine.
(2) Prior to six months of filing of nomination, whether the candidate is accused in any pending case, of any offence punishable with imprisonment for two years or more, and in which charge is framed or cognizance is taken by the Court of law. If so, the details thereof.
(3) The assets (immovable, movable, bank balance, etc.) of a candidate and of his/her spouse and that of dependants. (4) Liabilities, if any, particularly whether there are any over dues of any public financial institution or government dues. (5) The educational qualifications of the candidate."
23 2024:HHC:9838
(viii) Following the above decision, the Election Commission of India decided to amend Forms 2-A to 2-E appended to the Conduct of Election Rules, 1961 and approached the Government of India seeking suitable Amendments. But the ECI was informed by the Government that steps were being taken in consultation with all political parties. Therefore, finding that the time limit fixed by the Supreme Court in the above case was running out, the ECI issued an order bearing No.3/ER/2002/JSII/Vol-III dated 28.6.2002 under Article 324 of the Constitution.
(ix) However, almost simultaneously with the issue of the above order of the ECI, the President of India promulgated an Ordinance known as "Representation of the People (Amendment) Ordinance 2002". The validity of the Ordinance was challenged by the People's Union of Civil Liberties and a few others under Article 32. During the pendency of the proceedings, the Ordinance was repealed and the Representation of the People (Third Amendment) Act, 2002 was notified with retrospective effect. By the Amendment, Sections 33-A and 33-B were inserted to the Act and they read as follows:
"33-A. Right to information. (1) A candidate shall, apart from any information which he is required to furnish, under this Act or the rules made thereunder, in his nomination paper delivered under sub-section (1) of Section 33, also furnish the information as to whether --
(i) he is accused of any offence punishable with imprisonment for two years or more in a pending case in which a charge has been framed by the Court of competent jurisdiction;
(ii) he has been convicted of an offence other than any offence referred to in sub-section (1) or sub-section (2), or covered in subsection (3), of Section 8 and sentenced to imprisonment for one year or more.
(2) The candidate or his proposer, as the case may be, shall, at the time of delivering to the Returning Officer the
24 2024:HHC:9838 nomination paper under sub-section (1) of Section 33, also deliver to him an affidavit sworn by the candidate in a prescribed form verifying the information specified in sub-section (1).
(3) The Returning Officer shall, as soon as may be after the furnishing of information to him under sub-section (1), display the aforesaid information by affixing a copy of the affidavit, delivered under sub-section (2), at a conspicuous place at his Office for the information of the electors relating to a constituency for which the nomination paper is delivered. 33-B. Candidate to furnish information only under the Act and the rules.-- Notwithstanding anything contained in any judgment, decree or order of any Court or any direction, order or any other instruction issued by the Election Commission, no candidate shall be liable to disclose or furnish any such information, in respect of his election, which is not required to be disclosed or furnished under this Act or the rules made thereunder."
Since the ordnance under challenge was replaced by the Act,during the pendency of the proceedings, the pleadings and the prayer in the writ petitions were amended so as to confine the challenge to Section 33-B."
(x) Ultimately, a three Member Bench of this Court, in People's Union for Civil Liberties (PUCL) & anr. vs. Union of India & anr.4 held Section 33-B of the Representation of the People Act, 1951, brought forth by the Third Amendment Act, 2002, to be unconstitutional.
(xi) After this court declared Section 33-B to be unconstitutional, the Election Commission of India issued revised orders dated 27.03.2003 requiring every candidate, at the time of filing his nomination paper for any election to the Council of States, House of the People, Legislative Assembly of a State or the Legislative Council of a State having such a Council, to furnish full and complete information in regard to the matters specified 4 (2003) 4 SCC 399 25 2024:HHC:9838 by this Court, in an affidavit, the format whereof was annexed as Annexure-I to the order.
26. Despite the judgment of this Court in PUCL, Section 100 of the Representation of the People Act,1951 was not amended so as the make the nondisclosure or false disclosure, as one of the grounds for declaring an election as void. Section 100 (1) continues to contain only four grounds for declaring an election void. These four grounds are comparable to clauses (a), (b), (c) and (d) of Section 102 of the Kerala Panchayat Raj Act, 1994. The special feature of the Kerala Act is the insertion of clause (1-A) in Section 52 and the insertion of clause (ca) in subsection (1) of Section 102.
27. In the Representation of the People Act, 1951 as well as the Tamil Nadu Panchayats Act (out of which the decision in Krishnamoorthy arose) the candidate challenging an election had to rely upon subordinate legislation to seek a declaration that the election was void. Nondisclosure/false disclosure was not made available in those Statutes themselves as one of the grounds for declaring an election void. Therefore, the Court had to fall back upon the Rules and the Orders of the Election Commission and bring those violations within the scope of "undue influence" leading to "corrupt practice" which is available as one of the grounds."
... ....
"44. As we have seen from the way in which the law developed from the decision in Association for Democratic Reforms (supra)5, the primary object of compelling the disclosure of criminal antecedents of candidates contesting the elections, is to decriminalize politics and to make the voters aware of the choice that they have. This is why this Court was 5 (2002) 5 SCC 294 26 2024:HHC:9838 very careful in formulating the principles of law, in paragraph 94 of the decision in Krishnamoorthy (supra).
Paragraph 94 of the decision in Krishnamoorthy (supra) may be usefully extracted as follows:-
"94. In view of the above, we would like to sum up our conclusions:
94.1. Disclosure of criminal antecedents of a candidate, especially, pertaining to heinous or serious offence or offences relating to corruption or moral turpitude at the time of filing of nomination paper as mandated by law is a categorical imperative.
94.2. When there is nondisclosure of the offences pertaining to the areas mentioned in the preceding clause, it creates an impediment in the free exercise of electoral right. 94.3. Concealment or suppression of this nature deprives the voters to make an informed and advised choice as a consequence of which it would come within the compartment of direct or indirect interference or attempt to interfere with the free exercise of the right to vote by the electorate, on the part of the candidate.
94.4. As the candidate has the special knowledge of the pending cases where cognizance has been taken or charges have been framed and there is a nondisclosure on his part, it would amount to undue influence and, therefore, the election is to be declared null and void by the Election Tribunal under Section 100(1)(b) of the 1951 Act.
94.5. The question whether it materially affects the election or not will not arise in a case of this nature."
45. While offences under the Indian Penal Code or under special enactments such as Prevention of Corruption Act, Arms Act and so on and so forth are substantive offences, the commission of which may make a person a criminal, an offence under certain enactments such as Kerala Police Act are not substantive offences. Just as strike is a weapon in the hands of the workmen and lockout is a weapon in the hands of the employer under Labour Welfare legislations, protest is a tool in the hands of the civil society and police action is a tool in the hands of the Establishment. All State enactments such as 27 2024:HHC:9838 Kerala Police Act, Madras Police Act etc., are aimed at better regulation of the police force and they do not create substantive offences. This is why these Acts themselves empower the police to issue necessary directions for the maintenance of law and order and the violation of any of those directions is made a punishable offence under these Acts.
46. Once the object behind the provisions of the Kerala Police Act are understood, it would be clear that neither Section 52(1A) read with Rule 6 and Form 2A nor Section 102(1)(ca) of the Act nor the decisions in Association for Democratic Reforms, People's Union for Civil Liberties (PUCL) or Krishnamoorthy can be stretched to such an extent that the failure of the appellant to disclose his conviction for an offence under the Kerala Police Act for holding a dharna in front of the Panchayat office, is taken as a ground for declaring an election void."
From above, it can safely be deduced that the State Election Commission has the power for smooth conduct of the elections to Gram Panchayats. The limitation on exercise of plenary power is the presence of a Statute. Considering the field meant for legislature unoccupied in certain specific areas, Hon'ble Apex Court, issued certain directions to Election Commission of India [extracted para 25(vii) above]. It was in compliance to these directions, that Election Commission of India issued an order on 28.06.2002 under Article 324 of the Constitution. In the meanwhile, Sections 33-A & 33-B were inserted in the Representation of the 28 2024:HHC:9838 People Act, 1951. Section 33-B was declared as unconstitutional in People's Union for Civil Liberties (PUCL) & anr. vs. Union of India & anr.4 Subsequently, the Election Commission of India issued several orders requiring candidate to furnish full & complete information about the matters specified by the Hon'ble Apex Court, in an affidavit (in format of Annexure-1) at the time of filing his nomination paper. This is despite the fact that Section 100 of the Representation of People Act, 1951 has not been amended, non disclosure or false disclosure as one of the grounds for declaring an election as void - has not been incorporated in the Act. Hon'ble Apex Court in Ravi Namboothiri's case2 observed that in Krishnamoorthy's case3, the Apex Court had to fall back upon subordinate legislation for declaring that the election was void even though non disclosure- false disclosure was not made a ground in those Statutes for declaring the election as void.
The legal position summarized above, applies to the facts of the instant case. Non disclosure or false disclosure may not have been made a specific ground in Section 122 of the Panchayati Raj Act for declaring the election as void, yet the State Election Commission had issued a specific notification on 17.02.2004 calling for such information in form of an affidavit/declaration as part of the Annexure. The notification promulgated the Himachal Pradesh 29 2024:HHC:9838 Panchayats and Municipalities Elections (Disclosure of Specified Information by the Candidates) Regulations, 2004. No part of Regulations including the one requiring the candidate to disclose about pending criminal cases, has been shown to be repugnant to any provisions of the applicable Statute or the Rule made thereunder. It is also to be noticed that petitioner did not object at the time of furnishing his affidavit under the notification that he should not be directed to furnish such affidavit. Regulations promulgated by the notification are not even under challenge. The petitioner furnished his affidavit alongwith the nomination form and supplied false particulars therein. The petitioner concealed material information in his affidavit.
At this juncture it would also be appropriate to take note of Section 175 (1)(b) of the Panchayati Raj Act which reads as under:-
"175. Grounds for declaring election 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-
30 2024:HHC:9838
(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 be void."
In the instant case, it can be said with caution that the petitioner while furnishing his nomination paper had not complied with the Regulations dated 17.02.2004. This amounted to corrupt practice on his part. Such corrupt practice in view of Section 175(i)(b) is not to be linked with demonstration of material affect upon the election result which is part of Section 175(1)(d). The conclusion therefore is that the petitioner's election was void. 4(v) A contention has been raised about the maintainability of the election petition before respondent No. 3, the Sub Divisional Officer (C) Karsog. The point put forth is that in terms of Section 122(2) of the Panchayati Raj Act, the election petition filed by respondent No. 4 could not have only been maintained before respondent No. 3. It should have been preferred only before respondent No. 2 - the Deputy Commissioner, District Mandi. 4(v)(a) Section 122 (2) of the Panchayati Raj Act provides as under:-
31 2024:HHC:9838 "122. Disqualification.-
(1). ... ...
(2). The question whether a person is or has become subject to any of the disqualifications under sub-section (1), shall after giving an opportunity to the person concerned of being heard, be decided-
(i) if such question arises during the process of an election, by an officer as may be authorized in this behalf by the State Government, in consultation with the State Election Commission; and
(ii) if such question arises after the election process is over, by the Deputy Commissioner."
The Election Petition was filed by respondent No. 4 against the petitioner under Sections 161 and 163 of the Panchayati Raj Act which read as under:-
"161. Officer authorised to hear election petitions.- The election petitions under this Act shall be heard-
(i) in the case of Gram Panchayats and Panchayat Samitis, by the Sub-Divisional Officer; and
(ii) in the case of members of Zila Parishads, by the Deputy Commissioner; and 2(iii) in the case of Chairman and Vice-Chairman of Zila Parishad, by the Commissioner."
162. Election petitions.- No election under this Act shall be called in question except by an election petition presented in accordance with the provisions of this chapter.
163. Presentation of petition.- (1) Any elector of a Panchayat 32 2024:HHC:9838 may, on furnishing the prescribed security in the prescribed manner, present within thirty days of the publication of the result, on one or more of the grounds specified in sub- section (1) of section 175, to the authorised officer an election petition in writing against the election of any person under this Act:
Provided that if any office bearer of a Panchayat was not qualified, or was disqualified to be elected under this Act, prior to his election and such disqualification continues even after his election to such office, in such cases, the limitation period of thirty days shall not apply.
(2) The election petition shall be deemed to have been presented to the authorised officer-
(a) when it is delivered to him-
(i) by the person making the petition; or
(ii) by a person authorized in writing in this behalf by the person making petition; or
(b) when it is sent by registered post and is delivered to the authorized officer or any other person empowered to receive it."
The Sub Divisional Officer (Civil) is the Authorised Officer under the Panchayati Raj Act to hear the election petitions in case of Gram Panchayats & Panchayat Samities.
4(v)(b) In State of Himachal Pradesh & ors. vs. Surinder Singh Banolta6, respondent No. 1 was declared an encroacher in the year 1998. Notification for election of Zila Parishad was issued by the State Election Commission on 16.01.2000. He was elected as a 6 (2006) 12 SCC 484 33 2024:HHC:9838 member of Zila Parishad on 05.01.2001. Election Petition was filed before the Deputy Commissioner alleging that respondent No. 1 having been declared an encroacher was disqualified to hold the elected post. The Deputy Commissioner allowed the petition on 04.06.2002 and declared respondent No. 1 as disqualified, his election was set aside. A Division Bench of this Court did not find the order passed by the Deputy Commissioner to be sustainable. The State assailed the judgment before the Hon'ble Apex Court. The submission was made before the Hon'ble Apex Court that Section 122 of the Panchayati Raj Act contemplates determination of question as regards declaring a candidate as disqualified not only before the elections but also after the conclusion of election process. In former situation, it is the Authorised Officer who can determine the question put in latter - the Deputy Commissioner alone will be the prescribed authority.
The Hon'ble Apex Court elucidated relevant provisions of the Act vis-a-vis Constitutional mandate contained in Part IX of the Constitution of India. It was held that provisions of the Act are required to be construed strictly in terms of the Constitution. Reading Sections 122, 162 and 175 of the Panchayati Raj Act alongwith Article 243-O mandating that no election shall be set aside save and except by an order passed by the Authorised Officer, it was held that 34 2024:HHC:9838 Section 122 of the Act must be read in light of Article 243-O of Constitution of India and further that Section 162 of the Panchayati Raj Act expressly provided for the exclusive jurisdiction of the Authorised Officer to determine the existence or otherwise of any ground enumerated in Section 175 of the Panchayati Raj Act. Relevant paras from the judgment are as under:-
"12. Disqualification as provided for under Article 243F has been laid down in Section 122 of the Act. Section 175 of the Act provides for disqualification as one of the grounds upon which an election petition could be filed. Interpreting the aforementioned provisions, a Division Bench of the Himachal Pradesh High Court opined that the order dated 27.06.2002 passed by the Deputy Commissioner is not sustainable in law.
13. Mr. J.S. Attri, learned AAG appearing on behalf of the appellants would submit that although the provisions of Section Section 163 are ordinarily required to be taken recourse to but having regard to the fact that in terms of Sub-section (2) of Section 122 of the Act, the question as regards declaring a candidate as disqualified may arise not only before an election is held but also after the election process is over; and thus, whereas in the former case, it will be the Authorised Officer concerned who can determine the question of disqualification but in a case where processes are initiated after the election, the Deputy Commissioner alone would be the prescribed authority.
14. Section 163 of the Act provides for filing of an election petition on one or more grounds specified in Sub-section (1)
35 2024:HHC:9838 of Section 175 thereof. Clause (a) of Sub-section (1) of Section 175 of the Act inter alia lays down a ground for setting aside of an election if on the date of the election the elected person was not qualified or disqualified to be elected under the Act.
15. It is no doubt true that Section 122 contemplates both the situations, viz., where a person shall be disqualified for being chosen as also for being an office bearer of panchayat inter alia if he has encroached upon any land belonging to any authority mentioned therein. In view of the language of the said provision, we are of the view that whereas an issue falling under clause (1) of Sub-section (2) of Section 122 of the Act must be determined before the Authorised Officer, any order of encroachment passed after the election process is over would be determined by the Deputy Commissioner.
16. The provisions of the Act, as noticed hereinbefore, have been enacted pursuant to or in furtherance of the constitutional mandate contained in Part IX of the Constitution of India. The provisions of the Act, therefore, are required to be construed strictly in terms thereof. Clause (b) of Article 243-O of the Constitution of India mandates that no election shall be set aside save and except by an order passed by the Authorised Officer. In our considered opinion, Section 122 of the Act must be read in the light thereof. Section 162 of the Act expressly provides for the exclusive jurisdiction of the Authorised Officer to determine the existence or otherwise of any ground enumerated in Section 175 of the Act.
17. Once, thus, a person is declared to be an encroacher prior to the date on which he has been declared as elector 36 2024:HHC:9838 and if the said order has attained finality, the question as to whether he stood disqualified in terms of the provisions of Section 122 of the Act, in our opinion, must be raised by way of an election petition alone. If the submission of Mr. Attri is to be accepted, the same may result in an anomalous position.
18. If a candidate or a voter had the knowledge that the elected candidate was disqualified in terms of Section 122 of the Act, he may file an application. The order of eviction may come to the notice of some other person after the election process is over. A situation, thus, may arise where two different proceedings may lie before two different authorities at the instance of two different persons. Two parallel proceedings, it is well settled, cannot be allowed to continue at the same time. A construction of a statute which may lead to such a situation, therefore, must be avoided. It will also lead to an absurdity if two different Tribunals are allowed to come to contradictory decisions.
19. Furthermore, it is a well-known principle of law that where literal interpretation shall give rise to an anomaly or absurdity, the same should be avoided. [See Ashok Lanka v. Rishi Dixit, (2005) 5 SCC 598 and M.P. Gopalakrishnan Nair v. State of Kerala,(2005) 11 SCC 45]
20. It is also a well-settled principle of law that in a case where a statute is found to be obscure the same must be interpreted having regard to the constitutional scheme. In a case of this nature, the doctrine of purposive construction should be applied. [See Bombay Dyeing & Mfg. Co. Ltd.(3) v. Bombay Environmental Action Group & Ors. (2006) 3 SCC 434, Nathi Devi v. Radha Devi Gupta (2005) 2 SCC 271, Lalit Mohan Pandey v. Pooran Singh & Ors. (2004) 6 SCC 37 2024:HHC:9838 626, Indian Handicrafts Emporium & Ors. v. Union of India & Ors. (2003) 7 SCC 589 and Balram Kumawat v. Union of India & Ors. (2003) 7 SCC 628]
21. It is also well-settled that the entire statute must be read as a whole. The relevant provisions of the Constitution as also those in the statute must, thus, be read harmoniously. [See Bombay Dyeing (supra) and Secretary, Department of Excise & Commercial Taxes and Others v. Sun Bright Marketing (P) Ltd., Chhattisgarh and Another [(2004) 3 SCC 185]. So read, we are of the opinion that the Division Bench of the High Court was correct in its view. The matter might have been different if Respondent No. 1 was declared to be an encroacher after the election process was over and, thus, becoming disqualified to continue to be an office bearer of Panchayat or Zilla Parishad." In view of above legal position, it cannot be held that adjudication of election petition by the Authorised Officer suffered from want of jurisdiction or that election petition could not be maintained before him.
No other point was urged.
5. Conclusion of above discussion is that:-
i) The election petition against petitioner's election as Pradhan Gram Panchayat Pangna, Sub Tehsil Pangna, District Mandi, preferred by respondent No. 4 before the Authorised Officer - respondent No. 3 was maintainable.
38 2024:HHC:9838
ii) Petitioner's election as Pradhan Gram Panchayat Pangna, Distt. Mandi was justly declared as void since the petitioner had indulged in corrupt practice while filing his nomination paper and had given false & misleading information about his criminal antecedents. The Authorized Officer and also the Appellate Authority were justified in declaring petitioner's election as Pradhan Gram Panchayat Pangna as null & void. Hence I find no merit in this petition and the same is accordingly dismissed. Pending miscellaneous application(s), if any, also stand disposed of.
Jyotsna Rewal Dua,
Judge
October 16 , 2024 (PK)
Digitally signed by
PRAVEEN KAUSHAL
Date: 2024.10.16
18:58:14 IST