HP HC | Court while discharging its duties in exercise of powers conferred under Art. 226 r/w Art.227 of Constitution, cannot permit illegality to remain on record, especially in exercise of its power of superintendence

Himachal Pradesh High Court: Ajay Mohan Goel J., while allowing the present petition, set aside the orders of the preceding authority holding the original election petition as patently defective.

Background

Facts of the case are briefly mentioned hereunder;

  1. That the petitioner was declared elected in the elections for the post of Pradhan, Gram Panchayat Hinner, in December 2015.
  2. That an Election Petition was filed by Smt. Radha Devi (respondent herein) under the Himachal Pradesh Panchayati Raj Act, 1995 (hereinafter referred to as “1994 Act”) on the ground that the nomination papers filed by the petitioner concealed the real facts and the petitioner was further involved in unfair election practices along with her family members.
  3. That it was further alleged by the respondent in present case that the police and electoral staff failed to discharge their duties in consonance with law and several persons who were not eligible to cast their vote, were permitted to do so, despite her objections and objection of her Polling
  4. That the election petition was resisted by the elected candidate, on the ground of maintainability, cause of action and the principle of estoppel. It was moreover denied by the elected candidate that she had indulged in any concealment of facts in the nomination paper or there was any infirmity in the nomination paper so filed by her.
  5. That it was further denied by the candidate that the elected Pradhan had indulged in any unfair practice during or after the election process.
  6. That the Sub Divisional Officer (Civil) – cum – Appellate Authority (Election Petition), vide order dated 02-03-2019, adjudicated in favour of the respondent herein, finding that the nomination papers of the petitioner was not properly scrutinized as per the norms of H.P. Panchayati Raj Act, 1994 and Himachal Pradesh Panchayati Raj Election Rules, 1994.
  7. That an appeal was thereby preferred before the Deputy Commissioner under Section 181 of the 1994 Act, which was dismissed vide order dated 09-01-2020, concurring with the findings of the Sub Divisional Officer.
  8. That the elected Pradhan, aggrieved by the aforementioned orders, has preferred the present petition praying to quash the same and hold the election of the petitioner herein, legal and valid.

 Contention

Counsel for the petitioner primarily argued that the original election petition as filed by the respondent herein was defective and not as per the statutory mandate of the 1994 Act read with relevant rules framed thereunder.

Counsel for the respondent emphasized more on the merits of the case and the rationale upon which the preceding authorities agreed to the contentions of the respondents in the original election petition. 

 Observations

The Court, first, decided to consider the maintainability of the original petition so filed, refraining from making any observation upon the validity/voidability of the election held, as per Section 175 of the Act of 1994. Considering the mandatory requirements for moving an election petition, the Court referred Section 164 of the Act which provides that “an Election Petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings. Proviso thereto contains that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and particulars thereof.” The Court further reproduced the language of Order VI Rule 15 which deals with verification of pleadings and noted that, “A perusal of the original record demonstrates that Election Petition has not been verified at the foot by the Election Petitioner. In the absence of Election Petition having been verified at the foot, there is no compliance of Order VI, Rule 15(2) of the Code of Civil Procedure. It is not mentioned in the Election Petition as to at which place the same was prepared and signed by the election petitioner, as the Election Petition is conspicuously silent with regard to the place of its preparation/having been signed by the election petitioner.”  Moreover, it was noted that the Election Petition was not accompanied with an affidavit as required by Section 164(1) of the 1994 Act, supporting the malpractices so alleged. Another inconsistency was noted by the Court in the words, “… the factum of the purported affidavit (as mandated by Code of Civil Procedure, 1908) sworn in, in support of the election petition having been prepared on 28-01-2016, whereas the Election Petition being prepared and signed on 29-01-2016, cannot be overlooked and ignored by this Court while holding that the Election Petition when filed, was a defective Election Petition.”

The Court also cited the case of G.M. Siddeshwar v. Prasanna Kumar, (2013) 4 SCC 776, acknowledging the settled law that an opportunity to correct the curable defects must be given but at the same time observed, “this judgment does not come to the rescue of the election petitioner in this case, because as already mentioned hereinabove, the purported affidavit sworn in, in favour of the election petitioner predates the Election Petition, which cannot be said to be substantial compliance of law nor it can be said that the Election Petition accompanied with a predated affidavit entails such defect which can be termed to be curable. It appears that no one took the care or the pain to scrutinize the Election Petition, as it ought to have been done, which has resulted in grave miscarriage of justice to the present petitioner, as she stands non suited on the basis of a defective Election Petition, which not only stood entertained by the Authorized Officer, but also adjudicated upon on merit.”

Decision

While allowing the present petition, the Court allowed the petitioner to perform her duties as Pradhan, Gram Panchayat Hinner without any unnecessary fetters.[Nisha Thakur v. Radha Devi, 2020 SCC OnLine HP 2866, decided on 03-12-2020]


Sakshi Shukla, Editorial Assistant has put this story together

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