Jaspal vs Civil Judge, Senior Division and Others

K.K. Srivastava, J.—This is a petition filed under Article 227 of the Constitution of India by way of civil revision praying for quashing of order dated 21.8.1997 passed by Civil Judge, Senior Division, Panchkula, and to allow the petition for quashing of the election of Sarpanch of Gram Panchayat of village Masoompur, Sub-Tehsil Raipur Rani, District Panchkula (earlier District Ambala) and for declaring the petitioner to be a duly elected Sarpanch of Gram Panchayat, Masoompur.

The petitioner contested the election for the post of Sarpanch of the said Gram Panchayat, Masoompur. Respondent No. 2 was the other candidate who contested the said election. The petitioner polled 64 votes as against respondent No. 2, who polled 79 votes and was declared elected. According to the averments made in the petition, the petitioner secured 24 more votes which were polled in his favour but which were double stamped by Mr. Jagdish Singh Negi, Presiding Officer-respondent No. 3 in connivance with respondent No. 2. The petitioner filed an election petition u/s 176 of the Haryana Panchayati Raj Act, 1994 (for short ''the Act'') in the Court of Civil Judge, Senior Division, Ambala, on the grounds, inter alia, that respondent No. 3 in connivance with respondent No. 2 indulged in mal-practice while conducting the poll for the election of Sarpanch. It was also alleged that the agents and the candidates were not allowed to sit inside the polling booth. The petitioner made a complaint to the Block Development and Panchayat Officer (for short BDPO), Incharge of the election of Block Raipur Rani. The petitioner met BDPO immediately gave a chit to the petitioner addressed to the Presiding Officer directing him to allow the agents and candidates to sit inside the polling booth. However, by that time, most of the votes had been polled. The petitioner also made a complaint to the Supervisory Staff against the Presiding Officer and the Supervisory Staff disallowed him to do the function of the Presiding Officer-Jagdish Singh Negi aforesaid and appointed one Shri Guru Ram, the Member of the Supervisory Committee, as Presiding Officer, Thereafter, only four votes were polled. The Presiding Officer, Shri Jagdish Singh Negi had already done his work by double stamping the votes which were polled in favour of the petitioner. The petitioner also furnished the names of Mehar Chand, Smt. Parkash, Suresh, Ram Parkash and Charan Dass etc. who were allowed to vote twice. It was alleged that three votes were cancelled due to double stamping for Block Samiti whereas 24 votes for the post of Sarpanch were cancelled due to double stamping. It was alleged that there was only a difference of 15 votes between the returned candidate and the petitioner. The petitioner contended that if the votes polled in his favour had not been stamped twice, he would have been elected Sarpanch of the village. It was due to the mal-practice of respondent No. 2 and the Presiding Officer-respondent No. 3 that the petitioner was defeated in the election for the post of Sarpanch. The learned Civil Judge (S.D.) dismissed the petition. This petition is directed against the impugned order dated 21.8.1997 passed by the learned Civil Judge (S.D.) Panchkula, dismissing the election petition.

Notice of motion was issued to the respondents. Respondent No. 1-Civil Judge, Senior Division, Panchkula, was impleaded as a proforma party, while respondent No. 2 is the returned candidate and respondent No. 2 Jagdish Singh Negi is the Presiding Officer against whom the allegations of mal-practice were levelled. On behalf of respondents Shri S.S. Dinarpur, Advocate put in appearance I have heard Shri Bhag Singh, learned counsel for the petitioner and Shri S.S. Dinarpur, learned counsel for respondent No. 2-returned candidate and have perused the judgment of the learned Civil Judge (S.D.), Panchkula.

Learned counsel for the petitioner has impugned the judgment on a variety of grounds which, inter alia, are: (i) that respondent No 1.-Civil Judge, (S.D.) acted illegally and with material irregularity and against the evidence on record and committed error in law in dismissing the election petition. The learned Civil Judge, it was alleged, did not bother to rely upon the statements and evidence produced by the petitioner before the Court by saying that these statements were not signed by the Presiding Officer; (ii) that the Civil Judge, (S.D.) acted illegally in not opening the sealed envelope for getting the votes scrutinized from the counterfoil of the votes; (iii) that the Civil Judge (S.D.) had wrongly and illegally dismissed the evidence produced by the petitioner and failed to notice the fact that the respondents have with-held the best evidence.

Learned counsel for respondent No. 2-returned candidate controverted the allegations made by the petitioner and submitted that the election of respondent No. 2 could not be challenged on the grounds taken in the petition. He further contended that none of the grounds mentioned in the election petition were included in Section 176(5) of the Act. Lastly, it was contended that the finding of fact recorded by the Civil Judge (S.D.) was not open to challenge in a petition filed under Article 227 of the Constitution. Section 176(5) of the Act provides as under:

"(5) A person shall be deemed to have committed a corrupt practice-

(a) who with a view to induce a voter to give or to refrain from giving a vote in favour of any candidate, offers or gives any money or valuable consideration, or holds out any promise of individual profit, or holds out any threat of injury to any person; or

(b) who, with a view to induce any person to stand or not to stand or to withdraw or not to withdraw from being a candidate at an election, offers or gives any money or valuable consideration or holds out any promise of individual profit or holds out any threat of injury to any person; or

(c) who hires or procures whether on payment or otherwise, any vehicle or vessel for the conveyance of any voter (other than the person himself, the members of his family or his agent) to and from any polling station.

Explanation 1.- A corrupt practice shall be deemed to have been committed by a candidate, if it has been committed with his knowledge and consent by a person who is acting under the general or special authority of such candidate with reference to the election.

Explanation 2.- The expression ''vehicle'' means any vehicle used or capable of being used for the purpose of road transport whether propelled by mechanical power or otherwise, and whether used for drawing other vehicles or otherwise."

The grounds which have been taken in the instant case by the petitioner regarding the connivance of the returned candidate-respondent No. 2 with respondent No. 3-Presiding Officer for double stamping of 24 votes is not a ground covered u/s 176(5) (a) to (c). u/s 176(5)(a) a corrupt practice is said to have been committed by a person who with a view to induce a voter to give or refrain from giving vote in favour of any candidate, offers or gives any money or valuable consideration, or holds out any promise of individual profit, or holds out any threat of injury to any person. The second ground contained in Section 176(5)(b) is about a corrupt practice committed by a person who with a view to induce any person to stand or not to stand or to withdraw or not to withdraw from being a candidate at an election, offers or gives any money or valuable consideration or holds out any promise of individual profits of holds out any threat of injury to any person. And lastly, u/s 176(5)(c) a corrupt practice is said to have been committed by a person who hires or procures whether on payment or otherwise, any vehicle or vessel for the conveyance of any voter (other than the person himself, the members of his family or his agent) to and from any polling station.

Explanation 1 appended to Section 176(5) of the Act lays down about corrupt practice being deemed to have been committed by a candidate, if it has been committed with his knowledge and consent by a person who is acting under the general or special authority of such candidate with reference to the election.

The Full Bench of this Court in Smt. Anju Vs. Additional Civil Judge (Senior Division) and Others, repelled the contention raised by the learned counsel for the election petitioner to the effect that even though sub-section (4) of Section 176 of the Act provided only two grounds for challenging the validity of an election of a Sarpanch, yet, if any other illegality of irregularity is committed during the course of election, the same could be challenged on those grounds as well. The learned counsel for the election petitioner had placed reliance on a Division Bench judgment of this Court in Smt. Guddi Devi Vs. The State Election Commissioner, Haryana and others, . The Full Bench over-ruled the judgment of the Division Bench in Smt. Guddi Devi''s case (supra) and held in paras 10 and 11 as under:-

"10. In Guddi Devi''s case (supra) a bunch of petitions was disposed of by the Division Bench and in most of those cases, the petitioners therein sought to contest elections for the post of Sarpanch but their nomination papers, according to them, were illegally rejected. However, in one of the cases the grievance of the petitioner was regarding illegal acceptance of nomination paper of another candidate. Against the rejection of their nomination papers the petitioners therein filed writ petitions in this Court. It was contended on their behalf that there being no specific remedy either under the Act or under the Rules whereby a candidate whose nomination papers were illegally rejected could challenge that rejection by way of appeal or revision or before any specified election forum, the writ petitions were maintainable and that this Court should examine the validity of the orders illegally rejecting or accepting the nomination papers. The argument was rejected by the learned Judges constituting the Division Bench holding that the election process starts with the publication of the notification and the same is complete with the declaration of the election results and even though sub-section (4) of Section 176 of the Act furnished limited grounds for challenging an election the same could be challenged on the ground of other mistake, irregularities or illegalities committed during the election process and that the affected party could approach the competent authority by way of an election petition. The petitioners therein were left to have their grievances redressed by filing an election petition and the writ petitions were disposed of with the following observations:-

"It is true that under sub-section (4) of Section 176 of the Act it is provided that the election shall be set aside for committing corrupt practice within the meaning of sub-section (5). However, we are of the firm view that the provision of sub-section (4)(a) for setting aside the election of a candidate on the basis of corrupt practice within the meaning of sub-section (5) cannot in any manner be interpreted to mean that only ground for setting aside the election would be on the basis of corrupt practice and not on the basis of illegal rejection or acceptance of nomination papers of a candidate or illegalities or irregularities committed in preparation of electoral rolls and all such matters connected with the conduct of the election process right from its very beginning upto its final culmination with the declaration of the election results. Mere fact that neither under the Act nor under the Rules framed by the State Legislature any remedy has been provided against illegal rejection or illegal acceptance of nomination papers or illegalities or irregularities committed in preparation of the electoral rolls before the culmination of the electoral process in our view would not in any manner debar the affected party from taking up all such objections in the election petition while challenging the validity of election at a stage subsequent to the declaration of the election results. Rather such an interpretation which we have taken is in consonance with the prime object of completing the entire election process expeditiously, and without any undue delay and would certainly be helpful in holding the election process according to the schedule. The mistakes, irregularities or illegalities committed in the election process can certainly be rectified at a later stage when the affected party approaches the competent authority by way of election petition.

We have carefully gone through the judgment of Guddi Devi''s case (supra) and with respect hold that sweeping observations as made therein do not lay down the correct law. The judgments of the Apex Court in Jyoti Basil''s case (supra) and Rama Kant Pandey ''s case (supra) were not brought to their notice. We have, therefore, no hesitation in over-ruling the judgment in Guddi Devi''s case (supra)."

The Full Bench considered the judgment of the Hon''ble Apex Court in Jyoti Basu and Others Vs. Debi Ghosal and Others, and Rama Kant Pandey Vs. Union of India, . The Hon''ble Apex Court in the case of Jyoti Basu and others

"A right to elect, fundamental though it is to democracy, is, anomalously enough neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and, therefore, subject to statutory limitation. An election petition is not an action at Common Law, nor in equity. It is statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodies. A Court has no right to resort to them on consideration of alleged policy because policy in such matters, as those, relating to the trial of election disputes, is that the statute lays down."

It is now well settled that the challenge to the election can be made only on the grounds which have been provided u/s 176(5) of the Act. It was further pointed out by learned counsel for respondent No. 2 that the petitioner never claimed recount before the Returning Officer and no such ground was taken in the election petition. Learned counsel for the petitioner, on the other hands contended that 24 votes had been double stamped and this was such an allegation which should have been considered by the trial Court and the trial court should have opened the envelope containing the invalid votes. Learned Civil Judge, Senior Division, while dealing with the submission regarding the 24 votes which were allegedly double stamped and kept in the envelopes containing the record of the election which is on the file and the same was exhibited from outside, but the petitioner did not take care to get these envelopes opened at the time of leading of the evidence so as to know their contents. He held that the petitioner failed to prove his allegation from the contents of the sealed envelope. The learned Civil Judge, Senior Division held further that the Court, at that stage, would not open the envelope when the petitioner failed to get the envelopes opened at the time of leading the evidence. It will appear from the findings of the learned Civil Judge, Senior Division, that the petitioner did not make any attempt during the trial to get the sealed envelope opened and to prove the same before the trial Court. In other words, the petitioner failed to substantiate his allegations about the 24 votes having been double stamped. Apart from it, the petitioner has failed to show that he made any prayer before the learned Civil Judge, Senior Division, for recount of votes. Learned counsel for the petitioner placed reliance on a Division Bench judgment of this Court in Amar Nath Vs. Subhash Chander and Others, , wherein it has been held that the authority enjoined with the powers to adjudicate an election petition is under a duty to consider the valid votes cast during the election. The Court can scrutinise and compute votes which obviously means valid votes recorded in favour of each candidate and declare that candidate as duly elected who has secured large number of valid votes. It may be mentioned that in the instant case, there was no prayer made by the petitioner for recount of the valid votes. As a matter of fact, the grievance of the petitioner is not regarding the counting of valid votes but the grievance is about 24 votes having been rendered invalid by double stamping which is alleged to be a result of connivance between respondents No. 2 and 3. The allegations of any connivance between respondents No. 2 and 3 were not found substantiated and there being no prayer for recount of the votes, the learned Civil Judge, Senior Division, could not be said to have committed any illegality in not ordering for the recount of the votes.

Learned counsel for respondent No. 2 placed reliance on Mithu Singh v. Ranjit Singh and Ors. (1996)112 P.L.R. 217 wherein a learned Single Judge of this Court held in para 6 as under:

"The ground on which Ranjit Singh challenged the election of Mithu Singh was that valid votes polled by the former had been illegally declared invalid and that at the time of counting of votes some of the votes polled by him were mixed up with the votes of Mithu Singh. These allegations, to say the least, are as vague as they could be and no particulars thereof were stated in the petition nor any single instance mentioned about any alleged irregularity or illegality in the counting of votes. Not only this, when Ranjit Singh appeared as his own witness as PW-2 before the Tribunal all that he stated was that votes polled by him had been wrongly rejected without giving any further particulars. No doubt, he stated that he made a request for recounting of votes which was rejected but that is no substitute for the particulars that he was required to give in his election petition as also in his statement, so as to make out a case for recounting of votes. When a candidate looses by a narrow margin he is likely to say that counting has not been properly done but that by itself is no ground for ordering a recount. It is well settled that an order of recount cannot be passed as a matter of course and that the election petitioner must provide sufficient material before the recounting of votes is ordered. It has been observed by their Lordships of the Supreme Court in P.K.K. Shamsudeen Vs. K.A.M. Mappillai Mohindeen and Others, "that the justification for an order for examination of ballot papers and recount of votes is not to be derived from hindsight and by the result of the recount of votes. On the contrary, the justification for an order of recount of votes should be provided by the material placed by an election petitioner on the threshold before an order for recount of votes is actually made". In the present case the Tribunal ordered a recount of rejected votes only for making a fishing inquiry as to whether any illegality or irregularity had been committed in the counting of votes. This could not be done. It has no evidence before it of any such illegality or irregularity before it ordered recount. Moreover, there was no justification for the Tribunal to have ordered recount of the valid votes of polling booth 120 when such a request had been made orally by Ranjit Singh in the course of scrutiny/recounting of rejected votes."

A Division Bench of this Court in Bharat Singh Vs. Dalip Singh and others, considered the following question:

"Can a recount of the votes in an election of a Gram Panchayat held under the Haryana Panchayati Raj Act, 1994 (hereinafter referred to as the ''Haryana Act, 1994) read with the Haryana Panchayati Raj Election Rules, 1994 (hereinafter referred to as the Haryana Rules, 1994) and the Punjab Panchayati Raj Act, 1994 (hereinafter referred to as the Punjab Act, 1994) and the Punjab Panchayat Election Rules, 1994 (hereinafter referred to as the Punjab Rules, 1994) be granted only on the asking of the election petitioner without there being adequate averments in the pleadings and in the absence of any contemporaneous evidence to substantiate the allegations made in the petition.....".

The Division Bench after considering the relevant provisions of the Act and Rules of both the States and referring to the various decisions of the High Courts and the Hon''ble Supreme Court held, with reference to the Haryana Panchayati Raj Act and Rules and recount cannot be ordered as a matter of course in the absence of pleadings and cogent evidence making out a prima facie case for a recount.

In view of the settled law as referred to above, no fault can be found with the Civil Judge, Senior Division in not ordering the recount of the votes. The petitioner himself did not lead cogent evidence before the Court to prove the allegations of alleged connivance between respondents No. 2 and 3 in double stamping the 24 votes in the said election for the post of Sarpanch.

Resultantly, there is no merit in this petition which is dismissed. No order as to costs.