Mata Din vs Additional District Judge, Narnaul and others

M.R. Sharma, J. (Oral)

The petitioner and respondents Nos. 3 to 7 filed nomination papers for the election of the office of Sarpanch for the Gram Panchayat, Sundrah. The polling took place on 10.6.1978 and respondent No. 3 was declared elected. The petitioner filed an election petition on two grounds. Firstly, it was urged that respondent No. 3 was in arrears of professional tax on the date of the poll and as such he was not eligible to be elected. Secondly it was urged that he committed a corrupt practice inasmuch as he offered hospitality to the Returning Officer who illegally accepted his nomination papers. This petition was tried by the learned Prescribed Authority who held that respondent No. 3 was in fact in arrears of professional tax and that the charge of corrupt practice was not established. On these findings the election of respondent No. 3 was set aside. He went up in appeal which was heard by the learned Additional District Judge, Narnaul. He held that respondent No. 3 was in arrears of tax but since no affidavit had been filed in support of the allegation regarding corrupt practice committed by this respondent, the election petition was liable to be dismissed as a whole. The appeal was accordingly allowed and the election of respondent No. 3 was upheld.

The petitioner has come up in challenge against the appellate order made by the learned Additional District Judge, Narnaul.

The learned counsel for the petitioner has argued that if the petitioner had failed to file an affidavit in support of the allegation of corrupt practice, the learned Courts below could have ignored that allegation, but the learned appellate Court could not have dismissed the petition in toto merely because no affidavit had been filed in support of the allegation of corrupt practice. In this connection, my attention was drawn to section 13E of the Gram Panchayat Act which lays down that if the prescribed security is not furnished in the prescribed manner or the petition is not presented within the period specified in section 13E, the Prescribed Authority shall dismiss the petition. This section nowhere lays down that if the election petition can be allowed on the basis of one ground, it should be dismissed because an affidavit in support of the corrupt practice put forth as an additional ground, is not filed. The learned Additional District Judge therefore went wrong in dismissing the petition on the basis of this ground. I hereby reverse his finding on this point.

On the second point, Mr. Nehra, the learned counsel for the respondents, argued that the respondent No. 3 had put forth express pleas that for the relevant period he did not act as a shopkeeper and no professional tax was payable by him. It was also argued that this respondent had further averred in the written statement that the amount of professional tax said to have been deposited by this respondent was in fact so deposited by somebody in collusion with the petitioner who was an influential person. I have gone through the written statement and this submission made by Mr. Nehra appears to be correct. Surprisingly enough the learned Courts below did not strike any issue on the point whether respondent No. 3 was liable to pay any professional tax or not. In spite of the pleas raised by respondent No. 3, it was assumed that since there was an entry in the record of the Panchayat that some professional tax was outstanding against him, which has shown to have been paid at a later date, respondent No. 3, was in fact in arrears of tax and thus ineligible to seek election. The setting aside of an election is a very serious matter because it tantamounts to interfering with the will of the electorate. In a large number of cases it has been laid down that an election should not be lightly set aside. Since the very basis on which respondent No. 3 has been held to be ineligible to seek election has been arrived at in a perfunctory manner, I order that the Courts should first strike an issue on this point, take evidence of the parties below and then decide whether respondent No. 3 was legally liable to pay any tax or not. If after adopting this procedure it is found that during the relevant period respondent No. 3 was working as a shopkeeper and as such was liable to pay professional tax, his election would be set aside.

For reasons aforementioned, I partially allow this petition, modify the order passed by the learned Additional District Judge in dismissing the election petition and remand the case to the Illaqa Magistrate to hold retrial on the basis of the issue indicated above.

The parties through their learned counsel are directed to appear before the Illaqa Magistrate on October 19, 1981.