Nisha Thakur vs Radha Devi And Others

Ajay Mohan Goel, J

By way of this writ petition, the petitioner primarily has prayed for the following reliefs:

“(I) To quash and set aside impugned order Annexure PÂ5 dated 09.01.2020 and Annexure PÂ4 dated 02.03.2019 passed by Ld.

Authorized Officer and Ld. Appellate Authority under the H.P. Panchayati Raj Act, 1994, respectively being wrong and illegal.

(II) To declare the election of the petitioner for the post of Pradhan, Gram Panchayat, Hinner to be legal and valid.

(III) To direct the Director, Panchayati Raj, H.P., Shimla (Respondent No. 6) not to take any action on the basis of the order passed by the

Ld. Lower Courtsâ€​.

The case of the petitioner is that she is a resident of Village Kurgal, Post Office Hinner, Tehsil Kandaghat, District Solan, H.P. Elections for the

post of Pradhan, Gram Panchayat Hinner were held in December, 2015, in which, the petitioner was declared elected as Pradhan, Gram Panchayat

Hinner, Tehsil Kandaghat, District Solan, H.P. An Election Petition was filed by Smt. Radha Devi (i.e., respondent No. 1 herein) under the Himachal

Pradesh Panchayati Raj Act, 1994 (hereinafter referred to as “the 1994 Actâ€), inter alia, on the grounds that nomination was not properly filed by

the petitioner nor did the same confirm to the mandatory instructions and declarations made by her in the nomination paper were incorrect, real facts

stood concealed and mis represented, false and fabricated description of papers stood made by the petitioner in the nomination papers and further,

the elected Pradhan, i.e., the petitioner was involved in unfair election practices alongwith her family members. According to the election petitioner,

the elected Pradhan and her family members distributed money, liquor and utensils during election period. Police and electoral staff failed to discharge

their duties in consonance with law and persons almost 50 in numbers, who were not eligible to cast their vote, were permitted to do so to the

deterrent of the election petitioner, despite her objections and objection of her Polling Agent. The election petitioner was not allowed to appoint a

Counting Agent and the official machinery sabotaged the election process, because the voting was not held in a lawful manner.

The election petition was resisted by the elected candidate, inter alia, on the ground of maintainability, cause of action and the principle of estoppal

etc. It was 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. It was denied in the reply that the elected Pradhan had indulged in any unfair practice in the process of election or

free or fair election was not allowed by the election machinery etc.

Vide order dated 02.03.2019 (Annexure PÂ4), passed by the SubÂDivisional Officer (Civil)ÂcumÂAppellate Authority (Election Petition),

Kandaghat, District Solan in Case No. 01/2016, titled as Smt. Radha Devi Vs. Smt. Nisha Thakur and others, the petition filed by the election

petitioner against the nomination and election of the elected Pradhan was allowed by returning the following findings:

“21. In view of my findings given on issues from 1 to 9, Court is of the view that the nomination paper of the respondent No. 1 Smt. Nisha

Devi has not been scrutinized as per norms and provisions of H.P. Panchayati Raj Act, 1994 and Himachal Pradesh Panchayati Raj

Election Rules, 1994 in which the respondent has concealed the material facts in the Undertaking/Affidavit annexed alongwith Nomination

papers. Further the nomination paper filed by Smt. Nisha Thakur, Respondent No. 1 bears many irregularities and was liable to be rejected

which was wrongly accepted by ARO (Respondent No. 2). In view of the above discussion, I am of the construed opinion that the petitioner

has due merits therefore allowed. The election of Pradhan Gram Panchayat Hinner held on 01.01.2016 are set aside and declared null and

void under Section 174(1Âb) of Himachal Pradesh Panchayati Raj Act, 1994 and fresh election for the post of Pradhan Gram Panchayat

Hinner be got conducted as per H.P. Panchayati Raj Act, 1994 and H.P. Panchayati Raj Election Rules, 1994. Further warning be issued to

the erring official ARO Daleep Singh for not conducting the election as per Himachal Pradesh Panchayati Raj Act, 1994 and as per

Himachal Pradesh Panchayati Raj Election Rules, 1994. Case file be consigned to general record room after due completion.â€​

Appeal filed by the Elected Pradhan under Section 181 of the 1994 Act against the order so passed by learned SubÂDivisional Officer (Civil)Â‐

CumÂAppellate Authority was dismissed by the Appellate Authority, i.e., Deputy Commissioner, Solan on 09.01.2020 (Annexure PÂ 5) vide Appeal

No. 3/8 of 2019, titled as Nisha Thakur Vs. Radha Devi and others by returning the following findings:

“11. In the light of points discussed herein before I am led to conclude and established that the nomination paper was incomplete and

appellant concealed the facts as discussed in forgoing paras. The ARO has also acted in a casual manner and wrongly accepted the

nomination papers and further the ARO has not complied with his satutory duies and instruction, therefore, there is no justification for

setting aside the impugned order. Impugned order passed by the Sub Divisional Officer (Civil)ÂCumÂAppellate Authority (Election

Petition) Kandaghat, in Case No. 1/2016 decided on 02.03.2019 titled as Smt. Radha Devi versus Smt. Nisha Thakur and others is upheld.

The appeal is therefore dismissed. The election of Pradhan Gram Panchayat Hinner held on 01.01.2016 are set aside and declared null and

void. Copy of this order be sent to the Director Panchayati Raj, H.P. Shimla for conducting the fresh election for the post of Pradhan,

Gram Panchayat Hinner and disciplinary authority of respondent No. 2, be directed to initiate the proceedings against the respondent No. 2

ARO for not conducting the Election as per the provisions of H.P. Panchayati Raj Act, 1994. Case files received from the office of SubÂ‐

Divisional Officer (Civil)ÂCum Appellate Authority (Election Petition), Kandaghat is ordered to be returned back to him alongwith a copy

of these orders. Case file of this office be consigned to General Record Room after due completion.â€​

Feeling aggrieved, the elected Pradhan has preferred this petition praying for the reliefs already enumerated hereinabove.

Learned Senior Counsel for the petitioner has primarily argued that this petition deserves to be allowed by setting aside the orders impugned on the

sole ground that the election petition which was so filed by the election petitioner was defective and not as per the statutory mandate of the 1994 Act

read with relevant Rules framed thereunder. Though learned Senior Counsel has made submissions on merit also, however, as argued and agreed, this

Court is firstly going to adjudicate the issue as to whether the election petition filed by the election petitioner, was filed in the manner as prescribed

under Section 163 of the 1994 Act and if not, whether the same was liable to be dismissed on account of the defects therein or not?

At this stage, this Court will also refer to one objection which has been taken by learned counsel appearing for Radha Devi, i.e., the election

petitioner, who has contended that the present petition cannot be heard, as the appeal which was filed by the present petitioner, against the oder so

passed by the SubÂDivisional Officer (Civil)ÂCum Appellate Authority, was not maintainable, as the same was not accompanied with the treasury

challan. Said objection shall be dealt with by me at the appropriate stage.

As mentioned above, learned Senior Counsel for the petitioner has argued that the authorities below have erred in not appreciating that the Election

Petition, which was filed by the election petitioner, was defective and same was thus liable to be dismissed on this count alone and same could not

have been decided on merit.

Though this plea does not finds mention in the petition in so many words, yet as it is a legal plea, the same was permitted to be raised and parties

were heard at length on the same.

I have heard learned counsel for the parties and have also gone through the pleadings as well as the record of the case.

Section 163 of the 1994 Act provides that any elector of a Panchayat 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 SubÂsection (1) of Section 175, to the Authorised Officer

an election petition in writing against the election of any person under the Himachal Pradesh Panchayati Raj Act, 1994.

Section 164 of the said Act deals with contents of petition. This statutory provision reads as under:

“164. Contents of petition. Â​(1) An election petitionÂ​

(a) shall contain concise statement of the material facts on which the petitioner relies,

(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of

the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice, and

(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the

verification of pleadings:

Provided 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 the particulars thereof.

(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.â€​

As this Court is confining itself to the question of maintainability of Election Petition, therefore, it is not further dwelling on the statutory provisions,

as are contained in Section 175 of the 1994 Act, which deal with grounds for declaring election to be void.

Section 164 of the 1994 Act, inter alia, 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.

Order VI, RuleÂ​15 of the Code of Civil Procedure deals with verification of pleadings and the same provides as under:

“Order VI, RuleÂ15. Verification of pleadings: (1) Save as otherwise provided by any law for the time being in force, every pleading

shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to

be acquainted with the facts of the case.

(2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and

what he verifies upon information received and believed to be true.

(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed.

(4) The person verifying the pleading shall also furnish an affidavit in support of his pleadings.â€​

Now, in the background of the abovementioned statutory provisions, this Court will look into the Election Petition, as it stood filed by the election

petitioner before the Authorized Officer. Copy of the Election Petition is appended with this writ petition as Annexure PÂ1. This Court had directed

the office of learned Advocate General to produce the original record of the Election Petition, which has been made available by the learned

Additional Advocate General.

A perusal of the original record demonstrates that Election Petition was presented by one Shri Ashish Thakur, learned counsel for the election

petitioner before the Authorized Officer on 29.01.2016 and was signed by the petitioner on the same date as well as learned counsel appearing

for the election petitioner. The    In the absence of Election Petition having been verified at the foot, there is no compliance of Order VI, RuleÂ​‐

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.

Be that as it may, the Election Petition is also not accompanied by an affidavit in support of the pleadings of the Election Petition per se, as is

contemplated under Order VI, Rule 15(4) of the Code of Civil Procedure. However, as per the original record, there is at Pages No. 619Â620 thereof

an affidavit of Smt. Radha Devi, wife of Shri Tapender Pal, i.e., the election petitioner, which is executed on a Non Judicial stamp paper of ten

rupees value. The contents of said affidavit are being reproduced hereinbelow in toto for ready reference:

“AFFIDAVIT

I, Radha Devi, wife of Sh. Tapender Pal, resident of Village Rahed, P.O. Hinner, Tehsil Kandaghat, District Solan, H.P. aged about 56

years, the petitioner in the accompanying election petition calling in question the election of Smt. Nisha Thakur from Gram Panchayat

Hinner as Pardhan, Gram Panchayat Hinner, Tehsil Kandaghat, District Solan, H.P. in the said petition, make solemnly affirm and oath as

says:

That the statements made in the paragraphs No. 3 to 7 of the accompanying election petition about the commission of corrupt practice of

wrong counting of votes and wrong declarations and particulars of such corrupt practices mentioned in the paras are true to my

knowledge.

Deponent

Verification:Â​

I, the abovenamed deponent do hereby verify that the contents of my above affidavit are true and correct to the best of my personal

knowledge and belief. No part of it is false and nothing has been concealed therefrom.

Verified at Solan on this 28th day of January, 2016.

Deponent.â€​

Now, incidentally, this affidavit is prepared on a NonÂJudicial stamp paper of ten rupees value, which was purchased on 28.01.2016

and has been attested by the Executive Magistrate, Solan, District Solan on the date of preparation of the affidavit, i.e., 28.01.2016. To

make more clear, the backside of the affidavit demonstrates that the affidavit was attested by the Executive Magistrate, Solan on

28.01.2016. Contents of the affidavit have already been reproduced hereinabove in toto.

Before proceeding further, this Court again wants to make a reference to proviso of Section 164(1) of the 1994 Act, wherein, it is provided that in

the event of corrupt practice being alleged in the Election Petition, the petition shall also be accompanied by an affidavit in the prescribed form in

support of the allegation of such corrupt practice and the particulars thereof. Now, the ‘prescribed form’ in this regard is FormÂ43 appended

with the Himachal Pradesh Panchayati Raj (Election) Rules, 1994, in terms of the provisions of RuleÂ94(3) of the above mentioned Rules. The same

is also being quoted hereinbelow in toto for ready reference:

“FORMÂ​43

I……………………..the petitioner in the accompanying election petition calling in question the election of

Shri/Shrimati……………..from …………….respondent No. ……………...in the said petition make solemn affirmation/oath and

say:Â​

(a) that the statements made in paragraphs………….of the accompanying election petition about the commission of corrupt practice of

…………………….and the particulars of such corrupt practice mentioned in paragraphs………………..of the Schedule

annexed thereto are true to my knowledge;

(b) that the statement made in paragraphs…………..of the said petition about the commission of the corrupt practice

of…………….and the particulars of such corrupt practice given in paragraphs…………...of the said petition and in

paragraphs…………………….of the Schedule annexed thereto are true to my knowledge.

( c)

(d)

Signature of Deponent.

Solemnly affirmed/sworn by Shri/Shrimati………...at this (…………….day of …………..20….)

before me.

Executive Magistrate.

………………………………………….

Here insert one of the following alternatives as may be appropriate:Â​

(1) Office of Member from……………..constituency of Gram Sabha………………………

(2) Office of Pradhan of ……………...Gram Sabha.

(3) Office of UpÂ​Pradhan of ………….Gram Sabha.

(4) Office of Member of ……………..Panchayat Samiti from………...constituency.

(5) Office of Chairman of ……………...Panchayat Samiti/Zila Parishad.

(6) Office of ViceÂ​Chairman…………….Panchayat Samiti/Zila Parishad.

Here specify the name of the corrupt practice.â€​

If one corelates the contents of FormÂ43 with the contents of the affidavit, which was sworn in by the election petitioner before the Executive

Magistrate, Solan, the same, by no stretch of imagination, can be said to be in consonance with the contents of Form 43. Besides, one more glaring

defect on the face of it, which demonstrates that the Election Petition filed by the election petitioner was per se defective and could not be termed to

be a petition, as is envisaged under Section 163 of the 1994 Act is that, as already mentioned hereinabove, the Election Petition was prepared on

29.01.2016 and signed by the election petitioner also on 29.01.2016, however, the affidavit purportedly sworn in before the Executive Magistrate in

support of the said Election Petition is dated and attested on 28.01.2016. In other words, the affidavit purportedly prepared in support of the

Petition came into existence even before the Election Petition, in support whereof, this affidavit was sworn in, was actually prepared

and signed. During the course of arguments, learned counsel appearing for the election petitioner/private respondent No. 1 herein, was pointedly

asked by the Court to explain this fact, which he could not to the satisfaction of the Court. The above facts, in my considered view, clearly prove and

establish that the Election Petition, which was filed by the election petitioner, challenging the election of the present petitioner before the Authorized

Officer was defective and was not in terms of the provisions of Section 163 of the 1994 Act and this extremely important aspect of the matter has

been overlooked and not gone into by the Authorized Officer while deciding the Election Petition. After the amendment incorporated in the Code of

Civil Procedure, whereby, now it is mandatory that a Civil Suit, besides being verified, is also to be accompanied by an affidavit, the same entails the

plaint to be attested by the Oath Commissioner alongwith the affidavit. In this case, the Election Petition has not been attested by the authority, which

attested the affidavit, purportedly sworn in, in support of the Election Petition. Even if this aspect of the matter is to be ignored by the Court, yet, the

factum of the purported affidavit 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. This Court appreciates that there can be a situation where after preparation of the petition, the affidavit is prepared in support

thereof, may be a day or so later after the petition is prepared, however, there cannot be a situation wherein an affidavit in support of a petition can

come into existence even before the actual petition is prepared, because in the absence of the petition being there, the deponent cannot know as to

what he or she is swearing in by way of affidavit in support of the petition.

This Court is aware that Hon’ble Supreme Court inG .M. Siddeshwar Vs. Prasanna Kumar (2013) 4 Supreme Court Cases 776 has been

pleased to hold that if an election petition is accompanied by an affidavit, may be defective, then the same is to be taken as substantial compliance with

the requirements of law and if the defect is curable, opportunity has to be granted to the petitioner to cure the defect. However, in my considered

view, 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 preÂdates 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 preÂdated 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 nonÂsuited on the basis of a defective Election Petition, which not only stood entertained by the Authorized

Officer, but also adjudicated upon on merit.

Incidentally, when one peruses the issues which stood framed in the course of adjudication of the Election Petition by the Authorized Officer, one

finds that Issue No. 6 was to the effect as to whether the petition was maintainable or not?. The issue with regard to maintainability of the petition has

been decided by the Authorized Officer in a completely slipshod manner by returning the following findings:

“ISSUES No. 6, 7, 8 and 9:

As Issue Nos. 1, 4 and 5 have already been proved to be true hence the respondents failed to prove the non maintainability of the

present petition. The case has been proved beyond doubt that the allegations levelled by the petitioner have been proved to a greater extent.

Hence the case is maintainable and liable to be accepted. As the petitioner was part of the election process being contesting candidate and

she has every right to fight for any type of irregularities conducted in the election process which affects the result. It has been alleged by

the counsel for respondents that the petitioner had not raised the issues as and when these arise and now when the issues were not raised at

appropriate time then the cause of action does not arise. The counsel for the petitioner in its rejoinder explained that Respondent No. 2 the

then ARO had not made petitioner part of election process in lawful manner and made her to suffer totally in contravention to the principal

of natural justice and fair play. Further PWÂ1 in her crossÂexamination has alleged that they tried to file the objections but the same were

not accepted by the ARO this has also been verified by RWÂ2 that ARO did not receive the counting agent form. The petitioner has valid

cause of action against the respondents as the whole scenario had changed by the wrong acceptance of the nomination form in respect of

Respondent No. 1. Had the nomination paper of the respondent No. 1 not been accepted, petitioner would have won the election. As far as

the issue of non joining of the parties is concerned, the petition has properly been scrutinized and was found in order thereafter the

application was accepted. Keeping in view the issue Nos. 6 to 9 could not be proved in favour of respondents and against the petitioner.â€​

This Court again stresses that the Authorized Officer ought to have been vigilant enough while entertaining, hearing and deciding the Election

Petition qua the infirmities which were there in the Election Petition and which were ex facie evident.

Accordingly, as this Court finds that the Election Petition which was filed by election petitioner/respondent No. 1 herein, was per se defective and

was not maintainable, the order dated 02.03.2019, which has been passed thereupon, but obvious, is null and void and is liable to be quashed and set

aside and so also order dated 09.01.2020, passed in appeal by the Appellate Authority, vide which said order was confirmed.

Though a catena of judgments were cited by both the learned counsel for the parties with regard to the scope of this Court while deciding a Writ

Petition in election matter, but this Court is not referring to those judgments, because this Court has not gone into the merits of the orders which stood

passed by the authorities below, either in the Election Petition or the Appeal.

As far as the objection taken by learned counsel for respondent No. 1 herein that as treasury challan was not appended with the appeal, therefore,

this petition cannot be heard on merit is concerned, in my considered view, this Court while discharging its duties in exercise of powers conferred

under Article 226 read with Article 227 of the Constitution of India, cannot permit an illegality to remain on record, especially in exercise of its power

of superintendence. This Court has come to the conclusion that the Election Petition filed by the election petitioner was not maintainable, as the same

was defective and the order which stood passed on the said Election Petition was void abinitio and therefore, this Court cannot allow the said void

order to remain on record. Even otherwise, such objection was not taken by the respondent before the appellate authority and she was further

satisfied with adjudication on the same on merit.

Accordingly, in view of the discussions held hereinabove, this writ petition is allowed. Order dated 02.03.2019 (Annexure PÂ4), passed by learned

SubÂDivisional Officer (Civil)ÂCum Appellate Authority (Election Petition), Kandaghat, District Solan in Case No. 1/2016, titled as Smt. Radha

Devi Vs. Smt. Nisha Thakur and others and order dated 09.01.2020 (Annexure PÂ5), passed by learned Deputy Commissioner, Solan in Appeal No.

3/8 of 2019, titled as Nisha Thakur Vs. Radha Devi and others are quashed and set aside. RespondentÂState is directed to allow the petitioner to

perform her duties as Pradhan, Gram Panchayat Hinner without any fetters. Miscellaneous applications, if any, also stand disposed of. No order as to

costs.