Sant Lal vs Additional District Judge Sonepat and others

I. S. Tiwana, J. (Oral)

Sita Ram respondent No. 2 was elected to the office of Sarpanch of Gram Panchayat Swana Mal on June 8, 1978. This election was challenged by Sant Lal petitioner before the prescribed authority on various grounds, and the petition was allowed by the said authority after recording the following conclusion :

"that the votes of 41 voters who are dead and 18 Govt. officials who were not present in the village were polled in the election of Sarpanch. Besides this a few voters were not permitted to cast their votes on the ground that some others have already cast their votes and this has materially affected the result of the election. It was also held that the Returning Officer has also contravened the provisions of Rule 32(3)(e) of Haryana Gram Panchayat Election Rules 1971 by not counting the votes Booth wise and preparing separate return of counting in the prescribed form No. VI. On these grounds the election of the appellant as Sarpanch was set aside by accepting the election petition."

The order of prescribed authority was challenged by Sita Ram before the Additional District Judge, Sonepat under the provisions of Section 13V of the Punjab Gram Panchayat Act, 1952 (for short, the Act) as applicable in Haryana. The contentions which prevailed with the appellate Court and resulted in the upsetting of the abovenoted conclusion of the prescribed authority were (i) the prescribed authority erred in treating affidavits Exs. A.1 to A.69 as evidence and relying on those affidavits while recording a finding that the votes of 41 dead persons and 18 Government officials had been cast, (ii) only 2 votes out of the 81 alleged dead persons had as a matter of fact been polled, and (iii) as against 21 persons who were stated to be Government officials and were away from the village at the time of polling only 5 had as a matter of fact cast their votes. Thus according to the Court the result of the election which Sita Ram had won by a margin of 83 votes was not materially affected in any manner.

While accepting the contentions at Nos. (i) to (iii) the lower appellate Court has come to the following conclusion :

"There is no provision in the Gram Panchayat Act and the Rules framed thereunder whereby the affidavits may per se be taken as substantive evidence for determining the points in controversy in the Election Petition. Under Order 19 C.P.C., the Court may in its discretion require any point to be proved by affidavits. In the instant case the prescribed authority did not pass any specific order permitting the parties to lead evidence on the point in controversy by means of affidavits. The affidavits Ex. A.1 to Ex. A.69 are thus inadmissible into evidence ... ... It appears from the perusal of the voters list read with the death certificates Ex. A.81 to Ex.A.118 that only the votes of Chander Pati, and Munshi who were dead as per death certificate Ex. A.111 and Ex. A.116 had been polled while the votes of the other persons said to be dead have not at all been polled. Similarly the votes of only Jhandu, Chandgi Ram, Zile Singh, Rattan Singh and Suresh who are said to be Govt. officials had been polled out of about 21 Govt. officials."

Learned counsel for the petitioner now vehemently contends before me that while recording the abovenoted conclusions the lower appellate Court has completely ignored the provisions of Section 13I which provides that the prescribed authority has the same powers which are vested in a Court under the Code of Civil Procedure in matter of reception of evidence taken on affidavits.

It is not disputed by the learned counsel for the parties that in view of the provisions of Section 13G of the Act the procedure prescribed under the Code of Civil Procedure for the trial of suits has to be adhered to by the prescribed authority while trying election petitions under the Act. This of course is true that this procedure is subject to the provisions of the Act and the rules framed thereunder. The learned counsel maintains that in view of the provisions of Section 13I once the prescribed authority can be said to have the power to receive evidence on affidavits and had actually allowed that evidence to be taken by receiving the affidavits and thus making them as part of the evidence, it was not open to the appellate authority to rule that evidence out of consideration on the ground of admissibility. The learned counsel further asserts with equal amount of vehemence that the voters list on the basis of which the appellate Court has come to the conclusion that only 2 votes of the alleged 81 dead persons and 5 votes of the 21 alleged Government servants had been polled was not part of the evidence nor was that voters list on the records of the case. In fact, he has read to me the statement of Hawa Singh P.W 49 who was the Presiding Officer for conducting of the election in question wherein he has stated that the voters list regarding booth No. 1 was not available in the election record which was produced before the prescribed authority. Learned counsel points out that in the face of this evidence, it is little surprising as to on the basis of which voters list the appellate Court has recorded the abovenoted conclusion.

After giving my thoughtful consideration to the entire matter, I find that the abovenoted submissions of the learned counsel for the petitioner cannot be ignored. In fact, the learned counsel for the respondent is not in a position to contest the factual position that the provisions of Section 13I of the Act have not been noticed by the appellate Court and similarly the Court has not referred to any particular voters list which can be said to be forming part of the evidence in the case.

In the light of the above, I find that the order of the appellate Court is vitiated and is thus set aside. As a necessary consequence of this, the case is sent back to that Court for decision afresh on merits in accordance with law. The parties through their counsel are directed to appear before that Court on August 30, 1982. No costs.