Sham Singh and Another vs Additional District Judge (III) Faridabab and Others

Madan Mohan Panchhi, J.—This election dispute has arisen in the following manner:-

Puran Respondent was elected as Sarpanch of village Panchayat, Mohan, Tehsil Ballabgarh, District Faridabad, having secured the highest votes. An election-petition, predominantly on two grounds, was filed before the Ilaqa Magistrate, Ballabgarh, the prescribed Authority u/s 13 B of the Gram Panchayat Act, 1952. The first one was that Puran had been guilty of the corrupt practice of passing off certain non-existent voters and stoic of them for a number of times. The second ground was that he was in continuous unauthorized occupation of the Panchayat land, which disqualified him from seeking election to the office of the Sarpanch. The matter was contested The Ilaqa Magistrate, vide his order dated 1.8.1985, set aside the election of Puran Respondent on the second ground alone. On the first ground, the decision went in favour of Puran Respondent As a result thereof, the election of Puran Respondent was set aside and Sham Singh, the present Petitioner, who had secured the second highest votes, was declared elected as the Sarpanch.

Puran preferred an appeal in the District Court It was Shri S D. Anand, Additional District Judge (III), Faridabad, who was assigned the appeal. Vide order dated 28.2.1985 (Annexure P 3), the Additional District Judge accepted it and remanded the case back to the Prescribed Authority for readmission. It is against this order that the present writ-petition has been filed by Sham Singh Petitioner, and Dharam Singh election-Petitioner.

During the course of hearing the petition, records of the Prescribed Authority were summoned in order to appreciate the comments of the learned Additional District: Judge, forthcoming in paragraphs 10 to 12 of his judgment under attack The finding of the Additional District Judge is that the evidence recorded by the Prescribed Authority has been recorded piece-meal and the same does not bear, at various places, the signatures/initials of the Presiding Officer the dates on which each statement was recorded Further, it has keen observed that each statement does not bear any certificate to the effect that the statement, and that recorded on different occasions, had been read over and admitted by the witness concerned to be, correct On this ground, the learned Additional District Judge, in the concluding portion of paragraph 11 of his judgment, observed that the entire trial of the election-petition by the Prescribed Authority was vitiated and in violation of the Gram Panchayat Act That view of the learned Additional District Judge was not the only reason for remanding but he further went on to observe that proper issues had not been framed with regard to the allegations of corrupt practice of passing off voters etc. He then framed an issue in that regard to the following effect:-

Whether the voters-list recorded the name of wife of Puran at two places, that of the wife of Ram Wati at two places and that of Khichu also at two places, whether votes at the impugned election were got cast in the name of those ladies to the notice of Puran ? If so, to what effect ?

So far as the newly framed issue by the learned Additional District Judge is concerned, learned course) for the Petitioners has strenuously urged that the course adopted by the learned Judge is illegal and unwarranted. He maintains that the election-Petitioner Dharam Singh was satisfied with the order of the Prescribed Authority when the finding on this aspect of the case had gone against him and the matter was not in issue at all in appeal It is further stressed that a dead issue has unnecessarily been raked up when all concerned had accepted the finding of the Prescribed Authority. And this, according to the learned Counsel, has been added in order to lend support to the other view which, on the face of it, was rather shaky Learned Counsel for the Petitioners has further gone on to say that he does not wish to press this issue at all before the Prescribed Authority in the event of the order of remand being sustained. Learned Counsel for the Respondents, en this aspect of the case as to whether the issue is contentious or not, does not join issue with the counsel for the Petitioner. It is thus clear that the issue is not contentious on the stance adopted by the learned Counsel for the writ-Petitioners. Then obviously, this part of the order of the learned Additional District Judge is a superfluity and necessarily has to be taken as non existent. Even otherwise, from the record it is clear that, such plea was not raised when the matter was argued before the learned Additional District Judge. It was not an issue which could be raked up unless the election Petitioner had specifically raised it as an alternative in order to get maintained the order under appeal. It could not be raised en his own by the learned Additional District Judge. Thus, this aspect of the case would require no further attention.

With regard to the ground that Puran was in continuous unauthorized occupation of the land of the Gram Panchayat, the learned Additional District Judge has not discussed the same on merits. As said before, fault has been found in the manner in which the trial was conducted, for there apparently were omissions in initialing/signing the statements of the witnesses, mentioning of dates at some places and appending the certificates that the evidence of a particular witness had been read over and admitted by him to be correct. These observations of the learned Additional District Judge have to be accepted on their face value for two reasons. Firstly, there is no specific averment in the petition that such observations of the learned Additional District Judge were not borne out from the record and rather those statements were signed and dated by the Presiding Officer or the requisite certificates were existing. All what is mentioned is that each witness had signed his statement whenever recorded I have seen from the record that this is so. At the end of the statement, each witness has signed That lends some credibility to the recording of the evidence as it exists on the record.

The other ground, which too lends such credibility, is that in the grounds of appeal preferred by Puran Respondent before the Additional District Judge, no grouse was taken that the evidence of the witnesses purporting to be on the record was not the true evidence or that the record was in substitution of another record Thus, from these two particulars, it becomes crystal clear that the record in whatever manner it was prepared, was a faithful record of the proceedings.

u/s 13-B of the Gram Panchayat Act, the Prescribed Authority has the same powers as are vested in a civil Court under the CPC in respect of the matters enumerated therein. That, by itself, will not make the Prescribed Authority a civil Court bounden by the intricate rules of the procedure of the said Code Evidence in a Civil Court is recorded in accordance with the provisions laid down in Order XVIII, Code of Civil Procedure, and absence of strict observance thereof does not always lead to an illegality and may to an irregularity. See in this connection Siri Chand v. Ram Chander 1974 Cur. L. J. 536. When it becomes plain that the record is faithful and the defects or irregularities are that the Presiding Officer did not sign/initial at the end of the statements of the witnesses and put dates thereon, besides the requisite certificates traditionally written as "R O. & A. C.", are not there, these by themselves cannot be enough to reverse or modify the order in view of Section 99, Code of Civil Procedure, which serves as a clincher. Section 99 of the said Code is in the following terms:-

No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any mis-joinder or non joinder of parties or causes of action or any error, defector irregularity in any proceedings in the suit, not affecting the merits of the ease or the jurisdiction of the Court.

It is obvious that the merits of the case were not touched. These errors, defects or irregularities did not affect the merits of the case. Nobody had put a claim in that regard. Thus, the learned Additional District Judge should have been guided by the principles of Section 99 of the CPC and not interfered in the order of the Prescribed Authority on the suggested errors, defects or irregularities in the proceedings when those had not tended to affect the merits of the case. Thus, on this score, I hold that there is an error apparent on the face of the record justifying this Court to interfere in the exercise of jurisdiction both under Articles 226 and 227 of the Constitution of India.

It now transpires from the record that the Presiding Officer has initialed the statements of the witnesses and the requisite certificates have been given. Learned Counsel for the Respondents urges that this is a forgery whereas the learned Counsel for the Petitioners disputes it. This debate is beside the point The Prescribed Authority may have, after receipt of the file on remand and becoming aware of the defects pointed out by the learned Additional District Judge, himself corrected the defects. The errors, defects or irregularities, in any case, have now been formally removed and nothing substantial hinges thereon to the benefit of either side.

For what has been said above, this petition is allowed, the impugned order dated 23-8-1985 (Annexure P 3) of the Additional District Judge (I I), Faridabad, is quashed, remitting back the case to him for deciding afresh the appeal covering only the ground on which the election of the Sarpanch was set aside

The parties through their counsel are directed to put in appearance before the Additional District Judge (III), Faridabad, on 14th February, 1986. He shall then fix the case for arguments on 17th February, 1986, and proceed to decide the case forthwith.

Records of the Prescribed Authority be now sent to the Additional District Judge.

Status quo regarding the existing petition about the present office of the Sarpanch be maintained till the decision of the appeal by the Additional District Judge. On the facts of the case, there shall be no order as to costs.