Shamsher Singh vs The Assistant Returning Officer and Others

T.U. Mehta, C.J.—The petitioner filed his nomination paper for being elected as a Panch of the Gram Panchayat of the Village Baghlehar. Election programme was published and accordingly he filed his nomination on 27th October. 1978. On that day, the Assistant Returning Officer made the following endorsement on his nomination paper:

"No 1/SPL, D/- 27-10-1978

Forwarded in original the nomination paper of Shri Shamsher Singh to the Returning officer. Nalagarh for necessary orders regarding acceptance of his nomination form. His date of birth in the voters list is 24 years which seems totally wrong. Kindly issue necessary instructions. The nomination form was presented to me within time and immediately referred for necessary action please.

Sd/- A. R. O. Baghlaher 27-10-1978"

Returning Officer, Tehsil Nalagarh.

Under Rule 14, the Assistant Returning office had authority to scrutinize the nomination paper but instead of exercising this authority be, by the above endorsement, forwarded the nomination paper filed by the present petitioner to the Returning officer.

The Returning officer in his turn made the following endorsement on the same nomination paper and returned it to the Assistant Returning officer with directions to exercise his powers either to accept or to reject the nomination paper. This endorsement is as

"Returned. The ARO should decide the case in accordance with the law/instructions/ rules on the subject contained in the Hand book.

He is to be guided by the provision of Hand book and entries in the electoral rolls. You are directed to decide the case accordingly as the powers are with you.

Sd/- Returning officer 28-10-78"

Thus the nomination paper was relumed by the Returning Officer to the Assistant Returning Officer. But the Assistant Returning Officer instead of deciding the question regarding acceptance or rejection of the nomination paper returned to the petitioner the original nomination paper with the above referred two endorsements.

The petitioner now makes a grievance that the Assistant Returning Otlicer has neither accepted nor rejected the nomination paper and has failed to exercise his jurisdiction.

We find that under Rule 14, it is enjoined CD the Returning Officer to examine the nomination papers at the time appointed in this behalf, hear objections, if any, presented by the objector in person to the eligibility of any candidate, and decide those objections after such enquiry as he may consider necessary. The rule further provides that the decision rejecting or accepting a nomination paper and a brief statement of reasons of rejection shall be endorsed on the nomination paper and signed by the Returning Officer. It is obvious that the Returning Officer, who in this case is the Assistant Returning Officer, has failed to exercise bis jurisdiction under this Rule 14, because what he has done is simply to return back the nomination paper without recording his decision on the disputed point.

The question, however, is whether this Court should entertain this writ petition in view of the provisions contained in Section 180 of the Himachal Pradesh Panchayati Raj Act 1968. This section is placed in Chap. XIU of the Act which deals with the subject of disputes relating to elections. Section 180 provides for the grounds for setting aside elections and states as under :

"(1) If the prescribed authority is of the opinion,

(a) that on the date of his election the elected person was not qualified, or was disqualified to be elected under this Act; or

(b) that any corrupt practice has been committed by the elected person or his agent or by any other person wiih the consent of the elected person or his agent: or

(c) that any nomination has been improperly rejected; or

(d) that the result of the election, in so far as it concerns the elected person, has been materially affected-

ii) by the improper acceptance of any nomination; or

(ii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void; or

(iii) by any non-compliance with the provisions of this Act or of any rules made under this Act; the prescribed authority shall set aside the election of the elected person.

(2) When an election has been set aside under Sub-section (1), a fresh election shall be held."

The question is whether the petitioner is entitled to tile an election petition setting aside the election under this section or not. It is apparent that the Returning Officer has neither accepted nor rejected the nomination papers filed by the petitioner. Therefore, Clause (a), (b) and (c) of Sub-section (1) of Section 180 would have no application to the facts of the case. In our opinion, however, Clause (d) would come into operation because the result in so far as it concerns the elected person would he materially affected by non-compliance of the provisions of above referred Rule 14 of the Himachal Pradesh Gram Panchayat (Election) Rules 1978 inasmuch as the Assistant Returning Officer has failed in exercising his jurisdiction under Rule 14. We are told that there was only one candidate who was left in the field in absence of the present petitioner. Under Rule 17 of the above referred Rules this candidate being the only candidate, would be deemed to have been elected. Now, it is apparent that election of that candidate would have been materially affected had the present petitioner''s nomination papers been accepted by the Returning Officer and he was allowed to contest the election. Jt is, therefore, apparent that by the non-compliance of the provisions contained in Rule 14 of the Election Rules the result of the election of the other candidate has been materially affected in bis favour. This is, therefore, a case which would squarely fall within Clause (d) (iii) of Section 180 of the Act. The petitioner has, therefore, obviously a clear alternative remedy. It was contended that this remedy is not efficacious. But we fail to understand why this remedy by a regular petition cannot be considered efficacious. Under the circumstances, we find that the case falls under Sub-article (3) of Article 226 of the Constitution and, therefore, this is not the stage where the interference of this Court under Article 226 is called for. The writ petition is accordingly dismissed.