Smt. Khazani vs Smt. Pataso and others

The petitioner Smt. Khazani has filed this revision petition challenging the order of the Civil Judge (Senior Division), Kaithal, dated 9-1-1996, vide which the Court dismissed the application preferred by the respondents before that Court praying for the deletion of the names of petitioners Nos. 2 to 26 of the election petition before that Court. Smt. Pataso who had contested the election was returned as a successful candidate in the election of the Gram Panchayat held on 10-5-1994. The election of Smt. Pataso was challenged by Smt. Khazani along with other petitioners on various grounds. The said election petition is pending before the Court below.

It is during pendency of this petition that on 24-12-1994 an application was filed by Smt. Khazani stating that respondents Nos. 2 to 26 before this Court had been impleaded as petitioners before the trial Court while they have no locus standi to file such an election petition because of a complete bar u/s 176 of the Haryana Panchayati Raj Act, 1994, hereinafter referred to as the Act.

Reply to this application was filed by the non-applicants who contested this application before the Court below. This application was dismissed by the Court vide its order dated 9-1-1996, which has been assailed before this Court in this petition.

The learned counsel for the petitioner has submitted that respondents Nos. 2 to 26 before this Court have no locus standi to challenge the election of the petitioner because neither they are voters nor had they contested elections against the petitioner. He further submits that as per their own admission in the petition their names were not found in the voter list which was duly displayed. On the other hand, learned counsel for the respondents has submitted that they have specifically claimed in the petition that respondents Nos. 2 to 26 were the voters and were entitled to vote and as such they have the locus standi to institute the petition. He further submits that the said respondents are the voters in the voter-list of Assembly elections, copy of which was placed before the trial Court and the trial Court was to adjudicate on the said issue during trial. He further submits that there is considerable delay on the part of the petitioners and they are only trying to hamper the progress of the petition.

Having appreciated the contentions raised by counsel for the respective parties, I consider it necessary to refer to Section 176 of the Act which reads as under:--

"176. (1) Determination of validity of election enquiry by judge and procedure. If the validity of any election of a member of a Gram Panchayat, Panchayat Samiti or Zila Parishad or Up-Sarpanch, Sarpanch of Gram Panchayat, Chairman or Vice-Chairman, President or Vice-President of Panchayat Samit or Zila Parishad respectively is brought in question by any person contesting the election or by any person qualified to vote at the elections to which such question relates, such person may at any time within thirty days after the date of the declaration of results of the election, present an election petition to the Civil Court having ordinary jurisdiction in the area which the election has been or should have been held, for the determination of such question.

(2) A petitioner shall not join as respondent to his election petition except the following persons:--

(a) where the petitioner in addition to challenging the validity of the election of all or any of the returned candidates claims a further relief that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner and where no such further relief is claimed, all the returned candidates;

(b) any other candidate against whom allegations of any corrupt practices are made in the election petition.

(3) All election petitions received under sub-section (1) in which the validity of the election of members to represent the same electoral division is in question, shall be heard by the same Civil Court.

(4) (a) If on the holding of such inquiry the Civil Court finds that a candidate has, for the purpose of election committed a corrupt practice within the meaning of sub-section (5), he shall set aside the election and declare the candidate disqualified for the purpose of election and fresh election may be held.

(b) If, in any case to which clause (a) does not apply, the validity of an election is in dispute between two or more candidates, the Court shall after a scrutiny and computation of the votes recorded in favour of each candidate, declare the candidate who is found to have the largest number of valid votes in his favour, to have been duly elected:

Provided that after such computation, if any, equality of votes is found to exist between any candidate and the addition of one vote will entitle any of the candidates to be declared elected, one additional vote shall be added to the total number of valid votes found to have been received in favour of such candidate or candidates, as the case may be, elected by lot drawn in the presence of the judge in such manner as he may determine.

(5) A person shall be deemed to have committed a corrupt practice -

(a) who with a view to induce a voter to give or to refrain from giving a vote in favour of any candidate, offers or give any money or valuable consideration, or holds out any promise of individual profit or holds out any threat of injury to any person; or

(b) who, with a view to induce any person to stand or to withdraw or not to withdraw from being a candidate at an election, offers or gives any money or valuable consideration or holds out any promise or individual profit or holds out any threat of injury to any person; or

(c) who hires or procures whether on payment or otherwise, any vehicle or vessel for the conveyance of any voter (other than the person himself, the members of his family or his agent) to and from any polling station."

It is dear from the bare reading of this section that the person who can challenge the validity of an election is another person contesting the election or any person qualified to vote at the election to which such election relates (Emphasis applied by the Court). At this stage it, also becomes relevant to refer to paragaph No. 3 of the petition instituted by the respondents before the trial Court copy of which has been placed on record. Para No. 3 reads as under;--

"3. That during ward bandi the names of the petitioners were deliberately omitted by the officials of defendant Nos. 6 to 8 in connivance with the defendants Nos. 1 to 5 and their husbands and henchmen, agents etc."

In para Nos. 6 of the petition, the petitioner has also stated that after the process the respondents Nos. 1 to 5 remained as contesting candidates. In the corresponding paragraphs of the reply to this petition, the respdndent-petitioners herein, had denied the allegations. However, no specific details were furnished. But one thing which is clear from the petition itself is that the names of respondents Nos. 2 to 26 had been incorrectly and illegally removed from the voters'' list as stated in paragraph No. 3 of the petition. It is nowhere stated in the petition that anything in writing and in accordance with rules happened after such deletion of names by which the names were incorporated in the voter list for the Panchayat elections. From the bare reading of the section it is clear that the list which is to be considered for an election, be the list prepared for that election alone. The placing of the list of Assembly elections on record would not improve the case of the respondents before this Court because prima facie it is the responsibility of a petitioner to show that he has focus standi to institute the petition. A person may or may not be a voter shown in the electoral list for the Assembly, but still may be named in the list for the Gram Panchayat elections. They are two different and distinct lists prepared under different statutes and for a different and definite election. Both these lists may be a supporting factor and the name in one cannot be treated ipso facto a conclusive proof for incorporation of names in the other list.

A voter may earn such disqualifications which may entail the consequences of deletion of name from the list of voters prepared for Gram Panchayat Elections, but it necessarily may not result in deletion of the name of the same voter from the list of voters prepared for Assembly elections. Eligibilities for incorporation of a voter''s name in the voters'' list and for deletion of name resulting from certain disqualifications earned by a voter are certainly different under the respective laws governing the elections of Gram Panchayat and Assembly. The Legislature having indicated its mandate with regard to nature of such lists, has also qualified the status of the persons who wish to challenge the election. It must be adhered to and neither intermingled nor has to be construed in a manner contrary to the scheme of the Act. In their petition the respondents herein have specifically averred that due process was adopted and the competent authorities had thereupon prepared the lists. The very fact that they challenged deletion of their names from the voters'' list goes to show that the contention of the petitioners that their names were not incorporated in the voters'' lists is correct. Would the respondents had pleaded that in the final list prepared their names were duly incorporated and displayed, prima facie they would have satisfied the ingredients for invoking the jurisdiction of the competent Court u/s 176 of the Act.

Rules 8 to 12 of the Haryana Panchayati Raj Election Rules, 1994 deal with as to the preparation, maintenance, publication of voter lists. Further they provide with regard to disposal of claims and objections and inspection of such records. As per Rule 9 of these Rules each voters'' list has to be prepared in accordance with Rule 8 and has to be duly exhibited at the places indicated in the Rules. Claims and objections are invited under Rule 10 and these objections are disposed of in accordance with law and these Rules. The final amended list duly signed by the District Electoral Officer has to be kept in the office of the said electoral and is to be published in the manner prescribed in Rule 9. Thus the Act and the Rules provide for independent remedies which are available to a voter whose name has not been included in the voters'' list and the qualification of a person who could assail validity of an election while filing election petition before Court of competent jurisdiction.

The admission of the plaintiffs at this stage has to be taken into consideration and specially in view of the other paragraphs of the petition which mention the adoption of due process of law. The validity of preparation of the lists could hardly be the basis for challenging the validity of election of a candidate. The two remedies available are different and independent of each other and must be adopted in the manner indicated in the Statute and in no other way. The petitioner in his petition has to show that he is the person who contested the elections or he was a person qualified to vote at such election. The fact that names of the petitioners were Admittedly not indicated in the voter-list would by itself show that they were not the persons to qualify to vote for such election and hence debar their invoking the jurisdiction of competent forum in furtherance to the provisions of Section 176 (1) of the Act.

The scope of investigation of validity of an election should be limited and the parties to such a petition must be the necessary and qualified parties is further indicated by sub-section (2) of Section 176 of the Act. The Legislature has restricted the scope as to the persons who should be joined as respondents. Thus, by a necessary implication and on the true construction of the provisions of Section 176, read in their entirety would certainly show that locus standi of a party in such a petition must be construed strictly and not liberally so as to frustrate the scheme of the Act and cause un-necessary and undue delay in disposal of such matters.

The contention of learned counsel for the respondents that there is intention to delay the proceedings before the trial Court is again not which deserves to be accepted by the Court. The election itself was held on 10-5- 1994. Thereafter the proceedings were instituted and on 12-12-1994 such an application was filed. It is the trial Court which has passed the order on 9-1 -1996. As such no delay can be attributed to the petitioners before this Court. There is nothing on record also to show that the application is mala fide and is intended to necessarily delay the proceedings before the trial Court. In the absence of any such record the contention of learned counsel for the respondents is liable to be rejected.

As already noticed in paragraph No. 6 it has been specifically averred that respondents Nos. 1 to 5 before this Court continued to be contesting candidates. This fact has not been disputed by the petitioners in the reply filed before the trial Court. As such the status of these five persons has to be gone into during the course of trial and the Court would have to observe whether the objection taken by the petitioners applies to respondents Nos. 1 to 5 in the face of the reply filed by the petitioner before this Court to the petition of the respondents.

For the reasons stated hereinabove the order of the trial Court dated 9-1-1996 is hereby set aside. It is directed that the names of respondents Nos. 6 to 26 shall be directed to be deleted from the array of parties. It is further made clear that this order would not in any manner affect the rights of these respondents to take such other appropriate legal remedy which may be available to them for getting the voters'' list for this election amended in accordance with the Rules as indicated above. It will also not affect the rights of these respondents to be examined as witnesses if the concerned parties so desire. With these directions this petition is disposed of. There shall be no orders as to costs. It is expected that the trial Court shall dispose of the case as expeditiously as possible.

Order accordingly.