Subhash Chander and ors. vs Prescribed Authority cum-Sub-Divisional Magistrate, Rohtak

Amarjeet Chaudhary, J.

The petitioners who are residents of village Lahli, Tehsil and District Rohtak, were declared elected members of Gram Panchayat, Lahl in the election held on 4.8.1988. Respondent No. 3 Jagdish filed an election petition under Section 13B of the Punjab Gram Panchayat Act, 1952, as applicable to the State of Haryana, wherein he questioned the election of the Panches on the ground that Subhash Chander petitioner was not eligible to seek election as he was less than 25 years of age on the date of filing of nomination. The Prescribed Authority respondent No. 1 vide its order dated 28.4.1989 held that Subhash Chander petitioner was not 25 years of age on the date of filing of nomination and, therefore, as not eligible to contest the election. Consequently, the Prescribed Authority set aside the election of the aforesaid Gram Panchayat. The petitioners being aggrieved by the order of the Prescribed Authority filed an appeal but the same was dismissed by the Additional District Judge II, Rohtak, vide order dated 12.10.89 affirming the order passed by the Prescribed Authority setting aside the election of the Panches. Through this petition the petitioners have impugned the orders of the abovesaid authorities.

Mr. S.C. Kapoor, learned counsel for the petitioner argued that election of the Panches elected to the Gram Panchayat could not be set aside until and unless a clear finding on the basis of evidence adduced was recorded and that the wrongful acceptance had materially affected the result of the election in so far as elected members were concerned. It was further contended that no such evidence has been referred to by the authorities below nor any clear and firm finding in this respect has been recorded. According to the learned counsel, the election petition patently reveals that no averment even had been made in it that by wrongful acceptance of the nomination papers of Subhash Chander petitioner, the election result of all the Panches had been materially affected. As such neither the Prescribed Authority nor the Additional District Judge II, could go into the question and the election petition should have been dismissed on this ground.

On the other hand, the stand of Mr. Y.K. Sharma counsel for respondent No. 3 is that there is infirmity in the order of the Prescribed Authority as well as that of the Appellate Authority. In support of his contention, he referred to case Raghbir Singh v. The Additional District Judge, Rohtak and ors., 1987 (RRR) 178 (P&H) : 1987 PLJ 105.

I have considered the respective stand of the parties counsel and have gone through the paperbook.

The law till date is well settled as to what consequences ensue in the event of improper acceptance of a nomination paper. It may be seen that in the Representation of People Act, 1951, as it originally stood, the election petitioner was under a statutory obligation to prove that the result of election has been materially affected whether it was a case of improper acceptance or rejection of any nomination paper. This provision was amended in 1956 by Parliament Act No. 27 of 1956. Before this Amendment, Section 100(1)(c) read as under :

"If the Tribunal is of the opinion......

(a) xxxx

(b) xxxx

(c) that the result of the election has been materially affected by the improper acceptance or rejection of any nomination paper. xxxxxxxxx

the Tribunal shall declare the election to be wholly void."

As is indicated above, Section 100(1)(c) was amended by Parliament Act No. 27 of 1956 and the amended provision reads as under :

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

(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected :

(i) by the improper acceptance of any nomination.

Thus now there is a clear distinction in the consequences which ensue when a nomination paper is improperly rejected or is improperly accepted. In the case of rejection of nomination paper, the election has to be set aside and the election petitioner need to prove as to how the result of election, has been materially affected. This is however not the case when nomination paper is improperly accepted. The legal position in this regard is well settled and the decision given by the Supreme Court in the case of Mahedeo v. Udyai Partap, AIR 1966 Supreme Court 824 notices the distinction between the amended and the unamended provisions. Paras 11 and 12 which are relevant and which take notice of the changes made by the Amendment Act of 1956 are reproduced below :

"11. This position has now been clarified by the Legislature itself by amending Section 100 in 1956. The amended Section 100(1)(a), (b) and (c) refer to three classes of cases where the election is set aside on proof of facts enumerated in the said clauses. Clause (a) refers to a case where a returned candidate was not qualified or was disqualified, to be chosen to fill the seat under the Constitution or this Act at the date of his election. As soon as this fact is proved his election is set aside. Similarly, under clause (b) if any corrupt practice is shown to have been committed by returned candidate or or his election agent, or by any other person with the consent of elected candidate or his election agent, the election of the returned candidate is set aside and is declared void. Likewise Cl.(c) provided that the election of a returned candidate shall be declared void if it is shown that any nomination has been improperly rejected....

The amending Act of 1956 has thus separated the cases of improper rejection of nomination papers from those where nomination papers have been improperly accepted. It will be recalled that both these cases had been grouped together under Section 100(1)(c) of the unamended Act. Now, the cases of improper rejection have been taken under Section 100(1)(c) whereas cases of improper acceptance fall to be dealt with under Section 100(1)(d)(iv). Where it is alleged that a nomination paper has been improperly accepted, it obviously means that the acceptance is the result of noncompliance with the provisions of the Constitution or the Act or of any rule or order made under the Act, and as we have seen, the case of respondent No. 1 in the present appeal, is that the ballot papers were rendered invalid by virtue of the fact that they contravened clause B. 56(2)(g) of the Rules. Therefore, there can be no doubt that in dealing with the contention raised by respondent No. 1, we will have to enquire whether it has been shown by respondent No. 1 that by reason of the infirmity in the ballot papers, the result of the election has been materially affected. This part of the statutory requirement has not been properly appreciated by the High Court as well as by the Election Tribunal when they came to the conclusion that the election of the appellant had been rendered void under Section 100(1)(d)(iv) of the Act by reason of the fact that the name of respondent No. 1 had been misprinted on the ballot papers. It is plain that apart from the allegation made by respondent No. 1 that as a result of the misprint in question a false rumour was spread by the opponents that he had withdrawn from the election no other allegation has been made and no evidence adduced to show that the said misprint had in any manner materially affected the result of the election."

It may be seen that the provisions of the Punjab Gram Panchayat Act are para materia to the provisions of the Representation of People Act, 1951, and the interpretation placed by the Supreme Court on the Representation of People Act would apply with equal force to a case which falls to be decided under the Punjab Panchayat Act, 1952.

In view of the decision referred to above, it becomes apparent that in the case of improper acceptance of a nomination paper, the election can be void only if the election petitioner is able to prove that the result of the election has been materially affected. Coming to the facts of this case. It is apparent that the election petitioner has only been able to prove that the nomination paper of one of the candidates was improperly accepted. It has not been brought on the record as to how the result of election in so far as the remaining candidates are concerned, was materially affected. The election petitioner has thus failed to discharge the burden in the manner suggested by the Supreme Court. As such, he is not entitled to any relief and he cannot seek the setting aside of the election of those candidates whose nomination papers were properly accepted. The authorities relied upon by Mr. Y.K. Sharma, counsel for respondent No. 3, are not applicable as their facts are distinguishable.

For the foregoing reasons, order dated 28.4.89 (annexure P2) passed by the Prescribed Authority and the one dated 12.10.1989 (annexure P3) that of the Appellate Authority are quashed in so far as these relate to setting aside of the election of petitioners No. 2 to 4 and the election petition filed by Jagdish respondent No. 3 shall be deemed to have been dismissed qua them. This writ petition is allowed with costs to the extent indicated above. Costs Rs. 1000/.