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Sarwan Kumar Vs. State of Punjab and ors. - Court Judgment

LegalCrystal Citation
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ Petn. No. 1425 of 1981
Reported inAIR1984P& H300
ActsPunjab Municipal Act - Sections 246, 247, 248, 249, 254 and 255; Municipal Election Rules, 1952 - Rule 52; Code of Civil Procedure (CPC), 1908
AppellantSarwan Kumar
RespondentState of Punjab and ors.
Cases Referred(Harjit Singh v. State of Punjab
.....whether a11 or any of the findings were accepted by the government. the report of the commission at best' is 'a recommendation which is not binding on the state government......a report of its finding under section 254 of the punjab municipal act (for short 'the act') to the state government, is entitled to a notice and an opportunity of hearing before the government decides the matter and set aside his election is a question at paramount importance which has been raised in this writ petition under ad. 226/227 of the constitution. equally pertinent are 'the questions as to whether the state government is required to a speaking order while accepting or rejecting the report of the commission and whether the report of the coming on is based on the evidence.2. a brief survey of the material facts giving use to the pristinely' legal issues' may aptly be noticed at the outset.3. election to ward no 4 to the municipal committee, haryana, district hoshiarpur were held.....

1. Whether a Municipal Commissioner, against whose election the commission has submitted a report of its finding under Section 254 of the Punjab Municipal Act (for short 'the Act') to the State Government, is entitled to a notice and an opportunity of hearing before the Government decides the matter and set aside his election is a question at paramount importance which has been raised in this writ petition under Ad. 226/227 of the Constitution. Equally pertinent are 'the questions as to whether the State Government is required to a speaking order while accepting or rejecting the report of the commission and whether the report of the coming on is based on the evidence.

2. A brief survey of the material facts giving use to the pristinely' legal issues' may aptly be noticed at the outset.

3. Election to ward No 4 to the Municipal Committee, Haryana, district Hoshiarpur were held on June 10, 1979. Sarwan Kumar petitioner polled 118 votes, Daulat Ram respondent No. 3 secured 116 votes. The petitioner was declared elected. Daulat Ram filed au election petition against the election of the petitioner under Rule 52 of the Municipal Election Rules, 1952 (for short 'the Rules'). The State Government appointed Shri A. R. Darshi, Election Magistrate, Hohiarpur a commission under Section 247 of the Act for deciding the election petition. The commission submitted a report dated 20-2-1981 holding that three votes of Rajinder Kumar, Ruadan Lal and Smt. Krishna Vati were impersonated by the supporters of Sarwan Kumar and polled in his favour and the real persons had not cast. these votes. These were invalid votes & also held that the one Malkiat Singh, who was a Government servant, had can votes in favour of Sarwan Kumar and this had materially affected the result of the election is favour of Sarwan Kumar The State Government vide order dated 1-4-1981, (Annexure P.3) set aside the election of Sarwan Kumar petitioner the same being declared Daulat Ram to be elected the Municipal Committee Haryana Aggrieved Sarwan Kumar has Filed this writ petition.

4. The provisions for determination of disputes regarding elections to the Municipal Committees are certain in Chapter XIV of the Act. Section 246 (a) inter alia defines 'commission' to mean a person or persons appointed by the State Government to hold an inquiry in respect of an election under the Act. The State Government is empowered to appoint a commission consisting of one or more persons to hold an inquiry under Section 247 of the Act. Under Section 248 the Commission shall have the same prayers to order discovery and inspection, enforcing the attendance of witnesses and requiring the deposit of their expenses, compelling the production of documents, examining witnesses, granting adjournments, reception of evidence taken m affidavit and issuing of Commissions for the examination of witnesses which are vested in a Court under the Civil P. C.; when trying s suit. It has been further authorised to summan and examine suo motn any person as a witness and shall be deemed to be a Civil Court within the meaning of Section 480, Cr.P.C. Provisions of the Evidence Act have been made applicable to the inquiry by Section 249. Section 254 enjoins the commission to submit a report of its finding to the State Government. Then the powers to pass orders on this report are conferred do the State government by Section 255, which reads se under:

'255. State Government if in agreement with findings of the commission to pass orders accordingly: On receiving the report of t e Commission the State Government shall pass orders either declaring the candidate duly elected or declaring the election to be void and such orders shall be notified in the Official Gazette. Such orders shall be final and shall specify the amount of costs to be paid, and the person or persons by whom and to whom such costs shall be paid:

Provided that the State Government before passing final orders may remand any case for further inquiry or refer any point arising in any case to a Civil Court for opinion; and the Civil Counsel deal with and case forwarded to as nearly as may in according to the procedure applicable and fine Civil P. C 1906 to the hearing of appeals.'

5. Part III of the rules lays down the detailed procedure for challenging the election of a Municipal Commissioner or inquiry by the State Government into conduct of any election. Rule 51 is the dictionary of various terms used in Part III. Sub-rule [a) defines `Corrupt Practice'. Clause (c) guides the definition of 'material irregularity' which includes my improper reception or refusal of a vote in the election. Rule 53 Prescribes the form and the contents of the election petition. The procedure for inquiry is contained in R'. 59 which prescribes %hat the election petition shall be inquired into as nearly as may be in accordance with the procedure applicable under the Civil P. C. to the trial of suits. Grounds for declaring the election void have been furnished by Rule 63. Rule 64 requires that at the conclusion of the inquiry the commission shall report whether the returned candidate has in its opinion been duly elected. Sub-rule (4) of R. 64 lays. down that before submitting the report to the Government, the commission shall fix a date for the presence of the parties of their agents, and shall announce the substance of the report including the findings on questions of costs to such' of the parties or their agents as may be present on that date. The Government is empowered under Rule 57 to remand my case far further inquiry to the commission. Under R. B8 the Government can of its own motion direct m inquiry to be held into the conduct of my election if there is reason We suspect that a corrupt practice or material irregularity has been committed in the conduct of election. Under Rule it is laid down that when as a result o! inquiry under the Rules the election of candidate is declared void, the Government shall direct that a new election be held. It is further provided that if the commission has found that there has been a mistake in the counting of votes, or in the declaration of invalid votes and that but for that mistake some other candidate would have been declared successful, the State Government instead of directing a new election may declare that the candidate found to have obtained the largest number of valid votes shall be deemed to have been elected.

6. It is manifest from a reading of the provisions of the Ac t and the Rules that Is full-fledged inquiry by a commission appointed him the Government, in accordance with the provisions of the Civil P. C. applicable to the trial of suits by Civil Court, is envisaged to determine any disputes regarding the election of the members o! the Municipal Committees. The person whose election is sought to be challenged is afforded full opportunity to meet the case set up by the opposite party and to project and prove his own case. After such an inquiry the commission submits its report to the Government. Thereafter, the Government under S. 255 of the Act takes a decision on that report. The Government on receiving the report of the commission shall pass order either declaring the candidate duly elected or declaring the election to be void. However, the Government has been authorised to remand the case for further inquiry to the commission or refer any point rising in any case to Civil Court for opinion. The ultimate repository ot the power to determine the disputes regarding the legality and validity of an election of a Municipal Commissioner is the State Government. It is not the commission. The commission only makes a report. That report is not binding on the Government. The Government can accept the report. If it is not satisfied it can remand the case to the admission. Rule 84(4) requires the commission to disclose the substance of his report to the Plea before sending the report to the State Government. The object behind this Provision js to inform the adversaries of the 8n o! the commission on the election dispite so that if dissatisfied they can make a representation to the state Government. Though Section 255 of the Act does not in terms lay down that before paying and order adverse to the interests o! the defendant to the election dispute they shall be given a hearing yet this requirement is inherit in the very power to set aside an election, No doubt right to be elected to a public office is not a fundamental right; it is not even a right under common law all the same it is a civil right conferred by statute. An order setting aside the election has serious civil consequences, It takes sway the right of a citizen to hold a public office, order, judicial, quasi-judicial or administrative for that matter, which adversely affects the civil rights. of a citizen or which has adverse civil consequences can be passed only after observing it pr d of natural justice The minimum requirement,being, that the person likely to be affected should be given a hearing Fair Hearing 'is.a postulate of decision-making cancelling a poll; although fair abridgment. of. this, process is permissible.. The philosophy behind natural,justice, is '.in one sense, participatory' justice in the process of democratic rule of law. The silent of a statute has no exclusionary effect except where it, flows from necessary implication.,;.:.' (Mohinder. Singh v: Chief:Election Commr. AIR 1978 SC 851).' ; To the same.effect is the. dicta.. in 'that' locus,. Classicus' Maneka Gandhi.'. v Union of India, AIR 1978 SL.' 597, wherein it was observed (at pp...825-26):

'Although there are no positive words in the statue requiring that the party shall be heard yet the justice of the common law will supply the omission of the legislature. The principal of audilateram patem which mandates that no one shall be condemned is pat of the rules of natural justice

Natural. 'justice is. A great humanising principle intended to invest law with fairness and to secure. justice and over the years it' has grown into a widely pervasive rule affecting large areas of administrative action. The inquiry must always be: does fairness in action demand that an opportunity to be heard should be given. To the person.affected?'

7. Section ' 225. and general scheme of the Act does dot by an inevitable implication rule out the application of the rule of audi alteram naitem before passing of the order setting aside an election. The Language employed i Section 255: of the Act also does not admit of the construction canvassed by Shri Sarwan Singh learned counsel for respondent No, 3 that the application of the principles of natural justice has been excluded by the language of the section. All that can be stated is that the section is silent. But as observed in Mohinder. Singh's case (AIR 1978 SC 85I) (supra) the mere silence of a statute ' has no exclusionary effect. True, the delinquent Municipal Commissioner is associated with full-dressed inquiry yet. there can be unintentional mistakes, uniformed omissions' or other infirmities in the procedure of inquiry or' the conclusion's... of. the commission on the evidence adduced before him may be perverse which no. `reasonable person may reach. If the delinquent.' Is not heard by the Govt. ' all these regularities in the procedure of 'infirmities and deficiencies in the report may to detected ' by'. the Government unaided the affected person. These is always apprehension o a grave miscarriage of justice by the ex parte decision of' Government in 'accepting the report the commission: The principles of the justice have now come to be ingrained in the judicial consciousness of the citizens of this country: Only very strong reasons or clear language can. exclude application of these rules in the decision, making which affects the rights of the citizens.

8. In the present case the petitioner had made a representation to the State Government and had sought personal interview. He had pointed out certain infirmities in the order, in the approach of the commission to the problem, the procedure of inquiry and appreciation of evidence. The representation. runs into seven full scape pages but the State Government. by a laconic order set aside the petitioner's election and declared Daulat Ram respondent No. 8 as elected member of Municipal Committee Haryana without dealing with any of the points raised. If the petitioner had been given an opportunity of, hearing he may have been able to point out certain irregularities and infirmities in the report of the commission.

9. Clause (4) of Rule 64 requires the commission to inform the parties of the substance of the report. This is only to enable the aggrieved party make its objections to the report. This provision lends support to the view that opportunity of hearing should be given to the affected party. Under somewhat similar circumstances A. S. Bains, J. in C. W. P. No.. 4888 of 1974 (Harjit Singh v. State of Punjab decided on 5-3-1975 remanded the case for afresh decision by the Commission. He also directed that in case the report of the Commission went against the Municipal Commissioner then the State Government shall take a decision under Section 255 of the Act after. giving him an opportunity of being heard.

10. For the foregoing reasons answer to question posed at the onset, is rendered in the affirmative and I hold that it is incumbent on the State Government, to give a delinquent Municipal Commissioner an adequate opportunity of, hearing before taking final decision on such a report

11. As' noticed earlier the order of tee State Government (Annexure P. 3) is not a speaking order. It does not mention as to what precisely was the dispute raised, what were the findings of the commission, and whether a11 or any of the findings were accepted by the Government. The order only reproduces the language of Section 255 and is woefully lacking in factual material. The State Government had to apply its independent mind to 'the report and the' material reduced during the inquiry 'and then one to its independent conclusions regarding the validity of the election of the petitioner. By getting an inquiry conducted through a' commission, the State Government does riot abdicate its functions in favour of the commission. The report of the commission at best' is ' a recommendation which is not binding on the State Government. The order suffers from the vice of being a non-speaking one. This Court is deprived of the opportunity of knowing what' were' the' reasons which' prevailed with the State Government in deciding to accept the report' and' setting aside the. election.

12: In view of the above conclusions ' is not necessary to go into the other questions raised in, the writ petition.

13. I' allow this writ Petition. arid set the order dated April 1, 1981 (Act p. 3) and direct the State Govt to pass fresh order. after hearing parties concerned.. No costs.

14. Petition allowed.

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