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Shakti Singh Vs. State and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Writ Petn. No. 239 of 1978
Judge
Reported inAIR1979HP19
ActsHimachal Pradesh Panchayati Raj Act, 1968 - Sections 3(1), 9(5), 168 and 186; ;Himachal Pradesh Gram Panchayat Election Rules, 1972 - Rule 55
AppellantShakti Singh
RespondentState and ors.
Appellant Advocate H.M. Sharma, Adv.
Respondent Advocate Adv. General and; Inder Singh, Adv.
Cases ReferredDevi Ram Sharma v. State
Excerpt:
election - nomination - petitioner challenged nomination of respondent no. 5 as he was prohibited from re-employment on his dismissal from military service - assistant returning officer after consultation with his senior officers rejected objections filed by petitioner - petitioner filed application to sub divisional officer with a endorsed copy to deputy commissioner - deputy commissioner refused to take any action - petitioner filed writ petition against respondent no. 5 - facts revealed that deputy commissioner failed to exercise jurisdiction as required under section 186 - directed state government to appoint any officer of rank of deputy commissioner under section 186 for disposing of petitioner's application. - .....a copy of this application is found at annexure pf. it is dated 30-10-1978. it is said that the deputycommissioner., who is respondent no. 2, refused to take any action on this application with the result that the petitioner has filed this writ petition against the nomination of respondent no. 5.3. in c.w.p. no. 241 of 1978--devi ram sharma v. state decided on november 7, 1978 (him. pra), we have taken a view that under section 186 of the act any dispute relating to election of pradhan or up-pradhan of a ciram panchayat can be decided by the deputy commissioner after taking such evidence as he deems fit. as observed by us therein, the expression 'relating to' which precedes the words 'election of pradhan or up-pradhan' is wide enough to cover all the stapes which have relevance to.....
Judgment:

T.U. Mehta, C.J.

1. The petitioner has filed his nomination paper to contest the election of the Gram Panchayat Saloh as Pradhan. The respondent No. 5, Ranbir Singh, has also filed his nomination paper with a view to contest the election of the Pradban of the samr Panchayat. The petitioner, however, took objection to the nomination paper filed by the respondent No. 5 on the ground that the respondent no. 5 was disqualified under Section 9 (5) (f) of the Himacnal Pradesh Panchayati Raj Act, 1968 because he is prohibited from re-employment on his dismissal from military service by virtue of the order passed by the Chief of the Army Staff on 9-5-1959 as found at Annexure PB. For this proposition the petitioner relied upon the copy of the extracts and the gazette notification issued in the matter. It is alleged by the petitioner that the respondent No. 4, who is the Assistant Returning Officer, was expected to scrutinise the objection raised by the petitioner against the nomination filed by respondent No. 5. These nominations were filed on 27-10-1978 and the scrutiny of the nomination papers was to be conducted on the same day. The petitioner further alleges that the respondent No. 4, the Assistant Returning Officer, however, deferred the matter of deciding the objection to the nomination of the respondent No. 5 and went to consult his superior officers who are the Deputy Commissioner Una, respondent No 2 and the Sub-Divisional Officer, Una. who is respondent No. 3. It is further alleged that after having consultation with these respondents 2 and 3, respondent No. 4 returned to office accompanied by respondents Nos. 2 and 3 at Government High School Saloh on 28-10-1978 at about 11 A. M. *and 'on directioni which were given in the presence of the petitioner by the respondents 2 and 3 to the respondent No. 2 (No. 4 ?) the decision rejecting the objections filed by the petitioner against the nomination of respondent No. 5 was recorded as found at Annexure PD. This order disposing of the objections read as under :--

'There is great difference between the documents produced by both the parties. The two extracts produced by Shakti Singh shows that the employment is prohibited. The original certificate of dismissal produced by the nominee Ranbir Singh shows that he can seek employment through Employment Exchange at Hoshiarpur. I believe on the original certificate. So I reject the objection of Shri Shakti Singh.

Sd/- (Hem Raj Puri)

Assistant Returning Officer,

28-10-1978.'

2. The petitioner's case is that thereafter he made an application to the Sub-Divisional Officer, Una, respondent No. 3, making a grievance about the above order rejecting his objection against the nomination of respondent No. 5 and endorsed a copy thereof to the Deputy Commissioner Una, requesting for 'similar necessary action'. A copy of this application is found at annexure PF. It is dated 30-10-1978. It is said that the DeputyCommissioner., who is respondent No. 2, refused to take any action on this application with the result that the petitioner has filed this writ petition against the nomination of respondent No. 5.

3. In C.W.P. No. 241 of 1978--Devi Ram Sharma v. State decided on November 7, 1978 (Him. Pra), we have taken a view that under Section 186 of the Act any dispute relating to election of Pradhan or Up-pradhan of a Ciram Panchayat can be decided by the Deputy Commissioner after taking such evidence as he deems fit. As observed by us therein, the expression 'relating to' which precedes the words 'election of Pradhan or Up-pradhan' is wide enough to cover all the stapes which have relevance to such election. Therefore, the Deputy Commissioner concerned has got jurisdiction under this section to decide the question as regards the validity of the nomination paper filed for the election of Pradhan or Up-pradhan.

3-A. Shri Inder Singh, who appears on behalf of the respondent No. 5, has drawn our attention to the decision given by a Single Judge of this Court in Ranzor Singh v. State of Himachal Pradesh, reported in TLR (1974) Him Pra 244 wherein the election of Pradhan was challenged by an election petition. The said petition was presented to the concerned Sub-Divisional Magistrate under Section 168 of the Act. A contention was raised in that case to the effect that the petition should have been presented not to the Sub-Divisional Magistrate, but to the Deputy Commissioner in view of the provisions of S, 186 according to which disputes relating to election of Pradhan and Up-pradhan should be decided by the Deputy Commissioner. The court held that in view of the definition of 'Panch' given in Section 3 (1) (s) of the Act, Pradhan and Up-pradhan are included within the meaning of the word 'Panch' and, therefore, a petition challenging the election of Pradhan or Up-pradhan can be presented before a Sub-Divisional Magistrate under Section 168 of the Ad read with Rule 58 of the Himachal Pradesh Gram Panchayat Election Rules, 1972. The court further observed that petition thus presented to the Sub-Divisional Magistrate can thereafter be tried by the Deputy Commissioner under Section 168 of the Act. This decision was given by the court on the finding that any dispute relating to election of pradhan or Up-pradhan can be tried by the Deputy Commissioner, though the petition with regard to this dispute can be presented to the Sub-Divisional Magistrate.

4. The above referred decision of this court in Ranzor Singh v. State is not inconsistent with the view which we have taken inDevi Ram Sharma v. State (C. W. P. No. 241 of 1978). In that case the question was whether dispute as regards the nomination of a Pradhan of a Gram Panchayat can be tried by the Deputy Commissioner under Section 186 or not. We have answered this question by saying that dispute relating to nomination of a Pradhan is a dispute relating to election of a Pradhan within the meaning of Section 186 and, therefore, the Deputy Commissioner can decide such a dispute under Section 186.

5. In fact, there is no contradiction be tween Section 168 which provides for the presentation of the election petitions and Section 186 which provides for the resolution of the disputes relating to election of Pradhan or Up-pradhan. The roles which are played by both the sections are quite distinct. Section 168 provides for the cases where an election which is already over is required to be challenged. But unlike Section 168, Section 186 provides for the resolution of all the disputes 'relating to' election of Pradhan and Up-pradhan. The words 'any dispute relating to election' found in Section 186 clearly suggest that this section refers not merely to the challenge to the utlimate election of Pradhan and Up-pradhan, but also io all the states prior io the election provided these stages have 'relation to' the election of Pradhan or Up-pradhan. Thus, while Section 168 is limited to the challenge which can be thrown to the election itself. Section 186 is wider in its operation inasmuch as it seeks to cover all the challenges at any stage 'relating to' the election of Pradhan or Up-pradhan. Legislature has obviously thought it fit to give special importance to the disputes relating to the election of Pradhan and Up-pradhan and has further directed by Section 186 that such disputes can be decided only by a higher authority, namely, the Deputy Commissioner concerned. In this view of the matter, we can summarise the harmonious reading of Section 168 and Section 186 as under:--

1. If there is any dispute relating to the election of a Pradhan or Up-pradhan, the same can be decided only by the Deputy Commissioner and not by the Sub-Divisional Magistrate.

2. Such disputes relating to the election of Pradhan and Up-pradhan can be decided by the Deputy Commissioner even if they arise at a stage prior to the actual election.

3. In case of an election petition, which !sj required fo be filed after the elections are over, such election petitions can be presented before the Sub-Divisional Magistrate as contemplated by Section 168 read with Rule 55 of the Himachal Pradesh Gram Panchayat Election Rules, 1972, even though they are with regard to the actual election of Pradhan or Up-pradhan.

6. So far as the facts of this case are concerned, though the petitioner has filed an application against the decision given by the Assistant Returning Officer as regards his objection to the nomination of respondent No. 5, and has endorsed a copy thereof to the Deputy Commissioner for necessary action, the Deputy Commissioner has failed to take necessary action saying that the objection had rightly been decided. Looking to those allegations, we find that the respondent No. 2 has failed to exercise his jurisdiction ia the manner contemplated by Section 186 of the Act.

7. In ordinary course, we would have asked respondent No. 2 to decide this application of the petitioner against the order passed by the respondent No. 4 rejecting his objection to the nomination of respondent No. 5. However, we find that the petitioner has made the allegations of very serious type against the respondents 2 and 3 and 4. Without accepting these allegations as true, we are of the opinion that it would be in interest of justice that some other competent officer should decide the application of the petitioner found at Annexure PF. The expression 'Deputy Commissioner' is given a statutory definition in Section 3(1)(i) of the Act as meaning the Deputy Commissioner or' a district including any officer specially appointed by the Government to perform the functions of the Deputy Commissioner under that Act Under the circumstances, we direct the State Government to appoint any other competent officer of equal rank, preferably serving in any of the State Departments in the Una District, to discharge the functions of the Deputy Commissioner under Section 186 for the purpose of disposing of the petitioner's application annexure PF. The said decision will he given on or before 13-11-1978 and further steps in the election programme already announced, shall be undertaken in light of the decision given by the said officer on annexure PF. The rule is accordingly made absolute. Dasti order on usual terms.


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