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Devi Saran Vs. the Election Tribunal Etc. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Writ Petn. No. 34 of 1963
Judge
Reported inAIR1966HP50
ActsHimachal Pradesh Panchayat Rules - Rules 55, 57, 67 and 68; ;Indian Penal Code (IPC) - Section 409
AppellantDevi Saran
RespondentThe Election Tribunal Etc.
Appellant Advocate Sita Ram, Adv.
Respondent Advocate K.C. Pandit, Govt. Adv. for Respondent Nos. 1 and 3
DispositionPetition allowed
Excerpt:
.....in his election petition - election tribunal not competent to declare void on ground that name of petitioner was illegally included in register of members - no evidence to show that polling station was changed to further the prospects of petitioner - order of election tribunal quashed. -..........for setting aside the election of the petitioner. the election-petition was heard by the election tribunal district mahasu, constituted under the himachal pradesh panchayat raj act, and the rules framed thereunder. the election tribunal declared the election of the petitioner as void on three grounds, namely, (1) that the petitioner was convicted some thirty years ago. in the erstwhile bhaji state, for an offence under section 409 i. p. c., which involved moral turpitude; (2) that the name of the petitioner was irregularly included in the register of members of gram panchayat, kathnol; and (3) that the venue of polling was changed to benefit the petitioner and there was thus violation of r. 55 of the himachal pradesh panchayat rules.3. the petitioner has filed the present.....
Judgment:
ORDER

Om Parkash, J.

1. This is a writ-petition, under Arts. 226 and 227 of the Constitution of India, for the quashing of an order of the Election Tribunal, District Mahasu.

2. The petitioner was elected President of Gram Panchayat, Kathnol, District Mahasu, in an election, held, on the 30th August 1962. Respondent No. 2 put in an election-petition for setting aside the election of the petitioner. The election-petition was heard by the Election Tribunal District Mahasu, constituted under the Himachal Pradesh Panchayat Raj Act, and the Rules framed thereunder. The Election Tribunal declared the election of the petitioner as void on three grounds, namely, (1) that the petitioner was convicted some thirty years ago. in the erstwhile Bhaji State, for an offence under Section 409 I. P. C., which involved moral turpitude; (2) that the name of the petitioner was irregularly included in the Register of Members of Gram Panchayat, Kathnol; and (3) that the venue of polling was changed to benefit the petitioner and there was thus violation of R. 55 of the Himachal Pradesh Panchayat Rules.

3. The petitioner has filed the present writ-petition, challenging the validity of the order of the Election Tribunal, declaring his election, as void. It was argued, by the learned counsel for the petitioner, that the proceedings, conducted by the Election Tribunal, were without jurisdiction and void as the Election Tribunal had tried the election-petition at Keliston, Simla, which was not the headquarters; of Mahasu District, in violation of the provisions of Rule 63 of the Himachal Pradesh Panchayat Rules. The aforesaid Rule lays down that the Election Tribunal shall hold its sittings generally at the district headquarters unless the State Government otherwise directs. It is not, in dispute, in the present case, that the trial of the election-petition was conducted at Keliston, Simla which is not the district headquarters of Mahasu District. The point, which requires decision is, whether the holding of the sittings, by the Election Tribunal, at Keliston. Simla, rendered its proceedings, without jurisdiction, In this connection, it is to be pointed out that it is not alleged that the Election Tribunal was not validly constituted or lacked jurisdiction over the subject-matter or over the parties. So, the Election tribunal was validly constituted and there was no inherent lack of jurisdiction.

The holding of its sittings by the Election Tribunal, at Keliston Simla, was a mere irregularity in the exercise of its jurisdiction. The general principle of law is that irregularities in the exercise of jurisdiction are curable and capable of being waived and that they do not render the proceeding of a tribunal illegal and void and that if a party waives such an irregularity, he cannot subsequently question the decision of the tribunal on the basis of that irregularity. In the instant case, the petitioner had not, raised any objection as to the place of trial, before the Election Tribunal. He had, therefore, waived the irregularity of the holding of sittings at Keliston, Simla. He cannot be permitted to raise the objection as to the place of trial in the present proceedings.

There is no allegation, much less any proof, that the irregularity of holding the trial at Keliston Simla had occasioned any failure of justice. Taking into consideration the fact that the Senior Subordinate Judge, Mahasu, was the chairman of the Election Tribunal and one of the two members was an advocate, it would have been convenient for the Election Tribunal and the parties to have heard the election-petition at Keliston, Simla, where the headquarters of the Courts of the Senior Subordinate Judge and the District and Sessions Judge, Mahasu are located. The contention of the learned counsel for the petitioner that the proceedings of the Election Tribunal were without jurisdiction and void as the trial of the election-petition was held at Keliston, Simla cannot be accepted.

4. It was, next, argued by the learned counsel for the petitioner, that none of the grounds, relied upon, by the Election Tribunal, for declaring the election of the petitioner as void, falls within the ambit of Rule 67 of the Himachal Pradesh Panchayat Rules, which enumerates grounds on which the election of a returned candidate can be declared void, and that the order of the Election Tribunal, was, therefore, without jurisdiction. Rule 67 runs as follows :--

'The Election Tribunal may declare an election of a returned candidate to be void if it is of the opinion that

(a) all or any of the breaches mentioned in Rule 66 have been committed, or

(b) election has not been a free election by reason that coercion or intimidation has been exercised or resorted to by any particular community group or section to vote or not to vote in any particular way at the election in order to help the returned candidate '

5. Rule 56, referred to above, gays that a Government servant or a servant of any local body shall not, by canvassing or otherwise interfere or in any way use his influence in any election.

6. A reading of Rules 56 and 67, makes it clear that an Election Tribunal can declare an election void if a Government servant or a servant of any local body had canvassed or otherwise interfered with or used his influence, in the election or that the election has not been a free election by reason that coercion or intimidation was exercised or resorted to tn order to help the returned candidate. An Election Tribunal has no jurisdiction to declare an election void on any other ground. If irregularities, other than those mentioned in Rule 56 and Rule 67, are proved to have been committed in the conduct of an election, the State Government may pass such order as may appear to be just and proper, with respect to those irregularities, vide Rule 57 of the Himachal Pradesh Panchayat Rules But an Election Tribunal has no power or authority to declare an election void on the ground of such irregularities

7. Let us examine, in the light of the principles, enunciated above, whether the Election Tribunal, in the instant case, had the jurisdiction to declare the election of the petitioner void on the grounds, detailed in its order. The Election Tribunal has relied upon three grounds for setting aside the election of the petitioner. Those grounds have been set forth in an earlier part of this order. The first ground that the petitioner was convicted, under Section 409 I. P C., some thirty years ago, and sentenced to fine does not fall either under Rule 55 or Rule 67 of the Himachal Pradesh Panchayat Rules. It may, also, be pointed out that respondent No. 2 had not taken up the ground about the previous conviction of the petitioner in his election-petition. The Election Tribunal acted without jurisdiction in travelling outside the four corners of the election-petition and in basing its decision on a ground which was not alleged in the election-petition.

8. The second ground that the name of the petitioner was irregularly included in the Register of Members of the Gram Panchayat, Kathnol, might have been a good ground for the State Government to pass an appropriate order under Rule 57 of the Himachal Pradesh Panchayat Rules But the Election Tribunal was not competent to declare the election void on that ground.

9. So far as the third ground is concern ed, neither there is any evidence nor any finding that the venue of polling was changed to further the prospects of the election of the the petitioner. The Election Tribunal did not record any finding that any Government servant or a servant of any local body had canvassed or otherwise interfered with or influenced the election. The observation of the Election Tribunal that there was breach of Rule 55 appears to be casual and is not supported by any evidence

10. It follows from the above discussion, that the Election Tribunal had no jurisdiction to declare the election of the petitioner void on the grounds, detailed in its order. The order of the Election Tribunal is without jurisdiction and is liable to be quashed.

11. The petition is allowed The order of the Election Tribunal declaring the election of the petitioner as void in quashed. The election-petition of respondent No. 2 will stand dismissed. In the circumstances of the case, the parties will bear their costs of the present petition.


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