Skip to content


Hari Chand Khimta Vs. Karam Chand and anr. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Misc. Petn. (M) No. 8 of 1983
Judge
ActsConstitution of India - Article 227; ;Himachal Pradesh Panchayati Raj Act, 1970 - Section 185(2)
AppellantHari Chand Khimta
RespondentKaram Chand and anr.
Appellant Advocate Devinder Gupta, Adv.
Respondent Advocate O.P. Thakur, Adv.
DispositionPetition allowed
Cases Referred and Mrs. Labhkuwar Bhagwani Shah v. Janardhan Mahadeo Kalan
Excerpt:
- .....227 of the constitution, the petitioner has challenged the order, d/- 31-12-1982, passed by the deputy commissioner, simla, in election petition no. 33/3 of 1978. 2. an election of the pardhan to gram panchayat, mandhol, district simla, was held on 17-11-1978 under the provisions of the himachal pradesh panchayati raj act, 1968 (hereinafter called the act). the petitioner and respondent 1 (shri karam chand azad) were contesting candidates for this election and the petitioner was declared elecled. respondent 1 challenged the election by filing an election petition before the deputy commissioner, simla, on various grounds and also alleged that the petitioner had committed corrupt practices. 3. the petitioner contested the election petition. on the pleadings of the parties issues were.....
Judgment:
ORDER

V.P. Gupta, J.

1. By this petition under Article 227 of the Constitution, the petitioner has challenged the order, D/- 31-12-1982, passed by the Deputy Commissioner, Simla, in election petition No. 33/3 of 1978.

2. An election of the Pardhan to Gram Panchayat, Mandhol, District Simla, was held on 17-11-1978 under the provisions of the Himachal Pradesh Panchayati Raj Act, 1968 (hereinafter called the Act). The petitioner and respondent 1 (Shri Karam Chand Azad) were contesting candidates for this election and the petitioner was declared elecled. Respondent 1 challenged the election by filing an election petition before the Deputy Commissioner, Simla, on various grounds and also alleged that the petitioner had committed corrupt practices.

3. The petitioner contested the election petition. On the pleadings of the parties issues were framed and parties also produced evidence. The Deputy Commissioner, vide his order, D/- 31-12-1982 held that the petitioner had committed corrupt practices and as a result thereof set aside the election of the petitioner.

4. Now the petitioner alleges that the order of the Deputy Commissioner is based upon no evidence and even according to the pleadings of respondent 1 and the evidence of respondent 1, no corrupt practice is proved to have been committed. It is alleged that the order is not based on any legal evidence and the Deputy Commissioner has acted with material irregularity in the exercise of his jurisdiction.

5. I have heard Shri Devinder Gupta, counsel for the petitioner and Shri O.P. Thakur, counsel for respondeni 1.

6. The learned counsel for the petitioner contended that in paras 6 to 21 of the election petition several corrupt practices were mentioned. The Deputy Commissioner in his judgment found that the corrupt practices mentioned in paras 6 to 20 were not proved. It was, however, found that corrupt practice mentioned in pars 21 was proved. According to 'he learned counsel the allegations in para 21 as well as the evidence are not sufficient to prove corrupt practice. He referred to para (g) of the affidavit filed by the respondent, wherein it is stated, that 'the particulars of corrupt practice given in paras of the said petition are true on the information received which he believes true'. It was contended that respondent 1 had no direct knowledge regarding this corrupt practice and the petitioner had denied the allegations in his reply. It was further contended that there was no evidence at all in support of these allegations. The learned counsel further contended that it is a fit case in which this Court should exercise its extraordinary powers, because no appeal, revision, etc., is provided against the orders of the Deputy Commissioner. In support of his contentions he relied upon Waryam Singh v. Amarnath (AIR 1954 SC 215), Hari Vishnu Kamath v. Ahmad fshaque (AIR 1955 SC 233) State of Orissa v. Murlidhar Jena (AIR 1963 SC 404) and Gopal Ganu Wabale v. Shri Nageshwardeo Patas Abhishekh Anusthan Trust, Patas (AIR 1978 SC 347).

7. Shri O. P. Thakur appearing for respondent 1 contended that the order of the Deputy Commissioner is final under Section 186 of the Act and this Court is not to appreciate the evidence and function as a court of appeal or revision. The only function of this Court is to see as to whether the authority deciding the matter had the jurisdiction to decide the matter or not. He relied upon the judgments in Nagendra Nath Bora v. Commr. of Hills Division and, Appeals, Assam (AIR 1958 SC 398), Babhutmal Raichand Oswal v. Laxmibai R. Tarta ( (1975) 1 SCC 858) : (AIR 1975 SC 1297) India Pipe Fitting Co. v. Fakruddin M. A, Baker ((1977) 4 SCC 587) : (AIR 1978 SC 45) and Mrs. Labhkuwar Bhagwani Shah v. Janardhan Mahadeo Kalan (1982) 3 SCC 514) : (AIR 1983 SC 535).

8. I have considered the contentions of the learned counsel for the parties.

9. The petitioner was declared elected as a Pradhan on 17111978. This election was challenged by respondent 1. Under Section 188 (1) of the Act, an election is to be set aside if any corrupt practice is proved to have been committed by the elected person or his agent or by any other person with the consent of the elected person or his agent. The corrupt practices are definedin Section 185 of the Act. Under Section 184 of the Act, on proof of the corrupt practice having been committed the candidate is disqualified for membership of Gram Panchayat for a period, of five years counting from the date on which the finding of the prescribed authority as to such practice has been given. Under Section 186 of the Act, the Deputy Commissioner is the authority to decide a dispute regarding the election of a Pradhan and his order is final. It is an admitted position that no remedy is provided under the Act against the order of Deputy Commissioner.

10. Under Article 227 of the Constitution, this Court has the power of superintendence over all courts and tribunals of the State. This Article can only be invoked in exceptional cases and very sparingly and cannot be a substitute for ordinary revisional or appellate powers. The power of superintendence is given to the High Court with a view to keep the courts and tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner. The judgments cited by the learned counsel for the parties also enunciate the same law with respect to the applicability and scope of Article 227.

11. In Waryam Singh (AIR 1954 SC 215) (supra), it was held that the power of superintendence conferred by Article 227 is to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors. It was further held that where the lower courts in refusing to make an order of ejectment acted arbitrarily although the lower courts realised the legal position but in effect declined to do what was incumbent upon them to do and thereby refused to exercise jurisdiction vested in them by law, it was a fit case for interference.

12. In Hari Vishnu Kamath's case (AIR 1955 SC 233) (supra) it was held that under Article 226, the High Court can only annul the decision of a tribunal while under Article 227 if can also issue further directions in the matter and that the jurisdiction under Article 227 is both judicial and administrative.

13. In State of Orissa (AIR 1963 SC 4(14) (supra), it was held that the High Court cannot sit in appeal over the findings of competent tribunal but if it is shown that the findings recorded, by thetribunal are not supported by any evidence then the High Court would tee justified in setting aside the said findings.

14. The case law under Article 227 was again considered in Gopal Ganu Wabale's ease (AIR 1978 SC 347) (supra) and itwas held (at p. 348):

'The limits of the High Court's jurisdiction under Article 227 of the Constitution are too well established to require any elaborate restatement. The High Court, in the exercise of its powers under Article 227, cannot function as a Court of appeal and is generally bound by the finding of iact recorded by the tribunal below.''

The facts were that before the revenue authorities the dispute was as to whether the appellant was in possession of the suit lands as a tenant of the respondent. The fundamental infirmity in the appellant's case consisted in his very plea that he was in possession of the lands as a subtenant. Section 27, Bom bay Tenancy Act, prohibited subtenancy and under Section 14 a tenancy was liable to be terminated on the ground of subletting. As a result of the combined effect of operation of both these sections the cultivation of land by a subtenant could, not be said to be lawful and lawful cultivation was an important ingredient. As such, the sub-tenant could not be deemed to be a tenant. This case was under the Bombay Tenancy Act. It was held that a manifest error from which the concurrent findings of the three revenue authorities, suffered was their uncritical reliance on two circumstances, neither of which could help establish the tenancy of the appellant. The High Court has interfered under Article 227 with the concurrent findings of the revenue authorities and the Supreme Court confirmed this judgment of the High. Court and dismissed the appeal.

15. In Nagendra Nath Bora (AIR 1958 SC 398) (supra), it was held that under Article 227 the power of interference is limited to see that tribunals function within the limits of its authority.

16. In Bobhtumal Raichand Oswal (AIR 1975 SC 1297), and M/s. India Pipe Fitting Co. cases (AIR 1978 SC 45) (supra) it was again held that the High Court cannot in the guise of its jurisdiction under Article 227 convert itself into a court of appeal and, an error of bet even though apparent on the face of the record is not subject to correctionby the High Court under Article 227. The jurisdiction of High Court is limited only to see that the subordinate court functions within the limits of its authority.

17. In. Mrs. Labhkuwar Bhagwani Shah (AIR 1983 SC 535) (supra), it was held that findings of fact whether relating to jurisdictional issue or otherwise of the lower courts are not open to interference by High Court under Article 227.

18 Thus, this Court is competent to look into the fact as to whether the Deputy Commissioner has acted within his authority and performed his duty in a legal manner. Interference can be done, if there is a flagrant abuse of elementary principles of justice or manifest error of law apparent on the face of the record.

19. It was contended that there is no evidence to support the allegations of para 21 of the election petition. Counsel for the respondent contended that there is evidence to prove the allegations. The Deputy Commissioner has held:

'To my mind holding of rally at the time of election does not constitute corrupt practice because it is a common practice at the time of elections that meetings are held and processions are taken out in which the candidate is projected by his followers and, he explains his policies and manifesto but after this rally serving of Halwa and Puris, that too in the premises of a temple was highly objectionable and is covered by Section 185, H. P. Panchayati Raj Act, 1968 as a corrupt practice as an entertainment with the object of inducing the members of Gram Sabha directly or indirectly with a view to vote or refrain from voting at the impugned election. Serving of this entertainment in the temple premises is definitely undue influence by directly or indirectly interfering or attempting to interfere on the part of the candidate or his agent or any other person with the consent of the candidate with the free 'exercise of the electoral right of the members of Gram Sabha in the belief that they or any person in whom they are interested, will become or will be rendered an object of divine displeasure. Narsing Devta is a local Devaa and the people have unqualified belief and faith in him and once acceptance of the entertainment inthe shape of 'Parshad' i.e. Halwa and Puri the participants are bound to vote in favour of the organiser i.e. the respondent by fear of divine displeasure. This is therefore patently a corrupt practice. The presence of the respondent at the time of entertainment and especially when the respondent is Mohtmim of the temple leads to the irrebuttable conclusion that the corrupt practice was committed by the respondent himself. Ho has accepted his presence and factum of his being Mohtmim of the temple is proved.'

20. The allegations in para 21 of the election petition read, as follows:

'That on 15111978 respondent1 organised a rally of local voters which commenced at village Mandhole at about 8.00 A. M. and after passing through the villages Umta, Maghara, Markandia and Astandli the rally reached Village Sari at about 2.00 P.M. where a free Lan gar of Halwa and Puri was held by respondent1 within the premises of Devta Narsingh who is worshipped by the local Hindu community. At that place after feeding about 100 voters besides some children, the voters were put to pledge in the name of Devta Narsingh that they shall cast' their votes in favour of respondent1. At that time respondent1 also took up an oath that after having been returned as the Pradhan he would donate an amount of Rs. 101/ to the said Devta Narsingh in the joint fund of villagers of Sari. Thereafter the rally headed by respondent1 moved through the village of Bantari and ended at village Mandhole at about 6.00 P.M. All the said villages are within the area of the Gram Sabha/Gram Panchayat, Man dhole. In fulfilment of his above promise by oath, respondent1 made the said donation of Rs. 101/ accordingly on 30-11-1978 at village Sari by handing over the amount to Shri Roshan Lal, son of Dhani Ram in a gathering of about 20 persons within the premises of Dovta Narsingh. Thereby respondent 1 has committed the practice of bribery and undue influence with the free exercise of the electoral rights of about 300 voters with the inducement of divine displeasure and spiritual censure of violating the oath so taken in the name of Devta Narsingh. Respondent 1 has further committed the practice of seeking votes by making appeal to the voters on the grounds of religion/community for the furtherance of his electionprospects and to the prejudice of petitioners' election.'

21. Under Section 169 of the Act it is the duty of the respondent to narrate the allegations of corrupt practices specifically and to support the same with an affidavit.

22. The learned counsel for respondent 1 could not show me any evidence regarding the fact that the voters were put to pledge. He referred to the statement of respondent 1 at page 71 of the file. Respondent 1 states 'that Halwa Puri was eaten by the persons comprising the rally and the voters in the temple premises. The petitioner asked them to vote for him and also administered the oath of Devta and told them that on his success he would give Rs. 101/ in the Gram Sabha fund'. At page 81 of the file, respondent 1 has admitted that he was informed by the people regarding the taking of pledge and also regarding promise to pay Rs. 101/- In the affidavit and the election petition, respondent 1 has also stated that he only received the information of these facts which he believed. Thus, the statement of respondent 1 regarding the taking of any pledge in the temple is not sufficient to prove the fact. The persons from whom the respondent derived, this knowledge were not produced as witnesses. Besides this evidence, there is no other evidence to prove that the petitioner asked the voters or rally people to take such a pledge in the temple premises. The petitioner himself has denied this version on oath.

23. The Deputy Commissioner held the petitioner for having committed a corrupt practice as is mentioned in Section 185 (2) of the Act which reads as follows:

'185. The following shall be deemed to be corrupt practices for the purposes of this chapter:

(1) xxx xxx xxx xxx xxx

(2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person with the consent of the candidate or his agent, with the free exercise of any electoral right: Provided that---

(a) without prejudice to the generality of the provisions of this clause, any such person as is referred to therein who ----

(i) threatens any candidate or a member if the sabha or any person in whom a candidate or such member is interested, with injury of any kind including social ostracism and excommunication or expulsion from any caste or community; or

(ii) induces or attempts to induce a candidate or a member of the Sabha to believe that he, or any person in whom ho is interested, will become or will be rendered an object of divine displeasure or spiritual censure;

shall be deemed to interfere with the free exercise of the electoral right of such candidate or a member of the Sabha within the meaning of this clause:

(b) A declaration of public policy, or promise of public action, or the mere exercise of a legal right without intent to interfere, with an electoral right, shall not be deemed to be interfernce within the meaning of this clause.'

24. The learned counsel for respondent could only contend that a rally was held on 15-11-1978 and Halwa and Puris were distributed in the temple premises. The Deputy Commissioner in his order has himself held that mere holding of a rally is not a corrupt practice. The Deputy Commissioner has further observed that after rally distribution of Halwa and Puris in temple promises is objectionable and is covered under Section 185 of the Act.

25. I have not been able to appreciate this part of the order. There if no evidence on record to prove that the petitioner directly or indirectly interfered or attempted to interfere with the free exercise of any electoral right. There is also no evidence that the petitioner induced or attempted to induce a candidate or a member of Sabha to believe that he or any person in whom he is interested will become or will be rendered, an object of divine displeasure or spiritual censure.

26. If the holding of rallies/meetings and taking out processions in which a candidate is projected by his followers and the policies and manifestos are explained is not covered under Section 185 of the Act then serving of Halwa and Puris in temple promises as 'Parshad' of Devta cannot be termed as an entertainment of the nature so as to attract the provisions of Section 185 (2) of the Act. It is no shown or proved as to how and in what manner the petitionerhas committed the corrupt practice of undue influence, as is mentioned in Section 185 (2). Simply quoting the language of Section 185 of the Act is not sufficient.

27. Thus believing the evidence which is on record and considering the allegations made in the election petition, I find that undue influence, as mentioned in Section 185 (2) is not proved. The Deputy Commissioner has acted upon conjectures and, has derived conclusions which are not based upon the evidence produced on record. The Deputy Commissioner has in fact, failed to perform his duty in a legal manner resulting in great injustice. Hence it is a fit case for interference under Article 227 of the Constitution.

28. In view of the above discussion this petition is accepted and the order of the Deputy Commissioner, D/- 31-12-1982 (Annexure P/D) is set aside.

29. Parties are left to bear their own costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //