Lekh Ram Kaundal v State of Himachal Pradesh and others
Himachal Pradesh High Court
20 June 2013
CMPMO No. 271 of 2012
The Judgment was delivered by : Kuldip Singh, J.
1. The order dated 4.7.2012 in election petition No. 05 of 2011 passed by Sub Divisional Officer (C)-cum- Authorised Officer, Sub Division, Shimla (R) has been assailed u/art. 227 of the Constitution of India.
2. It has been stated that the petitioner has filed election petition u/s. 163 of the Himachal Pradesh Panchayati Raj Act, 1994 (for short ‘Act’) for setting aside the election of respondent No.3 for the post of President, Gram Panchayat, Karyali held on 28.12.2010. On the same date, the voting for election of Vice President of Gram Panchayat, Zila Parishad and Block Development Committee member for Gram Panchayat, Karyali also took place. The voters were issued four different kinds of ballot papers for four different posts. The counting of the votes for the posts of President and Vice President took place on 28.12.2010. The total votes were polled 1264 as per record for the post of President.
The petitioner got 616 votes, respondent No.3 got 619 votes and 27 votes were declared invalid. The respondent No.3 was declared elected by three votes on 28.12.2010. As per the record, 1264 votes were polled for the post of President, but as per the counting only 1262 votes were polled which indicates that two votes were missing. The petitioner raised protest against the declaration of 27 votes invalid. In fact, out of 27 votes which were declared invalid, 22 votes were polled in favour of the petitioner and 5 votes in favour of respondent No.3.
3. The counting of votes of Zila Parishad and Block Development Committee took place on 4.1.2011 and during the course of counting it was revealed that two votes for the post of President polled in favour of the petitioner were found in the ballot box meant for the election of Block Development Committee which votes were sealed and sent to the higher officials. The respondent No.3 was wrongly declared elected as President on 28.12.2010.
4. The votes polled in favour of the petitioner were declared invalid for the reason that impression of the stamp in front of the name of the petitioner also got printed on the other side which was due to wrong folding of the ballot papers by the voters. The two votes found lateron in the ballot box meant for the election of Block Development Committee and polled in favour of the petitioner were wrongly declared invalid.
The votes declared invalid, were not invalid. The petitioner prayed for setting aside the election of respondent No.3 as President on 28.12.2010 and prayed for declaration of result after re-counting of the votes including the two votes found in the ballot box meant for the election of Block Development committee on 4.1.2011 and after due scrutiny of 22 votes. The petition has been contested by the respondent No.3. The issues were framed on 9.4.2012.
5. The petitioner moved an application dated 30.5.2012 under Order 18 Rule 18 read with S. 151 CPC and has stated that he had summoned the witness from the office of Block Development Officer, Basantpur alongwith the record of votes polled, votes declared invalid for the post of President, Gram Panchayat, Karyali along with original ballot papers and original votes polled. The petitioner had also summoned Budhi Singh Kanwar, Tehsildar Suni alongwith sealed votes of invalid votes for the post of President, Block Development Committee.
The Block Development Officer, Basantpur was present on 14.5.2012 with complete record which was sealed in packets. The said witness could not be examined as the record was sealed. The petitioner was directed by the Authorised Officer to move an application for seeking the permission for opening of the seals. In these circumstances, the applicant moved the application under Order 18 Rule 18 read with S. 151 CPC for inspection of the documents after opening the seals. It has been stated that the question of two votes which was polled in favour of the petitioner and found in the ballot box meant for the election of Block Development Committee alongwith the question of declaration of 27 votes invalid, are involved.
6. The application was also contested by respondent No.3. The Authorised Officer-cum-Sub Divisional Officer (C) dismissed the application on 4.7.2012, hence petition u/art. 227 of the Constitution. In the impugned order, the Authorised Officer has held that the allegation regarding irregularity or illegality in the election of the President, Gram Panchayat, Karyali is to be proved by the petitioner. The Authorised Officer cannot assist either party to the election petition to prove his case. The petitioner cannot be allowed an opportunity to indulge in a roving inquiry in order to fish out the material to justify his plea in order to declare the election illegal.
7. The statement of PW-1 Budhi Singh Kanwar, Tehsildar, Suni was recorded on 7.5.2012. He has stated that he was appointed ARO for the election of Panchayat Samiti and Zila Parishad and the counting of Panchayat Samiti and Zila Parishad took place under his supervision. During the counting, two votes of President, Gram Panchayat, Karyali were found which he put in sealed cover which he has not brought. The statement of the witness was deferred on the request of the counsel on the ground that the record of two votes is required to be summoned. On 14.5.2012 PW-2, Sub Inspector Panchayat was present before the Authorised Officer along with the record. He produced record in sealed cover.
The Authorised Officer in the order dated 14.5.2012 has observed that the counsel for the petitioner was advised to file application if he intended to open the sealed record. At that stage the petitioner moved application dated 30.5.2012 for opening the seals of two ballot papers meant for election of President Gram Panchayat, Karyali found in the ballot box meant for Block Development Committee and twenty seven rejected votes of the election of President Gram Panchayat, Karyali.
8. I have heard the learned counsel for the parties. Mr. G.D. Verma, Senior Advocate has relied K.K.Velusamy vs. N. Palanisamy (2011) 11 SCC 275 2011 Indlaw SC 200 and submitted that the Authorised Officer has erred in rejecting the application under Order 18 Rule 18 read with S. 151 CPC for opening the seals and placing on record the disputed ballot papers. The learned counsel for the respondent No.3 has supported the impugned order.
9. The grievance of the petitioner is that the election of President, Gram Panchayat, Karyali and election of Block Development Committee were held on 28.12.2010. The two votes which were meant for President, Gram Panchayat, Karyali were found in the ballot box of Block Development Committee. These two votes were wrongly ignored in the counting of votes of the election of President, Gram Panchayat, Karyali. In all 27 votes were declared invalid during the counting of the election of President, Gram Panchayat, Karyali, out of them, 22 votes were polled in favour of the petitioner but were wrongly declared invalid. The respondent No.3 was declared elected President by a margin of only three votes.
The non-consideration of the aforesaid two and twenty two votes in favour of the petitioner has materially affected the result of respondent No.3 and he was wrongly declared elected President, Gram Panchayat, Karyali. In order to establish this fact, according to the petitioner, it is necessary to re-open the seals of sealed ballot papers mentioned in the application. The Authorised Officer has rejected the application on two counts (i) it is for the petitioner to prove irregularity or illegality in the election, the Authorised Officer cannot assist either party to the election petition to prove his case (ii) the petitioner cannot be allowed to indulge in roving inquiry. It has not been appreciated no other procedure is available to the petitioner to prove his assertions. In case the seals of the sealed ballot papers of the election of President are not open, then it will not be possible for the petitioner to place necessary evidence before the Authorised Officer in support of his assertions. In the impugned order, no legal bar has been relied nor at the time of hearing of the petition any legal bar has been pointed out for not opening of the sealed ballot papers during the proceedings of election petition.
10. In K.K.Velusamy 2011 Indlaw SC 200 (supra), it has been held that S. 151 recognises and confirms that if the Code does not expressly or impliedly cover any particular procedural aspect, the inherent power can be used to deal with such situation or aspect, if the ends of justice warrant it. The breadth of such power is coextensive with the need to exercise such power on the facts and circumstances. The ballot papers are sealed, unless seals are opened and ballot papers are taken in evidence in accordance with law and thereafter scrutinized by the Authorised Officer the case set up by the petitioner cannot be appreciated. The Authorised Officer has failed to exercise the jurisdiction vested in him while dismissing the application. Thus, the impugned order is not sustainable.
11. In view of above, the petition is allowed. The order dated 4.7.2012 is set-aside. The application under Order 18 Rule 18 read with S. 151 CPC dated 30.5.2012 filed by the petitioner is allowed.
12. The Authorised Officer during evidence shall re-open the seals as prayed in the application but after the evidence, shall re-seal the ballot papers in the manner sealed earlier to be re-opened again only at the time of hearing and consideration of the election petition. The parties are directed to appear before the Authorised Officer-cum-Sub Divisional Officer (C), Sub Division, Shimla (R) on 02.07.2013. The record of the Authorised Officer be sent back immediately so as to reach before the date fixed.
Petition allowed
