HITJORILAL JUGALKISHORE Vs. DEPUTY COMMISSIONER, HOSHANGABAD

JUDGEMENT

(1.) THIS is an appeal under clause 10 of the Letters Patent from an order of Bhutt J. (as he then was) dismissing an application preferred by the appellant under Article 226 of the Constitution of India for quashing an order of the Deputy Commissioner of Hoshangabad by which the appellant's election as Sarpanch of the Gram Panchayat, Babai, was set aside.

(2.) THE appellant and the respondents Amritlal and Kampta Prasad filed their nomination papers for the election. The nomination paper of Amritlal was rejected by the President presiding over the meeting of the Panchayat called for the election of the Sarpanch on the ground that it mentioned a wrong date in that instead of entering 5th January 1956 as the date of filing the nomination paper, the date which was mentioned was 5th December 1956. The respondent Kampta Prasad's nomination paper was rejected on the ground that it omitted to specify any date at all. On the rejection of these nomination papers, the appellant was the only candidate left in the field. He was accordingly declared elected as Sarpanch. Thereafter Amritlal filed an election petition before the Deputy Commissioner on the ground of improper rejection of his nomination paper for setting aside the election of the appellant as Sarpanch. The Deputy Commissioner held that the omission to put a date in the nomination paper or an error in it was not a material error invalidating the nomination paper. He, therefore, declared the election to be void and ordered a fresh election. The appellant then moved this Court under Article 226 for quashing the order of the Deputy Commissioner. The learned single Judge took the view that under the rules framed for settlement of election disputes under the C. P. and Berar Panchayats Act, 1946, the Deputy Commissioner could declare an election to be void when he was of the opinion that the result of the election had been materially affected by corrupt or illegal practice, and that the rejection of the nomination paper on the grounds on which the President of the Gram Panchayat meeting rejected it was an illegal practice. The learned single Judge further observed that the view of the Deputy Commissioner that the mention of a wrong date hi the nomination paper or a total omission of it was not such a material defect as to invalidate the nomination paper, could not be said to be patently erroneous.

(3.) WE do not find ourselves in agreement with this view. In the absence of any definition of "illegal practice" in the Act, any act of commission or omission against the provisions of the Act or the rules made thereunder would no doubt be an "illegal practice". Rule 2 gives to the Deputy Commissioner power to declare an election to be void if he is of the opinion that the election in question has been procured or induced or the result of the election has been materially affected by "illegal practice." It is thus clear that the illegal practice must be on the part of the candidate or candidates contesting the election. The error of the Returning Officer, or here of the President of the meeting of the Gram Panchayat in rejecting a nomination paper, was clearly not an "illegal practice" adopted by the appellant, who was successful at the election, invalidating the election. There is no doubt a lacuna in the Act and the rules framed thereunder in providing no remedy where the nomination paper of a person contesting the election of a Panch or Sarpanch is improperly accepted or rejected. But that defect cannot be cured by stretching the meaning of "illegal practice" so as to include in it improper rejection or acceptance of a nomination paper. The respondent Amritlal's remedy for having the election of the appellant set aside on the ground that his nomination paper was improperly rejected was obviously one of filing a civil suit. The rules framed under the Act do not take away the right of the aggrieved person to challenge by way of a suit any election on the ground of improper acceptance or rejection of a nomination paper.