VIJAY Vs. SUNIL KUMARI

JUDGEMENT

(1.) ELECTIONS to the Municipal Council in the State of Haryana are governed by the provisions of the Haryana Municipal Act, 1973 and the Haryana Municipal Election Rules, 1978 framed thereunder. In exercise of powers conferred by the Haryana Municipal Act, 1973 the State Election Commission has in addition framed the Haryana Municipal Election Expenditure (Maintenance and Submission of Accounts) Order, 2006 which was notified on December 19, 2006. This order is traced to the authority conferred by Article 243ZA of the Constitution of India and Sections 3A, 13D and 13E of the Act of 1973.

(2.) THE election of a returned candidate can be set aside under Rule 85(1)(a) of the 1978 Rules if the Election Tribunal is of the opinion that the candidate was not qualified or was disqualified under the Act and the Rules made thereunder.

(3.) AGGRIEVED by the election of the petitioner, the defeated candidate Smt. Sunil Kumari, respondent filed an Election Petition under Section 272 of the Haryana Municipal Act, 1973 before the Civil Judge (Senior Division) -cum -Election Tribunal, Jind for declaring the election of Ward No. 30 of Municipal Council, Jind held on May 15, 2011 as illegal, null and void and the election petitioner Smt. Sunil Kumari be declared instead as a duly elected candidate from ward No. 30 and in the alternative a reelection be ordered. The petitioner put in appearance and contested the petition and denied that the expenditure account statement was not furnished. Rather, the same was deposited vide receipt No. 1111 dated June 18, 2010. Therefore, he cannot be held disqualified for the bye -election held on May 15, 2011. Moreover, his nomination form as well as security was accepted by the Returning Officer and there had been no lapse on his part. The Election Tribunal framed four issues for trial. The parties led their respective evidence both oral and documentary before the Tribunal with ample and full opportunity given to both sides. The Election Tribunal came to the conclusion that the petitioner had not submitted his election expenditure account statement within 30 days from the date of declaration of result of the previous election held on May 20, 2010 or thereafter. If a finding of fact has been returned based on appreciation of evidence available on record that till September 15, 2011 no account statement was submitted, which is allegedly to have been submitted by the petitioner on June 18, 2010, then hardly any scope remains for upsetting such a finding of fact. The Election Tribunal has examined the case in terms of Clause 5(11) and (12) of the Order 2006. The Election Tribunal has returned a positive finding that the petitioner had manipulated the Municipal Council record by submitting a statement on a back date and an entry in this regard was inserted in between the other entries already recorded. Moreover, the then Sub Divisional Magistrate had submitted its report (Ex. P1) called for by the Deputy Commissioner, Jind wherein it was clearly held on inquiry that the petitioner Vijay had not deposited his expenditure account statement within time and he had procured a forged entry in connivance with the despatch official thereby committing forgery at serial No. 1111. The SDM had recommended stern disciplinary action against the erring official. With this turn of events, the Deputy Commissioner, Jind wrote a letter to the Lokayukt on the strength of report submitted by SDM/SDO (Civil). The State Election Commission, Haryana, Panchkula was also informed that the Deputy Commissioner, Jind had not submitted the list of those persons who had not deposited their expenditure statement within time in respect of elections held on May 20, 2010. The State Election Commission had accordingly issued a show cause notice Ex. PW3/C to all those candidates who had contested the election to show cause why they should not be declared disqualified for the next three years for not furnishing their expenditure account statement and in this letter the name of the petitioner, respondent in the Election Petition has been mentioned at Sr. No. 112.