DWARKA DASS Vs. BACHITTAR SINGH

JUDGEMENT

(1.) The above writ petition has been filed seeking for the relief of quashing the orders of the Sub-Divisional Officer (C) Sadar, Bilaspur, dated 10.3.1998 filed as Annexure 'A' and that of the Deputy Commissioner, Bilaspur District, dated 25.8.1998 filed as Annexure 'C and for a consequential declaration that the Petitioner was duly elected as a member of Panchayat Samiti, Sadar, Bilaspur from Dharot Ward and the Election Petition filed by the Respondent No. 1 may be dismissed. The facts averred by the Petitioner in the writ petition are that on 22.12.1995, there was an election to the Panchayat Samiti, Bilaspur and that in the said election, the Petitioner was elected as a Member to represent the said ward. Thereafter, the election for the Chairman of the Panchayat Samiti was held and in which three candidates including the Petitioner and Respondents 1 and 2 contested out of which, the Petitioner was said to have been declared elected defeating the other candidates-Respondents 1 and 2. Thereupon, the first Respondent appears to have filed an election petition invoking the provisions contained in Section 161 of the H.P. Panchayat Raj Act, 1994 (hereinafter referred to as "the Act") in which it is stated that the Petitioner and Respondent No. 2 were arrayed as Respondents. The said election petition was said to have been heard on several dates, but on 10.3.1998, the Sub-Divisional Officer, exercising his powers as Authorised Officer under the Act, made an order merely on the basis of recounting of votes ordered by him, that such a recount disclosed that the Petitioner had polled 436 votes as against 433 and 469 said to have been polled by Respondents 1 and 2 besides 32 votes which were said to have been rejected as invalid, out of the total 1380 votes said to have been polled in the election. As a consequence of the results flowing from the recounting, the Authorised Officer declared the second Respondent to have been duly elected and directed a copy of the order to be marked to the Deputy Commissioner of the district and Block Development Officer, Sadar, Bilaspur, for further action in accordance with law. Aggrieved, the Petitioner who was arrayed as the first Respondent before the Sub-Divisional Officer/Authorised Officer, filed an appeal under Section 181 of the Act before the Deputy Commissioner, Bilaspur District. Before the said appellate authority, who is the third Respondent before us, the Appellant appears to have urged that the order passed by the original authority is illegal, wrong and without jurisdiction for the reason that the procedure adopted for counting of votes by the Sub-Divisional Officer is completely illegal and not warranted under the act. Since he had no jurisdiction to recount the votes and he had jurisdiction only to either set aside the election as mentioned in Section 175 of the Act or dismiss the Election Petition and inasmuch as the recounting is not a ground to set aside the election of a successfully elected candidate, the order of the Sub-Divisional Officer deserves to be set aside. It was also urged in the grounds of appeal before the third Respondent that the Sub-Divisional Officer has illegally declared the Respondent No. 1 as elected, whereas no such order can be passed and if the election is declared null and void or election is set aside, the only procedure is to order fresh election and, therefore, the order deserves to be set aside. On such grounds, the prayer sought for before the third Respondent was to set aside the order of the Sub-Divisional Officer made on 10.3.1998.

(2.) The third Respondent, exercising his powers as statutory Appellate Authority, after perusing the relevant records of the case and hearing the arguments on both sides, dealt with the plea said to have been raised with reference to the two options available to the Sub-Divisional Officer either to dismiss the election petition or to set aside the election and that there was no provision to declare the second Respondent elected, ultimately came to the conclusion that, that part of the order under which the Sub-Divisional Officer declared the second Respondent duly elected in the place of the Petitioner, requires to be and was being set aside and disposed of the appeal finally by maintaining the other part of the order setting aside the election of the Petitioner. Though the order passed by the third Respondent is a short order, it is seen from the same that the stand taken by the second Respondent before the said Appellate Authority that recount was done on the consent of the parties concerned who have also put their signatures on the order-sheet maintained by the Sub-Divisional Officer, has been noticed specifically and that he has come to the conclusion that the stand taken by the Appellate Authority that the Sub-Divisional Officer had limited power either to set aside the election or to dismiss the election petition, is correct. It is not necessary for us, in this case to finally adjudicate on the scope and extent of the powers of the SDO, in such cases. On his further view, that it was not in dispute that there was irregularity in the counting of votes, he has chosen to reject the appeal also, as noticed earlier, by upholding that part of the decision of the Sub-Divisional Officer in which the election of the Petitioner has been set aside Aggrieved, the Petitioner has come before this Court with the above writ petition for the reliefs noticed supra.

(3.) Heard Mr. Inder Singh, learned Counsel for the Petitioner and the learned Advocate-General for the third Respondent, who caused the production of the records relating to the Sub-Divisional Officer, in view of the serious dispute raised with respect to the factual issue in respect of the consent alleged to have been given by the Petitioner for the recounting. The other Respondents, namely, 1 and 2, have not appeared before the Court in spite of notices having been served, through any counsel or in person to defend the proceedings. The third Respondent has filed a reply, in which it is contended that the election under dispute was for Panchayat Samiti and not for Block Development Committee as wrongly found noticed in the writ petition, that recounting was ordered by the Sub-Divisional Officer (C), Sadar, Bilaspur with the consent of both the parties and in proof thereof, they have appended their signatures on the order-sheet, that the first Respondent had filed a petition before the Sub-Divisional Officer mainly on the ground that more than 50 votes of the Respondent No. 1 were wrongly counted towards the votes of the Petitioner and the Returning Officer did not allow recounting despite the request of the first Respondent before the Returning Officer for the purpose and the first Respondent the Petitioner before this said Authority, had also filed an affidavit along with the petition stating that more than 50 votes of him had been put in the bundle of the writ-Petitioner and, therefore, the election of the Petitioner has been materially affected and if the recounting is done, then the 1st Respondent herein would get more votes and deserved to be elected as Member and consequently, the order for recounting made by the Sub-Divisional Officer was a right decision taken and, therefore, cannot be said to be totally without jurisdiction. It is also urged that the Sub-Divisional Officer had jurisdiction to order recounting of votes under Section 175(d)(ii) and (iii) of the Act and, therefore, that part of the order of the Authorised Officer setting aside the election of the elected person, on such an irregularity, is valid. It is also reiterated that the first Respondent can be believed in his claim that his request for recounting was not ordered by the Returning Officer before declaring the results based on his affidavit filed before the Sub-Divisional Officer and inasmuch as the parties have appended their signatures to the order-sheet maintained by the Sub-Divisional Officer, no exception could be taken to the order passed by way of recounting by the Sub-Divisional Officer. The third Respondent also reiterated that since the election of the Petitioner has been set aside after satisfying that the requirements of Section 175(d) (ii) and (iii) of the Act were not complied with by dealing with the claim for recounting made before final declaration of results, no exception could be taken to that part of the order of the Sub-Divisional Officer setting aside the election of the Petitioner.