Subash Chander vs State Of J&K And Ors
2023 Latest Caselaw 1655 j&K

                                                                         Sr.No. 17

HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                AT JAMMU

                                                       OWP No.36/2013
                                                       CM No.8965/2021
                                                       IA Nos.2411/2013, 498/2014 &
                                                       41/2013


Subash Chander                                                ....Petitioner(s)/Appellant(s)

                     Through :- Mr. Sachin Sharma, Advocate.

V/s

State of J&K and ors.                                                     ....Respondent(s)


                    Through :-    Mr. S.S. Nanda, Sr.AAG.
                                  Mr. Sandeep Singh, Advocate.
Coram: HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE

                                        ORDER

ORAL:

01. In the instant petition, the petitioner, herein, has challenged the order

dated 21.12.2012, passed by respondent Nos.3 and 4 in case Appeal File No.37

titled Kewal Krishan V/s Returning Officer and ors. with further direction to the

official respondents restraining them to permit respondent No.7 from working as

Sarpanch of Village Dheote constituency Panchayat Halqa 13-Dheote.

02. The petitioner has questioned the impugned order dated 21.12.2012 on

the grounds that:

a. Whether a statutory authority who is duty bound to hear an appeal in terms of the provisions of Panchayati Raj Act and Representations of People Act can device a procedure of its own, for hearing an appeal, which procedure is without any rationale and logic and is in violation of the basic principles of natural justice and ultimately condemn any of the party, unheard.

b. Whether the allegations of Corrupt practice levied upon the petitioner by the respondent No. 7 has to be unequivocally proved by the same, in view the fact that the Hon'ble Apex Court of India has already held

that allegations of corrupt practice is a criminal charge and level of proof required to substantiate the same is as good as criminal charge.

c. Whether the Appellate Authority has not erred in holding the petitioner guilty of Corrupt practice only on the basis of few affidavits filed by the respondent No. 7 (appellant therein), without affording any opportunity of cross examine those persons who have sworn those alleged affidavits and also by rejecting an application filed by petitioner, in limini, seeking permission to cross examine those persons and all other applications. d. Whether the appellate authority have further not erred in holding the petitioner guilty of corrupt practice keeping in view the fact that the respondent No. 7 (appellant therein), has never specifically levied any of the allegations of corrupt practice against the petitioner, as the respondent No. 7 has only unequivocally alleged in its appeal that "there is bungling in casting votes in favour of respondent No. 3 (petitioner herein)" and there is no specific allegations of corrupt practice or to the effect that the petitioner was himself actively and effectively conducted any of the corrupt practice or undue influence upon any of the voters, who has voted for or against the petitioner.

e.           Whether the appellate authority has any jurisdiction to
cancel       any          of      the         votes           which            has         been         polled
keeping       in     view         the        provisions             of     Panchayati              Raj       Act
and Panchayati Raj Rules.
f.           Whether the total number of 32 votes, which has been

deleted from the tally of petitioner is initially required to be specifically proved to have been polled in favor of the petitioner by corrupt practice and undue influence and whether that the appellate authority is duty bound to at least test the veracity of allegations against the petitioner by initially checking from the concerned that whether the so called alleged votes have been polled or not.

g. Whether simple reading of the pleadings of the respondent No. 7 and affidavits filed by the same does in any manner do result in to the judgment/order dated 21.12.2012, wherein the Appellate authority have discussed all the allegations against the petitioner only on the basis of surmises and conjunctures and on the basis of affidavits.

h. Whether the allegations of malafide alleged by the petitioner against the respondent No. 3 and 4, in the present writ petition as well as in the earlier rounds of litigations have been substantially proved by the petitioner and the conduct of the appellate authority have itself proved the same. i. Whether the order impugned in the writ petition dated 21.12.2012 is sustainable keeping in view the submissions and grounds of challenge to the same made herein below.

Brief facts of the case are as under:

03. It is stated that the petitioner has worked for the upliftment of poor and

downtrodden and due to his hard work, he was voted to be elected as Sarpanch for

Village Dheote and was accordingly, declared elected as Sarpanch with a winning

margin of about 20 votes from one Kewal Krishan i.e. respondent No.7. It is stated

that in the village Dheote, Panchayat Halqa 13-Dheote, Tehsil and District Reasi,

there is an electoral consisting of 1660 votes and out of the said total number of

votes, only 1427 votes were polled. The petitioner had obtained 698 votes whereas

respondent No.7 had obtained 678 votes only. At the time of declaration of the

result, respondent No.7 made representations before the Returning officer for

recounting of votes and the said recounting of votes was conducted by the

Returning Officer, i.e. respondent No.5, twice at the instance of respondent No.7

and after attaining due satisfaction of respondent No.7, the petitioner was declared

as Sarpanch. Dheote Constituency, Panchayat Halqa-13 Dheote.

04. It is stated that respondent No.7, preferred an appeal U/R 43 of the

Panchayati Raj Act, titled Kewal Krishan V/s Returning Officer, Panchayat Halqa-

13, Village Dheote and ors. before the Ld. Additional District Development

Commissioner, Reasi (Appellate Authority for Panchayati Elections 2011, Reasi)

i.e, respondent No.3 and 4 whereby challenging the election of the petitioner as

Sarpanch on various grounds urged therein. It is stated that the main plank of the

challenge put forth by respondent No.7/appellant therein in the said appeal is that

there is a bungling in casting the votes in favour of the petitioner as few votes of

Defence Personnels have been polled against respondent No.7. Some votes of

persons who are already dead were polled against respondent No.7. The said

appeal was resisted by the petitioner on number of grounds urged before the

Appellate Authority and also on the basis of written arguments submitted by the

petitioner but respondent Nos.3 and 4 who were hand in gloves with respondent

No.7 managed and misused the authority usurped to them under law and passed an

order dated 12.08.2011, as such, respondent Nos.3 and 4, set aside the election of

the petitioner as Sarpanch and vide order dated 12.08.2011 also directed the

deletion of some votes.

05. Being aggrieved of order dated 12.08.2011, the petitioner approached

this Court by way of writ petition bearing OWP No.1365/11 titled Subash Chander

V/s State of J&K and ors. which was disposed of as under;

"For the aforesaid reason, this petition is disposed of in the following manner:-

01. By issuance of writ of certiorari, order impugned dated 12th of Aug'11, is quashed. Appellate Authority is directed to re- consider the matter and pass appropriate order in accordance with the law after affording opportunity of hearing to the petitioner as also the respondent No.6 and consider all such material which is available for taking a correct legal view in the matter;

02. Appellate Authority to consider and take a decision after affording opportunity of hearing to the parties within the period prescribed by the Statute.

03. Parties to appear before the Appellate Authority on 11th of Sept'12.

Connected CMA's are also disposed of."

06. It is stated that the petitioner preferred another writ petition before

this Court bearing OWP No.41/2012 under Article 227 of the Constitution of

India against proceedings conducted in case/appeal titled Kewal Krishan V/s

Returning Officer, Panchayat Halqa-13, Village Dheote and ors. wherein, the

petitioner again alleged serious malafide against respondent Nos.3 and 4 and

the same was disposed of as given below:

"The writ petition was disposed of with a direction to the Appellate Authority to adhere to and comply with the directions issued by the Writ Court vide its order dated 31.08.2012 in OWP No.1365/2011 requiring it to afford an opportunity of hearing to the parties while dealing with the matter and while doing so, also take a decision on the application claimed to have been filed by the petitioner."

07. It is stated that despite all the directions issued by this Court in terms

of orders dated 31.08.2012, 19.11.2012, respondent No.3 again acted with

ulterior motive to set aside the elections of petitioner as Sarpanch and passed a

non-speaking order dated 21.12.2012, which is against the spirit, mandate and

provisions of Panchayati Raj Act, that too without affording an opportunity of

being heard to the petitioner and also without considering allegations filed by

the petitioner for cross examination of the persons on whose depositions,

respondent Nos.3 and 4 have relied upon.

08. The appeal filed by the petitioner was decided by learned Additional

District Judge, Reasi(Appellate Authority under the Panchayati Raj Act) on

10.10.2012;

"17. Heard rival contentions and considered. The moot questions in this appeal which needs determination and return of finding are-:

i. whether respondent no. 3 used corrupt practices during polling of votes and ii. whether the bogus votes, double votes, votes of dead persons and votes of those persons who were not present in Panchayat at all on the date of voting were polled by impersonation at the behest of respondent no. 3. iii. the answer of question (ii) is in affirmative, whether such voting has materially affected the result of the election and whether the same amounted to gross failure to comply with the provisions of panchayati Raj Act or the rules framed thereunder.

iv. What would be effect of such corrupt practice which has materially affected the result of election.

v. What relief can be granted in appeal.

35. In total 32 number of votes are found to have been polled by using corrupt practice of impersonation or by double voting and for the reasons recorded supra and it has also been found polling of these votes have been managed by the respondent no. 3 in his favour and there is no denial or evidence either from respondent no. 3 or other respondents. There is rather admission on the part of respondent no. 3 of this fact when he produces the affidavits of some of the voters denying the allegations of appellant regarding impersonation and also execution of affidavits. The respondent no. 3 probably in connivance with the polling staff has managed polling of the votes by impersonation and polling of double votes and polling of votes of persons who were not present in the Panchayat/ village/ ward on the date of voting i.e. 08.05.2011. So this action has definitely affected the result of the election. The 32 votes which have been found polled by manoeuvring

and manipulation by respondent no. 3 in his favour and for the reasons stated herein before are required to be subtracted from the total number of votes polled in favour of respondent No.3 and the result is required declared accordingly.

36. Total number of votes polled in favour of respondent no. 3 is 698 votes out of which 32 votes are to be excluded so his total tally will come to 698-32=666 votes.

38. Thus this appeal succeeds. The appellant is found to have secured 678 valid votes as against 666 valid votes of respondent no. 3. The appellant is required to be declared as successful candidate for the post of Sarpanch of Panchayat Halqa 13- Dehote. I order accordingly. Respondent no. 1 Returning Officer (R.O) is directed to issue requisite certificate in favour of the appellant and simultaneously he shall withdraw/ cancel the certificate issued in favour of respondent no. 3. Returning Officer (R.O) shall report compliance by tomorrow i.e. 22.12.2012.

The appeal is thus disposed of as allowed. It shall be consigned to records after due compilation.

Before parting away it is provided that during the pendency of appeal, certified copy of order of Honble High Court dated 19.11.2012 passed in Petition u/s 104 No.41/2012 and CMA No.44/2012 was received contents whereof reveal that some writ petition was filed by the respondent Subash Chander seeking disposal of the appeal in accordance with the directions of Hon'ble High Court passed in OWP No. 1365/2012 on 31.08.2012 and Hon'ble High Court has disposed of the petition with a direction to this Authority to adhere to and comply with the directions of the Hon'ble High court passed in OWP No.1365/2012 on 31.08.2012 by affording opportunity of being heard to the partieswhile dealing with the matter and to take a decision on the application claimed to have been filed by the petitioner

(Subash Chander). This Authority has passed the present order in strict compliance to the orders of the Hon'ble High Court passed in the petition mentioned supra. It is not clear as to which application the respondent Subash Chander has mentioned in the petition of which the mention has been made in the order of Hon'ble High Court. However, an endeavour has been made to deal with all the applications filed by the parties during the pendency of the appeal.

Ordered accordingly."

09. Objections have been filed by respondent No.7 and it is stated that

the declaration of the petitioner as successful candidate was otherwise bad in

the eyes of law as there was bogus voting in respect of the electoral and

respondent No .3 by adopting corrupt practices managed to get the votes polled

in his favour, as such, there is improper and illegal acceptance of votes.

Therefore, appellate authority has rightly held that the petitioner have adopted

corrupt practices/malpractices and has declared respondent No.3 to be elected

as Sarpanch.

Arguments raised by learned counsel for the parties:

10. Learned counsel for the petitioner has laid emphasis on Rule 21, 24,

31, 36(c) of the Panchayati Raj Rules and also on Section 2(c) and Section 123

of Representation of Peoples Act which are reproduced as under:

2(c) "corrupt practice" means any of the practices specified in section 123.

123. Corrupt practices.--The following shall be deemed to be corrupt practices for the purposes of this Act:-- (1) "Bribery" that is to say--

(A) any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoever, with the object, directly or indirectly of inducing

(a) a person to stand or not to stand as, or to withdraw or not to withdraw] from being a candidate at an election, or

(b) an elector to vote or refrain from voting at an election, or as a reward to--

(i) a person for having so stood or not stood, or for 5 having withdrawn or not having withdrawn his candidature; or

(ii) an elector for having voted or refrained from voting; (B) the receipt of, or agreement to receive, any gratification, whether as a motive or a reward--

(a) by a person for standing or not standing as, or for withdrawing or not withdrawing from being, a candidate; or

(b) by any person whomsoever for himself or any other person for voting or refraining from voting, or inducing or attempting to induce any elector to vote or refrain from voting, or any candidate to withdraw or not to withdraw his candidature.

Explanation.--For the purposes of this clause the term "gratification" is not restricted to pecuniary gratifications or gratifications estimable in money and it includes all forms of entertainment and all forms of employment for reward but it does not include the payment of any expenses bona fide incurred at, or for the purpose of, any election and duly entered in the account of election expenses referred to in section 78.

(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 election 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 any elector, or any person in whom a candidate or an elector is interested, with injury of any kind including social ostracism and ex-communication or expulsion from any caste or community; or

(ii) induces or attempts to induce a candidate or an elector 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, shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause;

11. In terms of order passed by this Court dated 18.12.2013, the Deputy

Commissioner, Reasi was directed to conduct an enquiry. The Enquiry Report

dated 12.10.2014 is on record and the same is reproduced below:

"Out of 32 votes held invalid 10 votes did not tally, 9 votes were found cast in favour of Sh. Subash Chander and 12 votes were reported to be not polled while one vote found to be double entry. A detailed scrutiny of 43 votes called into question reveals that a total of 14 votes have been polled in favour of Sh. Subash Chander and all of which have been declared invalid as per rules."

12. Learned counsel for the petitioner has vehemently argued in terms of

order dated 14.09.2012 which is also referred in the impugned order at para 17

(a). The petitioner had filed an application for cross examination of the persons

who had filed affidavit before the appellate authority but the application was

rejected and the impugned order was passed which is only based on

assumptions and presumptions.

13. Learned counsel for the respondents states that the enquiry report

conducted by the Deputy Commissioner, Reasi specifically stated that 09 votes

were found to be casted in favour of the petitioner, as such, he was benefitted

by way of double voting and, therefore, he has been held responsible for the

corrupt/malpractices of impersonation of double voting. On the other hand, the

petitioner specifically states that right to cross examine has to be granted to the

person against whom allegations have been leveled, in the present case, no

opportunity of cross examination was provided to the petitioner.

14. Learned counsel for the petitioner has relied upon the following

judgments:

15. This Court in 'Suraj Prakash vs. Returning Officer and others',

AIR 2002 J&K 93, has held as under:

"1. These petitions shall stand disposed of vide this common order. As to what should be the procedure to be followed when election of a returned candidate is challenged is a question which has acquired significance in view of the divergent stand taken by the counsel for the petitioner and the respondents. Can a petition preferred calling upon the election of a returned candidate under the Jammu and Kashmir Panchayati Raj Act of 1989, be decided on the basis of pleadings in the application and the stand taken by the respondents and thereafter on the basis of affidavits submitted by the parties, without taking recourse to the method of vouchsafing of the authenticity of the stand taken which according to the petitioner can be done only by subjecting the person submitting the affidavit to cross-examination. The stand of the counsel for the respondent No. 2 is that as such a procedure is not envisaged by the Act and Rules, the petition preferred has to be decided on the basis of pleadings in the petition and the affidavits which are filed on a later date.

2. If the authority which is to decide the matter has the trappings of the Court and if the proceedings taken by the said authority have trappings of the judicial precedence, then the further consequence is that the authority has the power of summoning and enforcing attendance and compelling production of evidence. In such an eventuality, the authority concerned is expected to observe the elementary and fundamental principles of a judicial enquiry to comply with the rudiment requirements of fair play and to safeguard the fundamental constitutional rights of the citizens. In the absence of an express provision in the statute or statutory rule, such an authority would be at liberty to device its own procedure. Even though, such an authority may not be bound to follow the elaborate rules and procedure, but such an authority must follow some procedure so that the lis before it comes to an orderly end and the determination made by it is in consonance with the rules of fair play and justice. The

question as to what is meant by a 'Court' and what is meant by the term judicial power would be adverted to again; first facts be noticed:

27. It be seen that the proper course for the authority which decided the issue was to go into the matter in detail. It would have been apt to frame the issues. This is essential so that the parties are made aware of the case. Thereafter, opportunity to lead evidence should have been given. This apparently has not happened in this case. Order dated 10th May, 2001 does not satisfy the test of a speaking order. In this situation, order passed by the District Panchayat Officer acting as appellate authority on 10-5-2001 is set aside. The said authority would pass a fresh order in accordance with the law.

31. Before parting with this judgment, it would be apt to point out that the authority deciding an election dispute must pass a speaking order. The requirement to pass a speaking order was laid down by the Supreme Court in the case of Bhagat Raja v. Union of India, MANU/SC/0002/1967 : AIR 1967 SC 1606. The reasoning given was that it is only when reasons are contained in the order, the superior authority can examine as to whether order passed is on valid grounds. It is in these circumstances, an order which is called a speaking order is supposed to be passed. The order should give precise reasoning. In the present cases, as indicated above, the concerned authority in OWP No. 502/2001, did not take the supplementary affidavits on the record and did not give opportunity to the parties to cross-examine. Thus, a procedure which is normally to be followed by a quasi-judicial authority has not been followed in the present cases. Even though, such an authority comes to a conclusion that no case is made out and on that basis, the prescribed authority is well within its rights to reject the petition, but this opinion has not to be formed lightly. As the right to contest election, no doubt, is not a fundamental right but a civil right which is recognized by a statute and this right has to be safeguarded with a view to permit the democratic institutions which institutions are the backbone of the system. The establishment of Panchayati Raj is one of the cherished wishes of the framers of the Constitution and finds mentioned in the Directive Principles of Constitution.

Therefore, if this Will of the Parliament is to be respected, then, this right is not to be taken away lightly. The matter, as indicated above shall stand remanded to the prescribed authority who would re- decide the same after affording proper opportunity of hearing to both the sides."

[

16. Similarly, in 'Tukaram S. Dighole vs. Manikrao Shivaji Kokate', AIR

2010 SC 965, the Hon'ble Apex Court has held as under:

"11. Before we proceed to examine the controversy at hand, we deem it necessary to reiterate that a charge of corrupt practice, envisaged by the Act, is equated with a criminal charge and therefore, standard of proof therefore would not be preponderance of probabilities as in a civil action but proof beyond reasonable doubt as in a criminal trial. If a stringent test of proof is not applied, a serious prejudice is likely to be caused to the successful candidate whose election would not only be set aside, he may also incur disqualification to contest an election for a certain period, adversely affecting his political career. Thus, a heavy onus lies on the election petitioner to prove the charge of corrupt practice in the same way as a criminal charge is proved.

12. Explaining the nature and extent of burden of proof in an election trial involving a charge of corrupt practice, in Razik Ram Vs. Jaswant Singh Chouhan2, speaking for the Bench, Sarkaria, J. observed as under:

...It is well settled that a charge of corrupt practice is substantially akin to a criminal charge. The commission of a corrupt practice entails serious penal consequences. It not only vitiates the election of the candidate concerned but also disqualifies him from taking part in elections for a considerably long time. Thus, the trial of an election petition being in the nature of an accusation, bearing the indelible stamp of quasi-criminal action, the standard of proof is the same as in a criminal trial. Just as in a criminal case, so in an election petition, the respondent against whom the charge of corrupt practice is levelled, is presumed to be innocent unless proved guilty. A grave and heavy onus, therefore, rests on the accuser to establish each and every ingredient of the charge by clear, unequivocal and unimpeachable evidence beyond reasonable doubt."

13. In Jeet Mohinder Singh Vs. Harminder Singh Jassi3, a Bench of three judges of this Court, summarizing the principles laid down by this Court from time to time in the field of election jurisprudence; adumbrated the following legal principles, relevant for

our purpose: to be kept in view by the Election Tribunals and the Appellate Courts while dealing with election petitions and appeals arising there from:

(1975) 4 SCC 769 (1999) 9 SCC 386 "(i) The success of a candidate who has won at an election should not be lightly interfered with. Any petition seeking such interference must strictly conform to the requirements of the law.

Though the purity of the election process has to be safeguarded and the Court shall be vigilant to see that people do not get elected by flagrant breaches of law or by committing corrupt practices, the setting aside of an election involves serious consequences not only for the returned candidate and the constituency, but also for the public at large inasmuch as re-election involves an enormous load on the public funds and administration.

(ii) Charge of corrupt practice is quasi-criminal in character. If substantiated, it leads not only to the setting aside of the election of the successful candidate, but also of his being disqualified to contest an election for a certain period. It may entail extinction of a person's public life and political career. A trial of an election petition though within the realm of civil law is akin to trial on a criminal charge. Two consequences follow. Firstly, the allegations relating to commission of a corrupt practice should be sufficiently clear and stated precisely so as to afford the person charged a full opportunity of meeting the same. Secondly, the charges when put to issue should be proved by clear, cogent and credible evidence. To prove charge of corrupt practice a mere preponderance of probabilities would not be enough. There would be a presumption of innocence available to the person charged. The charge shall have to be proved to the hilt, the standard of proof being the same as in a criminal trial.

(iii) The Appellate Court attaches great value to the opinion formed by the trial Judge more so when the trial Judge recording findings of fact is the same who had recorded the evidence. The Appellate Court shall remember that the jurisdiction to try an election petition has been vested in a Judge of the High Court. Secondly, the trial Judge may have had the benefit of watching the demeanour of witnesses and forming first-hand opinion of them in the process of evaluation of evidence. The Supreme Court may re- assess the evidence and come to its own conclusions on feeling satisfied that in recording findings of fact the High Court has disregarded settled principles governing the approach to evidence or committed grave or palpable errors."

14. In the backdrop of the afore-stated principles, we may now advert to the facts at hand to examine if the finding recorded by the Tribunal in the judgment in appeal, holding that the appellant has failed to prove that the respondent had committed corrupt practice, falling within the ambit of sub-Section (3) of Section 123 of the Act, is justified or not."

17. Heard learned counsel for the parties and perused the material on

record.

18. In the impugned order at para 35, it has been held that the petitioner

was found to be involved in corrupt practices of impersonation or by double

voting and the petitioner has been found to manage the bogus voting. It is also

stated that there is an admission on the part of the petitioner that he produces

the affidavits of some of the voters denying the allegations of appellant

regarding impersonation and also execution of affidavits. The appellate

authority has also held that probably in connivance with the polling staff, the

petitioner has managed polling of the votes by impersonation and by double

voting of the persons who were not present in the Panchayat/ village/ward on

the date of voting i.e. on 08.05.2011.

19. From the impugned order it appears that the appellate authority has

given its finding on the assumptions/presumptions and probabilities which is

not permissible in the eyes of law. Nowhere in the impugned order, it is

established that the petitioner had indulged into the corrupt practices and had

managed the bogus voting by impersonation or by double voting. The appellate

authority has also denied the right of the petitioner to cross examine the

persons who had filed affidavits for which an application was filed by the

petitioner on 14.11.2012. The application was rejected without any reasonable

justification.

20. In view of what has been stated above, the impugned order dated

21.12.2012 is quashed and the matter is remanded back to the appellate

authority (Additional District Development Commissioner, Reasi) with a

direction to provide the petitioner right to cross examine the persons who had

filed affidavits and also by providing an opportunity of being heard to both the

parties. It is also directed that respondent No.3 shall give a clear finding to the

extent of corrupt practices/undue influence, if at all proved against the

petitioner.

21. Disposed of.

(MOKSHA KHAJURIA KAZMI) JUDGE

Jammu:

17.08.2023 Eva