Whether approved for	reporting?¹
For the appellant	: Mr. K. with Mr.	D. Sood, Het Ram,	Sr. Advocate Advocate.
For the respondents	: Mr. An	up Ratta	n, Advocate
	General	with Mr.	P.P. Singh,
	Addl. A. to 3.	G., for resp	ondents No. 1

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Satyen Vaidya, Judge (oral):

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By way of instant Letters Patent Appeal, appellant has assailed the judgment dated 16.10.2024, passed by learned Single Judge of this Court in CWP No. 2854 of 2023, whereby, the prayer of the appellant to quash the order dated 25.4.2022, passed by the SDO (C)-cum-Authorized Officer, Karsog, District Mandi (for short, ‘ the Authorised Officer’) in Election Petition No. 3

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Whether reporters of Local Papers may be allowed to see the judgment?

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of 2021, declaring the election of the appellant to the post of Pradhan Gram Panchayat Pangna, District Mandi void and order dated 1.5.2023, passed by the Appellate Authority, Mandi in Case No. 8 of 2022 affirming order of Authorised Officer, was declined.

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The appellant was elected as Pradhan, Gram Panchayat, Pangna, Tehsil Karsog, District Mandi on 17.2.2021. Respondent No.4, who lost the election, filed Election Petition No. 3 of 2021 before the Authorized Officer on the following grounds:-

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i) The appellant had failed to disclose that at the time of filing of nomination, he was an accused in a Case No. 38 of 2018, titled as State vs. Shanta Devi & others in the Court of learned Judicial Magistrate, 1^st Class, Karsog, District Mandi under Sections 447, 143, 149 and 427 of the IPC and Sections 32 and 33 of the Indian Forest Act;

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ii) the appellant had furnished false affidavit along with his nomination form stating inter-

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alia that no criminal case was registered or

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pending against him and;

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iii) The appellant had not furnished his educational details as per rules.

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The election of the appellant as Pradhan,

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Gram Panchayat, Pangna, Tehsil Karsog, District Mandi was held void by the Authorized Officer vide order dated 26.4.2022.

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The Authorized Officer returned findings of fact that a criminal case with offences entailing punishment of imprisonment upto two years was pending against appellant on the date of filing of nomination and the appellant had failed to disclose such fact in his affidavit submitted along with the nomination form. The Authorized Officer found such conduct of the appellant to be violative of Himachal Pradesh Panchayats and Municipalities (Disclosure of Specified Information by the Contesting Candidates) Regulations 2004, (for short ‘the Regulations’) framed by the State Election Commission of Himachal Pradesh. He further

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held such violation to be a corrupt practice having potential to have substantially affected the outcome of the election. The above demeanor of the appellant was also held to be violative of right to information available to the elector under Article 19 (1) (g) of the Constitution of India in light of law laid down in Union of India vs. Association of Democratic Reforms, (2002) 3 SCR

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294 .

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The above order passed by the Authorized Officer was affirmed in Appeal No. 8 of 2022 by the Appellate Authority (Deputy Commissioner), Mandi vide order dated 1.5.2023.

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The appellant thereafter approached the writ court by way of CWP No. 2854 of 2023. The following contentions were noted by the learned Single Judge to have been raised on behalf of the appellant: -

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i) That non-disclosure of information about the pendency of criminal case would not amount

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to disqualification as withholding of such information was not covered under

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“Disqualification” provided in Section 122 of

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Himachal Pradesh Panchayati Raj Act, 1994, (for short ‘the Act) and Rules framed therein. The contention of the petitioner that the disqualification could only be as per provisions of the Act or the Rules and not otherwise, was also noted;

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ii) That instructions/ notifications of the State Election Commission could not be used against the petitioner to disqualify him till the time these were made part of the Act and the Rules;

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iii) The Regulations dated 17.2.2004 did not have statutory force and;

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iv) The Authorized Officer did not have jurisdiction and the power to hold so was vested with the Deputy Commissioner.

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Learned Single Judge has held that the regulations framed by the State Election Commission had the backing of Article 243-K of the Constitution of

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India and Section 160 of the Act, therefore, it qualified to

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be a subordinate legislation and could validly govern the vacant field, where the act and rules were silent. Placing reliance upon the exposition of law made by the Hon’ble Supreme Court in the case of Ravi Namboothiri vs.

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K.A. Baiju & others, Civil Appeal Nos. 8261-8262 of

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2022 and Krishnamoorthy vs. Shivakumar & others, 2015 (3) SCC 467 , the learned Single Judge found the legal position settled in the above mentioned judgments applicable to the facts of the case at hand. It has also been held that non-disclosure or false disclosure may not have been made a specific ground of disqualification

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under Section 122 of the Act, yet the Regulations required the candidate to make disclosure about the pending criminal case and for such reason, the mischief of Section 175 (1) (b) of the Act was attracted and the conduct of the appellant amounted to corrupt practice.

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The learned Single Judge also noted that the appellant had not raised any objection at the time of

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submission of affidavit along with the nomination. He had not even challenged the regulations.

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Finding no fault with concurrent findings of fact returned by statutory authorities and by application of above legal proposition, learned Single Judge rejected the contention of the appellant.

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As regards the submission of the appellant that the Authorized Officer had no jurisdiction to hold the appellant disqualified, has also been rejected by holding that the election petition under the Act was competent before the Authorized Officer only.

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Mr. K. D. Sood, Learned Senior Counsel for the appellant reiterated before us that non-disclosure of pendency of a criminal case at the time of filing of nomination by the appellant was not per-se a disqualification under the Act or the Rules. The only disqualification under the Act was if the candidate was convicted of an offence involving moral turpitude. He

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further contended that the learned Single judge has erred in applying the provisions of Regulations against

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the appellant to uphold the disqualification of petitioner for being elected as Pradhan of Gram Panchayat. As per him, the provisions of Regulations could not be read as part of the Act or the Rules. Another submission raised on behalf of the appellant before us is that the Authorized Officer had no jurisdiction to hold the appellant disqualified and the jurisdiction, if any, vested with the Deputy Commissioner.

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We have considered the submissions made on behalf of the appellant and have also gone through the records. 13. Section 175 of the Act sets in the grounds for declaring election to be void. The said provision reads as under:-

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“175. [Grounds for declaring elections to be void].(1) If the authorized officer is of the opinion- (a) that on the date of his election the elected person was not qualified, or was disqualified to be elected under this Act; or

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(b) that any corrupt practice has been committed by the elected person or his agent or by any other person with the consent of the elected person or

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his agent; or (c) that any nomination has been improperly rejected; or

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(d) that the result of the election, in so far as it concerns the elected person, has been materially affected-

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(i) by the improper acceptance of any nomination, or (ii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or (iii) by any non-compliance with the provisions of this Act or of any rule made under this Act, the authorized officer shall declare the election of the elected persons to be void.

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2 Subject to the provisions of section 175-A, when an election of an elected person has been declared to be void under sub-section (1), a fresh election shall be held under the provisions of this Act and the rules made thereunder.”

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It is not in dispute that the Act or the Rules

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do not specifically provide for disclosure by a candidate, to the post of Pradhan Gram Panchayat, as to pendency

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of a criminal case against him. However, the Regulations mandatorily do provide for such information.

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Admittedly, the appellant while filing the nomination had furnished the information that no

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criminal case was pending against him and such information was in the form of an undertaking duly attested by the officer accepting the nomination paper.

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The State Election Commission has been

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empowered by Article 243-K of the Constitution and Section 160 of the Act to frame the allegations. 17. In Ravi Namboothiri vs. K.A. Baiju & others , Civil Appeal Nos. 8261-8262 of 2022 and Krishnamoorthy vs. Shivakumar & others , 2015 (3) SCC 467, Hon’ble Supreme Court has clearly held the provisions of regulations/rules/guidelines issued by the Election Commission to be mandatory of compliance and the default has been viewed as sufficient violation of the applicable election laws. In said cases also the factual background was identical to the one at hand. Though in legislative enactment or the rules considered in aforesaid judgments, the non-disclosure about the criminal antecedence was not per-se a disqualification but it was by way of the guidelines framed by the Election Commission that such disclosure was made mandatory.

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The proposition that the subordinate

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legislation can be used to govern the field where the primary statute is silent can also not be disputed.

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We find that the learned Single Judge has correctly applied the above noted exposition of law to the

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facts of the instant case. The conduct of the appellant clearly was not bonafide. He had rendered no explanation for not only suppressing material information but also for filing false undertaking.

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As noticed by the learned Single Judge, the right of an elector to material information about the candidate, willing to contest the election, is covered under Article 19 (1) (g) of the Constitution. The conduct of the appellant is sufficient to infer his malafide intent to suppress material information from electors to derive undue benefit.

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Noticeably, the Regulations have nowhere been challenged by the appellant. No prayer to that effect was made by the appellant before the writ Court.

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As regards the objection with respect to the lack of jurisdiction with Authorized Officer, we have noticed that no such ground was taken by the appellant in appeal before the Appellate Authority. That being so, the appellant could not have raised such a plea before the writ Court, nonetheless learned Single Judge has rightly held that the jurisdiction to try and decide the election petition vested with the SDO (C)-cumAuthorized Officer under the Act and the power of Deputy Commissioner to disqualify a person under the Act was governed under section 122(2) of the Act.

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In view of above discussions, we find no merit in the appeal and the same is accordingly dismissed. Pending applications, if any, also stand disposed of.

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(Tarlok Singh Chauhan) Acting Chief Justice

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(Satyen Vaidya) 7^th November, 2024 Judge (kck)

Basant Lal v. State of Hp and Ors.

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Basant Lal v. State of Hp and Ors.

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