***

JYOTSNA REWAL DUA, J. –

Petitioner has instituted this writ petition feeling aggrieved against the order dated 10.09.2024 (Annexure P-6) passed by the State Election Commission, Himachal Pradesh, whereby the District Election Officer (P)-cum-Deputy Commissioner, District Sirmour, was directed to withdraw the notice of election in respect of Pradhan, Gram Panchayat, Hallan, Development Block Shillai, District Sirmour, issued on 31.08.2024.

2. Facts:-

2(i). One Smt. Savita Devi, Pradhan, Gram Panchayat, Hallan, was removed from the post of Pradhan on 12.10.2023 by the Deputy Commissioner, District Sirmour, in exercise of powers vested in him under Section 146 of Himachal Pradesh Panchayati Raj Act, 1994 (for brevity ‘the Act’). Pursuant to the aforesaid order, District Panchayat Officer, District Sirmour, passed an order dated 21.10.2023, in exercise of powers conferred under Section 131(4) of the Act, declaring the post of Pradhan, Gram Panchayat, Hallan, as vacant.

The said Smt. Savita Devi assailed the order dated 12.10.2023 by preferring statutory remedy of appeal available to her as per Section 148 of the Act read with Rule 143 of the Himachal Pradesh Panchayati Raj (General) Rules, 1997, before Divisional Commissioner. Her appeal was dismissed on 20.06.2024.

2(ii). Smt. Savita Devi availed further remedy available to her in law, i.e. by preferring revision petition against the orders passed by the Deputy Commissioner Sirmour and the Divisional Commissioner Shimla, before the Secretary, Panchayati Raj. The revision petition was filed by Smt. Savita Devi on 30.08.2024.

2(iii). The State Election Commission on 31.08.2024 announced Election Program for conduct of Bye-Elections for filling up the up to date casual vacancies of Panchayati Raj Institutions of the State. The Assistant District Election Officer included the post of Pradhan, Gram Panchayat, Hallan, within the ambit of the Election Program notwithstanding the fact that Smt. Savita Devi had taken recourse to statutory remedies available to her in law for assailing the order removing her from the post of Pradhan, Gram Panchayat, Hallan.

2(iv). It appears that some correspondence was exchanged between Assistant District Election Officer-cum-District Panchayat Officer, Sirmour and State Election Commission, Himachal Pradesh, pertaining to subject matter, which resulted in issuance of office letter dated 10.09.2024 by the State Election Commission, Himachal Pradesh. This office communication reads as under:-

“To

The District Election Officer(P)-cum-Deputy Commissioner Sirmaur at Nahan Himachal Pradesh

Subject:- By-elections in Gram Panchayat Hallan, Development Block Shilai.

Sir,

With reference to letter No. PCN-SMR-byelection-2024/197 dated 09.09.2024 received form Assistant District Election Officer-cum-District Panchayat Officer Sirmaur, the matter was placed before the Commission and the Commission is of the considered view that the notice of election to fill up the casual vacancy in the Gram Panchayat mentioned in the subject cited above need to be withdrawn, as the revision petition filed by the removed office bearer is pending.

Therefore, I am directed to request you to withdraw the Notice of Election in respect of Pradhan Gram Panchayat Hallan, Development Block Shilai.

Secretary

State Election Commission

Himachal Pradesh”

The State Election Commission has taken the view that since the revision petition has been filed by the removed officer bearer and the said revision petition is still pending adjudication, therefore, the notice of election for the post of Pradhan, Gram Panchayat, Hallan, Block Development Shillai, District Sirmour, is required to be withdrawn. In compliance to the aforesaid direction of the State Election Commission, the District Election Officer (P)-cum-Deputy Commissioner, District Sirmour, vide office letter dated 10.09.2024 withdrew the election notice pertaining to Pradhan, Gram Panchayat, Hallan. It is in the above background that this writ petition has been filed seeking following substantive reliefs:-

“(i) It is therefore, respectfully prayed that present petition may kindly be allowed and the operation By-election should be resumed and nomination dates should be extended date of nomination and set aside the impugned office order dated 10.09.2024 i.e. Annexure P-6 may kindly be set-aside during the pendency of the present petition, and/or any other suitable order deemed fit and proper by this Hon'ble Court may also be kindly passed in the interest of Justice and fair play.

(ii) To issue direction to the respondent extend to date of nomination and to quash the office order dated 10.09.2024 (Annexure P-6).

(iii) Issue a writ of mandamus directing the respondents to order resumed By-election Should be resumed and nomination dates should be extended date of nomination.

(iv) To issue directions to the respondents authorities to conduct election process of the Gram Panchayat Halhan, Development Shillai, District Sirmour, Himachal Pradesh.”

3. Submissions.

3(i). Learned counsel for the petitioner placing reliance upon decision rendered by Hon’ble Apex Court in Shaji K. Joseph vs. V. Viswanath & Ors.¹ [¹Civil Appeal No.1629 of 2016 decided on 22.02.2016] submitted that once the process of election starts the Court should not interfere with the election process for the simple reason that if the process of election is interfered by the Courts, no election would be completed without Court’s order.

Learned counsel for the petitioner also urged that the post of Pradhan, Gram Panchayat, Hallan, had been declared vacant by the District Panchayat Officer-cum-Deputy Commissioner, District Sirmour on 21.10.2023. This order has not been assailed by Smt. Savita Devi any further. The order, therefore, attained finality. Learned counsel further submitted that in the instant case election process had started, the election program in respect of post of Pradhan, Gram Panchayat, Hallan, Development Block Shillai, District Sirmour, had been announced on 31.08.2024, therefore, it could not have been withdrawn on 10.09.2024.

3(ii). Learned Additional Advocate General has placed on record instructions dated 16.09.2024 imparted by the Department of Rural Development and defended the impugned order. It was also submitted that the statutory remedy of revision was availed by Smt. Savita Devi within prescribed limitation period. The abovesaid revision petition is yet pending adjudication before the Secretary (Panchayati Raj) and further that the entire record has been called by Secretary, Panchayati Raj and the revision petition has now been fixed for 03.10.2024.

4. Consideration.

Having heard learned counsel on both sides and on consideration of the case file, I am not inclined to entertain this writ petition for the following reasons:-

4(i). It is not a case where the Court is interfering with the election process. It is the petitioner who has approached the Court seeking to exercise jurisdiction under Article 226 for interfering with the decision taken by the State Election Commission Himachal Pradesh on 10.09.2024, which otherwise has already been implemented by respondents No.3 to 5. Hence, the main objection taken by the petitioner is absolutely misconceived.

4(ii). In what capacity the petitioner has moved this Court seeking the relief as sought by him is also not decipherable. It is not the case of the petitioner that he intended to contest election to the post of Pradhan, Gram Panchayat, Hallan. The locus standi of the petitioner in instituting this writ petition is not clear. Be that as it may.

4(iii). The person who would be adversely affected with the result of this writ petition, namely Smt. Savita Devi, has not been impleaded as a party-respondent to the petition.

4(iv). It is an admitted position of the parties that the order of removal of Smt. Savita Devi from the post of Pradhan, Gram Panchayat, Hallan, District Sirmour, has not attained finality. The statutory appeal filed by Smt. Savita Devi against the above said order was though dismissed by the Divisional Commissioner on 20.06.2024, however, her revision petition against aforesaid order is still pending adjudication before the competent authority, i.e. the Secretary, Panchayati Raj. It is also an admitted position that aforesaid statutory remedy of revision has been availed by Smt. Savita Devi within the prescribed limitation period, therefore, the State Election Commission, Himachal Pradesh, was justified in taking the view that notice of election in respect of post of Pradhan, Gram Panchayat, Hallan, District Sirmour, issued by the respondents on 31.08.2024 was required to be withdrawn. The aforesaid decision is in accordance with law laid down by the Hon’ble Apex Court in D. Sanjeevayya vs. Election Tribunal, Andhra Pradesh & Ors.² [²AIR 1967 SC 1211] and Election Commission of India vs. Telengana Rastra Samithi & Ors.³ [³(2011) 1 SCC 370].

In D. Sanjeevayya’s² [²AIR 1967 SC 1211] case, the Hon’ble Apex Court did not find force in the argument of the appellant that an obligation is cast upon the Election Commission to take steps to hold a bye-election irrespective of the fact that an election petition was pending. It was observed that in case such an interpretation was to be given effect to, then the vacancy would have to be filled by a bye-election as soon as a member resigns his seat notwithstanding the pendency of an election petition challenging his election and eventually if the candidate who filed the petition is declared as duly elected, then it would lead to a situation where there will be two candidates representing the same constituency at the same time, one of them declared to be duly elected at the General Election and the other declared to have been elected at the bye-election and an impossible situation would arise and it cannot be supposed that Parliament contemplated such a situation to happen. It was held that when an election petition has been referred to a Tribunal by the Election Commission and the former is seized of the matter, the petition has, to be disposed of according to law and it would be open to the Election Commission to await the result of the election petition and thereafter decide whether a bye-election should be held or not, for the reason that in case the election petition is dismissed or the election is set aside but no further relief is given, a bye-election would consequently follow, on the other hand if the candidate who filed the election petition or any other candidate is declared elected, then no occasion for filling up the vacancy would arise.

In Election Commission of India’s³ [³(2011) 1 SCC 370] case, the Hon'ble Apex Court made out a clear distinction between two categories of cases involving vacancies: firstly, in respect of those vacancies where election petitions had been filed and were pending and secondly, the vacancies where no such petitions were filed/pending. It was held that in respect of first category of cases, the vacancies could not have been treated to be available for the purpose of filling up within the time prescribed under Section 151A of the Representation of People Act, 1951; It does not introduce any element of compulsion on the Election Commission to hold a bye-election. It was also held that such casual vacancies are not available for being filled up and the Commission will have to wait for holding elections in such Constituencies until a decision is rendered in regard to the latter part of Section 84 of the 1951 Act during the life of the House, while in the second category of cases, the vacancies would have to be construed as clear vacancies warranting action under Section 151A of the Act.

Relevant portion from the decision in D. Sanjeevayya’s² [²AIR 1967 SC 1211] case is reproduced hereinbelow:-

“4. We are unable to accept the argument of the appellant as correct. In our opinion, the provisions of Section 150 of the Act must be interpreted in the context of Sections 84 and 98(c) and other relevant provisions of Part III of the same Act. If the interpretation contended for by the appellant is accepted as correct the vacancy must be filled by a bye-election as soon as a member resigns his seat notwithstanding the pendency of an election petition challenging his election. If the candidate who filed the election petition eventually gets a declaration that the election of the member is void and that he himself had been duly elected there will be two candidates representing the same constituency at the same time, one of them declared to be duly elected at the General Election and the other declared to have been elected at the bye-election and an impossible situation would arise, It cannot be supposed that Parliament contemplated such a situation while enacting Section 150 of the Act. Parliament could not have intended that the provisions of Part VI of the Act pertaining to election petitions, should stand abrogated as soon as a member resigns his seat in the Legislature. It is a well settled rule of construction that the provisions of a statute should be so read as to harmonise with one another and the provisions of one section cannot be used to defeat those of another unless it is impossible to effect reconciliation between them. The principle stated in Crawford's Statutory Construction at p. 260 is as follows:

“Hence, the court should, when it seeks the legislative intent, construe all of the constituents parts of the statute together, and seek to ascertain the legislative intention from the whole act, considering every provision thereof in the light of the general purpose and object of the act itself, and endeavouring to make every part effective, harmonious, and sensible. This means, of course, that the court should attempt to avoid absurd consequences in any part of the statute and refuse to regard any word, phrase, clause or sentence superfluous, unless such a result is clearly unavoidable."

5. It is therefore not permissible, in the present case, to interpret Section 150 of the Act in isolation without reference to Part III of the Act which prescribes the machinery for calling in question the election of a returned candidate. When an election petition has been referred to a Tribunal by the Election Commission and the former is seized of the matter, the petition has to be disposed of according to law. The Tribunal has to adjudge at the conclusion of the proceeding whether the returned candidate has or has not committed any corrupt practice at the election and secondly, it has to decide whether the second respondent should or should not be declared to have been duly elected. A returned candidate cannot get rid of an election petition filed against him by resigning his seat in the Legislature, whatever the reason for his resignation may be. In the present case, the election petition filed by Respondent 2 has prayed for a composite relief namely, that the election of the appellant should be declared to be void and that Respondent 2 should be declared to be duly elected. In a case of this description the Election Commission is not bound immediately to call upon the Assembly constituency to elect a person for the purpose of filling the vacancy caused by the resignation of the appellant. It is open to the Election Commission to await the result of the election petition and thereafter decide whether a bye-election should be held or not. If the election petition is ultimately dismissed or if the election is set aside but no further relief is given, a bye-election would follow. If, however, Respondent 2 who filed the election petition or any other candidate is declared elected the provisions of Section 150 of the Act cannot operate at all because there is no vacancy to be filled. In the present case, therefore, we hold that the Election Commission is not bound under Section 150 of the Act to hold a bye-election forthwith but may suspend taking action under that section till the result of the election petition filed by Respondent 2 is known.”

4(v). The order of removal passed against Smt. Savita Devi, Pradhan, Gram Panchayat, Hallan, has not attained finality, as the remedies available to her in law have been availed by Smt. Savita Devi. Her revision petition is still pending adjudication before the Secretary (Panchayati Raj). In case, the post of Pradhan Gram Panchayat Hallan, is allowed to be filled-up at present by holding Bye-election, right of Smt. Savita Devi to hold the post of Pradhan, in case she eventually succeeds in her revision petition, would be adversely affected. There cannot be a situation where there would be two office bearers against the same post, i.e. one elected under the Bye-Election and another pursuant to the decision in the statutory remedy availed by Smt. Savita Devi, who was elected in the general elections to the Panchayati Raj Institutions. Therefore, the decision taken by the State Election Commission, Himachal Pradesh, to withdraw the Election Notice in respect of Pradhan, Gram Panchayat, Hallan, Block Development Shillai, District Sirmour, does not call for any interference.

5. In view of the above discussion, I find no merit in the instant petition. The same is accordingly dismissed along with pending miscellaneous application(s), if any.

Petition dismissed.

********