GOPAL SINGH VS. THE ELECTION TRIBUNAL CUM ADDITIONAL CIVIL JUDGE(S.D.) NO.3,JODHPUR & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.471/08) 1 GOPAL SINGH VS. THE ELECTION TRIBUNAL CUM ADDITIONAL CIVIL JUDGE(S.D.) NO.3,JODHPUR & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.471/08) Date of Judgment :- 19th February,2009. HON'BLE MR.JUSTICE A.M.KAPADIA HON'BLE MR.JUSTICE SANGEET LODHA Mr. N.S.Acharya, for the appellant. Mr.Pradeep Choudhary, for the respondents. BY THE COURT( PER HON'BLE MR.SANGEET LODHA,J.):- Reportable 1. This special appeal is directed against order dated 20.4.08 passed by the learned Single Judge of this court, whereby the writ petition preferred by the appellant assailing the validity of judgment and decree dated 3.1.08 passed by the Election Tribunal(Additional Civil Judge(S.D.), No.3),Jodhpur in Election Petition No.15A/05, stands dismissed. By aforesaid judgment and decree dated 3.1.08 passed by the learned Election Tribunal, the election of the appellant as Sarpanch has been declared null and void and accordingly, the post of the Sarpanch, Gram Panchayat, Anvana has been declared vacant. 2. Briefly stated the facts of the case are that in pursuance of the notification issued by the Rajasthan Election Commission, the District Election Officer(Panchayat), Jodhpur issued a public notice in exercise of the powers conferred under Rule 23 of Rajasthan Panchayati Raj(Election) Rules, 1994 ( in short the GOPAL SINGH VS. THE ELECTION TRIBUNAL CUM ADDITIONAL CIVIL JUDGE(S.D.) NO.3,JODHPUR & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.471/08) 2 “the Rules, 1994” hereinafter) , calling upon the various panchayat circles to elect Panchas and Sarpanch within the time specified in the notice. As per the programme notified,the last date for presentation of nominations was fixed as 30.1.05 and the scrutiny of nomination papers was to be made on the same day. The poll, if necessary was to be taken on 31.1.05. 3. The appellant so also the respondent no. 2 presented their nomination in the prescribed form before the returning officer on the date fixed. The appellant raised an objection to the nomination of the respondent no. 2 on the ground that since the cognizance has been taken by the court of competent jurisdiction against him for commission of offences u/ss. 420, 467, 466, 468, 471, 474, 120-B of Indian Penal Code, 1908( in short “IPC” hereinafter) which are punishable with imprisonment for life/ten years therefore, he is disqualified for contesting the election to the office of the Sarpanch. 4. After examining the nomination papers and considering the objection raised, the returning officer rejected the nomination of the respondent no. 2 holding him disqualified for election by passing an order in the following terms:- 'नल म वद दर ह जनम आरपत क  च ह ।' 5. The elections were held as per the programme notified on 31.1.05, wherein the appellant was declared elected as GOPAL SINGH VS. THE ELECTION TRIBUNAL CUM ADDITIONAL CIVIL JUDGE(S.D.) NO.3,JODHPUR & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.471/08) 3 Sarpanch. The validity of the election of the appellant as Sarpanch was assailed by the respondent no. 2 by way of election petition preferred under Section 43 of Rajasthan Panchayati Raj Act, 1994( in short “the Act of 1994” hereinafter) read with Rule 80 of the Rules, 1994 before the Election Tribunal, solely on the ground that the rejection of his nomination form by the returning officer was ex facie illegal and arbitrary inasmuch as he was not disqualified for contesting the election, in terms of the provisions of Section 19(gg) of the Act of 1994. It was contended on behalf of the respondent no. 2 that he had not incurred the disqualification as alleged inasmuch as, no charges were framed against him by the court of competent jurisdiction of any offence punishable with the imprisonment of five years or more and mere taking cognizance of the offence, does not satisfy the conditions of disqualification in terms of provisions of Section 19(gg) of the Act of 1994. 6. The election petition was contested by the appellant , the returned candidate, contending that for holding a person disqualified from contesting the election , it is not necessary that the charge should be framed by the court of competent jurisdiction. It was contended that as soon as the cognizance of commission of offence punishable with the imprisonment of five years or more is taken against the person to be nominated as GOPAL SINGH VS. THE ELECTION TRIBUNAL CUM ADDITIONAL CIVIL JUDGE(S.D.) NO.3,JODHPUR & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.471/08) 4 candidate for election as Panch/Sarpanch, he incurs the disqualification within the meaning of Section 19(gg) of the Act of 1994. It was urged that the words “has taken cognizance of offence and framed the charge against him” used in Section 19 (gg) of the Act of 1994 need to be read as “has taken cognizance of the offence or framed the charges against him”. Precisely, the case of the appellant before the Election Tribunal was that the charges are framed only after taking the cognizance therefore, the word “cognizance” used in Section 19(gg) shall render redundant if the word “or” is not read in place of “and” between the word “cognizance” and “framing of the charges”. It was submitted that the intention of the legislature is that a person with criminal background should not be permitted to contest the election therefore, any other interpretation shall frustrate the very purpose of the provision incorporated. 7. On the basis of the pleading of the parties, the learned Election Tribunal framed the issues . The parties to the petition led their evidence . After hearing both the parties, the learned tribunal arrived at a categorical finding that the nomination of the respondent no. 2 could not have been rejected on the ground that the cognizance for commission of offences punishable with imprisonment for five years or more has been taken by the competent court against him. The Election Tribunal GOPAL SINGH VS. THE ELECTION TRIBUNAL CUM ADDITIONAL CIVIL JUDGE(S.D.) NO.3,JODHPUR & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.471/08) 5 held that the illegal rejection of the nomination of the respondent no. 2 by the returning officer renders the election of the appellant as Sarpanch ,Gram Panchayat, Anvana null and void. Accordingly, by judgment and decree impugned in the writ petition while declaring the election of the appellant as null and void , the office of Sarpanch, Gram Panchayat, Anvana has been declared vacant by the Election Tribunal. 8. It was contended on behalf of the appellant before the learned Single Judge that the judgment and decree passed by the Election Tribunal suffers from error apparent on the face of record inasmuch as in terms of the provisions of Section 19(gg), the returning officer is empowered to reject the nomination form of any candidate against whom the cognizance of commission of offences punishable for a period five years or more has been taken by the competent Court. It was submitted that the provision regarding the disqualification in terms of Section 19 (gg) of the Act of 1994 has been incorporated so as to prevent entry of the criminals in the political institution therefore, the same should be interpreted in the manner which subserve its purpose. While reiterating the stand taken before the Election Tribunal , it was contended on behalf of the appellant that the word “cognizance” used in Section 19(gg) is not superfluous and in the context it has to be read as either taking cognizance or GOPAL SINGH VS. THE ELECTION TRIBUNAL CUM ADDITIONAL CIVIL JUDGE(S.D.) NO.3,JODHPUR & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.471/08) 6 framed the charges. It was submitted that in the nomination paper filed , the respondent no. 2 had clearly disclosed that a criminal case is pending trial against him, wherein cognizance for commission of offences u/ss. 420,466, 467, 468, 471, 474 and 120-B IPC has already been taken by the competent Court therefore, the returning officer has committed no illegality in rejecting his nomination . 9. Replying the arguments advanced on behalf of the appellant, it was contended on behalf of the respondent no. 2 before the learned Single Judge that the scope of interference by this court under Article 227 of the Constitution of India is very limited and the Election Tribunal having found the rejection of nomination form to be illegal holding that mere taking of cognizance would not render any candidate disqualified u/s 19 (gg), there is no reason as to why the order passed by the Election Tribunal adhering to the provisions of Section 19(gg) should be interfered with. It was contended that the word “and” used in between the words “cognizance” and “framing the charge” cannot be read as “or” and a candidate shall incur the disqualification in terms of Section 19(gg) only when after taking cognizance, charges are framed against him by the competent Court. 10. After due consideration of the submissions of the parties, GOPAL SINGH VS. THE ELECTION TRIBUNAL CUM ADDITIONAL CIVIL JUDGE(S.D.) NO.3,JODHPUR & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.471/08) 7 the learned Single Judge arrived at a categorical finding that in terms of Section 19(gg) of the Act of 1994, a candidate shall incur the disqualification from contesting the election only when charges are framed against him of any offence punishable with imprisonment for five years or more. In this regard,the learned Single Judge relied upon a decision of the coordinate Bench in the matter of “Bhivna Ram & Ors. vs. State & Ors.”, 2000(3) RLW, 1667. The learned Single Judge opined that the word “and” used in Section 19(gg) as aforesaid cannot be read as “or” as suggested on behalf of the returned candidate. Accordingly, the writ petition has been dismissed. Hence this appeal. 11. In the first instance, it is contended by the learned counsel for the appellant before us that the respondent no. 1 was not a duly nominated candidate at the election therefore, in terms of the provisions of Section 43 of the Act of 1994 read with Rule 80 of the Rules,1994, he had no locus standi to maintain the election petition so as to challenge the election of the appellant as Sarpanch on any ground. According to the learned counsel as per the provisions of Section 43 of the Act of 1994 read with Rule 80 of the Rules,1994, the election of an elected candidate may be called in question by any candidate at such an election and none else. It is submitted by the learned counsel that the nomination form of the respondent no. 2 having been rejected GOPAL SINGH VS. THE ELECTION TRIBUNAL CUM ADDITIONAL CIVIL JUDGE(S.D.) NO.3,JODHPUR & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.471/08) 8 by the returning officer , he cannot be treated to be a duly nominated candidate at the election inasmuch a person can be said to be a candidate at such election only when after scrutiny his nomination form is found to be in accordance with law by the returning officer and he does not withdraw the same. In this regard, the learned counsel had drawn our attention to the provisions of Section 43 of the Act of 1994 and Rules 27(2)(a), 27(3)(a), 28, 29, 56(4) of the Rules, 1994 . In support of his contention raised as aforesaid, the learned counsel has relied upon the decisions of the Hon'ble Supreme Court in the matters of “ Raj Krishna Bose vs. Binod Kanungo & Ors.”, AIR 1954 S.C., 202 & “Charanlal vs. Gyani Jail Singh”, AIR 1984 SC, 309, and a decision of the Punjab High Court in “Mool Chand vs. Rulia Ram Panna Lal & Anr.”, AIR 1963 Punjab, 516. On being pointedly asked by this court that no such objection was ever raised on behalf of the appellant at any stage i.e. before the Election Tribunal or before the learned Single Judge therefore, how the appellant can be permitted to raise such objection at the appellate stage before this court, the learned counsel submitted that the consideration of the question raised does not involve any factual dispute and it is a pure question of law which goes to the root of the matter therefore, the same can be permitted to be raised at any stage . GOPAL SINGH VS. THE ELECTION TRIBUNAL CUM ADDITIONAL CIVIL JUDGE(S.D.) NO.3,JODHPUR & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.471/08) 9 12. It is next contended by the learned counsel for the appellant that the Election Tribunal so also the learned Single Judge has seriously erred in arriving at the conclusion that a candidate will incur the disqualification in terms of Section 19 (gg) only when the charges are framed against him for the commission of the offence. The learned counsel submitted that the intention of legislature in incorporating the provision is to debar the persons with a criminal background from taking over the various offices in a public institution by way of election. It is submitted by the learned counsel that the cognizance is always taken of the offence and not of the person who has committed the offence therefore, a person against whom the cognizance is taken cannot be permitted to contest the election. The learned counsel submitted that the word “and” cannot always be understood as denoting a conjunctive sense and if the context demand then “and” is capable of being read as “or”.According to the learned counsel so as to fulfil the object for which the said provision providing for disqualification has been incorporated by the legislature , it is absolutely necessary that the word “and” used in between the words “cognizance” and “charges framed” in Section 19(gg) of the Act of 1994 should be read as “or” else the provision shall stand nugatory. In support of his contentions as aforesaid, the learned counsel has relied upon the decisions of GOPAL SINGH VS. THE ELECTION TRIBUNAL CUM ADDITIONAL CIVIL JUDGE(S.D.) NO.3,JODHPUR & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.471/08) 10 the Hon'ble Supreme Court in the matters of “Samee Khan vs. Bindu Khan”, (1998) 7 SCC, 59, “Joint Director of Mines Safety vs. Messrs Tandur and Nayandgi Stone Quarries(P) Ltd.”, (1987) 3 SCC, 208 and “Fakir Mohd.(Dead) by L.Rs. vs. Sita Ram”, (2002) 1 SCC, 741. Accordingly, it is submitted by the learned counsel that though the charges were not framed against the respondent no. 2, the cognizance having been taken against him for the commission of offences punishable with imprisonment for a period more than five years, his nomination form has rightly been rejected by the returning officer. 13. Lastly, it is contended by the learned counsel for the appellant that during the pendency of this special appeal before this court, the charges have already been framed against the respondent no. 2 by the competent court therefore, obviously, the respondent no. 2 stands disqualified for contesting the election, in this view of the matter, there is no reason as to why the election of the appellant as Sarpanch , Gram Panchayat, Anvana should be set aside at his instance. The learned counsel submitted that in view of the subsequent event when the appellant is not in position to contest the election, it will be unnecessary burden on the public exchequer if the fresh elections are held for the office of the Sarpanch for the short tenure left out . GOPAL SINGH VS. THE ELECTION TRIBUNAL CUM ADDITIONAL CIVIL JUDGE(S.D.) NO.3,JODHPUR & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.471/08) 11 14. Per contra, the learned counsel appearing on behalf of the respondent no. 2 submitted that the appellant cannot be permitted to raise any objection regarding the locus standi of the appellant to maintain the election petition before the Election Tribunal at this stage before this Court. The learned counsel submitted that the appellant having failed to raise any objection in this regard before the Election Tribunal, even the writ court could not have permitted such objection being raised therefore, the question of permitting any such objection at the appellate stage does not arise. The learned counsel submitted that it is absolutely misconceived on part of the appellant to contend that a person whose nomination form has been rejected cannot be considered to be a “candidate” within the meaning of the provisions of Section 43 of the Act of 1994 read with Rule 80 of the Rules of 1994 so as to make him entitle to assail the validity of the election by way of election petition. The learned counsel submitted that as a matter of fact, the word “candidate” stands defined by explanation attached to sub-rule (7) of Rule 79 of the Rules of 1994 and accordingly, the person who stood for or was nominated for, the election to which an election petition pertains, stands included within the word “candidate”. It is submitted by the learned counsel that a person who has presented the nomination form at election is always treated to be a candidate GOPAL SINGH VS. THE ELECTION TRIBUNAL CUM ADDITIONAL CIVIL JUDGE(S.D.) NO.3,JODHPUR & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.471/08) 12 at such election and if his nomination form is wrongly rejected then the election can always be called in question by him by way of election petition. The learned counsel submitted that the improper rejection of the nomination form is a ground specified for setting aside the election therefore, it goes without saying that the election can always be challenged by a candidate whose nomination has been improperly rejected by the returning officer. 15. The learned counsel submitted that the contention of the appellant that the rejection of the nomination form could have been challenged by the respondent no. 2 only by way of writ petition before this court immediately after the rejection is devoid of any merit in view of the specific bar contained in Article 243-O of the Constitution of India. In this regard, the learned counsel has relied upon a decision of the Hon'ble Supreme Court in the matter of “ Manda Jaganath vs. K.S. Rathnam & Ors.”, AIR 2004 S.C., 3600 . 16. The learned counsel submitted that the nomination form of the respondent no.2 was rejected on 30.1.05 and the elections were held on 31.1.05 therefore, otherwise also the respondent no. 2 had no occasion to question the rejection of his nomination form till the elections are over. 17. The learned counsel submitted that the contention of the GOPAL SINGH VS. THE ELECTION TRIBUNAL CUM ADDITIONAL CIVIL JUDGE(S.D.) NO.3,JODHPUR & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.471/08) 13 appellant that a person shall incur the disqualification in terms of the provisions of Section 19(gg) even on cognizance being taken by the court of competent jurisdiction against him regarding commission of offence punishable with imprisonment for a period five years or more is also fallacious. The learned counsel submitted that from the plain reading of the Section 19(gg), the intention of the legislature is manifestly clear and no person can be held disqualified for contesting the election for any Panchayat unless the charges are framed against him for the commission of offence punishable with imprisonment for five years or more. The learned counsel submitted that the provision contained in Section 19(1)(gg) providing for disqualification to contest the election shall operate only when the person concerned is under trial in the competent court. The learned counsel submitted that it is settled law that in warrant case, the trial starts from the framing of the charges, prior to it, the proceedings are only an inquiry. The reliance is placed in this regard by the learned counsel on decision of the Hon'ble Supreme Court in the matter of “ Ratilal Bhanji Mithani vs. State of Maharashtra & Ors.”, AIR 1979 S.C., 94 and in the matter of “Common Cause”, a registered Society through its Director vs. Union of India & Ors.”, AIR 1997 S.C., 1539. GOPAL SINGH VS. THE ELECTION TRIBUNAL CUM ADDITIONAL CIVIL JUDGE(S.D.) NO.3,JODHPUR & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.471/08) 14 18. The learned counsel submitted that the words “taken cognizance of the offence” and “framed the charges “ have to be read conjunctively inasmuch as , the words used are plain and unambiguous and bound to be construed in their ordinary sense. The learned counsel submitted that intention of the legislature in incorporating the provision as aforesaid is apparently that a person should not be disqualified from contesting the election unless the charges are framed against him by the court of competent jurisdiction for commission of offences punishable with imprisonment for a period five years or more . The learned counsel submitted that the substitution of the word “and' by “or” will amount to altering the provision capable of giving plain meaning which is not permissible. In this regard, the learned counsel has relied upon the decisions of the Hon'ble Supreme Court in the matters of “Nasiruddin vs. State Transport Appellate Tribunal”, AIR 1976 SC, 331 and “Paras Ram vs. State of Haryana”, AIR 1993 SC, 1212. 19. Replying the contention of the appellant that the charges having been framed against the respondent no. 2 presently he is disqualified to contest the election therefore, the election of the appellant , a returned candidate, should not be set aside, it is submitted by the learned counsel that the question of disqualification has to be determined with reference to the date GOPAL SINGH VS. THE ELECTION TRIBUNAL CUM ADDITIONAL CIVIL JUDGE(S.D.) NO.3,JODHPUR & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.471/08) 15 of election and the subsequent event in no manner can validate the election of the returned candidate which is held to be null and void. In this regard , he has relied upon the decision of the Hon'ble Supreme Court in the matter of “ K.Prabhakaran vs. P.Jayarajan”, AIR 2005 S.C. 688. 20. Lastly, the learned counsel submitted that the jurisdiction of the High Court under Article 227 of the Constitution of India is limited to seeing that the inferior court or tribunal functions within the limits of its authority and not to correct an error apparent on the face of record much less an error of law. It is submitted that the order passed by the learned tribunal is absolutely in conformity with the provisions of Section 19(gg) of the Act of 1994 therefore, there is absolutely no reason as to why the said order which stands affirmed by the learned Single Judge should be interfered with by this court in this intra court appeal. 21. We have considered the rival submissions and perused the record. 22. In the first instance, it will be appropriate to consider the contentions raised by the learned counsel for the appellant with regard to locus standi of the respondent no. 2 to maintain the election petition before the Election Tribunal questioning the validity of the election of the appellant , the returned candidate. GOPAL SINGH VS. THE ELECTION TRIBUNAL CUM ADDITIONAL CIVIL JUDGE(S.D.) NO.3,JODHPUR & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.471/08) 16 23. It is settled law that right to elect,right to be elected and right to remove an elected representative is neither fundamental nor common law right but, only a special right created by a statute therefore, such right must originate out of the statute.An election petition is statutory proceedings which is regulated by those Rules which statute makes and applies. (vide Jyoti Basu vs.Devi Gosai, AIR 1982 SC, 983) Therefore, election of an elected representative must be challenged only in the manner provided in the relevant statute. 24. It is true that the question with regard to right of the respondent no.2 to assail the validity of the election of the returned candidate was not raised by the appellant before the Election Tribunal or before the learned Single Judge of this Court, but then, the determination of the question sought to be raised by the learned counsel for the appellant as aforesaid first time before this Court does not require any inquiry or investigation into the question of facts. It is a pure question of law which goes to the root of the matter inasmuch as if ultimately, it is found that the respondent no.2 whose nomination has been rejected by the returning officer cannot be treated to be a candidate at election within the meaning of Section 43 of the Act of 1994 then obviously, the election petition