IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 2161 of 2008. Judgment reserved on: 7.11.2008 Date of Decision : 21.11.2008. Ram Saran Thakur …Petitioner. Versus State of H.P. & Ors. …. Respondents. Coram The Hon’ble Mr.Justice Jagdish Bhalla, Chief Justice. The Hon’ble Mr.Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the petitioner: Mr. Rajiv Jiwan, Advocate. For the Respondents : Mr.R.K.Bawa, Advocate General with Mr.J.K.Verma, Dy.A.G. for respondents No.1 and 2. Kuldip Singh, Judge The petitioner who was elected Pradhan, Gram Panchayat, Kallar has prayed for quashing of order dated 29.10.2007 annexure P-1 passed by Sub Divisional Officer ( C ), Sadar, District Bilaspur and order dated 17.10.2008 annexure P-2 passed by Deputy Commissioner, Bilaspur refusing to dismiss the election petition filed by respondent No.3 being premature. 2. The brief facts are that respondent No.3 had filed an election petition on 6.1.2006 under the H.P. Panchayati Raj Act, 1994 Whether the reporters of the local papers may be allowed to see the Judgment? Yes ( for short Act) for setting aside the election of petitioner as President, Gram Panchayat Kallar held on 7.12.2005 on the ground that the nomination paper of respondent No.3 was wrongly rejected on 7.12.2005 by respondent No.4 Assistant Returning Officer in connivance with petitioner. 3. The petition was contested and on the basis of pleadings of the parties, the authorised officer had framed 9 issues including issue No.6 to the following effect:- Issue No.6: Whether the petition was premature, therefore, deserves to be dismissed? OPR-I 4. The petitioner filed application dated 13.6.2007 under Order 14 Rule 2 read with Section 151 CPC for treating issue No.6 as preliminary issue. The Sub Divisional Magistrate (C) vide order dated 29.10.2007 annexure P-1 held that petition cannot be treated as premature and dismissed without examining other issues. The petitioner filed appeal against the order dated 29.10.2007 which was dismissed by Deputy Commissioner 17.10.2008. The petitioner in the present petition under Articles 226, 227 of the Constitution of India, has assailed the aforesaid orders dated 29.10.2007 and 17.10.2008. 5. The petitioner was declared elected as Pardhan of Gram Panchayat, Kallar on 7.12.2005, Deputy Commissioner published the result under Section 126 of the Act in the official gazette on 17.1.2006. It has been submitted on behalf of the petitioner that the election petition could not have been filed before 17.1.2006 in view of Section 163 of the Act. The election petition was filed on 6.1.2006 and on that date the Sub Divisional Magistrate had no option but to dismissed the election petition under Section 165 of the Act being premature. The Sub Divisional Magistrate as well as Deputy Commissioner have erred in law in not dismissing the election petition being premature. Mr. Rajiv Jiwan, learned counsel for the petitioner has relied Deepender Rohal vs. Suresh Thakur and others 2008(2) S.L.J. (H.P) 759 in support of his submission that under Section 165 of the Act an Election Petition not filed in the manner prescribed or within the time prescribed under the Act or under the Rules has to be dismissed. 6. The Section 163 of the Act is as follows:- “Presentation of petition:- (1) Any elector of a Panchayat may, on furnishing the prescribed security in the prescribed manner, present within thirty days of the publication of the result, on one or more of the grounds specified in sub-section (1) of section 175, to the authorised officer an election petition in writing against the election of any person under this Act. (2) The election petition shall be deemed to have been presented to the authorised officer- (a) when it is delivered to him- (i) by the person making the petition; or (ii) by a person authorized in writing in this behalf by the person making petition or (b) When it is sent by registered post and is delivered to the authorized officer or may other person empowered to receive it” The Section 165 of the Act is as follows:- “Procedure on receiving election petition:- if the election petition is not furnished in the prescribed manner, or the petition is not presented within the period specified in section 163 the authorised officer shall dismiss the petition. Provided that the petition shall not be dismissed without giving the petitioner an opportunity of being heard”. 7. The names of every office bearer of a Panchayat, whether or not chosen by the direct election, shall be published by the prescribed authority under Section 126 in such manner as may be prescribed. The learned counsel for the petitioner has submitted that vide notification dated 22.12.1995 issued under Section 189 of the Act, the Governor Himachal Pradesh has conferred powers under Section 126 of the Act on Deputy Commissioner to notify the election results whether or not chosen by the direct election immediately after the declaration of results. The result is required to be published in the official gazette and to be displayed on the notice board of the Panchayat for the information of the general public. 8. The learned counsel for the petitioner has argued that authorized officer under Section 165 is required to pass an order dismissing the election petition if the petition is not presented in accordance with Section 163 of the Act. He has submitted that in the present case, no such order was passed before 17.1.2006. It is not the case of the petitioner that election petition suffers from any other legal defect. In absence of positive order of the authorised officer under Section 165 of the Act dismissing an election petition as premature such petition would remain in limbo till the publication of result in accordance with the Act and Rules and would activate on the publication of the result under the Act and the Rules. The ‘premature’ filing of the election petition does not create any right in favour of opposite party. On the contrary question of premature filing of the election petition, if not dealt immediately at the time of the filing of the petition may cause serious prejudice to the petitioner, in case the petitioner is told after the period of limitation that his election petition was premature. The purity of election is to be maintained and election petition is one of the weapon given by the legislature to the aggrieved person to maintain the purity of election, therefore, the interpretation which advances the cause of justice and purity of election is to be adopted. The petitioner has missed the bus for not inviting the order of prescribed authority before 17.1.2006 to dismiss the election petition as premature. It is admitted case of the petitioner that on 17.1.2006 the election result was published in the official gazette and till 17.1.2006 the prescribed authority had not dismissed the election petition being premature. The Deepender Rohal vs. Suresh Thakur judgment relied by learned counsel for the petitioner is not applicable in the facts and circumstances of the case. In that case the question of premature filing of the election petition was not before the learned Single Judge. 9. The Section 163 refers to publication and not publication in official gazette. On behalf of the petitioner, notification dated 22.12.1995 has been relied. The purpose of notification under Section 126 of the Act is to apprise the general public about the result of the office bearers of the Panchayat. The notification dated 22.12.1995 authorizes the Deputy Commissioner to notify the election of every office bearer by way of publication in the official gazette and by displaying on the notice board of the Panchayat. The displaying of the election result on the notice board also means publication. It is not the case of the petitioner that his result was not notified by the Deputy Commissioner before 6.1.2006 by displaying on the notice board of the concerned Panchayat. In absence of such plea, it cannot be said that election petition filed by respondent No.3 on 6.1.2006 was premature. There is no merit in the writ petition and the same is accordingly dismissed. ( Jagdish Bhalla ) Chief Justice. ( Kuldip Singh ) Judge. November 21, 2008 (sks)