R.S. Thakur, J.
1. This writ petition under Articles 226/227 of the Constitution ofIndia is directed against the order dated December 30, 1986, passed by the Deputy Commissioner, Hamirpur (Respondent No. 5), Annexure PA, whereby the election of the petitioner to the office of Pradhan of Gram Panchayat, Dhanwan was set aside and Bhupinder Singh (Respondent No. 1) was declared as having been validly elected to the said office in his place.
2. The facts relevant for the disposal ofthis petition are that the election to the officeof the Pradhan and Members of the GramPanchayat, Dhanwan was held oh September23, 1985, wherein the petitioner andrespondents Nos. 1, 2 and 3 were thecontesting candidates for the office of Pradhanof the said Panchayat. The AssistantReturning Officer connected with the saidelection declared the result of the election ofPradhan on the same day which was asfollows : --
(a) Total votes polled :
-802
(bt Votes, Udho Ram, petitioner polled:
-322
(c) Votes, Bhupinder Singh,res-pondent No.1 polled :
-291
(di Votes, Mohar Singh, respon-dent No.2 polled :
-140
(e) Votes, Munshi Ram, respon-dent No. Spoiled :
- 42
(f) Invalid votes :
- 7
In the result, the petitioner was declared as duly elected Pradhan of the said Panchayat by a margin of 31 votes. These results were published on September 30, 1985.
3. Respondent No. 1 then challenged this election by filing an election petition before respondent No. 5, under Section 186 of the Himachal Pradesh Panchayati Raj Act, 1968 (hereinafter referred to as 'the Act' ' ),vide Annexure R1/A, on a number of grounds which, inter alia, were : (a) improper acceptance of nomination papers of the petitioner as he was disqualified from contesting the election; (b) exercise of corrupt practices by the petitioner by getting bogus votes polled in collusion with the election staff; (c) improper reception of invalid votes which materially affected the result of the election : and (d) improper rejection of therequest of respondent No. 1 by the Returning Officer for re-counting of votes.
4. During the course of the said proceedings, however, respondent No. 1 made a statement before respondent No. 5 on August 11, 1986, to the effect that he would be deemed to have withdrawn all the objections in case the petitioner herein agreed to the re-counting of voles. The petitioner also came forward with a statement that he would have no objection in case the recounting is undertaken by respondent No. 5. As a result of these statements, respondent No. 5 took up the exercise of re-counting of votes on August 25, 1986 and pursuant to the re-counting the result was as follows : --
(a) Total Votes polled :
- 802
(b) Votes, Udho Ram, Petitioner polled:
- 291
(c) Votes, B hupinder Singh,res-pondent No.l polled :
- 293
(d) Votes, Mohar Singh, respon-dent No. 2 , polled :
- 140
(e) Votes, Munshi Ram, respon-dent No. 3 , polled :
- 42
(f) Invalid votes
- 36
On the basis of the result of the re-count, respondent No. 5 held that the majority votes among the four contestants were polled not by the petitioner, as earlier declared, but by respondent No. 1 and he, therefore, set aside the election of the petitioner and declared in his place and stead respondent No. 1 as having been duly elected as Pradhan of the Gram Panchayat, Dhanwan.
5. The petitioner, as earlier stated, has now come to this Court with the instant writ petition to challenge the said decision (Annexure PA) of respondent No. 5. The petitioner has challenged the impugned order on the following grounds : --
i) that the electron petition was beyond limitation;
ii) that the declaration of respondent No. 1 as duly elected Pradhan in place of the petitioner was beyond the power and jurisdiction of respondent No. 5 and came in direct collision with the provisions of Section 180 of the H. P. Panchayati Raj Act:
(iii) that in the earlier results declared bythe returning officer, the invalid votes were only seven in number whereas in the recounting as many as 36 votes were declared as invalid and respondent No. 1 was declared as winner by a narrow margin of two votes only because so many votes were declared invalid without justification and in violation of rules of natural justice;
iv) that even otherwise respondent No. 5 had no jurisdiction to order the re-counting without setting aside the election on merits as enjoined by the provisions of Section 186 of the Act.
6. The petitioner, therefore, inter alia,' prayed that the order of respondent No. 5 (Annexure PA), be set aside and the petitioner be declared as having been duly elected as Pradhan of the Gram Panchayat, Dhanwan.
7. Respondent No. 1 contested this writ petition and in his counter, while refuting all these objections raised on behalf of the petitioner, asserted, inter alia, that since during the pendency of the election petition before respondent No. 5, the petitioner voluntarily made a statement that he had no objection to the re-counting as desired by respondent No. 1, subject to his withdrawing the other objections raised in the election petition, the re-count was validly and correctly ordered and the petitioner, was, therefore, estopped from challenging the propriety of the order, Annexure PA, on that ground.
8. It may be stated that during the course of this writ petition, out of the other two contestants in the election, namely, respondents Nos. 2 and 3, respondent No. 3 was represented by the counsel for respondent No. 1 whereas respondent No. 2 did not appear despite service and ultimately at the request of the petitioner his name was deleted from the array of the respondents vide order dated June 9, 1987.
9. Since the declaration of two results, namely, the one declared by the Returning Officer on September 23, 1985 and the other declared by respondent No. 5, pursuant to the re-count held on August 25, 1986, reflected a material change in the election to the office of Pradhan by a narrow margin of two votes and since the number of votes held invalid atthe re-count was far in excess of that at the initial count, this Court considered it expedient in the interest of justice to order a fresh re-count by an independent competentagency and for this purpose the Deputy Commissioner, Simla, was appointed as the Commissioner to undertake the re-counting afresh vide an interim order made on April 10, 1987. The relevant portion thereof is extracted as under :--
On the facts and in the circumstances of the case and more particularly, having regard to the fact that as a result of the re-count which took place on August 25, 1986, as many as 36 votes have been held to be invalid as against 7 at the original counting and the first respondent, has been declared elected as the Pradhan in place and stead of the petitioner by a margin of only two votes, it is expedient in the interest of justice to order a fresh re-count of the ballot papers.
Accordingly, the Deputy Commissioner, Simla, is appointed as the Commissioner to hold the re-count. The re-count shall take place in the office of the Commissioner at Simla on April 20, 1987 at 10 a.m. The petitioner and respondent No. 1 will remain present when the re-count takes place and so also their counsel, if they so desire, Respondents Nos. 2 and 3 shall also be emitted to be present at the re-count. The learned counsel representing various contesting respondents will communicate these orders to their respective clients. The Commissioner will decide the objections, if any, raided before him when the re-count, as ordered hereinabove, takes place and incorporate his reasoned decision thereon in the report of the result of the re-count which he will submit to this Court within a period of one week from the date of the holding the re-count. The Registry will forward the sealed box containing the ballot papers to the Commissioner a day before 3 there-count is to take place and the Commissioner will return the same duly sealed to the Registry along with his report.'
10. The Deputy Commissioner, Simla, after executing the commission, submitted his report dated April 22, 1987, and the result of the re-count undertaken by him is as follows :
(a) Total Votespolled :
-803
(b) Votes, Udho Ram,petitioner polled :
-289
(c) Votes, Bhupinder Singh, respondent No.1 polled :
-293
(d) VotesMoharSingh, respondent No.2polled ;
-140
(e) Votes Munshi Ram. respondent No.3 polled :
- 43
(f) invalid votes
- 38
11. In view of the report of the DeputyCommissioner, Simla, we are of the opinion that no ground is made out for interference with the decision of respondent No. 5, in so far as he directed the holding of a re-count and set aside the election of the petitioner pursuant to such re-count. The re-count was ordered with the consent of the petitioner who cannot be permitted to challenge the said decision now. The Commissioner appointed by this Court has substantially concurred in the findings of respondent No. 5 and these two successive re-counts urdertaken by highly placed officers clearly show that the Returning Officer had committed an error of law in having declared the petitioner as duly elected Pradhan of the Panchayat concerned by counting invalid voles in his favour.
12. After the report of the Deputy-Commissioner, Simla was received, the Court also considered the objection of the petitioner regarding limitation, namely, that the election petition was not filed by respondent No. 1 before respondent No. 5 within the time prescribed by law,
13. Section 168, Sub-section (1) of the Act lays down that an election petition has to be presented to the prescribed authority within a period of thirty days of the publication of the result. In the instant, case, the result of the election was published on September 30, 1985 and as such, the last date for filing the election petition was October 30, 1985, and the controversy is whether the election petition was filed on October 30, 1985 as asserted by respondent No. 1 or on October 31, 1985, as alleged by the petitioner. The Court also entertained a doubt on this point on a perusal of the official record as well as the materialon the record of this petition. By the interim order dated May 12, 1987, respondent No. 5as well as respondent No. 1 and his counsel were directed to file supplementary affidavitsto clarify the matter. The controversy has now been set at rest by the supplementary affidavits filed by respondent No. 5, by the counsel for respondent No. l, Sh. A.C. Dogra, Advocate, Hamirpur, and by respondent No. 1dated May 21, 1987, May 25, 1987 and June 1, 1987 respectively, which have emained unrebutted. Even the learned counsel for the petitioner has now conceded that the election petition in question had been filed byrespondent No. 1 within time.
14. The learned counsel for the petitioner, however, stoutly contended that even conceding that the election petition was filed within time and also that as a result of recounts held twice the petitioner was found to have secured less number of votes than those obtained by respondent No. 1, still it was beyond the ken of jurisdiction and powers of respondent No. 5 to have declared respondent No. 1 as the validly elected Pradhan in place of the petitioner and that the said declaration was contrary to the provisions of Section 180 of the Act. According to the learned counsel, all that could have been done was to set aside the election of the petitioner and then order a fresh election.
15. The learned counsel for respondent No. 1 contended on the other hand that since the re-count by respondent No. 5 was done with the mutual agreement of both, thepetitioner and respondent No. l, it should be considered as a re-count within the ambit of Rule 41 of the Himachal Pradesh Gram Panchayat (Election) Rules, 1978 (hereinafter referred to as the Rules) and that, as such, under Sub-rule (4) thereof, respondent No. 1 could be validly declared as the winning candidate in place of the petitioner.
16. Thus the only question that survives for the decision of this Court is whether or not respondent No. 5 has the jurisdiction and powers under the law to declare respondent No. l as the duly elected Pradhan in place of the petitioner when on re-count he found that respondent No. 1 had secured more votes than the petitioner.
17. It may be noted at this stage that at first sight there may appear to be some doubt on the point whether an election petitioner challenging the election of a Panch of a Gram Panchayat and that challenging the election of a Pradhar or Up-Pradhan of a Gram Panchayat have to be treated at a par or a like for the purposes of trial under the provisions of the Act and the Rules relevant thereto. However, on a closer look at the relevant provisions, the doubt stands resolved.
18. Chapter XIII of the Act which bears the title 'DISPUTES RELATING TO ELECTIONS' ' contains Section 166 to 187. These sections are grouped together under the heading 'Disputes regarding elections of Patches of Gram Panchayats' ' (underlining supplied). Section 167 provides that no election of a Panch of a Gram Panchayatshall be called in question except by an electron petition presented in accordance with the provisions of the said chapter. Subsection (1) of Section 168 provides, inter alia, for the presentation of an election petition in writing to 'the prescribed authority' ' againstthe election of any person as a Panch within the specified time limit. Section 170 empowers the prescribed authority to dismiss the petition in case the same is not furnished in the prescribed manner and within the specifiedtime limit. Section 171, inter alia, empowers the Deputy Commissioner of the District concerned to withdraw any election petition pending before a prescribed authority and transfer it for trial to another within his district. Upon such transfer, the transferee authority is to proceed with the trial from the stage at which it was withdrawn. Section 172, Sub-section (1), inter alia, provides that subject to the provisions of the Act and of any rules made thereunder, every election petition shall be tried by the prescribed authority in accordance with the procedure prescribed under the Code of Civil Procedure for the trial of suits. Sections 173 to 178 deal with, various procedural matters and with the powers of the prescribed authority in the matter of the trial of the election petitions. Section 179, Sub-section (1), empowers the prescribed authority to hold an inquiry into the election petition which is not dismissed under Section 170 and to make an order dismissing the petition or setting aside the election atthe conclusion of the inquiry. Section 180 prescribes the grounds for setting aside the election and for holding a fresh election in that eventuality. Section 182 provides for the costs and payment thereof and Section 183 lays down the mode of execution of orders as to costs. Section 185 creates a fiction to define the corrupt practices. Section 186 provides that any dispute relating to the election of a Pradhan or Up-Pradhan of a Gram Panchayat shall be decided by the Deputy Commissioner after taking such evidence as he deems fit and his order thereon shall be final.
19. Part V of the Rules is divided into two sections, the second of which deals with election petitions. The said section contains Rules 55 to 63. Rule 55 of the Rules, inter alia, prescribes the Sub-Divisional Officer (Civil) under whose territorial jurisdiction the Sabha area is situate as the authority for the presentation of the election petition under Section 168. Though Rule 55 speaks only of the presentation of the election petition to the Sub-Divisional Officer (Civil) and does not specifically prescribe the said officer as the authority for the trial of such petitions, the relevant provisions of Chapter XIII of the Act and, more particularly, of Section 172, as well as of the other rules, such as Rules 58 to 62, contained in Part V, clearly indicate that the said officer is also the prescribed authority for the trial of the election petitions.
20. Now, the word 'Panch' ' is defined in Section 3, Sub-section (1), Clause (s) of the Act to mean a member of Gram Panchayat elected, appointed or co-opted under the Act and includesa Pradhan or Up-Pradhan. Clause (x) defines the expression 'prescribed authority' ' to mean the authority notified as such by the Government. In view of the wide meaning assigned as aforesaid to the word 'Panch' ' , there is no manner of doubt that the provisions of Chapter XIII of the Act govern not only the disputes relating to the elections of Panches but also those concerning the elections of the Pradhans and Up-Pradhans. In other words, those provisions are not confined only to the petitions relating to the elections of Panches but cover also the petitions challenging the elections of Pradhaas and Up-Pradhans. In one respect, however, there is a material-difference in the matter oftrial of these two categories of petitions. Whereas the petitions levelling a challenge against election of Panches are triable by the prescribed authority, that is, the Sub-Divisional Officer (Civil), any dispute relating to the election of Pradhans and Up-Pradhans is required to be decided, under Section 186 of the Act, by the Deputy Commissioner and his decision is made final. Consequently, in the various provisions of Chapter XIII preceding Section 186, the expression 'the prescribed authority' ' will have to be read as meaning 'the Deputy Commissioner' ' , so far as the institution and the trial of petitions challenging the election of Pradhans or Up-Pradhaas are concerned. Besides, Section 171 will be rendered inapplicable to a petition concerning the election of Pradhans or Up-Pradhan. This construction of the relevant statutory provisions flows from the fact that under Section 186 the power, authority and jurisdiction to try any dispute relating to the election of Pradhan or Up-Pradhan is specifically and exclusively conferred upon the Deputy Commissioner and unless, therefore, the words 'the prescribed authority' ' occurring in those various statutory provisions are read as aforesaid, it would not be possible to reconcile them with the provisions of Section 186. True it is that Clause (x) of Sub-section (1) of Section 3 defines the expression 'Prescribed authority' ' to mean the authority notified as such by the Government, but the said meaning is rendered inapplicable when the context otherwise requires as indicated by the opening words of the said sub-section. It is well settled that all statutory definitions must be read subject to the qualification variously expressed in the definition clauses which created them and it may be that even where the definition is exhaustive, inasmuch as the word defined is said to mean a certain thing, it is possible for the word to have a somewhat different meaning in different sections of the Act depending upon the subject or context. (See The Vanguard Fire and General Insurance Co. Ltd., Madras v. Fraser and Ross, AIR 1960 SC 971 at pp. 974-975). Another settled rule of interpretation which can be invoked in aid is that if a special provision is made on a certain matter, that matter is excluded from the genera provision. Generalibus specialia derogant. Since Section 186is a more specific provision dealing with the trial of disputes relating to the election of Pradhans or Up-Pradhans, it has to be given effect to by excluding the trial thereof from the purview of the prescribed authority, that is, the authority notified as such by the Government but, at the same time, it would be legitimate to give effect also to the other relevant statutory provisions governing the trial of election petitions by treating the Deputy Commissioner as the prescribed authority and by applying those provisions to the trial of election petitions before the said prescribed authority. Such a construction will not only ensure the smooth and harmonious working of the statute but will also give full effect to the system which the statute purports to regulate and be in tune with the basic scheme and the purpose of the enactment. With these prefatory observations, we proceed to deal with the point in controversy as formulated in Para 16 above.
21. Sections 179 and 180 are relevant for the determination of the controversy and the material portions thereof are reproduced hereinbelow :
'179(1) Where an election petition has notbeen dismissed under Section 170, the prescribedauthority shall inquire into the electionpetition and at the conclusion of the inquiryshall make an order-
(a) dismissing the election petition; or
(b) setting aside the election
xxxxx
180. (1) If the prescribed authority 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
(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 his agent; or
(c) thai any nomination has been improperly rejected, or
(d) that the result of the election, in so far as it concerns the elected person, has been materially affected -
(i) by the improper acceptance of any nomination; or
(ii) by the improper reception, refusal or rejection of any vote or the reception of anyvole which is void ; or
(iii) by any non-compliance with the provisions of this Act or of any rules made under this Act;
the prescribed authority shall set aside the election of the elected person.
(2) When an election has been set aside under Sub-section (1), a fresh election shall be held.' '
It will be seen that Section 179, Sub-section (1) mandates the prescribed authority to inquire into an election petition which has not been dismissed under Section 170 and, at the conclusion of such inquiry, to make an order :
(a) dismissing the election petition, or
(b) setting aside the election. The prescribed authority is not clothed with the power to declare the election petitioner or any other candidate to have been duly elected. Section 180 also gives a pointer in the same direction. The section prescribes the grounds on which an election can be set aside and further provides that if the prescribed authority is of the opinion that any one or more of those grounds are established, the election of the elected person shall be set aside (See Sub-section (1)). The consequence which must follow upon the setting aside of an election is also provided by enacting that a fresh election shall be held (See Sub-section (2)). The scheme of the Act in this regard is thus entirely different from the scheme of the Representation of the People Act, 1951, which enables an election petitioner to claim not only a declaration that the election of the returned candidate is void but also that he himself or any other candidate has been duly elected (See Section 84) and also empowers the High Court to grant such a declaration (See Section 98 read with Sections 97 and 101). It is not possible to hold, therefore, that there is a conferment, either express or implied, of power on the prescribed authority under the Act to grant a further relief in the nature of a declaration to the effect that the election petitioner or any other candidate has been duly elected in place and stead of the candidate whose election has been set aside. In the instant case, therefore, once respondent No. 5 found that the result of the election,insofar as it concerned the petitioner, 'had been materially affected by the improper reception of any vote and/or the reception ofany vote which was invalid, all that he could have done was to set aside the election. The statute would then step in and a fresh election would follow. It was not within the competence of respondent No. 5 to grant a further relief by way of a declaration that respondent No. 1 was duly elected to the office of Pradhan in place and stead of the petitioner.
22. The argument based upon Rule 41, which has been advanced by the learned counsel for respondent No. 1, is wholly misconceived for more than one reason. Rule 41 reads as under :
'41. Recount of votes.-- (1) the Returning Officer shall, after signing the ballot paper account shall announce the total number of votes polled by each candidate and pause for a while.
(2) After such announcement has been made a candidate or in his absence his election agent may apply in writing to the Returning Officer for a recount of all or any of the ballot papers already counted stating the grounds on which he demands such recount.
(3) On such an application being made, the Returning Officer shall decide the matter and may allow the application in whole or in part or may reject it in toto if it appears to him to be frivolous or unreasonable and the decision of the Returning Officer in this behalf shall be in writing and contain the reason thereof.
(4) If the Returning Officer decides under Sub-rule (3) to allow an application either in whole or in part he shall count the ballot papers again in accordance with his decision; amend Part II of ballot paper account in Form XII or Result Sheet in Form XVII as the case may be, to the extent, if necessary, after such recount; and announce the amendment so made by him.
(5) The Returning Officer shall thereafter complete and sign the declaration in Part III of the ballot paper account in Form XII or Part 11 of the Result Sheet in Form XVII as the case may be; no application for any recount shall be entertained, thereafter.'
Rule 42 provides for the declaration of result by the Returning Officer on the basis of the ballot paper account. Rule 45 casts a duty upon the Deputy Commissioner to notify the names of all the elected Partches including the Pradhan and Up-Pradhan after receipt of the declaration of result from the Returning Officer.
23. Now, it must be appreciated, in the first place, that an election and a dispute relating to an election are two distinct and different matters and that they are dealt with by different statutory provisions and authorities. The provisions governing one cannot, therefore, be read as applying proprio vigore to the other. Rule 41 applies, in terms, at the stage when the election process is still not complete by the formal declaration and notification of the result. The rule empowers the Returning Officer, inter alia, to order a re-count of votes if a candidate or in his absence his election agent applies for the same soon after the ballot paper account is signed and the total number of votes polled by each candidate are announced by him and, in cases where the application is granted and a re-count is held, it further empowers the Returning Officer to amend the ballot paper account, if it becomes necessary so to do after such re-count, and to announce the amendment so made by him. The rule, therefore, has a play only at the stage when there has still been no forma! declaration of the result of the election by the Returning Officer and the power conferred thereunder can, in terms, be exercised by the Returning Officer alone, The rule has no applicability at the stage when the prescribed authority is seized of the dispute relating to an election and a re-count is ordered in the course of such proceedings to meet the ends of justice on a satisfaction having been reached by him, prima facie, that there are grounds to believe that there has been a mistake in the initial counting or that there has been an improper reception, refusal or rejection of votes or reception of void votes. In the next place, the power, authority and jurisdiction of the prescribed authority are specified in the statute, which, as earlier pointed out, empowers him to inquire into an election dispute and, at the conclusion of the inquiry, to make an order dismissing the electionpetition or setting aside the election, as the case may be. The consequence following uponthe setting aside of an election is also provided in the statute and, accordingly, a fresh election has to be held in such an eventuality. Under the circumstances, even if the prescribed authority is satisfied after holding a recount that there was a mistake in the initial counting or that there was an improper reception, refusal or rejection of votes or reception ofvoid votes, all that he can do is to set aside the election. If R. 41 is read as applicable even at this stage and as authorising the prescribed authority to amend the result of the election and to declare the election petitioner or any other candidate, as the case may be, as having been duly elected, the said rule will apparently come in conflict with the provisions of Section 179, Sub-section (1) and Section 180, Sub-section (2), and having been enacted in exercise of the powers of subordinate legislation, it will have to be held as ultra vires and void to that extent.
24. Even respondent No. 5 was doubtful of his powers while declaring respondent No. 1 as duly elected on the basis of his having secured the largest number of votes consequent upon the recount. He however, purported to do so since, according to him the Act did not provide as to how he should act in case a recount was ordered during the pendency of the election petition and also because the recount was held on the basis of a mutual agreement and the holding of a fresh election would involve avoidable expenses to be met out of the public exchequer.
25. None of these considerations can justify the course of action adopted by respondent No. 5. As discussed earlier, his power, authority and jurisdiction do not extend to the granting of the relief of a declaration that respondent No. 1 was duly elected in place and stead of the petitioner asPradhan on the basis of the result of the recount. True, the petitioner and respondent No. 1 had agreed to the recount being held but the petitioner had not agreed or undertaken that in case respondent No. 1 is found to have secured the largest number of votes upon such recount, he should be declared as duly elected in his place. Thatapart, even if such an agreement or undertaking had been given, it could not have clothed respondent No. 5 with the power to declare respondent No. 1 as the duly elected Pradhan. Consent cannot confer jurisdiction where none exists in law. The consideration that the holding of a fresh election would put the public exchequer to an avoidable expenditure, although laudable, has no place when the legislative policy as reflected in Section 179, Sub-section (1) and Section 180, Sub-section (2), is clearly and specifically to the effect that a fresh election shall be held when the election of an election candidate is set aside.
26. In light of the foregoing discussion, the order of respondent No. 5 (the Deputy Commissioner, Hamirpur), Annexure PA, is upheld only to the extent that it sets aside the election of the petitioner as the Pradhan of Gram Panchayat, Dhanwan, but is quashed in so far as it declares respondent No. 1 as having been duly elected as Pradhan of the said Panchayat in place and stead of the petitioner. Consequently, a fresh election to the office of Pradhan, Gram Panchayat, Dhanwan, is liable to be held and it is ordered to be held within a period of three months from today. The rule is made absolute accordingly. In view of the facts and the circumstances of the case, there will be no order as to costs.