Chapter XVII DISPUTES RELATING TO ELECTION

Definitions. In this Chapter, unless the context otherwise requires,- (a) "agent" means any person appointed in writing by a candidate at an election to be his agent for the purposes of his election with the written consent of such person ; (b) "Authorised officer" means the officer authorised under section 282 to have election petitions; (c) "candidate" means a person who has been, or claims to have been duly, nominated as candidate at an election, and any such person shall be deemed to have been a candidate as from the time when, with the election in prospect, he began to hold himself out as a prospective candidate ; (d) "corrupt practice" means any of the practices specified in section 301 ; (e) "costs" means all costs, charges and expenses of, or incidental to a trial of an election petition ; (f) "election" means an election to fill an office under the provisions of this Act ; (g) "electoral right" means the right of a person to stand or not to stand as, or to withdraw from being, a candidate or to vote or refrain from voting at an election.

(1) The superintendence, direction and control of the preparation of electoral rolls, delimitation of wards, reservation and allotment of seats by rotation for, and the conduct of, all elections to the municipalities shall be vested in the State Election Commission constituted under articles 243-K and 243-ZA of the Constitution of India and section 160 of the Himachal Pradesh Panchayati Raj Act, 1994 (4 of 1994) in the manner, as may be prescribed by rules. (2) The Commission shall frame its own rules and lay its own procedure. (3) The Governor shall, when so requested by the State Election Commissioner, make available to him such staff as may be necessary for the discharge of the functions conferred on him under this Act. (4) The officers or staff so employed in connection with the preparation, revision and correction of the electoral rolls for, and the conduct of election shall be deemed to be on deputation with the State Election Commission for the period during which they are so employed.

Officers authorised to hear election petitions. The election petitions under this Act shall be heard by the Sub-Divisional Officer (Civil) having jurisdiction over the municipal area.

Election petitions. No election under this Act shall be called in question except by an election petition presented in accordance with the provisions of this Chapter.

Presentation of petitions. (1) Any elector of a municipality 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 296 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 authorised in writing in this behalf by the person making petition ; or (b) when it is sent by registered post and is delivered to the authorised officer or any other person empowered to receive it.

Contents of petition. (1) An election petition - (a) shall contain concise statement of the material facts on which the petitioner relies; (b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the Commission of each such practice ; and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleading : Provided that where the petitioner alleges any corrupt practice, the petition shall also accompanied by an affidavit in the prescribe form in support of the allegation of such corrupt practice and the particulars thereof. (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.

If the election petition is not furnished in the prescribed manner or the petition is not presented within the period specified in section 284, the authorised officer shall dismiss the petition: Provided that the petition shall not be dismissed without giving the petitioner an opportunity of being heard.

Withdrawal and transfer of petitions. The Director may, at any stage, after notice to parties and for reasons to be recorded withdraw any election petition pending before an authorised officer and transfer it for hearing to another authorised officer in the State and upon such transfer, that authorised officer shall proceed with the petition form the stage at which it was withdrawn : Provided that such authorised officer may, if it thinks fit, recall and re-examine any of the witnesses already examined.

(1) Subject to the provisions of this Act and of any rules made thereunder every election petition shall be heard by the authorised officer in accordance with the procedure applicable under the Code of Civil Procedure 1908 (5 of 1908) to the trial of suits; and decided within a period of six months from the date of presentation under section 284 : Provided that the authorised officer shall have the discretion to refuse, for reasons to be recorded in writing to examine any witness or witnesses, if he is of the opinion that their evidence is not material for the decision of the petition or that the party tendering such witness or witnesses is doing on frivolous grounds or with a view to delay the proceedings. (2) The provisions of the Indian Evidence Act, 1872 (1 of 1908) shall, subject to the provisions of this Act, be deemed to apply in all respects to the trial of an election petition.

Any appearance, application or act before the authorised officer may be made or done by the party in person or by a pleader duly appointed to act on his behalf : Provided that it shall be open to the authorised officer to direct any party to appear in person whenever the authorised officer considers it necessary.

The authorised officer shall have the powers which are vested in a Court under the Code of Civil Procedure, 1908 when trying a suit in respect of the following matters:- (a) discovery and inspections ; (b) enforcing the attendance of witnesses and requiring the deposit of their expenses ; (c) compelling the production of documents ; (d) examining witnesses on oath ; (e) granting adjournments ; (f) reception of evidence taken on affidavit ; and (g) issuing commissions for the examination of witnesses, and may summon and examine suo motu any person whose evidence appears to him to be material and shall be deemed to be a Court within the meaning of sections 345 and 346 of the Code of Criminal Procedure, 1973 (2 of 1974). Explanation.- For the purpose of enforcing the attendance of witnesses the local limits of the jurisdiction of the authorised officer shall be the limits of the State of Himachal Pradesh.

Documentary evidence. In relation to the production of unstamped or un-registered documents at the hearing of an election petition, the provisions of section 93 of the Representation of People's Act, 1951(43 of 1951) shall apply.

(1) No witness or other person shall be required to state for whom he has voted at an election. (2) Every officer, clerk, agent or other person who performs any duties in connection with the recording or counting of votes at an election shall maintain and aid in maintaining the secrecy of the voting and shall not (except for some purpose authorised by or under any law) communicate to any person any information calculated to violate such secrecy. (3) Any person who wilfully acts in contravention of the provisions of this section shall be punished with imprisonment of either description for a term not exceeding three months, or with fine, or with both.

Answering of incriminating questions and certificate of indemnity. (1) No witnesses shall be excused from answering any question to any matter relevant to a matter in issue in the hearing of an election petition upon the ground that the answer to such question may criminate or may tend to criminate him, or that it may expose or may tend to expose him to any penalty or forfeiture : Provided that - (a) witness who answers truly all questions which he is required to answer shall be entitled to receive a certificate of indemnity from the authorised officer ; and (b) an answer given by a witness to a question put by or before the authorised officer shall not, except in the case of any criminal proceedings for perjury in respect of the evidence, be admissible in evidence against him in any civil or criminal proceeding. (2) When a certificate of indemnity has been granted to any witness, it may be pleaded by him in any Court and shall be a full and complete defence to or upon any charge under chapter IX-A of the Indian Penal Code, 1860 (45 of 1860), arising out of the matter to which such certificate relates but it shall not be deemed to relieve him from any disqualification, in connection with an election, imposed by this Act or any other law.

Expenses of witnesses. The reasonable expenses incurred by any person in attending to give evidence may be allowed by the authorised officer to such person, and shall, unless he otherwise directs, be deemed to be part of the costs.

(1) Where an election petition has not been dismissed under section 286, the authorised officer shall inquire into the election petition and at the conclusion of the inquiry shall make an order - (a) dismissing the election petition ;or (b) setting aside the election. (2) At the time of making an order under sub-section (1), the authorised officer shall also make an order, - (a) where any charge is made in the petition of any corrupt practice having been committed at the election, recording - (i) a finding whether any corrupt practice has or has not been proved to have been committed at the election and the nature of that corrupt practice ; and (ii) the name of all persons, if any, who have been proved at the trial to have been guilty of any corrupt practice and the nature of that practice ; and (b) fixing the total amount of costs, payable, and specifying the persons by and to whom costs shall be paid : Provided that a person who is not a party to the petition shall not be named in the order under sub-clause (ii) of clause (a) unless - (i) he has been given notice to appear before the authorised officer and to show cause why he should not be so named ; and (ii) if he appears in pursuance of the notice, he has been given an opportunity of cross-examining any witness, who has already been examined by the authorised officer and has given evidence against him, of calling evidence in his defence and of being heard.

Grounds for setting aside election. (1) If the authorised 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 (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) that 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 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 authorised officer 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.

An election petition shall abate only on the death of a sole petitioner or of the survivor of several petitioners.

(1) Costs including pleader's fees shall be in the discretion of the authorised officer. (2) If in any order as to costs under the provisions of this Chapter, there is a direction for payment of cost by any party to any person, such costs shall, if they have not been already paid, be paid in full or so far as possible, out of the security deposit made by such party under this Chapter, on an application made in writing in that behalf, within a period of one year from the date of such order, to the Collector by the person in whose favour the costs have been awarded. (3) If there in any balance left of the security deposit under this Chapter after payment under sub-section (1) of the costs referred to in that sub-section, such balance or where no costs have been awarded or no application as aforesaid has been made within the said period of one year, the whole of the said security deposit may, on an application made in that behalf in writing to the Collector by the person by whom the security has been deposited or if such person dies after making such deposit, by the legal representative of such person, be returned to the said person or to his legal representative, as the case may be.

Execution of orders as to the costs. Any order as to costs under the provisions of this Chapter may be produced before the principal Civil Court within the local limits of jurisdiction any person directed by such order to pay any sums of money has a place of residence or business and such Court shall execute the order or cause the same to be executed in the same manner, and by the same procedure as if it were a decree for the payment of money made by itself in a suit: Provided that where any such costs or any portion thereof, may be recovered by an application made under sub-section (2) of section 298, no application shall lie under this section within a period of one year from the date of such order unless it is for the recovery of the balance of any costs which has been left unrealised after an application has been made under that sub-section owing to insufficiency of the amount of the security deposit referred to in that sub-section.

Corrupt practices entailing disqualifications. The corrupt practices specified in section 301 shall entail disqualification for membership of a municipality for a period of six years counting from the date on which the finding of the authorised officer as to such practice has been given: Provided that the Government may, for reasons to be recorded, remove the disqualification or reduce the period thereof.

(1) The following shall be deemed to be corrupt practices for the purposes of this Chapter :-(1) Bribery, that is to say -(A) any gift, offer or promise by candidate or his agent or by any other person with the consent of a candidate or his agent of any gratification, to any person, whomsoever , with the object, directly or indirectly of inducing.-(a) a person to stand or not to stand as, or to withdraw from being a candidate at an election ; or (b) an elector of the municipal area to vote or refrain from voting at an election ; or as a reward to -(i) a person for having so stood or not stood, or for having withdrawn his candidature ; or (ii) an elector of the municipal area for having voted or refrained from voting ; (B) the receipt of or agreement to receive any gratification, whether as a motive or a reward -(a) by a person for standing or not standing as, or for withdrawing from being a candidate ; or (b) by any person whomsoever for himself or any other person for voting or refraining from voting, or inducing or attempting to induce an elector of the municipal area to vote or refrain from voting, or any candidate to withdraw his candidature. Explanation.- For the purposes of this clause, the term "gratification" is not restricted to pecuniary gratification or gratifications estimable in money and it includes of all forms of entertainment and all forms of employment for reward but it does not include the payment of any expenses bonafide incurred at, or, for the purpose of any election. (2) Under influence, that is to say any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person with the consent of the candidate or his agent, with the free exercise of any electoral right: Provided that -(a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein who -(i) threatens any candidate or any person in whom a candidate is interested, with injury of any kind including social ostracism and ex-communication or expulsion from any caste or community ; or (ii) induces or attempts to induce a candidate of an elector of the municipal area to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure , shall be deemed to interfere with the free exercise of the electoral right of such candidate or an elector of the municipal area within the meaning of this clause ; (b) a declaration of public policy, or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this clause. (3) The appeal by a candidate or his agent or by any other person with the consent of a candidate or his agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate. (4) The promotion of, or attempt to promote, feelings of enmity or hatered between different classes of the citizens of India on grounds of religion, race, caste, community or language, by a candidate or his agent or any other person with the consent of a candidate or his agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate. (5) The publication by a candidate or his agent or by any other person, with the consent of a candidate or his agent, of any statement of fact which is false and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature or, withdrawal, of any candidate, being a statement, reasonably calculated to prejudice the prospects of the candidate‘s election. (6) The hiring or procuring, whether on payment or otherwise, of any vehicle by a candidate or his agent or by any other person with the consent of a candidate or his agent, for the conveyance of an elector of the municipal area (other than the candidate himself, the members of his family or his agent) to or from any polling station or a place fixed for the poll. Explanation.- In this clause, the expression 'vehicle' means any vehicle used or capable of being used for the purpose of road transport, whether propelled by mechanical power or otherwise and whether used for drawing other vehicles or otherwise. (6-A). The incurring or authorising, of expenditure in contravention of section 17-A. (7) The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent, or by any other person with the consent of the candidate or his agent, any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate's election, from any person in the service of the Government, the Government of India or the Government of any other State or a local authority.

Appeals. Notwithstanding anything contained in this Act, any person aggrieved by an order made by the authorised officer under this Chapter, may, within the prescribed time and in the prescribed manner, appeal to the Director having jurisdiction over the municipal area and who shall dispose of the appeal within a period of ninety days and his decision on such appeal shall be final.

Bar to interference by Courts in electoral matters. Notwithstanding anything contained in this Act - Notwithstanding anything contained in this Act - (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats in such constituencies made or purporting to be made under this Act, shall not be called in question in any court; (b) no election to any municipality shall be called in question except by an election petition presented to the authorised officer and in such manner as may be prescribed by rules.

The State Government may, by notification in the Official Gazette and in consultation with the State Election Commission, make rules for the composition of municipalities, conducting the election, allotment of symbols and all matters relating to or in connection with the conduct of elections to the municipalities.