JUDGMENT
J.S. Narang, J.
1. Election to the office of panches and Sar-panch in village Palti Jhikki, Tehsil and District Nawanshahr, was held on June 21, 1998. Appellants 1 to 6 and profornma respondents 7 and 8 were declared elected accordingly. It may be noticed that Satbir Singh son of Balwant Singh appellant No. 1 had contested the election of Sarpanch and was declared successful.
2. The total election of the punches and Sarpanch has been questioned in the election petition filed before the Election Tribunal, Nawanshahar. The election has been challenged on the following grounds;
(i) that no reservation has been made for the scheduled caste candidates though 1/3rd of the seats of the candidates should have been reserved for the afore-said category and that out of them, 1/3d further should have been reserved for the scheduled caste women candidates.
(ii) that an additional list of voters has been issued without any verification having been made in the village. The names of the persons having votes in municipality and other villages have also been included in the list pertaining to the village in question,
(iii) The ballot papers of the Panches have not been printed as per the prescribed format.
3. Upon the pleadings of the parties, the following issues were framed by the Tribu-nal:-
“1. Whether the election of respondent No. 1 to 8 is liable to be set aside?
2. Whether the petition is not maintainable in the present form? OPR.
3. Whether the petitioner has no locus-standi to file the petition?. OPR.
4. Whether the petitioner is barred by his act and conduct to file the present petition?. OPR.
5. Relief.”
4. The stand of the respondents is that in view of the specific provision contained in the Punjab Panchayati Raj Act, 1994 (in short the 1994 Act), no reservation has been made for the scheduled caste candidates. In this regard, reference has been made to Section 11 of the 1994 Act, which reads thus:-
“11. Reservation of the seats for the offices of the panches,-
(1) The offices of Panches shall be reserved for the scheduled castes (and backward Classes) in such a way that the number of offices reserved for Scheduled Castes shall bear, as nearly as may be, the same proportion to the total number of offices (to be filled by direct election) in that Gram Panchayat, as the population of the Scheduled Castes to the total population in that Gram Sabha area.
(2) Not less thank one-third of the total number of offices reserved under sub-section(1) shall be reserved for women belonging to the Scheduled castes.
(3) Not less than one-third (including the number of offices reserved for women belonging to the scheduled Castes) of the total number of offices (to be filled by direct election) in every gram Panchyat shall be reserved for women.
(4) One office of Panch shall be reserved for backward classes in a Gram Panchayat where Population of Backward Classes in the Gram Sabha area is more than twenty percent of the total population of that Gram Sabha area.”
5. As per the afore-said provision, the number of seats to be reserved tor Scheduled Castes shall be in proportion to the population.
6. Election petition challenged the election on the plea that no such reservation has been made despite this specific provision. It has also been admitted that one of the returned candidates belongs to Scheduled Caste but he has been allowed to contest as a general category candidate. Thus, the election has been held in utter violation of the protection guaranteed under the Constitution of India and also the specific provision provided under the afore-said Statute. On this short ground, the election is sought to be set aside.
7. On the other hand, the appellants have taken the stand that the respondents did not raise any objection in respect of the notification issued by the Government and that after being unsuccessful, it does not lie in their mouth to challenge the election on this ground. It is the case of the respondents-appellants that no election can be challenged by way of election petition as that may detract from the notification issued by the Government.
8. Admittedly, notification does not provide for any reservation for the Scheduled caste candidates. This question cannot be raised in the election petition and the election can be challenged only on the grounds as envisaged in Section 89 of the Punjab State Election Commission Act. It is also the admitted case that the notification issued by the Government has not been questioned by anyone before any competent Forum. It is further the case that no objection in this regard had ever been taken by the respondents-petitioners at the time of filing the nominations before the Tribunal. Reliance has been placed upon a Division Bench judgment of this Court in Des Raj v. Surjit Kaur and others, (2001-2)128 P.L.R. 74.
9. The Election Tribunal accepted the election petition by placing reliance upon sub-clause(i) of sub-section (1) of section 89 read with sub-section(iv) thereof which reads as under:-
“89. Grounds for declaring elections to be void, (1) Subject to the provisions of sub-section (2), if the Election Tribunal is of the opinion,-
(a) xxx xxx xxx
(b) xxx xxx
(c) xxx xxx xxx
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected,-
(i) xxx xxx
(ii) xxx xxx
(iii) xxx xxx
(iv) by any non-compliance with the provisions, of the Constitution of India or of this Act or of any rules or orders made under this Act; the Election Tribunal shall declare the election of the returned candidate to be void.”
10. Upon acceptance of the election petition, the Election Tribunal set aside the election of Panches and Sarpanch as a whole vide order dated 4.10.2001. A direction has been given that the District Development and Panchayat Officer, Nawanshahar, should hold fresh elections in accordance with law and the provisions of the Act and the Constitution.
11. Notice of motion had been issued to the respondents-petitioners who accepted notice through their counsel.
12. Learned counsel for the appellants has argued that it was never within the competence of the Election Tribunal to set aside the election as no case had been made out for non-compliance of the provisions of the Constitution and the Punjab State Election Commission act. He has argued that the Tribunal has no jurisdiction to set aside the election as the same has been held pursuant to the notification issued by the Government of Punjab. The ground of reservation having not been prescribed in the notification, cannot be challenged/taken up by way of election petition. It is not within the competent of the Eieciion Tribunal to set aside the notification issued by the Government of Punjab. The notification issued in this context cannot be made the subject-matter of challenge before the Election Tribunal and that in the absence of challenge to the notification before the Forum of competent jurisdiction , the election duly held if set aside, is of no consequence. The election shall have to be held again in pursuant to the notification which does not provide for reservation for the Scheduled caste candidates as claimed under the Constitution of India and the 1994 Act. In this regard, reference has been made to the judgment in Des Raj’s case (supra) whereby it has been held that non-providing of reservation is no ground for setting aside the election in pursuance of the grounds available under Section 89 of the Punjab State Election Commission Act, 1994.
13. It has been further argued that the respondents-petitioners have not spelled or made out a case of material prejudice having been caused to them upon the election of Panches and Sarpanch. Admittedly, one of the successful candidates belong to Scheduled Caste category, as such, an appropriate representation has come in, in accordance with the protection guaranteed under the Constitution and the statutory provisions under the Punjab Panchayati Raj Act, 1994. Thus, the respondents-petitioners have not been able to make out a case of material prejudice having been suffered by them in any manner.
14. On the other hand, learned counsel for the respondents-petitioners has argued that the notification issued by the Government of Punjab suffers from inherent defect and therefore, any notification issued by the State for holding elections to the office of Panches and Sarpanch would necessarily be void. Thus, any election held in pursuant to the void notifications, would be non-est in the eyes of law, as such, the Tribunal has come to a correct conclusion in setting aside the election of Panches and Sarpanch of the village.
15. It is further argued that the right of the Scheduled caste candidates has been protected under the Constitution and that a specific provision has been provided under the Punjab Panchayati Raj Act in pursuant to the provisions of the Constitution of India which unfortunately has not been adhered to by the Government and subsequently, by the State Election Commission. It has been specifically provided under Section 89 of the Punjab State Election Commission Act that any non-compliance of the provisions of the Constitution of India or of this Act or any rules framed thereunder, would tantamount to materially affecting the rights of the candidates. Admittedly, the protection has been guaranteed under the Constitution of India so far as the scheduled Caste candidates are concerned and it is in pursuance of this protection, it is contained in Section 11 of the Punjab Panchayati Raj Act that l/3rd of the total number of offices shall be reserved for the Scheduled Castes and that l/3rd therefrom shall be reserved for women belonging to Scheduled Castes. Thus, non-compliance of the afore-said provision nullifies the notification issued by the Government of Punjab and also by the State Election Commission. Thus, any election held in pursuant to the void notification shall be non-est in the eyes of law and any election held in pursuance thereto, shall be void ab-initio. Thus, the Tribunal has come to a correct conclusion in setting aside the election as a whole relating to village Palli Jhikki.
16. I have considered the rival contentions of counsel for the parties and am of the opinion that the election Tribunal has fallen into error while setting aside the election. Admittedly, the notification issued by the Government pursuant to which the State Election Commission has issued notification under Section 35 of the Punjab State Election Commission Act, for holding election to the offices of Panches and Sarpanch, has not been challenged anywhere. Counsel for the respondents has fairly admitted that the notification issued by the Government is bad because it does not provide for reservation as per the rights protected under the Constitution of India and the definition in respect thereof under Section 11 of the Punjab Panchayati Raj Act. He has not been able to substantiate his argument as to how the elections now would be held in pursuant to the directions given by the Ejection Tribunal by virtue of the impugned order. It is obvious that the election would be again held in pursuance of the notification issued by the Government of Punjab and the and the notification issued by the State Election Commission wherein no reservation has been provided. It is also admitted that the Election Tribunal is not competent to go into the legality or illegality of the notification issued by the Government of Punjab. The Forum is elsewhere. Unless and until the notification issued by the Government of Punjab is questioned and a finding in that regard is obtained, the Election Tribunal in my view, was not justified in setting aside the election as a whole. In this regard, reference be made to a judgment of the Division Bench of this Court in Des Raj’s case (supra). It would be apposite to notice relevant excerpts therefrom:-
“9. Perusal of the relevant provisions of the Act of 1994, as have been detailed above, would, thus, manifest that sine qua non of holding election is a notification calling upon a constituency to elect a member or members. In other words, election cannot be held till such time notification for that purpose is issued by the Government. The Election Commission has to Issue notification in Official Gazette to fix the last date for making nominations, date for scrutiny of nominations etc. in compliance with the notification, issued by the Government calling upon a constituency to elect a member or member for constituting Gram Sabha. Member or members, therefore, in our view, had to be elected in accordance with the said notification,” be it with regard to total number of members or reservation provided for various categories. The Election Commission has jurisdiction to hold election in accordance with the notification issued by the Government and if that be so, no election can be challenged by way of election petition that may detract from the notification issued by the Government on any ground. What we have said above, would gain strength from the grounds of election petition, envisaged under Section 89 of the Act of 1994. Concededly, none of the grounds mentioned in Section 89 of the Act of 1994 was pressed before the Election Tribunal to set aside the election of the appellant as a Panch of Gram Sabha, Shekhupur Khurd. Learned counsel representing the appellant has canvassed before us that there is nothing in the Act of 1994 that may suggest that there could not be any reservation for a Scheduled Caste male category candidate, as also that nothing as such emerges even from the provisions of the Constitution as also that Section 13 of the General Clauses Act, 1897, would not apply to the facts and circumstances of the case, but in view of our finding that the ground for setting aside the election of the appellant is not envisaged under the Act of 1994 as election had to be held in strict compliance with the notification issued by the Government. It will be futile to go into the question raised by the learned counsel representing appellant as also to comment anything on the finding returned by the learned Single Judge, reference whereof has been given above.”
17. From the above, it is obvious that the election has to be held in accordance with the notification issued by the Government and if that be so, no election can be challenged before the State Election Commission that may detract from the notification issued by the Government on any ground. Admittedly, no reservation had been provided in the notification issued by the Government. Thus, it was not within the competence of the Election Tribunal to hold the election as a whole null and void by concluding that election held is in violation of the rules contained in the Constitution of India and reflected in the provisions contained in the Punjab Panchayati Raj Act.
In view of the above, the appeal is accepted and impugned order dated 4.10.2001 is
set aside. However, the parties are at liberty to challenge the legalities of the notification
issued by the Government of Punjab. No order as to costs.