High Court Punjab-Haryana High Court

Arjan Singh And Others vs State Of Punjab And Others on 18 February, 2009

Punjab-Haryana High Court
Arjan Singh And Others vs State Of Punjab And Others on 18 February, 2009
CWP No.10815/2008                                                   -1-




      IN THE HIGH COURT OF PUNJAB AND HARYANA AT

                              CHANDIGARH.


                                                Date of Decision:18.2.2009.


                      (1) CWP NO.10815//2008

Arjan Singh and others
                                    ..........Petitioners.

            Versus

State of Punjab and others.
                                 ..........Respondents.

Present:-   Mr.PK Gupta,Advocate for the petitioners.
            Mr.NDS Mann,Addl.AG Punjab for the respondents 1 to 3.
            Mr.Mansur Ali,Advocate for respondent no.4.


                         (2) CWP NO.11396/2008


Krishan Kumar
                                    ..........Petitioner.

            Versus

State of Punjab and others.
                                 ..........Respondents.

Present:-   Mr.Mansur Ali,Advocate for the petitioner.
            Mr.NDS Mann,Addl.AG Punjab for the respondents 1 to 4.
            Mr.P.K.Gupta,Advocate for respondents 5 to 7.



                      (3)CWP NO.17620/2008


Nathu Ram and another
                                    ..........Petitioners.

            Versus

State of Punjab and others.
 CWP No.10815/2008                                                   -2-




                                 ..........Respondents.

Present:-   Mr.Mansur Ali,Advocate for the petitioners.
            Mr.NDS Mann,Addl.AG Punjab for the respondents 1 to 3.
            Mr.CM Munjal,Advocate for respondents 4 to 10.


                 (4)CWP NO.17621/2008


Pardeep Singh
                                     ..........Petitioner

            Versus

State of Punjab and others.
                                 ..........Respondents.


Present:-   Mr.Mansur Ali,Advocate for the petitioner.
            Mr.NDS Mann,Addl.AG Punjab for the respondents 1 to 3.
            Mr.CM Munjal,Advocate for respondents 4 to 6.


                        (5) CWP NO.17622/2008

Radhe Sham
                                     ..........Petitioner.

            Versus

State of Punjab and others.
                                 ..........Respondents.


Present:-   Mr.Mansur Ali,Advocate for the petitioner.
            Mr.NDS Mann,Addl.AG Punjab for the respondents 1 to 3.
            Mr.Amit Rana,Advocate for respondents 4 to 10.

                                   ****


CORAM:      HON'BLE MR.JUSTICE SATISH KUMAR MITTAL.
            HON'BLE MR.JUSTICE JASWANT SINGH.


JASWANT SINGH,J.

This order, with the consent of learned counsel for the parties,
CWP No.10815/2008 -3-

will dispose of CWP No.10815, 11396, 17620, 17621 and 17622 of 2008,

as common questions of facts and law are involved in all these petitions.

The admitted facts in all these petitions are that general

elections of the gram panchayats in the entire State of Punjab, as per the

election programme issued by The State Election Commissioner,Punjab

were scheduled to be held on 26.5.2008; nomination papers were to be filed

w.e.f. 13.5.2008 till 16.5.2008, scrutiny of nomination papers was to take

place on 17.5.2008; 19.5.2008 was fixed as the last date for withdrawal of

nomination papers and allotment of election symbols and 26.5.2008 was

fixed as a date on which a poll, if necessary was to take place.

As stated hereinabove, though the facts are common in all these

writ petitions, however, for the sake of clarity, it is desirable to briefly

discuss them separately.

CWP No.10815 and 11396 of 2008.

These two writ petitions are inter-connected in so far as these

relate to the election of the Panches of Gram Panchayat of Village Chak

Pandian, Tehsil Mukerian, District Hoshiarpur. Since facts of these two

writ petitions are intermingled and have direct bearing upon each other

hence, are dealt with together.

Arjan Singh(General Category), Shakuntla Devi (Women

Category) and Madan Lal (General Category) (petitioners in CWP

No.10815/2008) and Krishan Kumar (petitioner in CWP no.11396/2008)

filed their nomination papers to contest the election against five seats of

Panches of Gram Panchayat, Chak Pandian, in their respective categories.

While nomination papers of Krishan Kumar (petitioner in CWP
CWP No.10815/2008 -4-

no.11396/2008) were rejected by the Returning Officer, Arjan Singh,

Shakuntla Devi and Madan Lal (petitioners in CWP No.10815/2008) were

declared elected unopposed by the Returning/Presiding Officer in their

respective categories on 19.5.2008 itself , which was fixed as the last date

for withdrawal of nomination papers and allotment of election symbols.

Aggrieved against the rejection of his nomination papers,

Krishan Kumar (petitioner in CWP no.11396/2008) filed CWP No.9208 of

2008 in this Court, which was disposed of by a Division Bench vide order

dated 23.5.2008 (appended as Annexure P/1 with CWP No.11396/2008)

with a direction to the State Election Commissioner, Punjab to consider his

representation dated 17.5.2008 and decide the same expeditiously.

The aforesaid directions dated 23.5.2008 issued by this Court in

CWP No.9208/2008, to the State Election Commission, Punjab, were

conveyed to the Deputy Commissioner-cum-District Electoral Officer,

Hoshiarpur, who in turn directed the Additional Deputy Commissioner

(Dev.)Hoshiarpur to consider and decide the representation dated 17.5.2008

filed by Krishan Kumar (petitioner in CWP no.11396/2008) challenging the

rejection of his nomination papers.

Accordingly, the Additional Deputy Commissioner (Dev.)

Hoshiarpur vide order dated 24.5.2008 (appended as Annexure P/4 with

CWP No.10815/2008), accepted the aforesaid representation dated

17.5.2008 filed by Krishan Kumar (petitioner in CWP no.11396/2008),

holding that his nomination papers were erroneously rejected and the same

were ordered to be validly filed.

Consequent to the passing of the order dated 24.5.2008 by
CWP No.10815/2008 -5-

Additional Deputy Commissioner (Dev.)Hoshiarpur, the seats of Panches,

against which Arjan Singh, Shakuntla Devi and Madan Lal (petitioners in

CWP No.10815/2008) already stood declared as elected unopposed on

19.5.2008 by the Returning/Presiding Officer, were declared as vacant by

the Block Development and Panchayat Officer, Talwara, vide

communication (fax message dated 10.6.2008-appended as Annexure P/5

with CWP No.10815/2008).

After the passing of the aforesaid order dated 24.5.2008, the

posts of Panches of Gram Panchayat Chak Pandian fell vacant, therefore,

the Additional Deputy Commissioner(Dev.)-cum-Addl.District Electoral

Officer, Hoshiarpur, vide memo no.3629 dated 6.6.2008 (appended as

Annexure P/3 with CWP No.11396/2008) issued guidelines to all the

B.D.P.Os., District Hoshiarpur, for holding fresh elections of Gram

Panchayats, where elections could not be held on 26.5.2008.

Arjan Singh, Shakuntla Devi and Madan Lal filed CWP

No.10815/ 2008 (on 11.6.2008) challenging the order dated 24.5.2008

(Annexure P/4) passed by Additional Deputy Commissioner, Hoshiarpur

whereby nomination papers of Krishan Kumar (petitioner in CWP

No.11396/2008) were held to be validly filed; and (ii) communication (fax

message dated 10.6.2008-appended as Annexure P/5 with CWP

No.10815/2008) declaring the seats of Panches of Gram Panchayat Chak

Pandian, to be vacant, against which otherwise petitioners-Arjan Singh etc.

already stood declared as unopposed by the Returning Officer on 19.5.2008

itself.

Since State Election Commission, Punjab countermanded
CWP No.10815/2008 -6-

elections of various Gram Panchayats in the State of Punjab on the ground

of illegalities committed by the Returning Officers like wrong

acceptance/rejection of nomination papers, alleged fraudulent withdrawals

or tampering of records etc., many writ petitions were filed in this

Court,which were taken up together including the writ petition

No.10815/2008 (Arjan Singh and others v. State of Punjab etc.) for hearing

at the motion stage by a Division Bench of this Court and vide interim order

dated 13.6.2008, holding of fresh election of Panches was ordered to be

stayed, where candidates had been declared elected in accordance with

either Section 54 (being unopposed) or Section 69 (after contest) of the

Punjab State Election Commission Act,1994 (for short Election

Commission Act 1994).

Accordingly, Additional Deputy Commissioner(Dev.)-cum-

Additional District Electoral Officer, Hoshiarpur, vide order dated

20.6.2008 (appended as Annexure P/4 with CWP No.11396/2008) directed

that election to Gram Panchayat, Village Chak Pandian, which was

rescheduled to be held on 22.6.2008, shall remain postponed till further

orders from this Court.

It is this order dated 20.6.2008 (Annexure P/4) which has been

challenged by petitioner Krishan Kumar in CWP No.11396/2008, with a

prayer to direct the respondent-State to forthwith hold elections.

An application under Order 1 Rule 10 CPC, bearing CM

No.19505 of 2008 was moved by Arjan Singh, Shakuntla Devi and Madan

Lal (petitioners in CWP No.10815/2008) for impleading them as

respondents 5 to 7 in CWP No.11396/2008 (Krishan Kumar vs. State of
CWP No.10815/2008 -7-

Punjab and others).

Vide order dated 1.10.2008, this Court allowed the said

application and applicants Arjan Singh, Shakuntla Devi and Madan Lal

(petitioners in CWP No.10815/2008) were ordered to be impleaded as

respondents 5 to 7 in CWP No.11396/2008 (Krishan Kumar vs.State of

Punjab and others).

CWP No.17620,17621 and 17622/2008.

In these three writ petitions, for election to the seats of Panches

of Gram Panchayats Bandiwala, Dhani Harcharan Singh Randhawa, and

Kheowali Dhab respectively, Block Khuian Sarwar, Tehsil Fazilka, District

Ferozepur, nomination papers of the petitioners were rejected whereas

private respondents were declared by the Returning Officer to have been

elected unopposed on 19.5.2008 itself, i.e. the date of withdrawal of

nomination papers and allotment of election symbols.

Petitioners/villagers of their aforesaid respective Gram

Panchayats made representation(s) to the State Election Commissioner,

Punjab, Chandigarh regarding illegal rejection of their nomination papers.

The said representations were looked into by the Enquiry

Officer-cum-Secretary, Regional Transport Authority, Ferozepur and it was

found that nomination papers of the petitioners should have been accepted.

Enquiry reports were accordingly submitted to the District Electoral

Officer/Additional District Electoral Officer.

On the basis of the aforesaid enquiry reports District Electoral

Officer/Additional District Electoral Officer recommended countermanding

of the polls.

CWP No.10815/2008 -8-

Accordingly, State Election Commissioner, Punjab vide order

dated 24.5.2008 ordered countermanding of the polls, which, as averred in

these writ petitions, was to be held on 22.6.2008.

As already noticed above, since State Election Commission,

Punjab countermanded elections of various Gram Panchayats in the State of

Punjab on the ground of illegalities committed by the Returning Officers

like wrong acceptance/rejection of nomination papers, alleged fraudulent

withdrawals or tampering of records etc., many writ petitions were filed in

this Court,which were taken up together for hearing at the motion stage by

a Division Bench of this Court and vide interim order dated 13.6.2008,

holding of fresh election of Panches was ordered to be stayed, where

candidates had been declared elected in accordance with either Section 54

(being unopposed) or Section 69 (after contest) of the Punjab State Election

Commission Act,1994 (for short Election Commission Act 1994).

Since private respondents in these three writ petitions already

stood declared as elected unopposed on 19.5.2008 , Deputy Commissioner-

cum- District Election Officer, Ferozepur, vide order dated 16.6.2008

(appended as Annexure P/7 with CWP No.17620/2008 and P/6 with CWP

Nos.17621 and 17622/2008) directed that election process of Gram

Panchayats, Bhandiwala, Dhani Harcharan and Kheowali Dhab (to which

the petitioners/private respondents in CWP Nos.17620 to 17622

respectively belong) shall remain stayed.

It is this order dated 16.6.2008, quashing of which has been

sought in these three writ petitions with a further prayer not to declare

private respondents as unanimously elected.

CWP No.10815/2008 -9-

Discussion.

Mr.P.K.Gupta, counsel for the petitioners in CWP

No.10815/2008, Mr.C.M.Munjal and Mr.Amit Rana,Advocates for the

private respondents (in CWP Nos. 17620, 17621 and 17622 of 2008, who

were declared unopposed by the Returning Officers) have contended that

once the result of the election was declared by the Presiding Officer in Form

V, as per Rule 13 of the Punjab Panchayati Election Rules,1994 (for short

Election Rules 1994), declaring the petitioners/ private respondents as

unopposed elected Panches, the State Election Commission or any other

authority has no jurisdiction or power under the law to countermand the

election.

It is further submitted that once Form V was issued declaring

the petitioners/private respondents elected as Panches, the State Election

Commission, District Electoral Officer or the Presiding Officer etc. had

become functus officio and the said result can only be set aside by the

Election Tribunal on an election petition filed by the defeated candidate or

any other person under Section 76 read with Section 89 of the Election

Act,1994).

It is further submitted that elections can only be countermanded

on the grounds specified under Section 60 of the Election Act,1994. In

support of their arguments, that where a candidate is declared elected, his

election can only be questioned by way of election petition before the

Election Tribunal, reliance has been placed upon Kashmir Kaur v. State

of Punjab, 2004(1) RCR (Civil) 580; Jagjit Singh v. State Election

Commission, Punjab 2003(2) RCR (Civil) 763, Randhir Singh v. State
CWP No.10815/2008 -10-

Election Commission, Punjab, 2004(3) RCR (Civil) 515 and Kulwinder

Kaur v. State of Punjab, 2005(2)RCR (Civil) 392.

On the other hand, Mr.NDS Mann, learned Additional

Advocate General, Punjab (representing official respondents) and

Mr.Mansur Ali,Advocate (representing petitioners in CWP Nos. 11396 and

17620 to 17622/2008 and private respondent no.4 in CWP No.10815/2008),

by placing reliance on the provisions of Article 243-K of the Constitution of

India read with Section 3 of the Election Commission Act,1994 and Section

210 of the Punjab Panchayati Raj Act,1994 (for short Panchayati Act,1994)

argued that power of superintendence, direction and control of the

preparation of the electoral roll for, and the conduct of all elections to

Panchayat and Municipalities,vests in the State Election Commission and

extends to countermanding the elections where glaring illegalities like

wrong acceptance/rejection of nomination papers, alleged fraudulent

withdrawals or tampering of records, etc. have been committed by the

Presiding/Returning Officers in the declaration of the results since the

authorities cannot remain mute spectators.

It has been further argued that orders for countermanding the

elections were issued in compliance of the orders dated 21.5.2008 passed

by this Court in CWP No.8448 of 2008 (Balbir Kaur and others v. State

of Punjab and others) wherein this Court taking in view the manner in

which the nomination papers were being rejected by the Returning Officers,

had directed the State Election Commission to consider and decide the

representations of the affected candidates.

We have heard the learned counsel for the parties.

CWP No.10815/2008 -11-

Before we consider the question of law raised before us, it is

necessary to reproduce all the provisions of the Acts/Rules which have

been relied upon by the learned counsel for the parties:-

“The Constitution of India”

Article 243-K: Elections to the Panchayats.- The

superintendence, direction and control of the preparation of

electoral rolls for, and the conduct of, all elections of the

Panchayats shall be vested in a State Election Commission to

be appointed by the Governor.

(2)xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

(3)xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

(4)Subject to the provisions of this Constitution, the Legislature

of a State may, by law, make provision with respect to all

matters relating to, or in connection with, elections to the

Panchayats.

243-O Bar to interference by Courts in electoral matters.-

Notwithstanding anything in this Constitution-

(a)xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

(b) no election to any Panchayat shall be called in question

except by an election petition presented to such authority and in

such manner as is provided for by or under any Law made by

the Legislature of a State.”

“The Punjab Panchayati Raj Act,1994”

Section 210:- Election Commission to conduct Panchayat

election- The superintendence, direction and control of the
CWP No.10815/2008 -12-

preparation of electoral rolls for and conduct of, all elections to

the Panchayats, shall be vested in the Election Commission.”

“The Punjab State Election Commission Act,1994”.

Section 3. Election to Panchayats and Municipalities.–(1)

The State Government shall by notification in the Official

Gazette establish a State Election Commission (hereinafter

referred to as the Election Commission) for the

superintendence, direction and control of the preparation of the

electoral roll for, and the conduct of all elections to Panchayats

and Municipalities.

(2)The Election Commission established under sub-

section(1), shall consist of a State Election

Commissioner (hereinafter called the Election

Commissioner) to be appointed by the Governor.

(3)The State Government may by notification in the

Official Gazette, also entrust to the Election

Commission for the conduct of elections to any other

body or bodies to be constituted under the

Constitution of India or under any other law for the

time being in force.

Section 54. Procedure in contested and uncontested

elections.–(1) If the number of contesting candidates is more

than the number of seats to be filled, a poll shall be taken.

(2)If the number of such candidates is equal to the

number of seats to be filled, the Returning Officer
CWP No.10815/2008 -13-

shall forthwith declare all such candidates to be duly

elected to fill those seats. (emphasis supplied)

(3)If the number of such candidates is less than the

number of seats to be filled, the Returning Officer shall

forthwith declare all such candidates to be elected and

the Election Commission shall, by notification in the

Official Gazette, call upon the constituency , or the

elected members to elect a person or persons to fill the

remaining seat or seats, as the case may be.

Provided that where the constituency or the elected

members having already been called upon under this

sub-section, has or have failed to elect a person or the

requisite number of persons, as the case may be, to fill

the vacancy or vacancies, the Election Commission shall

not be bound to call again upon the constituency, or such

members to elect a person or persons until it is satisfied

that if called upon again, there will be no such failure on

the part of the constituency of such members.

Section 58. Adjournment of poll in emergencies.-(1) If at any

election, the proceedings at any polling station provided under

Section 19 are interrupted or obstructed bny any riot or

violence, or if at an election it is not possible to take the poll at

any polling station on account of any natural calamity or any

other sufficient cause, the concerned Presiding Officer or the

Returning Officer, as the case may be, shall announce an
CWP No.10815/2008 -14-

adjournment of the poll to a date to be notified later by the

Election Commission and where the poll is so adjourned by a

Presiding Officer, he shall forthwith inform the concerned

Returning Officer.

(2)Whenever a poll is adjourned under sub-section(1),

the Returning Officer shall immediately report the

circumstances to the prescribed authority and the

Election Commission and the Returning Officer shall, as

soon as may be, with the previous approval of the

Election Commission, appoint the day on which the poll

shall be taken, and fix the polling station or place at

which and the hours during which, the poll shall be taken

and shall not count the votes cast at such election until

such adjourned poll is completed.

(3)In every such case as aforesaid, the Returning Officer

shall notify in such manner, as the Election

Commission may direct, the date, place and hours of

polling fixed under sub-section(2).

Section 59.Fresh poll in the case of destructions etc. of

ballot boxes.–

(1)If at any election,-

(a) any ballot box used at a polling station or at a place

fixed for the poll is unlawfully taken out of the custody

of the Presiding Officer or the Returning Officer, or is

accidentally or intentionally destroyed or lost, or is
CWP No.10815/2008 -15-

damaged or tampered with, to such an extent, that the

result of the poll at that polling station, or place cannot

be ascertained; or

(b) any voting machine develops a mechanical failure

during the recording of votes; or

(c ) any such error or irregularity in procedure as is likely

to vitiate the poll is committed at a polling station or

at a place fixed for the poll;

the Returning Officer shall forthwith report the matter to the

Election Commission.

(2)The Election Commission shall, after taking all material

circumstances into account, either,-

(a) declare the poll at that polling station or place to be

void and shall appoint a day, and fix the house, for taking

a fresh poll at that polling station or place and notify the

day so appointed and the hours so fixed in such manner,

as it may deem fit, or

(b) If satisfied that the result of a fresh poll at that polling

station or place will not in any way affect the result of the

election or that the mechanical failure of the voting

machine or the error or irregularity in procedure is not

material;

issue such direction to the Returning Officer, as it may deem

proper for the further conduct and completion of the election.

(3)The provisions of the Act and the rules or orders made
CWP No.10815/2008 -16-

thereunder shall apply to every such fresh poll as they apply to

the original poll.

Section 60.Adjournment of poll or countermanding of

election on the ground of booth capturing.–(1) If at any

election-

(a) booth capturing has taken place at a polling station or

at a place fixed for the poll (hereinafter in this section

referred to as a place) in such a manner that the result of

the poll at that place cannot be ascertained; or

(b) booth capturing has taken place in any place for

counting of votes in such a manner that the result of the

counting at that place cannot be ascertained;

the Returning Officer shall forthwith report the matter to the

Election Commission.

(2)The Election Commission, shall on the receipt of a

report from the Returning Officer under sub-section(1),

and after taking all material circumstances into account,

either–

(a)declare that the poll at that place shall be void and

appoint a day, and fix the hours for taking fresh poll at

that place and notify the date so appointed and hours so

fixed in such manner as it may deem fit; or

(b) if satisfied that in view of the large number of places

involved in booth capturing , the result of the election is

likely to be affected or that booth capturing had affected
CWP No.10815/2008 -17-

counting of votes in such a manner so as to affect the

result of the election , countermand the election in that

constituency.

Explanation.-In this section, the expression “booth

capturing” shall have the same meaning as is assigned to

it in Section 123.

69.Declaration of results.–When the counting of the votes has

been completed, the Returning Officer, shall in the absence

of any direction by the Election Commission to the contrary,

forthwith declare the result of the election in the manner

provided by this Act or the rules made thereunder.

72.Date of election of candidates.–For the purposes of this

Act, the date on which a candidate is declared by the

Returning Officer to be elected, shall be the date of election

of that candidate.

The Punjab Panchayat Election Rules,1994.

Rule 13. Publication of the list of validly nominated

candidates (Section 43).-The particulars of the validly

nominated candidates shall be displayed outside the office of

the Returning Officer in Form-V and will contain the names in

alphabetical order alongwith the particulars of the candidates

and symbols allotted to each of the candidates.

Rule 31. Adjournment of polls in emergencies (Section 58).–

(1) The Returning Officer, the Presiding Officer, the District

Election Officer or the Election Commission may adjourn the
CWP No.10815/2008 -18-

poll in a sabha area or constituency at any time in case the poll

is interrupted or obstructed by :-

(i)any riot or violence; or

(ii)a direct or indirect threat to the election process or

conduct of poll; or

(iii)an action of snatching or destroying the ballot

papers; or

(iv)any type of natural calamity; or

(v)booth-capturing at the polling station or at a place

fixed for polling; or

(vi)any other sufficient reason to be recorded in writing.

(2)Whenever the polling is adjourned in terms of the provisions

of [sub-rule(1)] the Returning Officer shall as soon as

practicable, report the matter to the Election Commission

who shall appoint a day for a fresh poll and shall fix the time

at which such poll shall be held.

Rule 32.Cancellation of Election Programme.–(1) Subject to

the provisions of rule[30] the Election Commission or District

Election Officer, for reasons to be recorded in writing, may by

an order, cancel the election programme at any time, before the

commencement of the poll, [if]

(i)electors are threatened or prevented from exercising

their franchise; or

(ii)electors are threatened or prevented directly or

indirectly not to contest the [elections; or]
CWP No.10815/2008 -19-

(iii)there is any type of natural [calamity]

(2)whenever an election programme is cancelled in terms of the

provisions of sub-rule (1), the Election Commission shall

frame a fresh election programme as provided in section 35

in respect of that Sabha area or [constituency].

Rule 33.Counting of votes (Section 66).–(1) in a Sabha area

where there is only one polling Station, the Returning Officer

shall follow the [procedure set out in sub-rule (2) for the

counting of votes and declaration of result for election to the

Gram Panchayat.

(2)The Presiding Officer shall, as soon as practicable, after the

close of the poll and in the presence of any candidate or

polling agent, who may be present:–

(a) inspect and also allow an opportunity to candidates

or their polling agents to inspect the ballot-boxes and

their seals to satisfy themselves that they are in order;

(b) open the ballot-box after checking the mark or marks

made on the box and the label affixed, takes out the

ballot papers from the box and arrange them in

convenient bundles, separating the ballot-papers which

he deems valid from those he rejects;

(c ) allow the candidates and their agents who may be

present, reasonable opportunity to inspect all ballot-

papers, which is in the opinion of the Presiding

Officer, are liable to be rejected but shall not allow
CWP No.10815/2008 -20-

them to handle those or any other ballot-papers. The

Presiding Officer shall on every ballot-paper which is

rejected , endorse the word “rejected” and record

briefly on such ballot-papers the grounds for its

rejection. A brief record shall be kept of the serial

numbers of all ballot-papers [rejected].

(d) count the valid votes given in each candidate with the

aid of persons appointed to assist in the counting of votes

and declare the election of the candidate who is found to

have obtained the largest number of valid votes, or, if

more than one member is to be elected for the Gram

Panchayat, then the candidates who are found to have

obtained the largest number of valid votes shall be

declared to have been elected; and

(e) after the counting of ballot-papers contained in all

the ballot-boxes has been completed, the Returning

Officer shall record a statement in Form IX showing

the total number of votes polled by each candidate

(emphasis supplied).

The question to be determined by us is whether or not the

Punjab State Election Commission after the declaration of the result by the

Presiding Officer/Returning Officer in case of no contest under sub-section

(2) of Section 54 and after contest under Section 69 of the Punjab State

Election Commission Act,1994, declaring a candidate as elected Panch of a

Gram Panchayat, could countermand the election in exercise of the powers
CWP No.10815/2008 -21-

vested in it and direct the holding of fresh election after setting aside the

earlier result.

Similar controversy arose before this Court in CWP Nos.

9573/2008 (Nachhatar Singh and Others v. State of Punjab and others)

and 10547/2008 (Balwinder Singh v. State of Punjab and others), which

were allowed vide orders dated 23.12.2008 holding that:-

“In our opinion, it is thus clear that once the

declaration of result, either in Form V or in Form IX in

case of uncontested election and in Form IX in case of

a contested election, has been issued/recorded by the

Returning Officer then there can be no question of

countermanding the election and tinkering with the

result by the State Election Commission or any other

authority including the Returning Officer on the

ground of improper rejection or acceptance of the

nomination papers or any other illegality committed by

the Returning Officer (as alleged in the present two

cases). The only remedy available to a candidate is to

file an Election Petition under Section 76 on the

grounds mentioned in Section 89 of the Punjab State

Election Commission Act,1994”.

In the present five cases, it is not disputed that the number of

candidates for election of Panches in their respective categories was equal

to the seats to be filled up and the result of their election had been duly

recorded in Form V issued by the Returning Officer, declaring the
CWP No.10815/2008 -22-

petitioners (in CWP No.10815/2006) and private respondents (in CWPs

11396, 17620,17621 and 17622/2008) to be elected Panches of his/their

respective Gram Panchayats.

It is further undisputed that after the declaration of result and

issuance of the statutory Form V, complaints against improper rejection of

the nomination papers of the candidates were received and enquired into.

The State Election Commission, on consideration of such reports had

issued the orders countermanding the elections after setting aside the

election of the petitioner(s) as Panches of their respective Gram Panchayats.

The stand taken by the official respondents/petitioners in CWP

Nos. 11396,17620 to 17622/2008 and private respondent no.4 in CWP

No.10815/2008 that the State Election Commission had issued the

impugned orders whereby the elections in the aforesaid Gram Panchayats

had been countermanded, in compliance of the directions issued by this

Court in Balbir Kaur and others v. State of Punjab and others (CWP

No.8448/2008 decided on 21.5.2008 is not sustainable as it was not

pointed out to the Court that in certain cases like the present ones, the

result of the election in accordance with the law had been duly declared in

statutory Form V.

Keeping in view the aforesaid discussed provisions, and

decision of this Court in CWP No.10547/2008 (Balwinder Singh v. State

of Punjab and others) and CWP No.9573/2008 (Nachhatar Singh and

others v. State of Punjab and others) which were allowed, vide common

order dated 23.12.2008, we are of the opinion that the impugned orders

dated 24.5.2008 (Annexure P/4 in CWP No.10815/2008) cannot be
CWP No.10815/2008 -23-

sustained. Accordingly, CWP No.10815/2008 is allowed and the aforesaid

impugned order dated 24.5.2008 (Annexure P/4) as well as communication

(fax message dated 10.6.2008-appended as Annexure P/5 with CWP

No.10815/2008) are quashed. The official respondents are further directed

to notify the petitioners (in CWP No.10815/2008) and private respondents

in CWP Nos.11396, 17620, 17621 and 17622/2008 as elected members of

their respective Gram Panchayats, in accordance with law.

For the same reasons, CWP Nos.11396, 17620, 17621 and

17622/2008 are hereby dismissed.

Office is directed to place a copy of this order on the files of

aforesaid writ petitions.




                                             (Jaswant Singh)
                                                  Judge



18.2.2009.                               (Satish Kumar Mittal)
joshi                                             Judge