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