ORDER
Jawahar Lal Gupta, J.
1. Is Rule 42 of the Gram Panchayat Election Rules 1960, which provides that the election petition under the Act shall be preferred to the Executive Magistrate within whose jurisdiction the Sabha area is situate ultra vires the Constitution of India? This is the short question that has been raised in these five writ petitions viz. CWP 2854, 3563, 3734, 504 and 593 of 1993. A few facts, as mentioned in C. W.P. No. 2854 of 1993, may be noticed.
2. Election to the Gram Panchayat of Village Mohadian, Tehsil and Distt. Fateh-garh Sahib was held on January 22, 1993. The petitioner and respondent No. 3, who were duly registered as voters in the said constituency, contested the election. The petitioner lost and respondent No. 3 was elected to the office of the Sarpanch of the said village. The petitioner alleges that respondent No. 3 was elected because he committed various illegalities and improprieties and also because “the Government machinery went out of its way to help him in manipulating his results. It is averred that respondent No. 3 was in actual physical cultivating possession of the Gram Panchayat land for the last many years. In accordance with the provisions of the Act he is not entitled to remain Panch or Sarpanch in the village as occupation of the Gram Panchayat land disentitled a person from being a member of the Panchayat. According to the petitioner, he had objected to the acceptance of the nomination papers of respondent No. 3 by making a written application. In spite of the documentary evidence produced by the petitioner, the objection was not accepted by the Returning Officer (respondent No. 2). The petitioner avers that the election of respondent No. 3 to the office of Panch and Sarpanch is prima facie illegal and void as he was not qualified to be elected.
3. The Punjab Gram Panchayat Act, 1952 (hereinafter referred to as ‘the Panchayat Act’) provides for the filing of an election petition before the Prescribed Authority. The aggrieved party has the remedy of appeal as well. The petitioer avers that the remedy by way of election petition is superfluous, the election petitions are decided by the Sub Divisional Magistrate, who is an executive authority and under the influence of the Government. The petitioner maintains that deciding of an election petition is judicial work, till July 24, 1972 the election petitions had to be decided by ajudicial authority, viz. Magistrate of the First Class, However, by an amendment, it was provided that the election petition shall be presented to the Prescribed Authority. This authority has been prescribed under the rules and the petition has to be presented to the Executive Magistrate. The provision for this purpose has been made in Rule 42. This provision of Rule 42 has been challenged as being ultra vires of the Constitution of India and its basic structure on different grounds. It has been averred that the Executive Magistrates actively participate in the elections at all levels and they are charged with the duty to judge the fairness of their own conduct. It has been further averred that in accordance with the mandate of Article 50 of the Constitution of India, Judiciary lias been separated from the Executive in the State of Punjab and the Punjab Separation of Judicial and Executive Functions Act, 1964 (Punjab Act No. 25 of 1964) (hereinafter referred to as ‘the 1964 Act’) was enacted by the Legislature to achieve the object enshrined in Article 50 of the Constitution of India. Once that has been done, the petitioner has a right that the election dispute be tried by a Judicial Tribunal and not by an executive authority. On these premises, the provisions of Rule 42 have been challenged and it has been prayed that it be declared as ultra vires and unenforceable. A further prayer for the issue of a direction entitling the petitioner to file an election petition before the Judicial Magistrate of his area has also been made.
4. A written statement has been filed on behalf of the State of Punjab by Mr. J. S. Kesar, I.A.S., Special Secretary to Government of Punjab. It has been inter alia averred that the petitioner has no locus standi as there is no allegation of any bias against the Executive Magistrate, who is the Prescribed Authority. It has been further averred that the Rules had come into force with effect from September 21, 1960. The provisions with regard to the election-to the Gram Sabha are contained in Chapter II-A of the Act. A detailed procedure has been laid down. Initially, the Prescribed Authority for deciding the election petition was the Ilaqa Magistrate, which was amended on December 9, 1964, when Executive Magistrate of the First Class was empowered to decide the election petitions. Vide notification dated June 28, 1976, the words “of the first Class” were omitted and the Executive Magistrate was empowered to hear and decide the election petitions. The respondent avers that the Executive Magistrates are competent to decide the Election Petitions and that “there has been no complaint as such with regard to their bona fides, competency, performance and functions.” They act without any extraneous considerations. It has been mentioned that in Chapter II-A of the Panchayat Act as also in the Rules, detailed provisions have been made for the settlement of disputes regarding elections which ensure a fair and reasonable opportunity and contain checks on the exercise of any power arbitrarily by the Prescribed Authority. It has been further averred that the 1964 Act does not affect the provisions contained in Chapter TI-A of the Panchayat Act and that the challenge to the vires of the Rules is wholly baseless and cannot be sustained.
5. We have heard Mr. G. S. Grewal for the petitioner and Mr. Gopal Krishan Chatrath, learned Advocate General (Punjab) for the respondents. Mr. Grewal has contended that a fair and just decision of an election petition is of utmost importance in a democracy. To achieve this object it is essential that the dispute is tried and decided by an impartial judge. Learned counsel submits that this is one of he declared objects enshrined in Art. 50 of the Constitution of India. This object was acknowledged by the enactment of the Punjab Separation of Judicial and Executive Functions Act, 1964 and in view thereof no rule or law can be made by which a judicial function may be entrusted to an executive authority. Notwithstanding the fact that provision for an appeal against the decision of the Prescribed Authority before a District Judge has been made, the learned counsel contends that Rule 42 is against the basic concept of the Constitution in as much as a judicial function of deciding an election dispute has been entrusted to an executive authority. On the other hand, Mr. Gopal Krishan Chatrath, learned counsel for the respondents, contends that the right to vote or to contest election is neither a constitutional nor a common law right. It is a right conferred by a statute alone. The election as well as the disputes relating thereto have to be decided in accordance with the provisions of the Act. He further contends that the Panchayat Act is a complete code in itself regarding the conduct of elections as also the settlement of disputes relating thereto. The provisions of Chapter II-A are not affected by the 1964 Act. He submits that the Act contains checks against arbitrary exercise of power and that the challenge to the provisions of the Rule on the basis of wholly vague and unfounded allegations is untenable.
6. Before proceeding to consider the respective contentions, it is apt to briefly notice some of the provisions of the Act and the Rules, which have a bearing on the controversy in these cases. The Legislature enacted the Punjab Gram Panchayat Act, 1952 with the object of providing for better administration in the rural areas of Punjab through Panchayats. In Chapter I, provisions of a general nature have been made. Chapter II provides for the Demarcation of the Sabha Areas and the establishment and constitution of Gram Panchayats. The qualification of members, powers and jurisdiction of Gram and Adalti Panchayats, the form of oath and term of office, the manner and method of filling of casual vacancies, the meeting, quorum and budget of Sabhas has been provided for in this Chapter. In Chapter II-A, Section 13-B contains a mandate that “no election of a Sarpanch or Panch shall be called in question except by an election petition presented in accordance with the provisions of this chapter”. The grounds on which an election can be challenged, the contents of an election petition and the manner of its presentation have been provided for in Sections 13-C and 13-D. According to Section 13-E, an election petition is liable to be dismissed after giving an opportunity of being heard to the petitioner, if the prescribed security is not furnished or the petition is not presented within this prescribed period. Further by enacting Section 13-F, power has been conferred on the Deputy Commissioner of the District to withdraw and transfer election petitions from one Prescribed Authority to another authority within the District. The Prescribed Authority has to try the petition “as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits.” Even the provisions of the Indian Evidence Act are to “be deemed to apply in all respects to the trial of an election petition” subject to the provisions of the Act. The powers of the Prescribed Authority regarding the discovery and inspection of documents, enforcing the attendance of witnesses etc., compelling the production of documents, examining witnesses on oath, granting adjournments, reception of evidence taken on affidavit and issuing commissions etc. have been granted under Section 13-1. The grounds on which an election can be set aside have been clearly delineated in Section 13-O. Provisions of various ancillary matters including the orders that can be passed by the Prescribed Authority, abatement of petitions, award and execution of orders as to costs, details of what would constitute corrupt practices etc. have also been made. Further under Section 13-V, it has been provided that any party aggrieved by an order made by the Prescribed Authority may appeal to the District Judge/Additional District Judge.
7. Section 101 empowers the Government to make rules consistent with the Panchayat Act to carry out the purposes thereof. In particular it has been provided that the Government may make rules “regarding the authority to whom an election petition may be presented, the amount of security to be deposited in connection with an election petition and the manner in which such amount may be deposited….” In accordance with this provisions, the Government has framed the rules, called the Gram Panchayat Rules, 1960. A detailed procedure that has to be followed regarding the conduct of elections has been prescribed. In Rule 42, provision regarding the. Authority etc. has been made. It provides as under:–
“42. Election petitions:
(1) The election petition under the Act shall be preferred to the Executive Magistrate within whose jurisdiction the Sabha area is situate. He shall be the prescribed authority in his behalf.
(2) The petitioner shall enclose with the petition copies of the petition and of its enclosures equal to the number of respondents.”
It is the vires of this provision that have been challenged before us.
8. A right to vote or to contest any election is not a constitutional or fundamental right. It is not even a common law right. It is just a statutory right. One can elect or be elected in accordance with the statute which confers the right. Similar is the position with regard to the right to dispute an election. The statutory right has to be exercised in strict conformity with the provisions of the statute which confers it. This position of law has been accepted since the hoary past. In out country, it was enunciated by the Supreme Court more than four decades back in N. P. Ponnuswami v. Returning Officer, Namakkal, AIR 1952 SC 64. It has been continuously reiterated since then. In Jyoti Basu v. Debi Ghosal, AIR 1982 SC 983, it was observed as under:–
“8. A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An election petition is not an action at Common Law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to Common Law and equity must remain strangers to Election Law unless statutorily embodied. A Court has no right to resort to them on consideration of alleged policy because policy in such matters, as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, Court is put in a straight jacket. Thus the entire election process commencing from the issuance of the notification calling upon a constituency to elect a member or members right up to the final resolution of the dispute, if any, concerning the election is regulated by the Representation of the People Act, 1951, different stages of the process being dealt with by different provisions of the Act. There can be no election to Parliament or the State Legislature except as provided by the Representation of the People Act, 1951 and again, no such election may be questioned except in the manner provided by the Representation of the People Act. So the Representation of the People Act has been held to be a complete and self-contained code within which must be found any right claimed in relation to an election or an election dispute”. It was followed in Rama Kant Pandey v. Union of India, 1993(1) JTSC 440 : (AIR 1993 SC 1766) :–
9. We thus take it as settled that the rights of the parties in an election dispute have to be determined in accordance with the relevant statutory provisions only.
10. What is the position in the present case? On a perusal of the Panchayat Act, we find that it is a complete code. As noticed above, it contains detailed provisions from the first step to the last. It provides for the demarcation of the constituency, the eligibility of the candidates, the holding of elections and the settlement of disputes relating to the elections. Consequently, we are of the opinion that any dispute relating to an election to any office in the Panchayat has to be decided in strict conformity with the provisions of the Panchayat Act and the Rules. The Act provides for the remedy of an election petition to the Prescribed Authority. The tule prescribes the authority. Even the procedure that has to be followed by the Prescribed Authority has been laid down in the Act. Further a remedy of appeal to the District Judge/Additional District Judge has also been provided. Such being the situation, we are of the view that a person, who wished to raise an election dispute has to file an election petition before the Authority prescribed under the Rules. This is an efficacious and proper remedy provided by law which has given the eligible candidate the right to elect or being elected. The right having been conferred by the statute has to be exercised in accordance with the provisions thereof and in no other way.
11. Mr. Grewal, however., contends that the provision contained In Rule 42 in ultra vires. Is it so?
12. It is no doubt correct that Article 156 of the Constitution provides that “the State shall take steps to separate the judiciary from the executive in the public services of the State.” The provision is one of the directive principles of State Policy. It embodies one of the directives that the State has to follow. The State is expected to take steps to separate the judiciary from the executive in the public services. It is calculated to ensure that the judiciary is independent of the executive. In furtherance of this objective, the State of Punjab enacted the 1964 Act so as to provide for “the separation of judiciary and executive functions.” A provision has accordingly been made in the Act amending various enactments specified in parts I, II and III of the Schedule. Even with regard to the provisions contained in the Punjab Gram Panchayat Act, certain amendments were made. By way of illustration, it may be mentioned that in Section 15(2) for the words “a Magistrate” the words “an Executive Magistrate” were substituted. However, neither Article 50 of the Constitution nor the provisions of the 1964 Act can be interpreted to mean that every dispute has to be settled by a Judicial Court. Nor are we persuaded to hold that an Executive Authority is totally debarred from deciding any dispute even though there is a specific law providing for it. These are primarily matters of policy. Legislatures, which are aware of the needs of the people, are better equipped to decide these matters. It is worth mentioning that even in the Code of Criminal Procedure, provision has been made for settlement of certain disputes by the Executive Magistrates. By way of illustration, under Section 144, an Executive Magistrate specially empowered by the State Government in this behalf can direct “any person to abstain from a certain act or to take cerain order with respect to certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends, to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquillity, or a rigot, or an affray.” Similarly, under Section l45, an Executive Magistrate in a case where a dispute concerning land or water is likely to cause breach of peace” make an order in writing…, requiring the parties concerned in such dispute to attend his Court in person or hy pleader on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.” He has the power to pass appropriate orders in this behalf. Under Section 146, the Magistrate can even appoint a Receiver. Such instances can be multiplied. Similarly, there are innumerable instances where righs relating to property etc. are determined by the executive authorities under the provisions of relevant statutes. We are thus of the opinion that while it is important that judiciary is made totally indepedent of the executive, it is neither the requirement of the Constitution nor of any other law that every dispute including an election dispute can be settled only by a Judicial Court and not by an Executive Authority.
13. Mr. Grewal has placed strong reliance on the observations of a Full Bench of this Court in Sukhdev Singh Dhindsa v. State of Punjab, ILR 1985 (2) P and H 380 : (1985 Cri LJ 1739). In this case a petition had been filed challenging the constitutional validity of the Code of Criminal Procedure (Punjab Amendment) Act, 1983. Section 4 of the A-mendment Act empowers an Executive Magistrate to the exclusion of any other Magistrate “to take cognizance of and to try and dispose of cases relating to specified offences.” It was further provided that “the Executive Magistrate shall, to the exclusion of any other Magistrate, exercise powers of remand under Section 167 of the Code in relation to the specified offences….”
14. These provisions of the Amendment Act were challenged as infringing the righ to liberty of the citizens guaranteed under article 21 of the Constitution of India. It was in this cntext that their Lordships of the Full Bench held that the State “having separated the judiciary from the executive and having achieved the directive principle as embodied in Article 50, the law now enacted for the trial of certain offences by the Executive Magistrates is neither fair nor just nor reasonable, with the result that the provisions of Section 4 of the Amendment Act empowering an Executive Magistrate, to the exclusion of any other Magistrate, to take cognizance of and to try and dispose of cases relating to specified offences are ultra vires of Article 21 of the Constitution and are accordingly struck down.” Certain observations of the Full Bench were reiterated in Pimal Kaur Khalsa v. Union of India, AIR 1988 P and H 95 : (1988 Cri U 869) (FB).
15. These cases hold no parallel to the present case. In both these cases the citizens were enforcing a fundamental right guaranteed under the Constitution. Such is not the situation in the present case. No fundamental right of the petitioner is either alleged or shown to have been violated. In fact it is not even remotely involved. Consequently, we are of the opinion that the learned counsel can derive no advantage from the two Full Bench decisions, referred to above.
16. On a perusal of the Act and the Rules we find that the power to decide an election petition has been conferred on a Magistrate. Detailed procedure has been prescribed. The Prescribed Authority has to follow that procedure. In case, a party has an apprehension that it would not get a fair trial, provision for transfer of the petition from one authority to another within a District has been made. A remedy of appeal to a judicial authority, viz. the District Judge or the Additional District Judge has been provided. In such a situation, we are satisfied that there are ample checks against the exercise of any arbitrary power by the Prescribed Authority. Furthermore, if the petitioner is not satisfied with the decision of the Prescribed or the Appellate Authority, the remedy by way of a petition under Article 226 of the Constitution of India is available. That provides enough safeguard to the aggrieved party.
17. Vague allegations suggesting that Government machinery had gone out of its way to help respondent No. 3 in manipulating the results have been made or that the Executive Magistrates are under the influence of the Government have been made. These are matters which can be gone into by the Prescribed Authority on the basis of the evidence that may be adduced before it. Lest and observation should prejudice the interest of the petitioner, we say no more on this aspect of the matter.
18. Taking he totality of circumstances into consideration, we do not find any merit in the claim made on behalf of the petitioner.
19. Accordingly, we hold that Rule 42 is not ultra vires the Constitution, It does not violate any provision of the Constitution or any other law. The right to dispute an election to the Panchayat can be exercised only in accordance with the provisions of the Panchayat Act. The remedy is effective and efficacious. The petitioners in these cases shall be entitled to file election petitions if they are so advised. These writ petitions are wholly without any merit. These are dismissed. In the circumstances of the case, we make no order as to costs.
20. Petitions dismissed