IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
C.W.P. No. 12264 of 2008
DATE OF DECISION : 05.12.2008
Tarsem Singh
.... PETITIONER
Versus
State of Punjab and others
..... RESPONDENTS
CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE JASWANT SINGH
Present: Mr. D.S. Pheruman, Advocate,
for the petitioner.
Mr. M.S. Sindhu, Addl. A.G., Punjab,
for respondents No.1 to 7.
Mr. Anupam Bhardwaj, Advocate,
for respondent No.8.
***
JASWANT SINGH, J.
Petitioner-Tarsem Singh was a contestant for the seat of Panch,
reserved for the Scheduled Caste category, in the Gram Panchayat of
Village Jastarwal, Block Harsha Chinna, Tehsil Ajnala, District Amritsar,
which consists of 7 Panches. It is an admitted position that out of the total 7
seats of Panches, one was reserved for the Scheduled Caste category, two
reserved for women and the remaining four were open/kept for General
category. It is further an admitted position that the election for the said seats
of the Gram Panchayat was held on 26.5.2008. After the election, the
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counting was held on the same day and the petitioner having secured 113
votes, as against respondent No.8 Anokh Singh, who secured only 12 votes,
was declared as elected by the Presiding Officer by declaration of result on
Form IX, copy of which has been annexed with the petition as Annexure P-
5. It appears that after the declaration of result, the defeated candidate
Anokh Singh filed a complaint before the Sub Divisional Magistrate cum
Election Officer, Ajnala (respondent No.7), alleging that the petitioner-
Tarsem Singh belonged to Masih caste, which is a Christian caste, and he
got prepared a false Scheduled Caste Certificate, on the basis of which he
filed his nomination paper and contested against the seat of Panch, reserved
for the Scheduled Caste category. Therefore, it was alleged that his election
is illegal and the same cannot be notified. On that complaint, respondent
No.7 called a report from the concerned Returning Officer, who in his report
stated that the petitioner filed his nomination paper as a Scheduled Caste
candidate against the seat reserved for the Schedule Caste category and in
the election, he was declared elected as a Panch against the seat reserved for
the Scheduled Caste category.
Thereafter, respondent No.7 examined the case and found that
petitioner Tarsem Singh filed his nomination paper along with the
Scheduled Caste Certificate, bearing No. 93 dated 9.6.2003 and the said
Certificate had already been enquired into by the then Sub Divisional
Magistrate, Ajnala, in the year 2003, and it was found to be a forged/false
Certificate. Report in that regard had been sent to the Returning Officer,
CWP No. 12264 of 2008 -3-
Block Harsha Chhina, on 20.6.2003. It is in these circumstances that
respondent No.7 cancelled the nomination paper of the petitioner and
compiled a revised result, whereby respondent No.8 Anokh Singh, being the
only other candidate, who had contested the election of Panch against the
petitioner, was declared elected. Copy of the revised result was sent to the
District Election Officer cum Deputy Commissioner, Amritsar (respondent
No.3 herein) vide his report dated 9.6.2008 (Annexure R-8/2).
Consequently, vide notification dated 2.7.2008 (Annexure P-7), the State
Election Commission notified the name of respondent No.8 Anokh Singh as
an elected Panch of the said Gram Panchayat against the seat reserved for
Scheduled Caste. It is in these facts that the petitioner has filed the present
writ petition, challenging the notification dated 2.7.2008 (Annexure P-7).
We have heard the arguments of learned counsel for the parties
and perused the record.
In the aforesaid facts, the question for determination is as to
whether the State Election Commission has any jurisdiction to change the
result of a Panch, after the same has been declared by the Presiding Officer/
Returning Officer on the statutory Form IX, in terms of Rule 33 (2) (e) of
the Punjab Panchayat Election Rules, 1994 (hereinafter referred to as `the
Rules’), on the ground that nomination paper of the elected candidate was
illegally accepted, as the Scheduled Caste Certificate, relied upon by the
elected candidate had already been declared forged/false.
It is undisputed that for the lone seat of Panch, reserved for the
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category of Scheduled Caste, there were only two contestants, namely
petitioner Tarsem Singh and respondent No.8 Anokh Singh. After the
scrutiny of their nomination papers, the Presiding Officer found the same in
order. The election between the two candidates was held on 26.5.2008.
After the election, on counting of votes, the Presiding Officer declared the
petitioner as elected Panch, as he had secured 113 votes, as against
respondent No.8, who had secured only 12 votes. It is also an admitted fact
that in pursuance of the counting of votes and declaration of result, the
Presiding Officer filled up the statutory Form IX, as required under Rule 33
(2) (e) of the Rules and sent the same for notification of the result. It is also
not disputed that after the declaration of the result in Form IX, a complaint
was filed by respondent No.8 Anokh Singh before respondent No.7, to the
effect that the petitioner had relied upon a false/forged Certificate of
Scheduled Caste, to become eligible for contesting the seat of Panch,
reserved for the Scheduled Caste category. It is clear from the stand of the
respondents that without associating the petitioner, respondent No.7
conducted an enquiry into the validity of the Scheduled Caste Certificate,
relied upon by the petitioner, while filing his nomination paper. In the said
enquiry, the nomination paper of the petitioner was cancelled and the result
declaring him to be elected was set aside and thereby respondent No.8,
being the only contestant against the seat of Panch, reserved for the
Scheduled Caste category, was declared as elected.
A Division Bench of this Court in Kashmir Kaur v. State of
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Punjab, 2003 (2) PLJ 489, has already considered the similar question, as
involved in the present petition. In that case, after the counting, the
petitioner therein, who had secured 358 votes, was declared elected and the
respondent therein, who had secured 243 votes, was declared defeated. The
result was declared on Form IX and subsequently, the Presiding Officer
revised the result and declared the respondent in that case as elected. The
Division Bench, while following a decision of the Supreme Court in Malkit
Kaur v. Jatinder Kaur and others, (Civil Appeal No. 4926 of 2000,
decided on 20.11.2001), held that once a person was duly declared elected,
the Returning Officer/Presiding Officer did not have any jurisdiction to
change the result by modifying the earlier declaration of result on Form IX.
It was held that once a candidate has been declared elected on Form IX,
then the Returning Officer becomes functus officio and the election can be
set aside only by the Election Tribunal, on an election petition filed by the
defeated candidate under Section 76 read with Section 89 of the Punjab
State Election Commission Act, 1994 (hereinafter referred to as `the Act’).
In similar situation, this Court in Jasmail Kaur v. Punjab State Election
Commission and others (CWP No.11199 of 2008, decided on 5.12.2008),
while following the aforesaid decision, has set aside the subsequent
revised/supplementary result, whereby the earlier declaration of result on
Form IX was set aside/changed, on the ground that in the event of both the
candidates having secured equal number of votes, the Presiding Officer
resorted to declared the result `by way of toss’ instead of prescribing the
CWP No. 12264 of 2008 -6-
mode of `draw of lots’, as provided under Section 68 of the Act.
In view of the aforesaid legal position and the facts of the case,
this writ petition is hereby allowed. The report of respondent No.7 dated
9.6.2008 (Annexure R-8/2) and the notification dated 2.7.2008 (Annexure
P-7), to the extent of notifying respondent No.8-Anokh Singh as elected
Panch, are hereby quashed and respondent No.3 is directed to notify the
name of the petitioner as an elected Panch of Gram Panchayat, Village
Jastarwal, Block Harsha Chinna, Tehsil Ajnala, District Amritsar, against
the seat reserved for the Scheduled Caste category. However, it is made
clear that it will be open for respondent No.8 to challenge the election of the
petitioner by filing an election petition within 45 days from the date of
receipt of a certified copy of this order. In case the said election petition is
filed, the same shall be entertained and decided on merits by the Election
Tribunal, expeditiously.
( JASWANT SINGH )
JUDGE
December 05, 2008 ( SATISH KUMAR MITTAL )
ndj JUDGE