IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH 1. Civil Writ Petition No.9400 of 2008 Date of Decision: 16.7.2010 Rajpreet Singh ..Petitioner versus State of Punjab and others ..Respondents 2. Civil Writ Petition No.10966 of 2008 Balbir Kaur ..Petitioner versus State of Punjab and others ..Respondents 3. Civil Writ Petition No.10979 of 2008 Surjit Singh and others ..Petitioners versus State of Punjab and others ..Respondents 4. Civil Writ Petition No.10751 of 2008 Lakhveer Singh and others ..Petitioners versus Civil Writ Petition No.9400 of 2008 The State Election Commission, Punjab and others ..Respondents 5. Civil Writ Petition No.10414 of 2008 Mohinder Singh and others ..Petitioners versus State of Punjab and others ..Respondents 6. Civil Writ Petition No.10881 of 2008 Jassa Singh and others ..Petitioners versus State Election Commissioner, Punjab and others ..Respondents 7. Civil Writ Petition No.11206 of 2008 Surjit Singh and others ..Petitioners versus Punjab State Election Commission and others ..Respondents 8. Civil Writ Petition No.9829 of 2008 Hans Kaur and another 2 Civil Writ Petition No.9400 of 2008 ..Petitioners versus State of Punjab and others ..Respondents 9. Civil Writ Petition No.9876 of 2008 Gurial Singh and others ..Petitioners versus State of Punjab and others ..Respondents 10. Civil Writ Petition No.10967 of 2008 Jasbir Kumar and others ..Petitioners versus The State Election Commission and others ..Respondents 11. Civil Writ Petition No.10724 of 2008 Pardeep Kaur ..Petitioner versus Punjab State Election Commission and others ..Respondents 12. Civil Writ Petition No.10787 of 2008 Kashmir Kaur and another 3 Civil Writ Petition No.9400 of 2008 ..Petitioners versus State of Punjab and others ..Respondents 13. Civil Writ Petition No.10835 of 2008 Pargat Singh and others ..Petitioners versus State of Punjab and others ..Respondents 14. Civil Writ Petition No.10978 of 2008 Gurdev Singh and others ..Petitioners versus State of Punjab and others ..Respondents CORAM: HON'BLE MR. JUSTICE MUKUL MUDGAL, CHIEF JUSTICE HON'BLE MR. JUSTICE JASBIR SINGH 1. Whether Reporters of local papers may be allowed to see the judgment? 2. Whether to be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Manoj Tanwar, Advocate for the petitioner In CWP No.9400 of 2008 Mr.Arjun Partap Atmaram, Advocate for the petitioners in CWP No.10751 of 2008 Mr.S.S.Brar, Advocate for respondent Nos.3 to 5, 6 to 8, 10 and 11 in CWP No.10751 of 2008 Mr.S.S.Walia, Advocate 4 Civil Writ Petition No.9400 of 2008 for the petitioners in CWP No.10414 of 2008 Ms.Manpreet Kaur, Advocate for Mr.G.S.Gill, Advocate for the petitioners in CWP No.11206 of 2008 Mr.S.S.Swaich, Advocate for the petitioners in CWP No.9829 of 2008 Mr.Parvez Singh, Advocate for the petitioners in CWP No.9876 of 2008 Mr.S.C.Chhabra, Advocate for respondent No.5 in CWP No.9876 of 2008 Mr.Mansur Ali and Mr.H.S.Deol, Advocates for the petitioner in CWP No.10966 of 2008 Ms.Taranjeet Kaur and Mr.G.P.Vashist, Advocates for the petitioners in CWP No.10978 of 2008 and CWP No.10979 of 2008 Mr.P.P.S.Duggal, Advocate for respondent No.4 in CWP No.10978 of 2008 and CWP No.10979 of 2008 Mr.Ghulam Nabi Malik, Advocate for respondent Nos.6 to 9 in CWP No.10978 of 2008 Mr.N.S.Shekhawat and Mr.J.S.Multani, Advocates for Respondent No.13 in CWP No.10978 of 2008 Mr.D.D.Sharma, Advocate for the petitioners in CWP No.10881 of 2008 Mr.Mansur Ali, Advocate for respondent Nos.2 to 7 in CWP No.10881 of 2008 Mr.Gulshan Sharma, Advocate for the petitioners in CWP No.10967 of 2008 Mr.D.S.Pheruman, Advocate for the petitioners in CWP No.10787 of 2008 Mr.C.L.Panwar, Advocate for the petitioner in CWP No.10724 of 2008 Mr.A.S.Jattana, Advocate for the private respondents in CWP No.10724 of 2008 Mr.Aman Bahri, Advocate for the petitioner in CWP No.10835 of 2008 Mr.H.S.Sidhu, Additional Advocate General, Punjab Jasbir Singh, J. 1. This order will dispose of CWP Nos.9400 of 2008, 10966 of 2008, 10979 of 2008, 10751 of 2008, 10414 of 2008, 10881 of 2008, 11206 of 2008, 9829 of 2008, 9876 of 2008, 10967 of 2008, 10724 of 2008, 10787 of 2008, 10835 of 2008 and 10978 of 2008 as common question of law and facts are involved in all these cases. 5 Civil Writ Petition No.9400 of 2008 2. To dictate judgment, facts are being mentioned from CWP No.9400 of 2008. 3. In all these writ petitions, following questions are for consideration of this Court:- a) Whether Election Commission, when exercising the powers of superintendence, directions and control regarding conduct of the Gram Panchayat elections, can countermand elections at any stage or not? b) Whether an election to the Gram Panchayat can be countermanded on any ground other than the one mentioned in the Punjab State Election Commission Act, 1994 or not? 4. It is necessary to note here that in the State of Punjab, to conduct elections to the Gram Panchayats, the following schedule was fixed:- i) Date of Nomination : 16.5.2008 ii) Scrutiny of nomination papers : 17.5.2008 iii) Date of withdrawal : 19.5.2008 iv) Date of election : 26.5.2008 5. In pursuance of the election schedule to conduct Gram Panchayat elections, as referred to above, the petitioner filed his nomination papers for the post of Panch on 16.5.2008. After scrutiny his name was put in the final list of the contesting candidates. The final list was displayed on the notice Board on 19.5.2008. Election Symbol was also allotted to the petitioner and he started canvassing for his election which was going to be conducted on 26.5.2008. However, vide order dated 25.5.2008 (P1) election of the Gram Panchayat was countermanded. It was further ordered that fresh programme/schedule, to conduct election shall be notified afterwards. At that stage, this writ petition was filed. 6 Civil Writ Petition No.9400 of 2008 6. Similarly, many other writ petitions were filed in which election to the Gram Panchayat was countermanded after declaration of the result and in some other cases, when nomination papers were rejected arbitrarily, the aggrieved candidates came to this Court. There were also instances that nomination papers were initially accepted, however, later on shown to have been rejected and vice-versa which also gave rise to the filing of several writ petitions to this Court. This writ petition and many others were admitted for regular hearing on 13.6.2008. Regarding interim stay, following directions were issued by a Division Bench of this Court:- “Both the parties have argued for and against grant of interim injunction. After countermanding, almost in all the cases, fresh elections have been ordered to be held. The petitioners are praying for stay of the fresh elections whereas respondents are opposing any interim measure at this stage. On consideration of various factors, statutory provisions and judgments referred to here-in-above, prima facie, we are of the considered view that in the cases where candidates have been declared elected in accordance with Section 54 of the Punjab State Election Commission Act, 1994 or where the Returning Officer has declared the result under Section 69 of the Punjab State Election Commission Act, 1994 and elections have been countermanded thereafter, the holding of fresh elections shall remain stayed. In other cases where the election has been countermanded before the date of polling, respondent-State may hold fresh election. However, the outcome of the election shall remain subject to decision of these writ petitions.” 7. Before proceeding further, it is necessary to note in brief, the controversy involved in all these writ petitions. CWP No.9400 of 2008 Election was countermanded before the date of election. CWP No.10787 of 2008 7 Civil Writ Petition No.9400 of 2008 Vide order dated 22.5.2008, one post of Panch was ordered to be reserved for Backward category candidate. CWP No.10724 of 2008 Election was countermanded after the petitioner was declared successful on 19.5.2008 against the post reserved for woman candidate. CWP No.10967 of 2008 Election was countermanded due to disturbance in the polling booth on the date of election. CWP No.10835 of 2008 Election was countermanded before the date of voting, however, one candidate i.e. petitioner No.8 was declared elected unopposed. CWP No.10978 of 2008 Respondent Nos.6 to 9 were declared elected in the first election, however, thereafter, election was countermanded and fresh election was ordered to be conducted on 22.6.2008. Before that in terms of order passed by the State Election Commission, Punjab (R-13) dated 14.6.2008 respondents named above were declared elected. CWP No.10966 of 2008 As per allegations of the petitioner, she was not allowed to file her nomination papers for the election to the post of Panch. On a complaint made and orders issued by this Court, election was postponed and re- conducted on 22.6.2008, however, at that time also, as per written statement filed, the petitioner did not file her nomination papers. CWP No.10881 of 2008 8 Civil Writ Petition No.9400 of 2008 The petitioners were declared elected on 26.5.2008, however, their elections were set aside by the State Election Commission vide order dated 22.6.2008 (P12) and fresh election was ordered in their village. CWP No.10979 of 2008 As per allegation of the petitioners, in the first election their nomination papers were rejected without any justification. They came to this Court. On directions issued, order was passed by the State Election Commission countermanding the election before the date of polling. Thereafter, election programme was re-issued and polling was to take place on 22.6.2008, however, before the date of polling election was stayed under orders passed by the State Election Commission on 14.6.2008 (P6) CWP No.10751 of 2008 The petitioners were declared elected on 26.5.2008 (P2), however, subsequent thereto, on an order passed by the State Election Commission on 6.6.2008 (P5), their election was set aside and fresh election was ordered in their village. CWP No.10414 of 2008 The petitioners were declared elected unopposed, however, subsequent thereto, vide order dated 25.5.2008 (P4), the State Election Commission set aside and countermanded their election. CWP No.11206 of 2008 Nomination papers of the petitioners were rejected and the respondents were declared elected as Panches of the Gram Panchayat on 19.5.2008. On a complaint made, election was countermanded and fresh 9 Civil Writ Petition No.9400 of 2008 election was fixed on 22.6.2008, however, vide order dated 14.6.2008 (P5) election was postponed. CWP No.9829 of 2008 After scrutiny of nomination papers, the petitioners were declared elected unopposed, however, subsequent thereto vide order dated 24.5.2008, their election was set aside and countermanded. CWP No.9876 of 2008 The petitioners were declared elected unopposed on 20.5.2008. However, subsequent thereto, their election was set aside and countermanded vide order dated 24.5.2008. 8. The Hon’ble Supreme Court in People’s Union for Civil Liberties and another v. Union of India (UOI) and another, (2009) 3 SCC 200 has observed that ‘Democracy is a part of the basic structure of our Constitution and rule of law and free and fare election are basic features of democracy….. Democracy also contemplates that elections should be free and fair and the voters should be in a position to vote for the candidates of their choice. The pre-requisite of this is that the elections are not rigged and manipulated and the candidates or their agents are not able to resort to unfair means and malpractices.’ 9. In all these cases, it is to be seen whether there exists sufficient safeguards and the powers with the State Election Commission as envisaged in the provisions of Section 210 of the Punjab Panchayati Raj Act, 1994 (in short 1994 Act) to conduct fair and free election. Above said provision reads thus:- 10 Civil Writ Petition No.9400 of 2008 “Election Commission to conduct Panchayat election The superintendence, direction and control of the preparation of electoral rolls for and conduct of, all elections to the Panchayats, shall be vested in the Election Commission.” 10. The provision, referred to above, is pari materia to the provisions of Article 243K of the Constitution of India, which envisages that the powers of superintendence, directions and control of the preparation of electoral rolls for and the conduct of all elections of Panchayats shall vest in the State Election Commission. To give effect to the above said provision, the State of Punjab enacted the Punjab State Election Commission Act, 1994 (in short, the EC Act). This Act is a complete code in itself. It provides for constitution, qualification and salary of the members of the State Election Commission and their term of office. The EC Act also lays down the qualifications/disqualification for membership of the Panchayats/ Municipalities and also mode and method to settle disputes regarding disqualification etc. It also provides for the appointment of administrative machinery for the conduct of elections. How electoral rolls, for a constituency, shall be prepared is also envisaged. Complete procedure has been provided for conduct of elections stating that process shall start on issuance of a notification under Section 35 of the EC Act mentioning the schedule to conduct Panchayat election and as to how the nomination papers will be presented, accepted and scrutinized. Provision has also been made for withdrawal of the candidature and thereafter publication of list of the contesting candidates. Section 53 of the EC Act lays down the procedure of election in case death of a candidate. It reads thus:- 11 Civil Writ Petition No.9400 of 2008 “53. Death of candidate before poll. If a candidate whose nomination has been found valid on scrutiny under Section 41 and who has not withdrawn his candidature under section 42 dies and a report of his death is received before the publication of the list of contesting candidates under section 43, or if a contesting candidate dies and a report of his death is received before the commencement of the poll, the Returning Officer shall, upon being satisfied of the fact of the death of the candidate, countermand the poll and report the fact to the Election Commission and also to the prescribed authority and all proceedings with reference to the election, shall be commenced afresh in all respect as if for a new election. Provided that no further nomination shall be necessary in the case of a person who was a contesting candidate at the time of the countermanding of the poll: Provided further that no person who has given a notice of withdrawal of his candidature under sub-section (1) of section 42 before the countermanding of the poll, shall be in- eligible for being nominated as a candidate for the election after such countermanding.” (Emphasis supplied) Section 58 of the EC Act gives power to the State Election Commission to adjourn the poll in case of emergencies. It reads thus:- “58 Adjournment of Poll in Emergencies (1) If at any election, the proceedings at any poling station provided under Section 19 are interrupted or obstructed by 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 of the Returning Officer, as the case may be, shall announce an 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.” (Emphasis supplied) Section 59 of the EC Act provides for fresh poll in case of destructions etc. of the ballot boxes. The provision reads as under:- “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 12 Civil Writ Petition No.9400 of 2008 the Presiding Officer or the Returning Officer, or is accidentally or intentionally destroyed or lost, or is 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 Commissioner shall, after taking all material circumstances into account, either- (a) declare the poll at the polling station or place to be void and shall appoint a day, and fix the hours, 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 or 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 thereunder shall apply to every fresh poll as they apply to the original poll.” (Emphasis supplied) The State Election Commission is also given power to adjourn / countermand the poll on the basis of booth capturing. Section 60 in that regard reads as under:- “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 the place cannot be ascertained; 13 Civil Writ Petition No.9400 of 2008 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 counting of votes in such a manner 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.” The State Election Commission is also given power to declare the poll as void in case of destruction or loss of ballot paper(s) at the time of counting. Section 67 of the EC Act in that regard reads as under:- “67 Destruction, loss etc. of ballot paper at the time of counting- (1) If at any time before the counting of votes is completed, any ballot papers used at a polling station or at a place fixed for the poll are unlawfully taken out of the custody of the Returning Officer or are accidentally or intentionally destroyed or lost or are damaged or tampered with, to such an extent that the result of the poll at that polling station or place cannot be ascertained, 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) direct that the counting of votes shall be stopped or declare the poll at the polling station or place to be void and appoint a day and fix the hours, for taking a fresh poll at that polling station or place and notify the date so appointed and hours so fixed in such manner, as it may deem fit; or….” 14 Civil Writ Petition No.9400 of 2008 Section 72 of the EC Act provides that for the purpose of that Act, the date on which the candidate is declared to be elected shall be the date of election of that candidate. In the Act provision has also been made for setting up of Tribunals to settle the election disputes. Section 89 of the EC Act lays down the grounds on which an election can be declared void. It reads as under:- “89. Grounds for declaring election to be void- (1) Subject to the provisions of sub-section (2), if the Election Tribunal is of the opinion.- (a) that on the date of his election, a returned candidate was not qualified, or was disqualified to be chosen to fill the seat under the Constitution of India or under this Act; or (b) that any corrupt practice has been committed by a returned candidate or his election agent or by other person with the consent of a returned candidate or his election agent; or (c) that any nomination has been improperly rejected; or (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected- (i) by the improper acceptance of any nomination; or (ii) by any corrupt practice committed in the interest of the returned candidate by an agent other than his election agent; or (iii) by the improper reception, refusal of rejection of any vote or the reception of any vote which is void; or (iv) by any non-compliance with the provisions of the Constitution of India or of this Act of any rules or orders made under this Act; the Election Tribunal shall declare the election of the returned candidate to be void. (2). If in the opinion of the Election Tribunal a returned candidate has been guilty by an agent, other than his election agent, of any corrupt practice but the Election Tribunal is satisfied- (a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice as committed contrary to the 15 Civil Writ Petition No.9400 of 2008 orders, and without the consent, of the candidate or his election agent; (b) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and (c) that in all other respects, the election was free from any corrupt practice on the part of the candidate or any of his agent; then the Election Tribunal may decide that the election of the returned candidate is not void. (3) In this section, the expression ‘agent’ has the same meaning as assigned to it in Explanation (1) given under clause (9) of Section 108, but does not include election agent.” What would amount to a corrupt practice and electoral offences has also been described in Section 108 of the EC Act. The State Election Commission is empowered to extend time for completion of election. Section 138 of EC Act in that regard reads thus:- “138. Extension of time for completion of election- The Election Commission may for sufficient reasons to be recorded in writing, extend the time for completion of any election by making an amendment to this effect in the notification issued under Section 35.” Jurisdiction of Civil Court has been barred to entertain any challenge to an order made by a Returning Officer. 11. Reading of provisions mentioned above clearly indicates that the EC Act is a complete code in itself. The legislature has taken care of all the eventualities and the circumstances under which the State Election Commission can interfere in an election and pass appropriate orders for smooth completion of the election process. As per established law, the election process starts with the issuance of a notification under Section 35 of the EC Act. It contemplates various stages like filing of nomination papers, scrutiny, withdrawal and publication of list of contesting candidates 16 Civil Writ Petition No.9400 of 2008 and