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 CWP No. 12264 of 2008 -2- 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 CWP No. 12264 of 2008 -4- 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 CWP No. 12264 of 2008 -5- 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