IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No. 11199 of 2008 DATE OF DECISION : 05.12.2008 Jasmail Kaur .... PETITIONER Versus Punjab State Election Commission and others ..... RESPONDENTS CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. J.S. Bhandohal, Advocate, for the petitioner. Mr. N.D.S. Mann, Addl. A.G., Punjab, for respondents No.1 to 3. Mr. Gurcharan Dass, Advocate, for respondent No.4. * * * SATISH KUMAR MITTAL , J. Petitioner Jasmail Kaur has filed this petition under Article 226/227 of the Constitution of India for quashing the supplementary result dated 29.5.2008 (Annexure P-2), declared by respondent No.2, whereby after changing the earlier result declared on 26.5.2008, in which the petitioner was declared elected as Panch of Gram Panchayat, Village Kassabad, Tehsil and District Ludhiana, Smt. Savinder Kaur (respondent No.4 herein) has been declared elected as Panch of the Gram Panchayat, for the seat reserved for Scheduled Caste (Women). CWP No. 11199 of 2008 -2- Briefly, in the present case, Gram Panchayat of Village Kassabad, Tehsil and District Ludhiana, consists of 7 posts of Panches, out of which one post was reserved for the category of Scheduled Caste (Women). The petitioner and respondent No.4 contested the election against the said post. The election was held on 26.5.2008 and counting of the votes was conducted on the same day. The petitioner and respondent No.4 secured equal number of votes i.e. 54 votes each. It is the case of the petitioner that after accepting the counting, both the candidates gave their consent in writing (Annexure P-3) to declare the result `by way of toss'. Accordingly, the Presiding Officer conducted the toss, which went in favour of the petitioner and consequently, she was declared elected. Form IX was duly issued by the Presiding Officer declaring the petitioner to have been `elected by toss'. Copy of Form IX, by which result of all the 7 Panches, including the petitioner, was declared, is annexed with the petition as Annexure P-1. Subsequently, a complaint was made by respondent No.4 to the SDM (East), Ludhiana, against the declaration of result by the Presiding Officer `by way of toss'. On receiving the said complaint, Additional Deputy Commissioner (Development), Ludhiana sought direction from the State Election Commission, Punjab. Thereupon, the State Election Commission, Punjab, gave direction to declare the result 'by draw of lots', in stead of `by way of toss', as provided under Section 68 of the Punjab State Election Commission Act, 1994 (hereinafter referred to as `the Election Commission Act'). Thereafter, on the basis of the said direction, the result declared by the CWP No. 11199 of 2008 -3- Presiding Officer on 26.5.2008 `by way of toss' was declared invalid and the result was again scheduled to be declared on 29.5.2008. Both the parties were summoned and `by draw of lots' respondent No.4 was declared elected by the Presiding Officer. Consequently, the impugned supplementary result dated 29.5.2008 (Annexure P-2) was declared. This action of the Presiding Officer has been challenged by the petitioner. Separate written statements have been filed on behalf of respondents No.1 to 3 and respondent No.4. Primarily, the aforesaid factual position has not been disputed. However, in the written statement filed on behalf of respondent No.4, though it has been admitted that both the candidates gave in writing to the effect that the result be declared `by way of toss', but it has been stated that thumb impressions of respondent No.4 were obtained under some mis-representation. Learned counsel for the petitioner submitted that once the result of election was declared by the Presiding Officer and Form IX, declaring the petitioner as an elected Panch of the Gram Panchayat, was issued, the Presiding Officer has no jurisdiction to subsequently declare the said result invalid and to declare the fresh result by `draw of lots' by issuing a supplementary result. Learned counsel submitted that in the instant case, even if it is admitted for the sake of arguments that the Presiding Officer had declared the result `by way of toss', which may be contrary to the Rules, even then after the declaration of result, the Presiding Officer becomes functus officio and the said result cannot be declared invalid by him or by CWP No. 11199 of 2008 -4- the State Election Commission. The said result can only be set aside by the Election Tribunal on an election petition filed by the defeated candidate under Section 76 read with Section 89 of the Election Commission Act, questioning the election of the returned candidate on the ground that the Presiding Officer, in violation of the Rules, declared the result `by way of toss' and not `by draw of lots'. In support of his contention, learned counsel for the petitioner relied upon a Division Bench decision of this Court in Kashmir Kaur v. State of Punjab, 2003 (2) PLJ 489. On the other hand, learned counsel for the respondents submitted that Section 68 of the Election Commission Act requires that in case, two candidates for a seat secure equal number of votes, in that situation, the Presiding Officer shall forthwith decide between those candidates `by lots' and the candidate on whom the lots falls will be deemed to have received one additional vote and will be declared elected. Learned counsel submitted that in the instant case, the Presiding Officer, without following the said procedure, had wrongly declared the result `by way of toss' and subsequently, the said result was rightly declared invalid on the direction received from the State Election Commission. Thereafter, the draw of lots was drawn between the two candidates, in which respondent No.4 was declared elected and thereupon, the supplementary result was declared on Form IX. Learned counsel further submitted that in case, the petitioner was having any grouse against the said result, then the only remedy available with her is to file the election petition, challenging the election of CWP No. 11199 of 2008 -5- respondent No.4, but she cannot maintain this writ petition. In support of their contention, learned counsel for the respondents relied upon a decision of the Supreme Court in Krishna Ballabh Prasad Singh v. Sub Divisional Officer Hilsa-cum-Returning Officer and others, AIR 1985 Supreme Court 1746, wherein after the declaration of result, mistake was corrected by the Returning Officer and thereafter, the result was declared by correcting the said mistake. In that situation, the writ petition was not entertained in view of the bar imposed by clause (b) of Article 329 of the Constitution of India and it was held that election petition was the proper remedy. We have heard the arguments of learned counsel for the parties. In the present case, it is admitted position that the petitioner and respondent No.4 contested the election for the post of a Panch reserved for Scheduled Caste (Women) and both of them secured equal number of votes i.e. 54 votes each. After accepting the said counting, both the candidates gave their consent in writing to the Presiding Officer that their result be declared `by way of toss'. Accordingly, the toss was conducted, which went in favour of the petitioner and she was declared elected. It is also the admitted position that after the election `by way of toss', the result was declared on Form IX, as required by Rule 33 (2) (e) of the Punjab Panchayat Election Rules, 1994 (hereinafter referred to as `the Election Rules'). Rule 35 of the Election Rules, which has been framed in view CWP No. 11199 of 2008 -6- of requirement of Section 68 of the Election Commission Act, provides as under :- “If, after the counting of votes is completed, votes polled by two candidates are equal, and the addition of one vote will entitle any of these candidates to be declared elected, the Returning Officer shall forthwith decide between those candidates by draw of toss and proceed as if the candidates in whose favour the lots falls has received an additional vote.” It is true that as per provision of Section 68 of the Election Commission Act and the aforesaid Rule, in case two candidates secure equal number of votes, the Returning Officer/Presiding Officer is required to decide the result between those two candidates `by draw of lots'. But in the present case, the result was declared `by way of toss', as both the parties gave their consent in writing that their result by declared `by way of toss'. In these facts, the question for consideration in this case is whether the Presiding Officer/Returning Officer or the District Electoral Officer or the State Election Commission is empowered to declare the said result as invalid and thereafter to declare the supplementary result `by draw of lots' between the two candidates. A Division Bench of this Court in Kashmir Kaur's case (supra) has considered the similar question. In that case, after the counting, the petitioner in that case, who had secured 358 votes, was declared elected and respondent No.4, who had secured 243 votes, was declared defeated. The result was declared on Form IX, as required by Rule 33 of the Election Rules. Subsequently, the Presiding CWP No. 11199 of 2008 -7- Officer revised the result and declared respondent No.4 in that case as elected. This Court, 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 the petitioner 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. It has been held that once a candidate has been declared elected in Form IX, the Returning Officer ceased to have any power to alter the said declaration subsequently. The declaration as contained in Form IX could only be challenged by means of an election petition before the Election Tribunal. In that case, after setting aside the supplementary result, declared by the Presiding Officer, the petitioner, who was initially declared elected in Form IX, was ordered to administer oath of office. In our opinion, the case of the present petitioner is squarely covered by the said decision. So far as the decision of the Supreme Court in Krishna Ballabh Prasad Singh's case (supra), relied upon by learned counsel for the respondents, is concerned, we are of the opinion that it is not applicable to the facts and circumstances of this case. In that case, when initially the result was declared, by mistake one bundle of ballot papers of one booth was not counted. When the said mistake was discovered by the Returning Officer, those votes were taken into account and a notice for cancelling the election result was issued to the person declared elected. Thereafter, the said mistake was corrected and declaration of the result on the required Form CWP No. 11199 of 2008 -8- was issued. In that situation, it was held that the process of election comes to an end only after declaration of result in the requisite statutory form. It was so held, as in that case, when the mistake was corrected, the result had not been declared on the required statutory Form, and subsequently, the corrected result was declared on the required Form. The facts in the present case are entirely different. In this case, on 26.5.2008, the result was declared `by way of toss' in Form IX, as required under Rule 33 of the Election Rules. This fact has been specifically admitted in the written statement filed on behalf of respondent No.4. Thereafter, on the complaint made by respondent No.4, the aforesaid declaration of result dated 26.5.2008 was declared invalid and a fresh election `by draw of lots' between the two candidates was conducted and then the supplementary result was declared. In our considered opinion, once the result on Form IX was declared, the election process was complete and the result could not be changed or set aside by the Presiding Officer/Returning Officer or District Electoral Officer or the State Election Commission, on the ground that the election `by way of toss' was illegally conducted. The aforesaid declaration of result could have been 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 Election Commission Act. Therefore, in our view, the action of respondents No.1 to 3, invalidating the election result dated 26.5.2008 and subsequently declaring supplementary result dated 29.5.2008 is wholly without jurisdiction. CWP No. 11199 of 2008 -9- Consequently, the writ petition is allowed. The supplementary result dated 29.5.2008 (Annexure P-2) is hereby quashed and respondent No.3 is directed to notify the name of the petitioner as an elected Panch of Gram Panchayat, Village Kassabad, Tehsil and District Ludhiana. However, it is made clear that it will be open for respondent No.4 to challenge the election of the petitioner by filing an election petition within 45 days from today. ( SATISH KUMAR MITTAL ) JUDGE December 05, 2008 ( JASWANT SINGH ) ndj JUDGE