C.W.P. No.12649 of 2008 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.12649 of 2008 Date of Decision: 10.12.2009 Surjit Singh ....Petitioner Versus State of Punjab and others ....Respondents Present: Mr. Gulshan Sharma, Advocate for the petitioner. Ms. Monica Chhibbar Sharma, DAG Punjab. Mr. Aman Bahri, Advocate for respondent Nos.7 to 12. 2. C.W.P. No.15200 of 2008 Amro Kaur and others .......Petitioners Versus State of Punjab and others .....Respondents Present: Mr. Aman Bahri, Advocate for the petitioners. Ms. Monica Chhibbar Sharma, DAG Punjab. Mr. Gulshan Sharma, Advocate for respondent Nos.5 to 7 and 12 to 15. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest? Yes -.- K. KANNAN J.(ORAL) 1. In an election schedule, which was announced for the C.W.P. No.12649 of 2008 -2- village of Gatti Rahime Ki, Block Ferozepur, Tehsil and District, Ferozepur, the nomination papers were to be filed on 16.05.2008, the scrutiny was to be undertaken on 17.05.2008 and the time for withdrawal and allotment of symbols were to be made on 19.05.2008 and the polling was to take place on 26.05.2008. To a requirement of 7 Panches to be elected, there were initially 26 persons in the fray. The nomination papers had been rejected for 17 persons and 3 persons had withdrawn. What remained were only 6 valid nominations and since the number of persons to be elected, were more than the number of persons whose nominations had been found to be valid, all the persons who had filed the valid nominations were declared elected. On 19.05.2008, the publication was done under Form No.9 of the Punjab Panchayat Election Rules, 1994. 2. Section 54 of the Punjab State Election Commission Act, 1994 details the procedure in contested and uncontested elections. Clause 3 of the said Section states that if the number of such candidates is less than the number of candidates to be filled, the Returning Officer shall forthwith declare all such candidates to be elected and the Election Commission shall by notification in the Official Gazette call upon the Constituency or the elected members to elect a person or persons to fill the remaining seat or seats as the case may be. The said sub-clause contains a proviso which is not immediately relevant for our consideration. Rule 33 C.W.P. No.12649 of 2008 -3- sets out the manner of counting of votes and Rule 33(2)(e) lays down that after the counting of ballot papers contained in all the ballot boxes had been completed, the Returning Officer shall record the statement in Form No.9 showing the total number of votes polled by each candidate. In this case, the poll did not take place in view of the particular situation contemplated under Section 54(3) when the number of candidates were less than number of seats to be filled up. All the same Form No.9 is still the only method by which the result in an election could be published and the said declaration had been made by the Returning Officer. 3. The publication of this result was being challenged by the petitioner stating that the election had been totally vitiated and the nominations had been wrongly rejected. The preparation of Form No.9 and the alleged publication itself were, according to the petitioner, a farce and even the copy of the publication had been filed for the first time only in January, 2009. The result of the election of six persons had never been notified and a systematic fraud had been practised to keep out of the electoral process certain persons owing to their political party affiliations. The basis of the claim by the petitioner was that similar fraud had been committed at various places and a writ petition had been filed in C.W.P. No.8957 of 2008 by the petitioner challenging the entire election process. At the same time, yet another writ C.W.P. No.12649 of 2008 -4- petition filed at the instance of Balbir Kaur and others, which was disposed of by a Division Bench of this Hon'ble Court in C.W.P. No.8448 of 2008. C.W.P. No.8957 of 2008 filed by the petitioner was disposed of in terms of the observations made in C.W.P. No.8448 of 2008. In the latter judgment, the Division Bench had granted liberty to the petitioner to challenge the election on the ground of wrong rejection of nomination papers or non- acceptance of nomination papers. The Bench had also observed that alternatively the parties whose nomination papers were not accepted were at liberty to approach the State Election Commission under Section 210 of the 1994 Act. This Section refers to “the superintendence, direction, control and conduct of all elections to a Panchayat shall be vested in the Election Commission" and the Bench, therefore, held that "if the petitioner files a petition under Section 210, the State Election Commission would expeditiously consider such objections and decide the same before 24.03.2008.” The petitioner's contention is that he had given a representation in terms of the directions contained in the writ petition on 23.05.2008. It appears that on the basis of such representation, the State Election Commission referred the matter to the Deputy Commissioner, Ferozepur regarding the rejection of nomination papers and accepting the recommendation of the Enquiry Officer and the report of the District Election Commission Officer. The State Election Commissioner had C.W.P. No.12649 of 2008 -5- found that the poll process had been vitiated and the election to 7 Gram Panchayats were ordered to be countermanded. The election to a Gram Panchayat Gatti Rahime Ki was also one amongst the Gram Panchayats whose election had been countermanded by the order of the State Election Commissioner. 4. This order of the State Election Commission countermanding the election and the results announced by the Returning Officer has become the subject of challenge in C.W.P. No.15200 of 2008 at the instance of the 6 persons, who had been declared elected. The contention of the petitioners was that the power of the State Election Commissioner delineated under Section 210, which granted him the power of superintendence did not reserve to him the power of countermanding the election. The power to conduct an election did not extend to countermanding the same and the procedure by any person, who is affected, was only to apply through an election petition challenging the election. The petitioner's reliance was on the judgment rendered by the Division Bench of Hon'ble High Court in C.W.P. No.10547 of 2008 decided on 23.12.2008 in Balwinder Singh Vs. State of Punjab and others. According to the petitioner, the Division Bench dealt with the provisions of the Constitution under Article 243-K read with Section 210 of the Punjab Panchayat Raj Act and taking further note of the relevant Section 3 of the Election Commission Act, 1994 held that once the C.W.P. No.12649 of 2008 -6- declaration of result either in Form No.5 or Form No.9 in case of uncontested election and in Form No.9 in case of contested election had been issued/recorded by the Returning Officer, then there was no question of countermanding the election and tinkering with the result of the State Election Commission or any other authority including the Returning Officer on the ground of improper rejection or acceptance of the nomination papers or any other alleged illegality committed by the Returning Officer. The Division Bench ruled that the only remedy to a candidate, who is aggrieved by the electoral process was to file an election petition under Section 76 on the grounds mentioned under Section 89 of the State Panchayat Election Commission Act. The said decision also took note of the earlier Division Bench ruling in Balbir Kaur and others Vs. State of Punjab and others in C.W.P. No.8448 of 2008 and the Bench held that the earlier decision did not contemplate cases like the present, once the result of election had been declared in accordance with law in statutory From No.9. In a way, the subsequent Division Bench by its judgement dated 23.12.2008 explained Balbir Kaur's case and stated that in a case where a declaration was made in Form No.9, it admitted of no further power for a State Election Commission to countermand the election. 5. The only matter that would further require consideration is the contentions raised by the petitioner in C.W.P. No.12649 of C.W.P. No.12649 of 2008 -7- 2008 that the nominations had been wrongly rejected by political influence and the alleged declaration of result through Form No.9 could not be acted upon, for even as per the decision of the State Election Commission, the electoral process had been entirely vitiated and therefore, it required to begin anew a fresh electoral process and a schedule to be drawn for conducting a fresh election. Learned counsel would submit that such a schedule had also been drawn and the petitioners in C.W.P. No.15200 of 2008 ought not to fight shy to participate in such an election and attempt to assail the decision of the State Election Commissioner to countermand the elections and the results declared on 19.05.2008. The contention raised in C.W.P. No.12649 of 2008 obtains a direct answer through the decision of the Division Bench in C.W.P. No.10547 of 2008. If the election results had been declared, the petitioner's complaint of unlawful rejection of nominations ought to be a basis only by filing an election petition on the grounds available in law and it could not be assailed through a writ petition. Learned counsel appearing for the petitioner also wants to contend that even if the persons, who had been found eligible as candidates were less than the total number of seats to be filled up, the election itself could not have been held and relied on the decision of this Hon'ble Court in Mehar Chand and another Vs. T.D. Sharma and others decided in C.W.P. No.4560 of 1978 on 24.09.1980. The Hon'ble Judge in the said C.W.P. No.12649 of 2008 -8- judgment referred to the impermissibility of Returning Officer announcing at the time of election that election would be held only for less number of posts than what had been originally notified. The decision has no applicability to our case. It is strenuously contended that the ratio of the said judgment would govern our case as well. The said decision merely found the Returning Officer's unilateral announcement to reduce the number of posts from what was notified by the Government as not legal. In this case, the Returning Officer did not reduce the total number of seats. On the other hand, it so happened that the Returning Officer found that the number of valid nominations were less than number of posts, which were available. The statute contemplates for such a contingency and provides under Section 54 that if the number of valid nominations are less than the number of posts, all the persons shall be declared elected to the posts. There is, therefore, nothing wrong as a matter of principle on this law about the decision of the Returning Officer to declare as elected the persons whose nomination had been validly accepted. 6. The grievance of the petitioner that the rejection of the nominations had been wrongly made and that the entire election process had been vitiated could only be redressed through a validly instituted election petition and could not be assailed through a writ petition as found by the Division Bench, the reference to which had been elaborately made above. The writ C.W.P. No.12649 of 2008 -9- petition filed in C.W.P. No.12643 of 2008 draws its sustenance, if at all, only from an observation made in the writ petition decided by the Division Bench on 21.05.2008. In view of the fact that the said decision itself has been considered in the subsequent Division Bench ruling and that has read down the dispensation made by the earlier Division Bench to mean the general superintendence of the Chief State Election Officer as not to be pervasive enough to include even a power to countermand an election. The decision in this case rejecting the claim of the petitioner is on the basis of the judgment of the Division Bench in the subsequent ruling dated 21.05.2008. The writ petition challenges only the order countermanding the election and if such a power did not reside with the State Election Commissioner, then it has to be only held that the impugned order is liable to be quashed. 7. C.W.P. No.12643 of 2008 is consequently dismissed and C.W.P. No.15200 of 2008 is allowed. The result published through Form No.9 shall be taken to its logical end and the notification as contemplated by law shall forthwith be issued in favour of the petitioners in C.W.P. No.15200 of 2008. The writ petitions stand disposed of as above but there shall be, however, no direction as to costs. (K. KANNAN) JUDGE December 10, 2009 Pankaj* C.W.P. No.12649 of 2008 -10-