IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.13673 of 2010 Date of decision: 28th September, 2010 Sushil Kumar … Petitioner Versus State of Haryana and others … Respondents CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. R.N. Lohan, Advocate for the petitioner. Mr. Himanshu Raj, Assistant Advocate General, Haryana for respondents No.1 to 5. Mr. Naresh Kaushik, Advocate for respondent No.6. Mr. Vikram Singh Dhakla, Advocate for respondent No.7. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Sushil Kumar has approached this Court with a prayer that he was declared as an elected Panch and a certificate of election was issued in his favour by the Returning Officer but thereafter, the official respondents have wrongly administered oath of Panch to respondent No.7-Dharampal. Therefore, a writ in the nature of certiorari be issued and the result-sheet (Annexure P-2), which was wrongly filled-in, be quashed. Briefly stated, the election of Gram Panchayat Singhpura, Tehsil and Block Safidon, District Jind was held on 6th June, 2010. The petitioner-Sushil Kumar, respondent No.7-Dharampal and one Krishan contested for the post of Panch pertaining to Booth No.151, Ward No.7 of Gram Panchayat Singhpura. Case of the petitioner is that he secured 78 Civil Writ Petition No.13673 of 2010 votes, respondent No.7-Dharampal secured 56 votes and the third candidate namely Krishan secured only 3 votes, whereas 6 votes were declared invalid. Thereafter, the Returning Officer issued an election certificate (Annexure P-1) of Panch in Form No.21-B in favour of the petitioner. Grievance of the petitioner is that the result sheet (Annexure P- 1) declaring the petitioner as a Panch of Ward No.7, Booth No.151 was also sent to the Block Development and Panchayat Officer, Safidon by respondent No.6. However, against the record, the name of respondent No.7-Dharampal was shown as an elected Panch instead of the petitioner and on the basis of Form No.14, which was result sheet, respondent No.7 has been declared as elected. It is stated that the result was manipulated. The votes secured by the petitioner were shown as the votes secured by respondent No.7 and on the basis of that, oath had been wrongly administered to respondent No.7. Mr. Vikram Singh Dhakla, Advocate appearing for respondent No.7, has seriously disputed these facts and has stated that the result sheet (Annexure P-2) depicts true election result and the Returning Officer had committed a fraud by declaring the petitioner as elected and thus, issuance of election certificate of Panch in favour of the petitioner is a fabricated and forged document. It is further stated that the Deputy Commissioner-cum-District Election Officer, Jind held an enquiry and found that the election certificate (Annexure P-1) issued in favour of the petitioner was not genuine and he also ordered registration of an FIR against the Returning Officer. The Returning Officer has been impleaded as respondent No.6 in the present writ petition. He has filed a short reply and is being represented by Mr.Naresh Kaushik, Advocate. The Returning Officer averred as under: 2 Civil Writ Petition No.13673 of 2010 “That at the time of submission of the record of the election, answering respondent has correctly issued a certificate of winner in the name of Sunil but inadvertently in Form No.18, which was prepared by amending Form No.14 a mistake in making details of candidatewise vote occurred and 78 votes secured by Sushil Kumar were wrongly written in front of the name of Dharampal who has actually secured 56 votes and was second in the result. Besides this all seven documents as mentioned in Annexure R-6/1 were submitted to the State Authorities. When this mistake came into knowledge, answering respondent requested the authorities for necessary correction, but no one take any appropriate action to sort out the inadvertent mistake taken place.” Thus, according to the Returning Officer, the election certificate (Annexure P-1) was rightly issued. This writ petition poses following two questions for consideration of this Court: (a) Which is the authority, which can set aside the election result declared by the Returning Officer who had issued an election certificate? and (b) In case the Returning Officer issues a wrong certificate, what is the remedy available and by whom such remedy is to be availed? It is now well settled that the Returning Officer is the one, who is in charge of an election. He not only has to conduct the election, but has to arrive at a subjective satisfaction as to who has won the election and after declaring a candidate to be elected, he has to issue an election certificate. The Returning Officer is to be protected as an independent person and no superior officer can sit-over the judgment over the subjective satisfaction of the Returning Officer. Whatever is done 3 Civil Writ Petition No.13673 of 2010 by the Returning Officer, can only be assailed by filing an election petition. The Election Tribunal has the power under the Haryana Panchayati Raj Act, 1994 to set aside the result declared by the Returning Officer. What has been done in the present case, if it is permitted, then a Deputy Commissioner or any other official of the State will disturb the result declared by the Returning Officer. Such a course is fraught with dangerous consequences. If the Returning Officer had acted out of the malice or his action is a result of fraud and election certificate is a result of fabrication, then the remedy for the aggrieved candidate is to approach the Election Tribunal to challenge the certificate issued by the Returning Officer. The Election Tribunal can change the result. This power is nowhere vested with the Deputy Commissioner or the Block Development and Panchayat Officer. Thus, the action of the Deputy Commissioner to hold an enquiry and say that the Returning Officer had not rightly issued the election certificate, is not tenable. Having said so, this Court cannot return a finding that the Returning Officer had acted in a fair manner. Possibility of the view projected by the respondents that the result sheet and the record depict that the petitioner had obtained less votes cannot be ruled out. Two contradictory versions are available, thus, there are disputed questions of fact, upon which this Court shall refrain to comment. This Court cannot determine, as to which version of them is correct. That can only be done by the Election Tribunal, where the parties can adduce their evidence. At the moment, this Court only holds an opinion that the certificate issued by the Returning Officer is to be given due sanctity and nobody can tamper with it, except by following the procedure, which is lawfully prescribed. Hence, the election of respondent No.7 is hereby set aside. Respondent No.7 is relegated to the remedy of filing an election petition. 4 Civil Writ Petition No.13673 of 2010 In case such a petition is filed within a period of seven days from the date of receipt of a certified copy of this order, no objection shall be raised that the same is barred by limitation. As the election of respondent No.7 has been set aside by virtue of this order and this Court is permitting him to avail remedy of filing an election petition, the Election Tribunal shall decide the election petition within a period of one month from the date of its institution and if necessary, the Election Tribunal shall hold recounting of the votes and examine the record to arrive at a just conclusion. With the observations made above, present writ petition is disposed of, with no order as to costs. [KANWALJIT SINGH AHLUWALIA] JUDGE September 28, 2010 rps 5