CWP No.10815/2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Date of Decision:18.2.2009. (1) CWP NO.10815//2008 Arjan Singh and others ..........Petitioners. Versus State of Punjab and others. ..........Respondents. Present:- Mr.PK Gupta,Advocate for the petitioners. Mr.NDS Mann,Addl.AG Punjab for the respondents 1 to 3. Mr.Mansur Ali,Advocate for respondent no.4. (2) CWP NO.11396/2008 Krishan Kumar ..........Petitioner. Versus State of Punjab and others. ..........Respondents. Present:- Mr.Mansur Ali,Advocate for the petitioner. Mr.NDS Mann,Addl.AG Punjab for the respondents 1 to 4. Mr.P.K.Gupta,Advocate for respondents 5 to 7. (3)CWP NO.17620/2008 Nathu Ram and another ..........Petitioners. Versus State of Punjab and others. CWP No.10815/2008 -2- ..........Respondents. Present:- Mr.Mansur Ali,Advocate for the petitioners. Mr.NDS Mann,Addl.AG Punjab for the respondents 1 to 3. Mr.CM Munjal,Advocate for respondents 4 to 10. (4)CWP NO.17621/2008 Pardeep Singh ..........Petitioner Versus State of Punjab and others. ..........Respondents. Present:- Mr.Mansur Ali,Advocate for the petitioner. Mr.NDS Mann,Addl.AG Punjab for the respondents 1 to 3. Mr.CM Munjal,Advocate for respondents 4 to 6. (5) CWP NO.17622/2008 Radhe Sham ..........Petitioner. Versus State of Punjab and others. ..........Respondents. Present:- Mr.Mansur Ali,Advocate for the petitioner. Mr.NDS Mann,Addl.AG Punjab for the respondents 1 to 3. Mr.Amit Rana,Advocate for respondents 4 to 10. **** CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL. HON'BLE MR.JUSTICE JASWANT SINGH. JASWANT SINGH,J. This order, with the consent of learned counsel for the parties, CWP No.10815/2008 -3- will dispose of CWP No.10815, 11396, 17620, 17621 and 17622 of 2008, as common questions of facts and law are involved in all these petitions. The admitted facts in all these petitions are that general elections of the gram panchayats in the entire State of Punjab, as per the election programme issued by The State Election Commissioner,Punjab were scheduled to be held on 26.5.2008; nomination papers were to be filed w.e.f. 13.5.2008 till 16.5.2008, scrutiny of nomination papers was to take place on 17.5.2008; 19.5.2008 was fixed as the last date for withdrawal of nomination papers and allotment of election symbols and 26.5.2008 was fixed as a date on which a poll, if necessary was to take place. As stated hereinabove, though the facts are common in all these writ petitions, however, for the sake of clarity, it is desirable to briefly discuss them separately. CWP No.10815 and 11396 of 2008. These two writ petitions are inter-connected in so far as these relate to the election of the Panches of Gram Panchayat of Village Chak Pandian, Tehsil Mukerian, District Hoshiarpur. Since facts of these two writ petitions are intermingled and have direct bearing upon each other hence, are dealt with together. Arjan Singh(General Category), Shakuntla Devi (Women Category) and Madan Lal (General Category) (petitioners in CWP No.10815/2008) and Krishan Kumar (petitioner in CWP no.11396/2008) filed their nomination papers to contest the election against five seats of Panches of Gram Panchayat, Chak Pandian, in their respective categories. While nomination papers of Krishan Kumar (petitioner in CWP CWP No.10815/2008 -4- no.11396/2008) were rejected by the Returning Officer, Arjan Singh, Shakuntla Devi and Madan Lal (petitioners in CWP No.10815/2008) were declared elected unopposed by the Returning/Presiding Officer in their respective categories on 19.5.2008 itself , which was fixed as the last date for withdrawal of nomination papers and allotment of election symbols. Aggrieved against the rejection of his nomination papers, Krishan Kumar (petitioner in CWP no.11396/2008) filed CWP No.9208 of 2008 in this Court, which was disposed of by a Division Bench vide order dated 23.5.2008 (appended as Annexure P/1 with CWP No.11396/2008) with a direction to the State Election Commissioner, Punjab to consider his representation dated 17.5.2008 and decide the same expeditiously. The aforesaid directions dated 23.5.2008 issued by this Court in CWP No.9208/2008, to the State Election Commission, Punjab, were conveyed to the Deputy Commissioner-cum-District Electoral Officer, Hoshiarpur, who in turn directed the Additional Deputy Commissioner (Dev.)Hoshiarpur to consider and decide the representation dated 17.5.2008 filed by Krishan Kumar (petitioner in CWP no.11396/2008) challenging the rejection of his nomination papers. Accordingly, the Additional Deputy Commissioner (Dev.) Hoshiarpur vide order dated 24.5.2008 (appended as Annexure P/4 with CWP No.10815/2008), accepted the aforesaid representation dated 17.5.2008 filed by Krishan Kumar (petitioner in CWP no.11396/2008), holding that his nomination papers were erroneously rejected and the same were ordered to be validly filed. Consequent to the passing of the order dated 24.5.2008 by CWP No.10815/2008 -5- Additional Deputy Commissioner (Dev.)Hoshiarpur, the seats of Panches, against which Arjan Singh, Shakuntla Devi and Madan Lal (petitioners in CWP No.10815/2008) already stood declared as elected unopposed on 19.5.2008 by the Returning/Presiding Officer, were declared as vacant by the Block Development and Panchayat Officer, Talwara, vide communication (fax message dated 10.6.2008-appended as Annexure P/5 with CWP No.10815/2008). After the passing of the aforesaid order dated 24.5.2008, the posts of Panches of Gram Panchayat Chak Pandian fell vacant, therefore, the Additional Deputy Commissioner(Dev.)-cum-Addl.District Electoral Officer, Hoshiarpur, vide memo no.3629 dated 6.6.2008 (appended as Annexure P/3 with CWP No.11396/2008) issued guidelines to all the B.D.P.Os., District Hoshiarpur, for holding fresh elections of Gram Panchayats, where elections could not be held on 26.5.2008. Arjan Singh, Shakuntla Devi and Madan Lal filed CWP No.10815/ 2008 (on 11.6.2008) challenging the order dated 24.5.2008 (Annexure P/4) passed by Additional Deputy Commissioner, Hoshiarpur whereby nomination papers of Krishan Kumar (petitioner in CWP No.11396/2008) were held to be validly filed; and (ii) communication (fax message dated 10.6.2008-appended as Annexure P/5 with CWP No.10815/2008) declaring the seats of Panches of Gram Panchayat Chak Pandian, to be vacant, against which otherwise petitioners-Arjan Singh etc. already stood declared as unopposed by the Returning Officer on 19.5.2008 itself. Since State Election Commission, Punjab countermanded CWP No.10815/2008 -6- elections of various Gram Panchayats in the State of Punjab on the ground of illegalities committed by the Returning Officers like wrong acceptance/rejection of nomination papers, alleged fraudulent withdrawals or tampering of records etc., many writ petitions were filed in this Court,which were taken up together including the writ petition No.10815/2008 (Arjan Singh and others v. State of Punjab etc.) for hearing at the motion stage by a Division Bench of this Court and vide interim order dated 13.6.2008, holding of fresh election of Panches was ordered to be stayed, where candidates had been declared elected in accordance with either Section 54 (being unopposed) or Section 69 (after contest) of the Punjab State Election Commission Act,1994 (for short Election Commission Act 1994). Accordingly, Additional Deputy Commissioner(Dev.)-cum- Additional District Electoral Officer, Hoshiarpur, vide order dated 20.6.2008 (appended as Annexure P/4 with CWP No.11396/2008) directed that election to Gram Panchayat, Village Chak Pandian, which was rescheduled to be held on 22.6.2008, shall remain postponed till further orders from this Court. It is this order dated 20.6.2008 (Annexure P/4) which has been challenged by petitioner Krishan Kumar in CWP No.11396/2008, with a prayer to direct the respondent-State to forthwith hold elections. An application under Order 1 Rule 10 CPC, bearing CM No.19505 of 2008 was moved by Arjan Singh, Shakuntla Devi and Madan Lal (petitioners in CWP No.10815/2008) for impleading them as respondents 5 to 7 in CWP No.11396/2008 (Krishan Kumar vs. State of CWP No.10815/2008 -7- Punjab and others). Vide order dated 1.10.2008, this Court allowed the said application and applicants Arjan Singh, Shakuntla Devi and Madan Lal (petitioners in CWP No.10815/2008) were ordered to be impleaded as respondents 5 to 7 in CWP No.11396/2008 (Krishan Kumar vs.State of Punjab and others). CWP No.17620,17621 and 17622/2008. In these three writ petitions, for election to the seats of Panches of Gram Panchayats Bandiwala, Dhani Harcharan Singh Randhawa, and Kheowali Dhab respectively, Block Khuian Sarwar, Tehsil Fazilka, District Ferozepur, nomination papers of the petitioners were rejected whereas private respondents were declared by the Returning Officer to have been elected unopposed on 19.5.2008 itself, i.e. the date of withdrawal of nomination papers and allotment of election symbols. Petitioners/villagers of their aforesaid respective Gram Panchayats made representation(s) to the State Election Commissioner, Punjab, Chandigarh regarding illegal rejection of their nomination papers. The said representations were looked into by the Enquiry Officer-cum-Secretary, Regional Transport Authority, Ferozepur and it was found that nomination papers of the petitioners should have been accepted. Enquiry reports were accordingly submitted to the District Electoral Officer/Additional District Electoral Officer. On the basis of the aforesaid enquiry reports District Electoral Officer/Additional District Electoral Officer recommended countermanding of the polls. CWP No.10815/2008 -8- Accordingly, State Election Commissioner, Punjab vide order dated 24.5.2008 ordered countermanding of the polls, which, as averred in these writ petitions, was to be held on 22.6.2008. As already noticed above, since State Election Commission, Punjab countermanded elections of various Gram Panchayats in the State of Punjab on the ground of illegalities committed by the Returning Officers like wrong acceptance/rejection of nomination papers, alleged fraudulent withdrawals or tampering of records etc., many writ petitions were filed in this Court,which were taken up together for hearing at the motion stage by a Division Bench of this Court and vide interim order dated 13.6.2008, holding of fresh election of Panches was ordered to be stayed, where candidates had been declared elected in accordance with either Section 54 (being unopposed) or Section 69 (after contest) of the Punjab State Election Commission Act,1994 (for short Election Commission Act 1994). Since private respondents in these three writ petitions already stood declared as elected unopposed on 19.5.2008 , Deputy Commissioner- cum- District Election Officer, Ferozepur, vide order dated 16.6.2008 (appended as Annexure P/7 with CWP No.17620/2008 and P/6 with CWP Nos.17621 and 17622/2008) directed that election process of Gram Panchayats, Bhandiwala, Dhani Harcharan and Kheowali Dhab (to which the petitioners/private respondents in CWP Nos.17620 to 17622 respectively belong) shall remain stayed. It is this order dated 16.6.2008, quashing of which has been sought in these three writ petitions with a further prayer not to declare private respondents as unanimously elected. CWP No.10815/2008 -9- Discussion. Mr.P.K.Gupta, counsel for the petitioners in CWP No.10815/2008, Mr.C.M.Munjal and Mr.Amit Rana,Advocates for the private respondents (in CWP Nos. 17620, 17621 and 17622 of 2008, who were declared unopposed by the Returning Officers) have contended that once the result of the election was declared by the Presiding Officer in Form V, as per Rule 13 of the Punjab Panchayati Election Rules,1994 (for short Election Rules 1994), declaring the petitioners/ private respondents as unopposed elected Panches, the State Election Commission or any other authority has no jurisdiction or power under the law to countermand the election. It is further submitted that once Form V was issued declaring the petitioners/private respondents elected as Panches, the State Election Commission, District Electoral Officer or the Presiding Officer etc. had become functus officio and the said result can only be set aside by the Election Tribunal on an election petition filed by the defeated candidate or any other person under Section 76 read with Section 89 of the Election Act,1994). It is further submitted that elections can only be countermanded on the grounds specified under Section 60 of the Election Act,1994. In support of their arguments, that where a candidate is declared elected, his election can only be questioned by way of election petition before the Election Tribunal, reliance has been placed upon Kashmir Kaur v. State of Punjab, 2004(1) RCR (Civil) 580; Jagjit Singh v. State Election Commission, Punjab 2003(2) RCR (Civil) 763, Randhir Singh v. State CWP No.10815/2008 -10- Election Commission, Punjab, 2004(3) RCR (Civil) 515 and Kulwinder Kaur v. State of Punjab, 2005(2)RCR (Civil) 392. On the other hand, Mr.NDS Mann, learned Additional Advocate General, Punjab (representing official respondents) and Mr.Mansur Ali,Advocate (representing petitioners in CWP Nos. 11396 and 17620 to 17622/2008 and private respondent no.4 in CWP No.10815/2008), by placing reliance on the provisions of Article 243-K of the Constitution of India read with Section 3 of the Election Commission Act,1994 and Section 210 of the Punjab Panchayati Raj Act,1994 (for short Panchayati Act,1994) argued that power of superintendence, direction and control of the preparation of the electoral roll for, and the conduct of all elections to Panchayat and Municipalities,vests in the State Election Commission and extends to countermanding the elections where glaring illegalities like wrong acceptance/rejection of nomination papers, alleged fraudulent withdrawals or tampering of records, etc. have been committed by the Presiding/Returning Officers in the declaration of the results since the authorities cannot remain mute spectators. It has been further argued that orders for countermanding the elections were issued in compliance of the orders dated 21.5.2008 passed by this Court in CWP No.8448 of 2008 (Balbir Kaur and others v. State of Punjab and others) wherein this Court taking in view the manner in which the nomination papers were being rejected by the Returning Officers, had directed the State Election Commission to consider and decide the representations of the affected candidates. We have heard the learned counsel for the parties. CWP No.10815/2008 -11- Before we consider the question of law raised before us, it is necessary to reproduce all the provisions of the Acts/Rules which have been relied upon by the learned counsel for the parties:- “The Constitution of India” Article 243-K: Elections to the Panchayats.- The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections of the Panchayats shall be vested in a State Election Commission to be appointed by the Governor. (2)xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (3)xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (4)Subject to the provisions of this Constitution, the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the Panchayats. 243-O Bar to interference by Courts in electoral matters.- Notwithstanding anything in this Constitution- (a)xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any Law made by the Legislature of a State.” “ The Punjab Panchayati Raj Act,1994” Section 210:- Election Commission to conduct Panchayat election- The superintendence, direction and control of the CWP No.10815/2008 -12- preparation of electoral rolls for and conduct of, all elections to the Panchayats, shall be vested in the Election Commission.” “ The Punjab State Election Commission Act,1994”. Section 3. Election to Panchayats and Municipalities.--(1) The State Government shall by notification in the Official Gazette establish a State Election Commission (hereinafter referred to as the Election Commission) for the superintendence, direction and control of the preparation of the electoral roll for, and the conduct of all elections to Panchayats and Municipalities. (2)The Election Commission established under sub- section(1), shall consist of a State Election Commissioner (hereinafter called the Election Commissioner) to be appointed by the Governor. (3)The State Government may by notification in the Official Gazette, also entrust to the Election Commission for the conduct of elections to any other body or bodies to be constituted under the Constitution of India or under any other law for the time being in force. Section 54. Procedure in contested and uncontested elections.--(1) If the number of contesting candidates is more than the number of seats to be filled, a poll shall be taken. (2)If the number of such candidates is equal to the number of seats to be filled, the Returning Officer CWP No.10815/2008 -13- shall forthwith declare all such candidates to be duly elected to fill those seats. (emphasis supplied) (3)If the number of such candidates is less than the number of seats 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. Provided that where the constituency or the elected members having already been called upon under this sub-section, has or have failed to elect a person or the requisite number of persons, as the case may be, to fill the vacancy or vacancies, the Election Commission shall not be bound to call again upon the constituency, or such members to elect a person or persons until it is satisfied that if called upon again, there will be no such failure on the part of the constituency of such members. Section 58. Adjournment of poll in emergencies.-(1) If at any election, the proceedings at any polling station provided under Section 19 are interrupted or obstructed bny 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 or the Returning Officer, as the case may be, shall announce an CWP No.10815/2008 -14- 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. (2)Whenever a poll is adjourned under sub-section(1), the Returning Officer shall immediately report the circumstances to the prescribed authority and the Election Commission and the Returning Officer shall, as soon as may be, with the previous approval of the Election Commission, appoint the day on which the poll shall be taken, and fix the polling station or place at which and the hours during which, the poll shall be taken and shall not count the votes cast at such election until such adjourned poll is completed. (3)In every such case as aforesaid, the Returning Officer shall notify in such manner, as the Election Commission may direct, the date, place and hours of polling fixed under sub-section(2). Section 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 the Presiding Officer or the Returning Officer, or is accidentally or intentionally destroyed or lost, or is CWP No.10815/2008 -15- 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 Commission shall, after taking all material circumstances into account, either,- (a) declare the poll at that polling station or place to be void and shall appoint a day, and fix the house, 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 of 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 CWP No.10815/2008 -16- thereunder shall apply to every such fresh poll as they apply to the original poll. Section 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 that place cannot be ascertained; 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 CWP No.10815/2008 -17- counting of votes in such a manner so 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. 69.Declaration of results.--When the counting of the votes has been completed, the Returning Officer, shall in the absence of any direction by the Election Commission to the contrary, forthwith declare the result of the election in the manner provided by this Act or the rules made thereunder. 72.Date of election of candidates.--For the purposes of this Act, the date on which a candidate is declared by the Returning Officer to be elected, shall be the date of election of that candidate. The Punjab Panchayat Election Rules,1994. Rule 13. Publication of the list of validly nominated candidates (Section 43).-The particulars of the validly nominated candidates shall be displayed outside the office of the Returning Officer in Form-V and will contain the names in alphabetical order alongwith the particulars of the candidates and symbols allotted to each of the candidates. Rule 31. Adjournment of polls in emergencies (Section 58).-- (1) The Returning Officer, the Presiding Officer, the District Election Officer or the Election Commission may adjourn the CWP No.10815/2008 -18- poll in a sabha area or constituency at any time in case the poll is interrupted or obstructed by :- (i)any riot or violence; or (ii)a direct or indirect threat to the election process or conduct of poll; or (iii)an action of snatching or destroying the ballot papers; or (iv)any type of natural calamity; or (v)booth-capturing at the polling station or at a place fixed for polling; or (vi)any other sufficient reason to be recorded in writing. (2)Whenever the polling is adjourned in terms of the provisions of [sub-rule(1)] the Returning Officer shall as soon as practicable, report the matter to the Election Commission who shall appoint a day for a fresh poll and shall fix the time at which such poll shall be held. Rule 32.Cancellation of Election Programme.--(1) Subject to the provisions of rule[30] the Election Commission or District Election Officer, for reasons to be recorded in writing, may by an order, cancel the election programme at any time, before the commencement of the poll, [if] (i)electors are threatened or prevented from exercising their franchise; or (ii)electors are threatened or prevented directly or indirectly not to contest the [elections; or] CWP No.10815/2008 -19- (iii)there is any type of natural [calamity] (2)whenever an election programme is cancelled in terms of the provisions of sub-rule (1), the Election Commission shall frame a fresh election programme as provided in section 35 in respect of that Sabha area or [constituency]. Rule 33.Counting of votes (Section 66).--(1) in a Sabha area where there is only one polling Station, the Returning Officer shall follow the [procedure set out in sub-rule (2) for the counting of votes and declaration of result for election to the Gram Panchayat. (2)The Presiding Officer shall, as soon as practicable, after the close of the poll and in the presence of any candidate or polling agent, who may be present:-- (a) inspect and also allow an opportunity to candidates or their polling agents to inspect the ballot-boxes and their seals to satisfy themselves that they are in order; (b) open the ballot-box after checking the mark or marks made on the box and the label affixed, takes out the ballot papers from the box and arrange them in convenient bundles, separating the ballot-papers