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2001 DIGILAW 1359 (PNJ)

Sanjay Singh v. State of Haryana

2001-12-04

ADARSH KUMAR GOEL

body2001
JUDGMENT Adarsh Kumar Goel, J. - On 16-3-2000, general election to the Grain Panchayats in the State of Haryana were held and one Roopak Malik was declared elected as Sarpanch of Gram Panchayat, Asan Khurd. Respondent No. 5-Usha Rani filed election petition in the Civil Court Panipat under the provisions of the Haryana Panchayati Raj Act, 1994 (for short the Act) and during pendency thereof, Roopak Malik resignation on 21.3.2001 which was accepted on the same day. The State Election Commission issued notification dated 3.7.2001 (Annexure P-2) prescribing time schedule for conduct of by-election to fill up the vacancy for the remaining term and as per that schedule the elections were held and the petitioner was declared elected on 29.7.2001. After the notification dated 3.7.2001, Annexure P-2 was published, a representation appears to have been made by respondent No. 5 on which the State Election Commission appears to have issued letter dated 18.7.2002, Annexure R-2 that the result of the election will be subject to the result of the election petition and this fact should be got noted from the candidates, even though this may be of no legal consequence. The State Election Commission, however issued notification dated 1.10.2001 declaring respondent-Usha Rani to have been elected as Sarpanch in view of the judgment of the Civil Court in the pending election petition, dated 11.9.2001 (Annexure P-4). Hence this petition. 2. The writ petition was admitted and the contesting respondents have filed written statement. It is contended that the State Election Commission having indicated in its letter dated 18.7.2001 that the result of the election will be subject to the result of the election petition and a similar endorsement having been made in the declaration of result, Annexure R-2/3, the result of the election petition had to be given effect to. 3. The following questions arise for consideration : (i) Whether declaration of vacancy b the State Election Commission after acceptance of resignation of elected Sarpanch will render a pending election petition infructuous in the sense that no other person could be declared elected therein which would be inconsistent with the result of the election declared by the State Election Commission in the election ordered to be held? 4. 4. Counsel for the petitioner argued that once notification dated 3.7.2001 (Annexure P-2) was issued and the electorate was invited to participate in the by-election to elect a Sarpanch the person elected in such an election was entitled to continue to hold the elected office irrespective of the decision of the Court in a pending election petition and endorsement in the notification declaring the result of election by the State Election Commission to be subject to the decision of the pending Court case could not be given effect. The election which had been declared by the State Election Commission was not under any order of the Court and the State Election Commission had no jurisdiction to make a provision that the result of the election will be subject to the result of the election petition, in absence of any direction from Court. It is further contended that the State Election Commission was free to hold election or not to hold election and once a decision was taken to hold election and notification dated 3.7.2001 was issued without any condition that the election was being held provisionally or conditionally, the State Election Commission could not subsequently impose any such condition. 5. Learned counsel for the State Election Commission, Dr. Balram Gupta submitted that it was not in the knowledge of the Election Commission that any election petition was pending when notification dated 3.7.2001 was issued and subsequently, when it came to the notice of the Commission, the Commission made an endorsement in the result of the election, Annexure R-2/3. He further pointed out that even prior to declaring the result of the election, the State Election Commission has written to the Deputy Commissioner on 18.7.2001 (Annexure R-2) and the Deputy Commissioner had also written to the concerned officer vide Annexure R-3 that result of the election would be subject to the result of the election of the election petition. Counsel for respondent No. 5 supported the stand of the State Election Commission and also submitted that his client was not at fault and he intimated the State Election Commission as soon as the notification for holding by-election was published. 6. Counsel for respondent No. 5 supported the stand of the State Election Commission and also submitted that his client was not at fault and he intimated the State Election Commission as soon as the notification for holding by-election was published. 6. The stand of the State Election Commission is that the Election Commission had no opinion but to adopt such a course, but the question is, whether notification dated 3.7.2001 declaring holding of by-election unconditionally could in any way be modified or changed. Admittedly, notification dated 3.7.2001 was not challenged by any one. Though the State Election Commission in its wisdom or on legal advice made an endorsement or took steps to indicate that the result of the by-election will be subject to the result of the election petition, the State Election Commission had no legal jurisdiction to do so. Once holding of election was politically notified, no uncertainty could be allowed to be brought in. The State Election Commission was not competent to create uncertainty by putting a condition in the result of the election or by issuing any direction to the officers. The result of to election, once held, had to be given full effect to. The only remedy of the aggrieved party, if any, was either to participate in the election which was open to all, or to have the election cancelled. Remedy of election petitioner to seek a declaration of having been elected in the previous election would legally be closed with the declaration of fresh election vide Annexure P-2. The election Court before whom the election petition was pending had no jurisdiction to declare the election-petitioner elected after another person had been duly elected in the by-election or, if the process of holding of fresh election had started or was pending. 7. After considering the rival contentions, I am of the view that the course adopted by the State Election Commission is not legally correct. 8. For the above reasons, the writ petition is allowed. Notification dated 1.10.2001 denotifying the result of the by-election of the petitioner is set aside. Petition accepted.