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2001 DIGILAW 83 (PNJ)

Dharambir v. State Of Haryana

2001-01-16

AMARBIR SINGH GILL, V.S.AGGARWAL

body2001
Judgment AMARBIR SINGH GILL, J. 1. The petitioner claiming himself to be having been duly elected Sarpanch of Gram Panchayat Munimpur Tehsil and District Jhajjar, in the last Panchayat Election, seeks issuance of a writ under Articles 226/227 of the Constitution of India, directing the respondents to administer him the oath of office of the Sarpanch, Gram Panchayat, Munimpur, forthwith and for restraining the respondents from handing over the charge of the Gram Panchayat in the meantime to any Panch of the Gram Panchayat, Munimpur. The case of the petitioner is that the contested the election of Sarpanch of the Gram Panchayat and was duly declared elected after having secured the highest number of valid votes in the Election held on March, 2000. The Returning Officer prepared a report about his election and forwarded the same to the Block Development and Panchayat Officer for onward transmission to the concerned authorities. The result of the elections were reported in the press and published in Dainik Tribune dated 15-2-2000 and the name of the petitioner having been elected as Sarpanch of the Panchayat, appeared in para 3 of the News Item, copy Annexure P-2 with the petition. 2. The State Government organised oath ceremony function on 26-4-2000 at Jind and the Chief Minister of Haryana administered oath to the newly elected Sarpanchres and Panches of the respective villages. However, the petitioner was not administered oath. He made epresentation but was not given due consideration. In the last election, the post of Sarpanch of Village Munimpur was reserved for Scheduled Caste (Female) and in the recent election, it was open for general category. It is the case of the petitioner that the Panches of the village Panchayat, have been administered the oath but the action of the respondents refusing to administer the oath to the petitioner, without disclosing any reason is unconstitutional and arbitrary. 3. It is the case of the petitioner that the Panches of the village Panchayat, have been administered the oath but the action of the respondents refusing to administer the oath to the petitioner, without disclosing any reason is unconstitutional and arbitrary. 3. The respondents have filed the writen statements denying the claim of the petitioner to the office of the Sarpanch of Village Panchayat, on the ground that the office of Sarpanch of the Village Munimpur, to which the petitioner belongs, was reserved for female general category candidate and due to the mistake of the Returning Officer, nomination papers of the petitioner were wrongly accepted and thus the election of the petitioner in the circumstances was void ab initio, which does not vest any right to the petitioner and as such the post of Sarpanch was shown vacant, in the result notified by the State. 4. Heard learned counsel for the parties. 5. It is not disputed that the election to the Gram Panchayat was held in the year 1994 and the seat for the Sarpanch of the Village Panchayat, Munimpur District Jhajjar, was reserved for female scheduled caste candidate. The reservation of the office of Chairperson of the Gram Panchayat i.e. Sarpanch is duly provided in the Haryana Panchayati Raj Act, 1970. It is not disputed that the election to the Gram Panchayat was held in the year 1994 and the seat for the Sarpanch of the Village Panchayat, Munimpur District Jhajjar, was reserved for female scheduled caste candidate. The reservation of the office of Chairperson of the Gram Panchayat i.e. Sarpanch is duly provided in the Haryana Panchayati Raj Act, 1970. Section 9 of the said Act provides as under :- Section 9 - Reservation of seats in Gram Panchayat (1) Seats shall be reserved for the Scheduled Castes in every Gram Panchayat and the number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seats to be filled by election in that Panchayat as the population of Scheduled Castes in the Panchayat area bears to the total population of that area and such seats may be allotted to such wards having maximum population of persons belonging to Scheduled Castes".(2) Not less than one-third of the total number of seats reserved under sub section (1) shall be reserved for women belonging to the Sheduled Castes and such seats may be allotted by rotation and by lots to different wards reserved under sub section (1).(3) Not less than one third (including the number of seats reserved for women belonging to the Schedule Castes) of the total number of seats to be filled by direct election in every Panchayat, shall be reserved for women and such seats may be alloted by rotation and by lots to different wards in a Panchayat except those falling under sub- section (1) and (2).Sub section (2) above specifically provides that one third number of total vacancies to the office of Sarpanch in the block have to be reserved for women from the Scheduled Caste and the reservation is to be provided by rotation as per third proviso above. 6 The Haryana Panchayati Raj Election Rules, 1994 by its Rule 5 provides that the wards in which the seats shall be reserved for women and members of Scheduled Caste or Backward Classes shall be determined by the Sub-Divisional Officer (C) in the case of Gram Panchayat. 6 The Haryana Panchayati Raj Election Rules, 1994 by its Rule 5 provides that the wards in which the seats shall be reserved for women and members of Scheduled Caste or Backward Classes shall be determined by the Sub-Divisional Officer (C) in the case of Gram Panchayat. The procedure as to how the seats are reserved as provided in sub-rule (c) which is to be done by draw of lots and Rule 6 provides for determination of reserved seats of Chairpersons of Panchayat, which reads as under -(1) The Gram Panchayat, Panchayat samities and Zila Parishads, in which the office of Sarpanches in the Gram Panchayats in the block, the offices of the Chairmen in the Panchayat Samities in the District and the offices of the Presidents in the Zila Parishads in the State of Haryana shall be reserved for the Scheduled Castes and women, by the Sub-Divisional Officer (Civil), Addl : Deputy Commissioner and the Director respectively. The offices reserved for women shall be determined by draw of lots." 7. It is not disputed that the State Government vide Notification dated 28-9-1999 decided to hold General Elections of Panches and Sarpanches of the Gram Panchayats and members of the Panchayat Samities and Zila Parishad, by 31-3-2000 as specified by the State Election Commmission and that the process be completed for the holding of such elections. Necessary proceedings for reservation of seats, the Sub divisional Officer (civil), Jhajjar, in the compliane to the directions received frm the Deputy Commissioner, of the District dated 30-11-1999, proceeded to take steps for reservation of the office of Sarpanches in various Gram Panchayats, as required under Rule 6 (1) of the Haryana Panchayati Raj Act and the Election Rules 1994 (in brief Election Rules). He issued notices for the same informing all the voters of block Jhajjar for holding meeting for the said purpose on 6-1-2000 for reservation of seats by draw of lots for scheduled caste (women) and reservation by draw of lots to the ofice of Sarpanches for General (Women). Further informing that out of 71 Gram Panchayats 14 Gram Panchayats are to be reserved as per list enclosed by rotation. Where the population of scheduled castes is more in percentage, five seats are to be reserved for Scheduled Castes (Women) by draw of lot whereas 19 Gram Panchayats are to be reserved for General Women by draw of lots. Further informing that out of 71 Gram Panchayats 14 Gram Panchayats are to be reserved as per list enclosed by rotation. Where the population of scheduled castes is more in percentage, five seats are to be reserved for Scheduled Castes (Women) by draw of lot whereas 19 Gram Panchayats are to be reserved for General Women by draw of lots. The seat of Sarpanch of Village Munimpur was reserved for general category (women). A copy of the notice and the proceedings are placed on the record as Annexure A to D. 8. After receipt of necessary information in respect of reservation of the office of Sarpanches, the election programme was duly notified by the State Election Commission on 1-3-2000. The Returning Officer was entrusted with the orders of the Sub-Divisional Officer dated 6-1-2000 in respect of reservation of the Gram Panchayats for the office of Sarpanch for Women. However, subsequently on receipt of information regarding the election of the petitioner as Sarpanch against the said reserved seat for women (General), the Deputy Commissioner faxed message on 29-3-2000 to the State Election Commission, intimating that since the seat was reserved for woman of General category, no male voter was entitled to file nomination papers for election to the office of Sarpanch and as such the nomination papers were wrongly accepted by the Returning Officer and the election of the petitioner being void ab initio, he has no right to get his name notified. Accordingly, the name of the petitioner was not notified. 9. The counsel for the petitioner has mainly contended that since the petitioner has been declared elected in the report submitted by the Returning Officer, the validity of the election can only be determined in an Election Petition and his election cannot be cancelled otherwise, or not notified by the State Election Commission, for which it has no authority. 10. We find no merit in the contention of the learned counsel for the petitioner. Section 9 of the Haryana Panchayati Raj Act provides for reservation of seats for Scheduled Castes, Scheduled Castes (women), Women of General category for the offices of Sarpanch or Chairpersons of the Gram Panchayat and such reservation is to be made considering all the Panchayats in one block. Section 9 of the Haryana Panchayati Raj Act provides for reservation of seats for Scheduled Castes, Scheduled Castes (women), Women of General category for the offices of Sarpanch or Chairpersons of the Gram Panchayat and such reservation is to be made considering all the Panchayats in one block. Not less than one third of the total number of seats to be filled in by direct election of every Panchayat is to be reserved for women and the seats are allotted by rotation and by draw of lots to different wards except those reserved for Scheduled Caste and women belonging to Scheduled Castes. Besides the reservation of office of Chairperson of the Gram Panchayats for Scheduled castes women and women of General category, the process for election was notified vide Notification dated 28-9-1999. The elections were to be completed by 31-3-2000. The Deputy Commissioner, Jhajjar directed the Sub Divisional Officer (Civil) to process for the reservation of the seats of Sarpanches and the Chairpersons in accordance with Rules 6(1) of the Election Rules for which the Sub-Divisional Officer, (Civil) Jhajjar, took proceedings on 6-1-2000. After the completion of the reservation of the seats, the election programme was duly notified on 23-2-2000, which was subsequently modified by another Notification dated 1-3-2000 in view of intervening Matriculation Examinations. It is the specific case of the respondents that the proceedings on 6-1-2000 were conducted after due publicity and list of the persons belonging to the different villages who have attended the said proceedings are also mentioned in the proceedings list, copy Anexure B and C. The Deputy Commissioner, Jhajjar, vide his leter dated 4-9-2000, copy of which is Annexure R2/2 had sent time to time proceedings in respect of reservation of the seats for the Chairpersons of the Gram Panchayats in the election to the State Election Commission. As already indicated, the Sub Divisional Officer (Civil) had taken proceedings on 6-1-2000 and the State Election Commission was duly informed by the Sub-Divisional Officer on 31-1-2000 (copy Annexure D). The copies of the list of reserved seats were duly notified on the notice board of the office of Panchayat Samities and also on the notice board of the Block Development and Panchayat Officer, Jhajjar. The copies of the list of reserved seats were duly notified on the notice board of the office of Panchayat Samities and also on the notice board of the Block Development and Panchayat Officer, Jhajjar. In the circumstances as it is clearly made out that the process of reservation of various Gram Panchayats for the purposes of Chairpersons women in general or women of Scheduled castes category were completed prior to the issuance of Notification for holding of elections. The Returning Officer who was to conduct the elections for the Gram Panchayat, was supposed to have necessary directions or information if the Gram Panchayat falls under the reserve category or not. However, the Returning Officer accepted the nomination papers of male candidates for the office of Sarpanch reserved for General caegory (women). It is the specific case of the respondents that it was sheer mistake and negligence of the Returning Officer that the nomination papers of male candidates were accepted. Since, the office of Chairpersons of the Gram Panchayat, Munimpur was reserved for a woman of General Category candidate and no such election for woman candidate was held, the election of the petitioner in the circumstances was no election in accordance with the Notification and it cannot give any right to the petitioner to hold the office of Sarpanch for the same village. 11. As already indicated under the Act as well as in the Rules the reservation of different seats of Chairpersons are to be reserved by rotation as well as by draw of lots, election of a male Sarpanch against the reserved seat for a female (General category) would disturb the over all ratio of such reservations and as such the claim of the petitioner to the office is against the provisions of the Haryana Panchayati Raj Act and would defeat the very purpose of the reservation in favour of women candidates. The contention of the learned counsel that the election of the petitioner can only be set-aside in the Election Petition is not available to him because no election to the office of Chairperson of a women of General category was held. The total exercise of voters and the election of the petitioner was an exercise in futility. The contention of the learned counsel that the election of the petitioner can only be set-aside in the Election Petition is not available to him because no election to the office of Chairperson of a women of General category was held. The total exercise of voters and the election of the petitioner was an exercise in futility. The petitioner thus cannot maintain his claim for which he is not eligible, even though shown to have ben elected the petitioner a male had no right to seek election to the office of Sarpanch of the Panchayat which was reserved for a female from General category. Since, the petitioners election does not cloth him with any legal right, he has no case for issuance of any direction, as prayed for. 12. It is the specific case of the respondents that the Returning Officer committed grave and intentional mistake in accepting the nomination papers of the petitioner for an office which was reserved for a lady Sarpanch and even declared the petitioner elected one, such a Returning Officer can not escape necessary legal action against him. The petitioner has not impleaded the Returning Officer as one of the respondents. The respondent-authorities in the circumstances are required to fix responsibility and take necessary action against him in accordance with law for such glaring dereliction of duty in the conduct of the election to the Gram Panchayats.In view of the observation above, this writ petition is dismissed being without merit.Petition dismissed.