Research › Search › Judgment

Punjab High Court · body

2005 DIGILAW 8 (PNJ)

Harnek Singh v. Jaswant Singh

2005-01-04

V.M.JAIN

body2005
Judgment V.M.Jain, J. 1. This appeal has been filed by Harnek Singh (returned candidate) against the order dated 9.12.2004, passed by the Additional Election Tribunal, vide which the election petition filed by Jaswant Singh (Election Petitioner) was allowed, the election of Harnek Singh (returned candidate) as Sarpanch of Gram Panchayat, Jaukarian, was set aside and Jaswant Singh (Election Petitioner) was declared elected in place of Harnek Singh, as Sarpanch. 2. While accepting the Election Petition filed by Jaswant Singh challenging the election of Harnek Singh, as Sarpanch of Gram Panchayat, Jaukarian, it was found by the Additional Election Tribunal that at the time of election Harnek Singh was working as Grameen Dak Sewak (Mail Carrier) in the Department of Posts and Telegraphs, Union of India and being a Grameen Dak Sewak, he was a government employee and thus he was disqualified to contest the election of Sarpanch, as provided Under Section 11(g) of The Punjab State Election Commission Act, 1994 (hereinafter referred to as the Act). Furthermore, while setting aside the election of Harnek Singh as Sarpanch and declaring Jaswant Singh, Election Petitioner as elected Sarpanch of Gram Panchayat. Jaukarian, the Additional Election Tribunal had placed reliance on the provisions of Section 90 of the Act, since no material had come on the record which rendered him (Jaswant Singh) unfit to hold office of Sarpanch. 3. In the present appeal filed by Harnek Singh, the learned counsel appearing for the appellant has raised two points before me. The first point raised by him is that Under Section 12 of the Act, it has been provided that if any question arises as to whether a member has become subject to any disqualifications specified in Article 243F 243V of the Constitution of India or Under Section 11 of the Act, the question shall be referred for decision of the State Government and its decision shall be final and before giving any decision on such question, the State Government shall obtain the opinion of the Election Commission and shall act according to such opinion. It has been submitted that only State Government was empowered to decide the question regarding qualification or disqualification and that the Election Tribunal was not competent to go into this question. 4. However, 1 find no force in this submission of the learned counsel for the appellant. It has been submitted that only State Government was empowered to decide the question regarding qualification or disqualification and that the Election Tribunal was not competent to go into this question. 4. However, 1 find no force in this submission of the learned counsel for the appellant. Chapter IV of the Act deals with disqualification for membership of a Panchayat or a Municipality. Section 11 (Part of Chapter IV) of the Act provides that a person shall be disqualified for being chosen and for being a member of a Panchayat or a Municipality xxx" (g) if He holds an office of profit under the Government of India or any State Government" and xxx. Under Section 12 of the Act, it is provided that if any question arises as to whether any member of any Panchayat or Municipality has become subject to any of the disqualifications specified in Articles 243F or 243V of the Constitution of India or Under Section 11 of the Act, the question shall be referred for decision of the State Government and its decision shall be final. It is further provided that before giving any decision on such question, the State Government shall obtain the opinion of the Election Commission and shall act according to such opinion. 5. In my opinion, the provisions of Section 12 of the Act cannot be read to mean that the Election Tribunal was not competent to decide the question as to whether the returned candidate was or was not qualified for being chosen as a member of Panchayat or Municipality. Chapter XII of the Act deals with the election petitions. Section 73 of the Act provides for the constitution of an Election Tribunal. Section 74 of the Act provides as Under- "No election shall be called in question except by an election petition presented in accordance with the provisions of this Chapter". 6. Section 75 of the Act lays down that only the Election Tribunal having jurisdiction shall have the power to adjudicate upon election petitions. Section 76 deals with presentation of petitions while Section 77 deals with the parties to the petition. 6. Section 75 of the Act lays down that only the Election Tribunal having jurisdiction shall have the power to adjudicate upon election petitions. Section 76 deals with presentation of petitions while Section 77 deals with the parties to the petition. Section 78 of the Act deals with the contents of the election petition while Section 79 of the Act provides that a petitioner may in addition to claiming a declaration that the election of all or any of the returned candidates is void, claim further declaration that he himself or any other candidate may be declared as duly elected. Section 80 provides for trial of the election petitions while Section 81 deals with the procedure to be followed before the Election Tribunal. 7. From a perusal of the above provisions of the Act detailed in Chapter XII would clearly show that the election of a Sarpanch of a Gram Panchayat could be called in question only by way of election petition and not otherwise. In this view of the matter, in my opinion, it could not be said that the Election Tribunal was not competent to decide the question regarding qualification of the present appellant namely Harnek Singh to contest the election for the post of Sarpanch of Gram Panchayat Jaukarian. In my opinion, the provisions of Section 12 of the Act would not come in the way of the Election Tribunal for deciding the question regarding qualification or disqualification of Harnek Singh in contesting the said election. The provision of Section 12 will not come into play when the election of a person is to be called in question before the Election Tribunal on the ground that he was not qualified to contest the said elections. In this view of the matter. I reject the first contention raised before me by the learned counsel for the appellant. 8. With regard to the question as to whether the appellant was in fact disqualified to contest the election it has been found as a fact by the Tribunal that the appellant was working as Grameen Dak Sewak in the Department of Posts and Telegraph at the time of elections and being a Government employee he was disqualified to hold the office of Sarpanch as per Section 11(g) of the Act. Learned counsel for the appellant has not controverted the finding of the Tribunal that the appellant was working as Grameen Dak Sewak in the Department of Posts and Telegraph at the time when he contested the election. In this view of the matter, in my opinion, the Tribunal was perfectly justified in holding that the appellant was disqualified under Section 11(g) of the Act to hold the office of Sarpanch. I am further of the opinion that the learned Tribunal had rightly placed reliance on the law laid down by this court in the case Chet Ram V/s. Jit Singh and Anr. F.A.O. No. 4305/2004, decided on 4.11.2004, in which, after considering the entire matter it was held that a Grameen Dak Sewak,, was holding the post under the Central Government, even if as a part time employee and as such he was disqualified for contesting the Municipal Election Under Section 11(g) of the Act. Reference was also made to the Department of Posts. Grameen Dak Sewak (Conduct of Employees) Rules, 2001, framed by the Central Government, while coming to this conclusion. Thus, being a Central Government employee, in my opinion, the appellant was rightly held to be disqualified to hold the office of the Sarpanch. 9. The next contention raised before me by the learned counsel for the appellant is that the Additional Election Tribunal while setting aside the election of the appellant as Sarpanch had declared Jaswant Singh, Election Petitioner, as elected in place of the appellant as Sarpanch of Gram Panchayat, Jaukarian, Under Section 90 of the Act. It has been submitted that Under Section 90 of the Act Jaswant Singh could not have been declared as elected Sarpanch of Gram Panchayat Jaukarian, since the Election Petitioner had obtained lesser number of votes than the appellant. However, I find no force in this Submission of the learned counsel the appellant. As referred to above, Section 79 of the Act provides that a petitioner may in addition to claiming a declaration that the election of all or any of the returned candidates is void, can also claim further declaration that he" himself or any other candidate be declared as duly elected. As referred to above, Section 79 of the Act provides that a petitioner may in addition to claiming a declaration that the election of all or any of the returned candidates is void, can also claim further declaration that he" himself or any other candidate be declared as duly elected. Furthermore, Under Section 87 of the Act Election Tribunal has been empowered to pass an order, dismissing the election petition: declaring election of all or any of the returned candidates to be void; or declaring the election of all or any of the returned candidates to be void and also declaring the election petitioner or any other candidate to have been duly elected. Under Section 89 of the Act, it has been provided that if the Election Tribunal is of the opinion that on the date of his election a returned candidate was not qualified to be chosen to fill the seat Under the Constitution of India or under the said Act etc., the Election Tribunal shall declare the election of the returned candidate to be void. Furthermore Under Section 90 of the Act, it has been provided that if any person who has filed an election petition has in addition to calling, in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the Election Tribunal is of the opinion that in fact the petitioner or such other candidate received a majority of the valid votes or that but for the votes obtained by the returned candidate by corrupt practices, the petitioner or such other candidate would have obtained a majority of the valid votes; the Election Tribunal shall, after declaring the election of the returned candidate to be void, declare the petitioner or such other candidate, as the case may be, to have been duly elected. 10. 10. From a perusal of the above, in my opinion, it would be clear that where the election petitioner is also claiming that he should be declared as duly elected besides claiming a declaration that the election of the returned candidate be declared as void, the Election Tribunal is competent not only to declare the election of returned candidate to be void on the ground that the returned candidate was not qualified or was disqualified to be chosen to fill the seat, the Election Tribunal is also competent to declare the election petitioner to have been duly elected. 11. In Balwant Singh V/s. Chater Singh, (1995-1)109 P.L.R. 120, it was held by a Division Bench of this Court that where there were only two candidate in the field and one having been held to be ineligible to contest the election, the other candidate was required to be declared as elected. Similar view was taken by this Court in Ram Dass v, Joginder Singh, 3 (2003-1)133 P.L.R. 105 and it was held that where there were only two candidates the petitioning candidate shall have to be declared elected if the election of the returned candidate has been set aside. Reliance was placed on the law laid down by the Division Bench in Balwant Singhs case (supra). Furthermore, the Hon ble Supreme Court in the case Baswaraj D. Honna V/s. Parkash Khandre, A.I.R. 2002 S.C. 2345, had held that where there were only two candidates who contested and it is found that the elected candidate was disqualified for one or the other reason, his election would be set aside and the unsuccessful candidate if otherwise eligible can be declared elected. However, if there are more than two candidates who contested the seat none can be declared to be elected in that situation and re-election is the only relief which can be granted. 12. In view of the law laid down by the Hon ble Supreme Court and by this court in the aforesaid authorities, referred to above. In my opinion, the learned Tribunal was perfectly justified in setting aside the election of the appellant as Sarpanch and declaring Jaswant Singh, Election Petitioner as elected Sarpanch of Gram Panchayat. Jaukarian, since admittedly there were only two candidates contesting the election and there was no material on the record which rendered Jaswant Singh, unfit to hold the office of Sarpanch. 13. Jaukarian, since admittedly there were only two candidates contesting the election and there was no material on the record which rendered Jaswant Singh, unfit to hold the office of Sarpanch. 13. No other point has been urged before me in this appeal. 14. For the reasons recorded above, finding no merit in this appeal the same is hereby dismissed in limine.