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2008 DIGILAW 1146 (PNJ)

Balwinder Singh v. State of Punjab

2008-06-13

PERMOD KOHLI, RAKESH KUMAR GARG

body2008
JUDGMENT Permod Kohli, J. - Pursuant to the constitutional mandate contained in Article 243-B of the Constitution of India, process for constitution of Panchayats at village level was initiated by the State of Punjab by issuing following election schedule : "(i) Nomination papers to be filled: 13.5.08 to 16.5.08 (ii) Scrutiny: 17.5.08 (iii) Last date for withdrawing the Nomination papers: 19.5.08 (iv) Date of Polling: 26.5.08" 2. General election in various Panchayats was to be held on 26.5.2008. Various notifications have been issued for purposes of delimitation and reservation, in accordance with the provisions of Punjab Panchayati Raj Act, 1994, Punjab State Election Commission Act, 1994 and Part IX of the Constitution of India. Nomination papers were to be filled between 13.5.2008 to 16.5.2008 followed with scrutiny on 17.5.2008. Last date for withdrawal of nomination papers was 19.5.2008 and the polling was held on 26.5.2008. 3. This Court has been flooded with a large number of writ petitions challenging rejection of nomination papers, acceptance of nomination papers, alleged fraudulent withdrawal of the candidates from the contest, tampering with the record and numerous other allegations of misconduct on the part of the Officers associated with the election. Some petitions relate to reservation and non-reservation of the wards. There are some petitions where serious allegations have been made against the candidates, Returning Officers and other poll related staff as also some of the Ministers of the State Government. In some cases, FIRs have also been registered. However, we refrain ourselves from going into the details of such allegations in these petitions at this stage. 4. The necessity to take up these matters during vacation has arisen in view of certain orders passed by the Punjab State Election Commission and even Returning Officers whereby elections in certain Panchayats have been either countermanded or cancelled. In some cases, the nomination papers were initially rejected, but subsequently shown to have been accepted. Similarly, in some cases, the nomination papers were initially accepted and later on shown to have been rejected. In CWP Nos. 9573, 9829, 9876, 10414, 10547, 10693, 10724, 10751 and 10815 of 2008, results of election were declared by the Returning Officers concerned. After the candidates were declared elected, on the basis of some complaints either to the Returning Officer or to the State Election Authority, the elections have been countermanded. In CWP Nos. 9573, 9829, 9876, 10414, 10547, 10693, 10724, 10751 and 10815 of 2008, results of election were declared by the Returning Officers concerned. After the candidates were declared elected, on the basis of some complaints either to the Returning Officer or to the State Election Authority, the elections have been countermanded. In some cases, after enquiry and recording reasons whereas in other cases, without any reason. In other petitions, elections have been countermanded before the same could be finalized/declared on conclusion of the polling i.e. before the polling could be held. 5. The orders of countermanding of elections are under challenge in all these petitions. Primarily, there are two sets of cases firstly where the candidates have been declared elected and elections have been countermanded and secondly where the election has been countermanded before the process of election could be concluded and before the polling took place. 6. Lengthy arguments were advanced by both the sides. 7. The petitioners have contended that the State Election authority has no jurisdiction or power under law to countermand the election, except on the grounds specified under Section 60 of the Punjab State Election Commission Act, 1994. To the contrary, the State has justified the countermanding of election taking refuge under Article 243-K of the Constitution of India and Section 210 of the Punjab Panchayati Raj Act, 1994. All these provisions are noticed here under : "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 to the Panchayats shall be vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor. (2) Subject to the provisions of any law made by the Legislature of a State the conditions of service and tenure of office of the State Election Commissioner shall be such as the Governor may by rule determine : Provided that the State Election Commissioner shall not be removed from his office except in like manner and on the like ground as a Judge of a High Court and the conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his appointment. (3) The Governor of a State shall, when so requested by the State Election Commission, make available to the State Election Commission such staff as may be necessary for the discharge of the functions conferred on the State Election Commission by clause (1). (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." "The Punjab Panchayati Raj Act, 1994 Section 210 :- Election Commission to conduct Panchayat election. - The superintendence, direction and control of the preparation of electoral rolls for and conduct of, all elections to the Panchayats, shall be vested in the Election Commission." 8. Based upon the aforesaid provisions, it is argued that the election authority being the sole repository of the election and custodian of the rights of the citizens has all the powers to supervise, control and regulate the elections during the course of election and in exercise of its superintendence and controlling authority, it has the jurisdiction and power to issue any directions, including for countermanding of election where a question mark is raised on the fairness of the elections. Some of the instances have been referred where the Poll related staff have allegedly tampered with the records and FIRs have been registered. 9. We have gone through the various provisions of the Punjab State Election Commission Act, 1994 and the Punjab Panchayati Raj Act, 1994. We may note some of such provisions here under: Punjab State Election Commission Act, 1994 Sections 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 shall forthwith declare all such candidates to be duly elected to fill those seats. - (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 shall forthwith declare all such candidates to be duly elected to fill those seats. (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. xxx xxx xxx 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 by 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 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). 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 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 hours, 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 there under shall apply to every such fresh poll as they apply to the original poll. 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 counting of votes in such a manner as to affect the result of the election; countermand the election in that constituency. xxx xxx xxx 69. Delcaration 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." 10. Section 54 empowers the Returning Officer to declare a candidate as duly elected where there is no contest and the number of candidates are equal to or less than the seats to be filled up by election. Sub-section (2) of Section 54 provides that the Returning Officer shall forthwith declare a candidate as duly elected where there is no contest. In the writ petitions referred to above, the candidates have been declared elected in absence of any contest in terms of Section 54. Sub-section (2) of Section 54 provides that the Returning Officer shall forthwith declare a candidate as duly elected where there is no contest. In the writ petitions referred to above, the candidates have been declared elected in absence of any contest in terms of Section 54. Section 58 provides for adjournment of poll in emergencies. Similarly, Section 59 deals with the fresh poll in case of destructions etc. of ballot boxes. Section 60 provides for countermanding of election on the ground of booth capturing and the situations indicated therein. 11. Learned counsel for the petitioners have referred to a Division Bench judgment of this Court passed in the case of Randhir Singh v. State Election Commission, Punjab, 2004(3) PLR 349 (P&H)(DB) and a Single Bench Judgment of this Court passed in the case of Jagjit Singh v. State Election Commission, Punjab and others, 2003(2) RCR(Civil) 763 (P&H) wherein this Court has opined that where a candidate stands elected, his election can only be questioned by way of election petition before the competent forum. Reference is also made to the cases of Jose v. Sivan Pillai, (1984)2 Supreme Court Cases 656, Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others, AIR 1978 S.C. 851, Samar Singh v. Kedar Nath, AIR 1987 SC 1926, Ram Phal Kundu v. Kamal Sharma, AIR 2004 SC 1657 and Shanker Lal v. Om Parkash and others, (2001-3) PLR 354. 12. To the contrary, learned counsel appearing on behalf of the State of Punjab has referred to the following judgments :- (1) Anugrah Narain v. State of U.P., (1996)6 SCC 303, (2) Harnek Singh v. Charanjit Singh and others, (2005)8 SCC 383, (3) Prithvi Raj v. State Election Commission, Punjab and others, 2007(3) R.C.R.(Civil) 817 (P&H Large Bench). 13. We have considered the aforesaid judgments relied upon by both the sides. We are of the considered view that serious debatable issues arise in these writ petitions. We accordingly admit all these petitions. 14. Both the parties have argued for and against grant of interim injunction. After countermanding, almost in all the cases, fresh elections have been ordered to be held. The petitioners are praying for stay of the fresh elections whereas respondents are opposing any interim measure at this stage. We accordingly admit all these petitions. 14. Both the parties have argued for and against grant of interim injunction. After countermanding, almost in all the cases, fresh elections have been ordered to be held. The petitioners are praying for stay of the fresh elections whereas respondents are opposing any interim measure at this stage. On consideration of various factors, statutory provisions and judgments referred to here-in-above, prima facie, we are of the considered view that in the cases where candidates have been declared elected in accordance with Section 54 of the Punjab State Election Commission Act, 1994 or where the Returning Officer has declared the result under Section 69 of the Punjab State Election Commission Act, 1994 and elections have been countermanded thereafter, the holding of fresh elections shall remain stayed. In other cases where the election has been countermanded before the date of polling, respondent-State may hold fresh election. However, the outcome of the election shall remain subject to decision of these writ petitions. 15. In view of the serious and important questions of law involved in these petitions, we are of the view that the matter should be heard by a Division Bench his Court. We direct the Registry to place these matters before Honble the Chief Justice for appropriate directions in this regard. 16. Since the matter relates to election, we also propose that these writ petitions be finally decided within three months. A copy of this order be placed on record on each concerned file. .