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2010 DIGILAW 361 (PNJ)

Jagat Ram v. Asha Rani

2010-01-15

RAKESH KUMAR JAIN

body2010
Judgment Rakesh Kumar Jain, J. 1. This appeal is directed against the order of learned Deputy Commissioner-cum-Election Tribunal, Hoshiarpur, dated 17.3.2009, whereby election petition filed by the appellant challenging the election of respondent No. 1. has been dismissed. 2. Brief facts of the case are that the Punjab State Election Commission issued a Notification in the month of April, 2008 for holding elections of Gram Panchayat in the State of Punjab. As per the election programme, nomination papers were to be filed upto 16.5.2008 and scrutiny of the nomination papers was to be held on 17/18.5.2008. Last date forthe withdrawal of nomination papers was 19.5.2008 and election was scheduled to be held on 26.5.2008. Seven posts of member Panchayat in village Chitton were notified, out of those, three posts were to be filled up from General Category (Men), two posts from General Category (women), one post was reserved for S.C. (men), no post was reserved for Scheduled Caste (Female) and one was reserved for Backward Class (Men/Women). 3. Pursuant to the notification, respondent No. 1. Asha Rani wife of Sohan lal, Smt. Asha Rani wife of Shingara Singh, Chaman Lal son of Khushi Ram, and Raman Lakha son of Jagat "Ram filed their nomination papers for contesting election to the post of member Panchayat of village Chitton under the Scheduled Caste category. Nomination papers of Asha Rani (respondent No. 1) was rejected on 19.5.2008 by the Returning Officer on the ground that there is no seat reserved for Scheduled Caste Category (Women). Thereafter, the election of Gram Panchayat Chitton was cancelled as all the candidates had withdrawn their nomination papers by mutually agreeing to elect the Panches unanimously. Thereafter, the Govt, of Punjab issued a fresh notification for conducting election of Gram Panchayat Chitton vide memo No. 25333 dated 07.6.2008 requiring the candidates to file their nomination papers up to 14.6.2008 and the election was schedule to be held on 22.6.2008. Pursuant to the above notification, the petitioner/appellant filed his nomination papers in the Scheduled Caste Category (Men).Along-with the appellants, 11 more candidates filed their nomination papers, which is detailed as under :- Name Category 1. Asha Rani w/o Sohan Lal S.C. Women 2. Jagat Ram son of Kartara Ram S.C. Men 3. Raman Lakha son Jagat Ram of S.C. Men 4. Chaman Lal son Khushi Ram of S.C. Men 5. Asha Rani w/o Sohan Lal S.C. Women 2. Jagat Ram son of Kartara Ram S.C. Men 3. Raman Lakha son Jagat Ram of S.C. Men 4. Chaman Lal son Khushi Ram of S.C. Men 5. Jeet Ram son of Shri Bhupa General Men Ram 6. Som Nath son of Amin Chand General Men 7. Gopal Krishan General Men 8. Gurmail Singh General Men 9. Harpreet Kaur General Women 10. Saroj General Women 11 .Ram Pati General Women 12. Puran C hand B.C." 4 In the election, Asha Rani secured 214 votes whereas Jagat Ram petitioner got only 133 votes. Consequently, respondent No. 1 was declared elected as Panch in the category of Scheduled Caste. Her election has been challenged by the appellant under Section 89 (d) (i) of Punjab State Election Commission Act, 1994 (for short,the Act) on the ground that nomination paper of respondent No. 1 has been improperly accepted because the post of Scheduled Caste Panch was meant for men and not for women, therefore, she could not have been considered in the category of Scheduled Caste and declared elected over and above the appellant. The learned Election Tribunal vide its order dated 17.3. 2009 dismissed the election petition holding that Scheduled Caste (Men) shall include FAO No. 3376 of 2009 4 Scheduled Caste (Women). Therefore, she was eligible to file her nomination paper. 5. Aggrieved against the said order, the present appeal has been filed by the appellant. 6. Mr. Arun Takhi, learned counsel appearing for the appellant has referred to the notification of the Punjab Government attached as Annexure A-1 in which there are 7 posts of member panchayat of village Chitton, out of which 3 posts were to be filled up from General Category (men), 2 posts from General Category (Women), one post from Scheduled Caste and one post was reserved for Backward Class (Men/Women). It is submitted that since there was no post for Scheduled Caste (Women), therefore, post of Panch referred to as Scheduled Caste would mean to be reserved for men, hence, respondent No. 1, who is Scheduled Caste and a woman had no right to contest in the category of Scheduled Caste. It is further submitted that she could, at the best have contested the election in the General Category. It is further submitted that she could, at the best have contested the election in the General Category. In support of his argument, learned counsel for the appellant has relied upon a Division Bench judgment of this Court in the case of Des Raj v. Surjit Kaur 2001 (2) RCR (Civil) 304. 7. Mr. Rajeshwar Singh, learned counsel for contesting respondent No. 1. has submitted that in view of Section 13 of the General Clauses Act, 1897, masculine gender shall be taken to include females, but in the present case, no gender has been used for Scheduled Caste candidate, therefore, Scheduled Caste Category has been left open and as such the nomination paper filed by respondent No. 1 has been rightly accepted by the Returning Officer. 8. I have heard learned counsel for the parties and have perused the record with their assistance. 9. There is no doubt that sine qua non of holding election is a notification calling upon a constituency to elect a member or members . In other words, elections cannot be held till such time notification for that purpose is issued by the Government. The Election Commission has to issue notification in Official Gazette to fix last date for making nominations, date for scrutiny for nomination etc, in compliance with the notification issued by the Government calling upon a constituency to elect a member or members for constituting Gram Sabha. 10. The question now in this case is as to whether the post of Scheduled Caste Category was meant only for men and not for women as suggested by the learned counsel for the appellant. 11. Learned counsel for the appellant has referred to the decision of this Court reported in the case of Des Raj (Supra) in which there was only one post for Scheduled Caste (Men) and not for Scheduled Caste (Women). In that case, the person who was male had contested for the post of Scheduled Caste (Male) was declared elected. 12. In the reported case, the post was specifically reserved for Scheduled Caste (Male) whereas in the present case, it is not so. Hence, the case law cited by the learned counsel for the appellant is not at all applicable in the present case as the post is reserved for Scheduled Caste only. 12. In the reported case, the post was specifically reserved for Scheduled Caste (Male) whereas in the present case, it is not so. Hence, the case law cited by the learned counsel for the appellant is not at all applicable in the present case as the post is reserved for Scheduled Caste only. Therefore; in terms of Section 13 of the General Clauses Act, which provides that masculine gender shall be taken to include females, therefore, the very reference to reservation would include female also. Therefore, in my view, the post is left open to be filled in from both source i.e. from male and female. 13. In view of the above, I do not find any sub-stance in the case set up by learned counsel for the appellant and as such, the present appeal being devoid of any merit, is hereby dismissed.