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2013 DIGILAW 1714 (PNJ)

Meena Devi v. State of Haryana

2013-12-18

RAKESH KUMAR JAIN

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Rakesh Kumar Jain, J. 1. The election for the post of Sarpanch and Panches of village Rojhla, Tehsil Safidon, District Jind, was held on 06.06.2010. The petitioner and respondent No. 6 contested election for the post of Panch from ward No. 7, booth No. 136. According to the petitioner, 106 votes were polled in booth No. 136, out of which 104 votes were found to be valid and 2 votes were cancelled. It is alleged that the petitioner secured 58 votes and respondent No. 6 was polled 46 votes. The petitioner was declared elected and certificate was issued by the Presiding officer at the spot. However, the petitioner came to know on 25.07.2010 that respondent No. 6 has taken the oath of the office of the Panch. The petitioner immediately made a representation on 02.08.2010 to the Deputy Commissioner and requested to take necessary action. When no action was taken, the also submitted a reminder on 16.08.2010. Counsel for the petitioner has submitted that the change of result of the petitioner is illegal and arbitrary as the petitioner was declared elected by the Presiding Officer and his result could not have been changed. Thus, this petition has been filed to declare the action of respondent Nos. 1 to 5 for administering oath to respondent No. 6 of the office of Panch as illegal and arbitrary and has also prayed for a writ in the nature of mandamus as well to declare the petitioner as winning candidate and to administer him oath of the office of Panch of the Gram Panchayat Rajhola. 2. After notice, reply has been filed by the Sub Divisional Magistrate-cum-Returning Officer, Panchayat, Safidon, in which, besides taking the plea of remedy available under Section 176 of the Haryana Panchayati Raj Act, 1994 by filing the election petition, it is alleged that in the election, 110 votes were polled, out of which 104 votes were found to be valid and 6 votes were invalid. Respondent No. 6 polled 58 votes, whereas the petitioner polled 46 votes. The Block Development and Panchayat Officer, Safidon sent the name of respondent No. 6 as the winning candidate from ward No. 7 and the Deputy Commissioner, Jind, sent the name of respondent No. 6 to the State Election Commissioner, Haryana, for the notification of her name in the official gazette. The Block Development and Panchayat Officer, Safidon sent the name of respondent No. 6 as the winning candidate from ward No. 7 and the Deputy Commissioner, Jind, sent the name of respondent No. 6 to the State Election Commissioner, Haryana, for the notification of her name in the official gazette. The oath for the office of Panch from ward No. 7 was also taken by respondent No. 6 on 25.07.2010. It is also alleged that the Returning Officer, Panchayat had issued a certificate in favour of respondent No. 6. 3. The Presiding Officer of Ward No. 7, Booth No. 136, has also filed his reply and has submitted that he had issued the certificate on Form No. 21 declaring the petitioners as elected having secured 58 votes as against respondent No. 6 who had secured 46 votes. 4. Respondent No. 2 has also filed a separate reply in which it is alleged that the notification dated 15.05.2010 was issued for the purpose of holding elections of Panches, Sarpanches, Member Panchayat, Samiti and Zila Parishad of Block Safidon, District Jind. The election was held on 06.06.2010 and counting of votes was done immediately after the close of poll. The Deputy Commissioner of each District is the District Electoral Officer, Panchayat. Under Rule 70 of the Election Rules, the Returning Officer, Panchayat is the competent authority who would declare a candidate to be elected for the office of Panch who would secure larges number of valid votes and certify the return of election in Form No. 18. Respondent No. 4, being the Returning Officer, for the purpose of declaring result of the Panch relating to the election of ward No. 7, was the competent authority to declare the result and submit Form No. 18 to the District Election Officer, Panchayat along with the result sheet which is to be sent to the State Election Commissioner for the purpose of notification. It is alleged that the Deputy Commissioner submitted a list along with letter dated 04.07.2010 in which respondent No. 6 was shown to have been elected to the post of Panch figures at Sr. No. 7 reserved for Scheduled Caste (Women). Thereafter, the State Election Commission notified the name of respondent No. 6 in the notification dated 06.07.2010. 5. It is alleged that the Deputy Commissioner submitted a list along with letter dated 04.07.2010 in which respondent No. 6 was shown to have been elected to the post of Panch figures at Sr. No. 7 reserved for Scheduled Caste (Women). Thereafter, the State Election Commission notified the name of respondent No. 6 in the notification dated 06.07.2010. 5. Counsel for respondent No. 6 has submitted that the petitioner is relying upon the result declared by the Presiding Officer of the booth, whereas the jurisdiction to declare the result vests with the Returning Officer in terms of Rule 70 of the Haryana Panchayati Raj Election Rules, 1994 (hereinafter referred to as the "Rules"). 6. It may be pertinent to mention here that this writ petition was admitted and operation of the order (Annexure P-4) qua declaration of result of the election of respondent No. 6 was ordered to be stayed. Thereafter, the petitioner filed an application C.M. No. 9406-C.W.P. of 2013 for early hearing of this writ petition for disposal in terms of the order passed by this Court dated 28.09.2013 in C.W.P. No. 13673 of 2010 titled as "Sushil Kumar v. State of Haryana and others ". 7. Notice in that application was issued. Counsel for the non-applicant prayed for time to file reply but instead of filing reply, counsel for the parties agreed to argue the main case itself. Consequently, the main writ petition was taken on Board and heard on merits. 8. The issue involved in this case is as to whether the Presiding Officer of the booth had the jurisdiction to declare the result or the jurisdiction vests with the Returning Officer in terms of Rule 70 of the Rules. It may be pointed out that there is complete procedure provided in the Rules with regard to polling and counting of votes and declaration of result. Rule 70 of the Rules is relevant for our purposes, which is reproduced as under: 70 Declaration of results-(1) The Returning Officer (Panchayat) or the Assistant Returning Officer (Panchayat), shall- (a) declare to be elected the candidate for the office of Panch who has secured the largest number of valid votes and certify the return, of election in Form 18. Rule 70 of the Rules is relevant for our purposes, which is reproduced as under: 70 Declaration of results-(1) The Returning Officer (Panchayat) or the Assistant Returning Officer (Panchayat), shall- (a) declare to be elected the candidate for the office of Panch who has secured the largest number of valid votes and certify the return, of election in Form 18. Similarly the result of Sarpanch shall also be declared forthwith but if there are more then one polling stations in the sabha area the result sheets for the office of Sarpanch shall be sent to the Polling Station presided over by the Presiding Officer nominated by the District Election Officer (Panchayat) for this purpose, on the same day who shall, after compiling the result sheets in Form 19 declare forthwith the candidate who received the largest number of valid votes elected as sarpanch. For the purpose of declaration of result for the office of Panch and Sarpanch, the Presiding Officer shall be deemed to be Returning Officer and in case of more than one polling stations in the sabha area, nominated Presiding Officer shall be deemed to be the Returning Officer for declaration of result for the office of Sarpanch; (b) send from the place specified in clause (e) of rule 24 (substituted by Leg Sup. Part III dated 04.11.94) the result sheet for the offices of members of Panchayat Samiti and Zila Parishad to the concerned Returning Officer for Panchayat Samiti at block level and to the Deputy Commissioner respectively; (c) for the election of member of Panchayat Samiti, compile all the result sheets in Form 16 and prepare Form 20 and declare the candidate, who received the largest number of valid votes elected and shall certify the return of election in Form 20; and (d) for the election of member of Zila Parishad, compile the result sheets in Form 17 and prepare Form 21 and declare the candidate, who received the largest number of valid votes, elected and shall certify the return of election in Form 21. (2) The Returning Officer (Panchayat) or the officer authorized by him shall send the signed copy of the returns under this rule to the District Election Officer (Panchayat) and to the State Election Commissioner. 9. (2) The Returning Officer (Panchayat) or the officer authorized by him shall send the signed copy of the returns under this rule to the District Election Officer (Panchayat) and to the State Election Commissioner. 9. There is no dispute that the Presiding Officer of the booth declared the petitioner as elected but, on the other hand, the Returning Officer declared respondent No. 6 as the elected candidate. In view of the aforesaid Rule 70, the jurisdiction vests with the Returning Officer or the Assistant Returning Officer to declare the result of a person to be elected for the office of Panch who has secured the largest number of valid votes and certify the return of election in Form 18. It is nowhere provided that the result can be declared by the Presiding Officer - Thus, the result declared by the Presiding Officer in favour of the petitioner is an action which is not approved by the law and is thus, without jurisdiction. Insofar as the decision in the case of Sushil Kumar's (supra) is concerned, on the basis of which application for early hearing was filed, it has been observed that "it is now well settled that the Returning Officer is the one, who is in charge of at election. He not only has to conduct the election, but has to arrive at a subjective satisfaction as to who has won the election and after declaring a candidate to be elected, he has to issue an election certificate". Thus, the petitioner cannot take advantage of the judgment in Sushil Kumar's case (supra) and since the action of the Presiding Officer declaring the petitioner to be elected as Panch in place of the certificate issued by the Returning Officer is held to be without jurisdiction. In view of the aforesaid discussion, I do not find any merit in the present writ petition and the same is hereby dismissed.