Baldev Singh vs The State of Punjab and Others

V.K. Bali, J.—Baldev Singh through present petition filed by him under Articles 226/227 of the Constitution of India, seeks writ in the nature of mandamus directing the respondents to handover the charge of the office of Sarpanch to him as it was he, who was elected in the panchayat polls and permit him to discharge the functions of Sarpanch of village Dudhar, Post Office Dakala, Tehsil and District Patiala. The relief, as noticed above, stems from the following facts.

In pursuance of the in the State of Punjab. Nominations for the offices onotification issued by the Punjab Government on January 21, 1993, elections of village panchayats were ordered to be held f Sarpanch and four panches of village Dudhar, to which petitioner belongs, were invited. He contested for the office of Sarpanch of that village and the other candidate, who contested for the office aforesaid, was one Gulzar Singh. The polling for the offices of Sarpanch and Panches was held on January 22, 1993 from 10 AM to 4 PM. Thereafter, counting was held at 5 PM. As per the case of petitioner, the Presiding Officer declared him elected as Sarpanch as he had polled 265 votes as compared to 262 votes secured by Gulzar Singh. A formal declaration was also made by the Presiding Officer in that behalf. Thereafter, he also attended oath ceremony which was held at Fatehgarh Sahib on February 5, 1993. Oath of office was administered by the Chief Minister of Punjab in a group. Jarnail Singh, Block Development & Panchayat Officer, Patiala-respondent No. 2 vide his report dated January 23,1993 indicated the name of petitioner as elected Sarpanch alongwith four other Panches, namely, Bhagwan Singh, Labh Singh, Sukhchain Singh and Balvir Singh. The extract of the report regarding elected Sarpanches and Panches of Block Patiala, held in Phave-IV, has been annexed with this petition as Annexure P-l wherein the name of petitioner appears at serial No. 27. On February 22, 1993 a meeting of the newly elected Panchayat was held under the supervision of respondent No. 2. Petitioner was surprised to see that he was not summoned nor he was permitted to attend the meeting in which co-option of other members was held. He made requests to respondent No. 2 but was unable to get charge of the office of Sarpanch. It is specifically pleaded in the writ that respondent No. 2 clearly told the petitioner that as long as he was there, he (petitioner) shall not be permitted to act as Sarpanch. On the facts, as have been noticed above, it is pleaded and so argued by learned counsel for the petitioner that in view of the Punjab Gram Panchayat Election Rules, 1960 and in particular Rule 31, after polling, the Presiding Officer conducting the election has to count the votes, make a statement to that effect and record the same in Form-V. Thereafter, in pursuance of the Gram Panchayat Act, 1952, oath has to be taken in a specified form in Schedule-IV of the Act. Further, as per the provisions of Section 15 of the Act aforesaid, the Sarpanch is authorised to keep the custody of movable property of the Gram Panchayat. These being the statutory provisions, the action of respondents in not permitting petitioner to discharge the duties of a Sarpanch, is illegal, contends the learned counsel.

Notice was issued by the Motion Bench on March 23,1993 when the following order was passed:-

"Notice of motion for April 27, 1993. Notice in regard to respondent No. 1 be served on the A.G., Punjab. We direct that the copies of the petition be served on Mr. D.S. Chimni, Additional Director, prosecution and Litigation, Punjab, so that reply may be filed expeditiously. He is granted three weeks'' time to file the written statement. To come up on April 27, 1993."

The matter could not come up for hearing on the adjourned date and the same was taken on May 17, 1993. The Advocate General, who appeared on behalf of respondent-State, was granted ten days time to file written statement. On the adjourned date i.e. June 2, 1993 some newly added respondents were directed to file written statement within four weeks. The case was ordered to be listed for arguments on July 29, 1993. On the adjourned date, respondent No. 3 filed written statement and, therefore, case was adjourned for arguments to August 12,1993, on which date the Advocate General, Punjab, was asked to produce the relevant records. However, on the adjourned date, record was not received and the case was once again adjourned to August 19,1993. It was specifically mentioned in the order that on the adjourned date the Advocate General, Punjab, shall produce the original records. However, when the matter came up for hearing on August 19, 1993, the Advocate General, Punjab, was unable to produce the records on account of floods in the district. The petition was, thus, admitted and was ordered to be listed for final hearing on September 27,1993.

The cause of petitioner has been opposed and in the written statement that has been filed on behalf of respondent Nos. 1 and 2, by way of preliminary objections, it has been pleaded that writ is not maintainable as the election of Gram Panchayat under the Punjab Gram Panchayat Act, 1952, could only be challenged by way of election petition as also that the right to contest election is statutory right and not a fundamental or civil right. On the merits of the case it has been pleaded in the written statement that petitioner was not declared elected as Sarpanch of Gram Panchayat, Dudhar on January 22, 1993. In fact, after the counting, Gulzar Singh, who secured 265 votes was declared and announced elected on the spot for the seat of Sarpanch and Baldev Singh, who secured 262 votes, was declared defeated on the spot by the Presiding Officer. The Returning Officer, however, made a mistake while framing the result which, of course, depicted that petitioner had secured 265 votes and Gulzar Singh - respondent No. 3 secured 262 votes. It was also wrongly shown that petitioner was elected whereas Gulzar Singh was not elected in the result so prepared. That being the position, Gulzar Singh represented the Deputy Commissioner, Patiala, through an application which was recommended by Lal Singh, Health Minister Punjab. On the application aforesaid, Mehar Singh, Presiding Officer was summoned to appear for enquiry vide office letter dated February 16, 1993. In the enquiry that was held, it was found that Gulzar Singh was elected as Sarpanch. The fact that petitioner was administered oath on February 5,1993, has also been denied. On the contrary it is pleaded that it was Gulzar Singh, who was administered oath of the office of Sarpanch. With a view to fortify the stand as has been reflected in the written statement, a copy of the statement of Presiding Officer has been placed on records of this case.

Gulzar Singh-respondent No. 3 has also filed separate written statement and opposed the cause of petition almost on identical grounds. There is, thus, no need to specifically notice the stand of Gulzar Singh as reflected in his written statement.

After hearing the learned counsel for the parties and going through the records of the case, I am, however, of the view that the points raised by Mr. Bal, learned counsel for the petitioner, have merit and, therefore, this writ must succeed. Once result has been prepared after counting of the votes and accordingly notified, there is no provision in the Punjab Gram Panchayat Act, 1952 which might authorise any of the functionaries inclusive of the Presiding Officer to hold an enquiry, re-count the votes and change the result which was earlier shown in the statutory forms. Mr. Masih, learned Assistant Advocate General, Punjab, has not been able to point out any provision of the Act or rules which might authorise any officer to change the result after it has been incorporated in the relevant forms as provided under the rules. Division Bench of this Court in Nand Lal v. Rattan Singh and Ors. (1968)70 PLR 69 held that "there is nothing in the Gram Panchayat Election Rules which permits recount of votes already counted once by the Returning Officer. In the case of a Panchayat election under the provisions of the Punjab Gram Panchayat Act and the Rules made thereunder, a recount of votes cannot be claimed by any candidate. However, counting of the ballot papers is a duty cast on the Returning Officer by Rule 32 of the Gram Panchayat Election Rules, and as Rule 34 provides for rejection of ballot-papers and Rule 36 for preparation of return after count of valid votes, of the successful candidate or candidates, it is evident that the duty cast on the Returning Officer is to do the count correctly. A mistake in it cannot be corrected by a claim of recount by a candidate before the Returning Officer." It was further held that "under Section 13-O (i)(d)(iii) of the Punjab Gram Panchayat Act miscount is a ground to challenge an election to a Panchayat under the Act. Once this conclusion is reached, the Prescribed Authority or the Tribunal under the Act has the power and jurisdiction to recount the votes polled and to find out whether, infact, there has or has not been a miscount which has materially affected the result of the election."

Assuming, thus, that there was actually a mistake while recording the votes polled by petitioner and respondent No. 3 in the relevant forms but only course open for anyone inclusive of Gulzar Singh respondent No. 3 was to file an election petition. The change of election result as prepared by the Presiding Officer and as notified by the Government, thus, could not be changed. A writ of mandamus is, thus, issued directing the respondent to handover the charge of the office of Sarpanch to petitioner. It shall, however, be open to respondent Gulzar Singh to file election petition before the Prescribed Authority and in view of peculiar facts and circumstances of this case, the same shall not be dismissed on the ground of limitation. The Prescribed Authority, if at all any election petition is filed, would proceed in the matter as expeditiously as possible and dispose of the same latest within three months.

Before I part with this judgment, I would like to observe that during the course of arguments the desirability of seeing the records of the case to verify as to who secured what number of votes, was thought over. The record was actually produced in Court but this course is not acceptable to petitioner and the Court finds, it, for good reasons. The history of the case that has been given above would clearly demonstrate that the record was not produced at the motion hearing stage. Adjournments were sought to produce the record and ultimately it was on account of non-production of the records primarily that this petition was admitted. Learned counsel for the petitioner contends that it is not difficult for the respondent-authorities to tamper with the records of the case. That apart, he further contends that in case the stand projected by respondents is correct and actually it was respondent No. 3 who was elected as Sarpanch, petitioner could have challenged his election on number of grounds inclusive of the ground that 26 votes polled were such which could not be polled as the persons on whose behalf those votes were polled, have since died. He further contends that Gulzar Singh-respondent No. 3 has himself polled his vote in two villages. There could be number of other grounds that he could take in the election petition which, in the present set of circumstances, would not be available to him. Even though, there is no necessity to give any finding on the contentions raised by learned counsel but the Court is convinced in the matter that petitioner can not and should not be at this stage asked to file an election petition. However, nothing said in this order would be construed as an expression of opinion and the Prescribed Authority shall decide the controversy in accordance with law and evidence that comes before it.

This petition is disposed of in the manner indicated above. There shall, however, be no order as to costs.