Darbara Singh vs State of Punjab

R.N. Mittal, J.

Briefly the case of the petitioners is that in the election of the Gram Panchayat of village Dasondhasingh Wala, Tehsil Malerkotla, District Sangrur (hereinafter referred to as the Panchayat), eight persons, namely the petitioners, respondent No.2 and three others, filed nomination papers on June 29, 1972. Out of them, five persons were to be elected as Panches. Three of them withdrew their nomination papers. Thereafter, the petitioners and respondent No.2 were left in the field. An objection was raised against the nomination paper of respondent No. 2 on the ground that he was in possession of the Panchayat land and, therefore, he could not be elected as Panch of the Panchayat. The objection was up held and his nomination paper was rejected. Consequently, the petitioners were declared as Panches. Sukhdev Singh, respondent No. 2 filed an election petition against the election of the petitioners which was entrusted to respondent No. 1 for decision. He accepted the election petition vide order dated January 23, 1973, and held that the nomination paper of respondent No. 2 had been illegally rejected. Consequently, he set aside the election as a whole. The petitioners have challenged the order of respondent No. 1 dated January 23, 1973.

It is firstly contended by the learned counsel for the petitioners that respondent No. 2 was in possession of the Panchayat land and therefore, he could not contest election of a Panch. I have heard the learned counsel for the parties, but am not impressed with the argument of the learned counsel for the petitioners. Section 6(5) of the Punjab Gram Panchayat Act, 1952 (hereinafter referred to as the Act) enumerates the persons who are not entitled to stand for election of Panch and Sarpanch. Clause (1) of sub section (5) puts a restriction on a tenant or lessee holding a tenancy or lease under the Gram Sabha and a person who is in arrears of rent of any lease or tenancy held under the Gram Sabha, to contest election. In the present case, it was stated that respondent No. 2 was in forcible possession of the land in dispute. A person who is in forcible possession of any land cannot be said to be a tenant or a lessee. The word ''tenant'' has not been defined in the Act, but it has been stated in the defining section that the aforesaid expression shall have the same meaning as in the Punjab Land Revenue Act, 1887. According to that Act, ''tenant'' means "a person who holds land under another person, and is, or but for a special contract would be, liable to pay rent for that land to that other person.....". A reading of the aforesaid definition shows that a person can be a tenant who is liable to pay rent to another person under whom he is holding land. In the present case, the allegation is that he was in forcible possession of the property in dispute. In the aforesaid circumstances, it cannot be held that respondent No. 2 was a tenant and suffered from disability to contest the election. In this view I am fortified by the observations of this Court in Maman Singh v. The Resident Magistrate and others, 1965 Cur. L.J. (Pb.) 37, and Hazara Singh v. B.S. Malik and others, 1967 P.L.R. 136.

It is then contended by the learned counsel for the petitioners that the Executive Magistrate could not set aside the election of the petitioners, in case he came to the conclusion that the nomination paper of respondent No. 2 had been illegally rejected. He submits that there were five seats of Panches and only five candidates were left in the field, that is, the petitioners and respondent No. 2. According to him, in case the nomination paper of respondent No. 2 had been illegally rejected then the election as a whole was not effected in any way. The learned counsel argues that at the most the Executive Magistrate could declare him as elected. I have considered the matter but do not find any substance in the contention of learned counsel for the petitioners. In order to appreciate the contention, it will be necessary to refer to some of the provisions of the Act.

Section 13B provides that no election of a Sarpanch or Panch shall be called in question except by an election petition in accordance with the provisions of this Chapter. Section 13C relates to presentation of petitions; section 13D to content to petition; section 13E to procedure for receiving election petitions; section 13G to procedure before the prescribed authority; section 13I to powers of the prescribed authority; section 13N to decision of prescribed authority and section 13O to the grounds for setting aside elections. It is mentioned in section 13E that in case the prescribed security is not furnished in the prescribed manner or the petition is not presented within the period specified, the prescribed authority shall dismiss the petition. Section 13N(1) says that where an election petition has not been election petition and at the conclusion of the enquiry shall make an order evident from the aforesaid section that respondent No. 1 had two alternatives before him, one was that of dismissing the election petition and the other that of setting aside the election. Section 13O gives the grounds on which the election can be set aside. The relevant portions of the section are as follows :

"13O(1) If the prescribed authority is of the opinion x x x x x

(c) that any nomination had been improperly rejected; or

(d) that the result of the election, in so far as it concerns the elected person, has been materially affected

(i) by the improper acceptance of any nomination; or

(ii) by the improper reception, refusal or rejection of vote or the reception of any vote which is void; or

(iii) by any noncompliance with the provision of this Act or of any rules made under this Act;

the prescribed authority shall set aside the election of the elected person.

(2) When an election has been set aside under subsection (1), a fresh election shall be held."

It is evident from section 13O(1)(c) that if the nomination paper is improperly rejected the prescribed authority has no other option but to set aside the election. All the Panches are elected simultaneously in one election. The section coupled with that fact further shows that the election petition is maintainable for setting aside the election as a whole. There is no provision in the Act wherein it has been provided that a candidate can seek a declaration that he had been legally elected and be declared as such. The only remedy provided in the Act is that the election may be set aside by the prescribed authority. In the present case, when respondent No. 1 came to the conclusion that the nomination paper of respondent No. 2 had been illegally rejected, he had no other option but to set aside the election as a whole. He had no power either to declare that the petitioners had been legally elected or that the election regarding one seat was illegal and be set aside. A reference has been made by the learned counsel for the petitioners to rule 12 of the Punjab Gram Panchayat Election Rules, 1960 (hereinafter referred to as the Rules). Subrule (1) of the aforesaid rule says that "the Returning Officer shall, subject to the provisions of subsection (4) of section 6 of the Act and rule 14, deem and declare the validly nominated candidate(s) elected, if :

(a) there is only one validly nominated candidate for the office of Chairman; or

(b) if the number of validly nominated candidates for the office of Panches is equal to or less than the number of seats of Panches to be filled." Subrule (2) provides that if the number of validly nominated candidates is less than the number of seats to be filled, the Returning Officer shall forward a list of the elected candidates to the Deputy Commissioner together with a report, specifying the number of unfilled seats. It further provides that the Deputy Commissioner shall thereupon take action under section 11 of the Act, for the purposes of which the Deputy Commissioner shall be the prescribed authority. No doubt the petitioners by virtue of that rule have been declared as elected, but it cannot be said that their election cannot be set aside under section 13O in case the nomination paper of one of the candidates had been illegally rejected. The whole process of election was also completed in the present case as the Deputy Commissioner had exercised its power under section 11 and appointed a Panch. Thus, the number of Panches became five which was the total number prescribed for the Gram Panchayat. No doubt, the provisions of law appear to be very harsh, but no relief can be granted to the petitioners in the present writ petition. There appears to be some lacuna in the Act but it is not for this Court to fill in the lacuna. In the aforesaid circumstances, I reject the contention of the learned counsel for the petitioners.

For the reasons recorded above, this writ petition fails and the same is dismissed. In the circumstances of this case, I, however, make no order as to costs.