Joginder Singh vs The Prescribed Authority Under the Gram Panchayat Act (Executive Magistrate 1st Class), Bhatinda, and Others

R.S. Narula, J.—The election of Joginder Singh petitioner as Sarpanch of Gram Panchayat, Dhilwan Khurd, Tahsil Faridkot, district Bhatinda, has been set aside by respondent Mo. 1, the prescribed authority under the Gram Panchayat Act, 1952 (hereinafter referred to as the Act) u/s 130(1)(c) of the Act as amended by Act 26 of 1962 on the ground that the nomination paper of Jagnandan Singh, respondent No. had been improperly rejected by the Scrutiny Officer. Copy of the order of the prescribed authority has been attached to the writ petition and is marked ''A''. The election of the petitioner was sought to be set aside at the instance of Surjit Singh, respondent No. 2, who filed the election petition on various grounds. The only ground on which the election petition has been allowed by respondent No. 1 was covered by issue No. 1 which was framed in the following words :-

Whether the nomination paper of Jagnandan Singh respondent No. 4 was illegally and improperly rejected if so, with what effect ?

At the trial of the election petition Jagnandan Singh''s nomination paper was produced and marked as Exhibit P. 1. Jagnandan Singh himself appeared as R. W. 2 before the prescribed authority. The nomination paper in question had been rejected by the Presiding Officer on the solitary ground that the age of Jagnandan Singh was entered as 22 years in the electoral roll though he had described himself as 30 years old in the nomination paper. The prescribed authority set aside the election on the ground that the nomination paper. Exhibit P. I. was filed at 5.40 P.M. on 31st December 1963 and is noted to have been rejected by the Presiding Officer at the same time and that from this prescribed authority concluded that Jagnandan Singh had not been given any opportunity to produce evidence to show his correct age as required by the election rules. This finding has been given in the impugned order in the following words :-

* * the candidate concerned was allowed no time or opportunity to plead as to why he claimed his age to be 30 years while it was entered 22 years in the voters list. In this case, therefore, the presiding officer clearly acted against the normal practice laid down by law.

The prescribed authority then referred to the law laid down by this Court in Pt. Charanjit Lal Ram Sarup Vs. Lehri Singh Ram Narain, and held that the entry of age in electoral roll has got no evidentiary value as to the correctness of the age of a voter. In spite of those observations, the prescribed authority relied on entries in the electoral rolls itself to give a finding of the fact that the nomination paper of Jagnandan Singh had been wrongly rejected. The learned Ilaqa Magistrate relied on some oral evidence produced before him on the basis of which he came to the conclusion that Jagnandan Singh was more than 25 years old at the time of the filing of his nomination papers.

While impugning the above said order of the prescribed authority Shri B. S. Dhillon, learned counsel for the petitioner has argued that the most important piece of evidence in the case before Illaqa Magistrate consisting of the sworn testimony of Jagnandan Singh R. W. 2 had been completely ignored by the authority while deciding this case. If the evidence of Jagnandan Singh had been silent on the material points involved in the case I would never have interfered on that ground. I, however, find from annexure ''B'' to the writ petition i.e. from the translation of the statement of Jagnandan Singh respondent given by him before the prescribed authority that it is wholly inconsistent with the case made out by the election-petitioner for that candidate. According to the copy of the statement of the witness produced before me, the correctness of which has not been denied by Shri J. S. Wasu, the learned counsel for Surjit Singh respondent, the witness stated before the Illaqa Magistrate inter alia as follows :-

I had filed my nomination papers for the office of the Sarpanch. My nomination papers were rejected because of my lesser age. The Presiding Officer told me that I should give proof of my age if any. We did not produce any proof at that time regarding ray age.

Jaganandan Singh as R. W. 2 gave his age to the prescribed authority while deposing before him as 23 years, on 29th June 1964 If that statement of the candidate is correct he was admittedly not qualified to stand for the election in question as it is only an adult who is aged 25 years or more who can stand as a candidate in such an election vide section 5(vi) of the Punjab Gram Panchayat Act read with Article 1173 of the Constitution of India.

In his cross-examination Jagnandan Singh R. W. 2 is stated to have deposed before the prescribed authority as follows :-

When the Presiding Officer told me that my age was below 25 years, I told him that in fact my age was below 25 years. Still the Presiding Officer demanded proof of age from me.

It was for the Prescribed Authority to believe the said witness or not. It is significant that the evidence of this witness was recorded in the presence of the election petitioner but he did not pray for getting this witness declared hostile. If the Ilaqa Magistrate had discussed the evidence of this witness and had discarded it for any cogent reason I would not have interfered in this case. It is, however, unfortunate that the learned executive Magistrate who decided the election petition has somehow completely ignored this important piece of evidence and has not discussed it at all after mentioning the fact that Jagnandan Singh appeared as a witness before him. It is impossible to sustain any judgment or order given in quasi judicial proceeding which is either based on no evidence or is given in complete disregard of the evidence on the record. The finding of the prescribed authority is wholly inconsistent with the statement of R. W. 2 Jagnandan Singh. The nomination paper of Jagnandan Singh appears to have been rightly rejected if his statement before the prescribed authority is correct but I would not usurp the functions of the prescribed authority to decide this question of fact which has to be decided after going through the entire evidence on the record including the statement of witness in question. Though it it char that an error of law apparent on the face of the record has been committed in this case by the prescribed authority in not at all appraising the evidence of R. W. 2, Jagnandan Singh, whose age was in question. I would not like to reach my own conclusions on the subject matter of issue No. 1 in the election petition which has been left by the competent legislature to the decision of a specially constituted Tribunal of an Executive Magistrate. I think it would not be proper for this Court in exercise of its writ jurisdiction to consider the evidence itself and to reach its own conclusion on that matter.

I would, therefore, allow this writ petition and quash the order of Shri Birbal, Executive Magistrate, Bhatinda, the prescribed authority, dated 28th of August, 1964 (by which he set aside the election of Joginder Singh petitioner) and direct that the District Magistrate, Bhatinda, may entrust the case to any competent Ilaqa Magistrate other than the one who previously decided the election petition of Surjit Singh respondent for hearing the election petitioner and the respondents of that case and for deciding the same after taking into account the entire evidence on the record including the statement of R. W. 2 Jagnandan Singh. There will be no order as to costs in this Court.