Lehna Singh and Others vs State of Punjab and Others

K.S. Kumaran, J.—Prior to the seventh general elections to the various gram panchayats in the State of Punjab held on different dates in the year 1993, the Gram Panchayat of Village Dulichike, Tehsil and District Ferozepur comprised of the Abadi of the five villages namely, (1) Dulichike (2) Kalu Wala (3) Saide Ke, (4) Gratti Rahimeke and (5) Nihali Wala. As per the voters list prepared for the Legislative Assembly in the year 1988, the total number of votes in these villages was as follows :-

(1) Dulichike - 2420 (2) Kalu Wala - 110 (3) Saide Ke - 206 (4) Gratti Rahimeke - 107 (5) Nihali Wala - 149

For the seventh general elections held in January, 1993 the Punjab Government issued a fresh notification dated 31.12.1992 in supersession of its earlier notifications whereby certain new gram panchayats were constituted. Gram Panchayat Dulichike which consisted of the Abadi of the five villages named above earlier, is to comprise of only three villages namely, Dulichike, Kalu Wala and Saide Ke. Village Gratti Rahimeke and Village Nihali Wala were constituted as two independent gram panchayats by the abovesaid notification.

The petitioners claim that they are residents of Village Dulichike and their names were included in the voters list of the said village. The first petitioner-Lehna Singh was the sitting Sarpanch, while the third petitioner -Sukhchain Singh was a sitting member of the erstwhile Gram Panchayat, Village Dulichike, prior to the election impugned in this petition. The elections to the office of the Sarpanch and six Panches of Gram Panchayat Village Dulichike were to be held on 16.1.1993 and the nominations had to be filed by 15.1.1993. While the 7th respondent filed-his nomination papers for the office of Sarpanch of Gram Panchayat Village Dulichike, respondents 8 to 13 filed their nomination papers for the post of Panches, which were accepted by the Returning Officer. However, it is alleged that when the petitioners went to file nomination papers on 15.1.1993 for contesting in the said elections, they were informed by the Presiding Officer that their nomination papers could not be accepted as their names were not found in the voters list of Gram Panchayat Dulichike. On enquiry, it was found that in spite of the fact that as per the latest notification dated 31.12.1992 (Annexure P.4) the Gram Panchayat of Dulichike was newly constituted comprising of the three villages - Dulichike, Kalu Wala and Saide Ke, half of the voters of Village Dulichike itself and all the votes of Village Kalu Wala and Village Saide Ke were not included in the voters list for the said elections. Since the names of all the petitioners were not included in the voters list of Village Dulichike (Annexure P-1), their nomination papers were not accepted by the Presiding Officer, Petitioners contended that no election for the gram panchayat of Village Dulichike could be legally held without including the names of all the voters of all the three villages. The petitioners claim to have made a representation annexure P-5 to the Deputy Commissioner, Ferozepur on 15.1.1993 itself bringing the above said facts to his notice and requesting him to postpone the elections to the gram panchayat of village Dulichike till such time all the names of all the voters are included. The Deputy Commissioner, Ferozepur allegedly marked the representation to the District Development & Panchayat Officer, Ferozepur for examining their objections with a direction to take immediate steps to settle the matter. According to the petitioners, the District Development & Panchayat Officer failed to rectify the mistake. The election was permitted to take place on schedule and only the voters of Village Dulichike as shown in the voters list-annexure P-1/A were permitted to participate and vote in the elections on 16.1.1993. None of the voters whose names were included in the voters lists Annexure P-1 to P-3, were allowed either to participate or to vote in the election held on 16.1.1993. The respondents 7 to 13 were declared elected. The petitioners claim that they, who were shown to be voters of village Dulichike as per voter list Annexure P-1 prepared in the year 1988 for the Legislative Assembly and being part and parcel of the Gram Panchayat, Dulichike, had a legal right to contest the elections held on 16.1.1993. They claim that the election to the Gram Panchayat, Dulichike has been rendered void ab initio and has to be set aside.

On the above allegations, the petitioners have approached this Court for the issue of a writ of certiorari/mandamus for quashing the election of respondents 7 to 13, and for directing the official respondents to hold fresh elections for the Gram Panchayat of Village Dulichike by including the names of all villagers of all the three villages - Dulichike, Kalu Wala and Saide Ke as depicted in the voters list annexure P-1, P-2 and P-3.

The sixth respondent - Block Development & Panchayat Officer, Ferozepur filed a reply on behalf of the official respondents 1 to 6 wherein he has alleged that Section 4 of the Punjab Gram Panchayats Act, 1952 (hereinafter referred to as the Act) enables the State Government to declare any village or group of contiguous villages with a population of less than 200 to constitute a Sabha are and to create a new Sabha out of the existing Sabha, He has further alleged that previously the Gram Panchayat Dulichike comprised of five villages as mentioned by the petitioners, but in the recent panchayat elections of 1993, three panchayats were constituted namely (1) the Dulichike Gram Panchayat consisting of Village Dulichike, Village Kalu Wala and Village Saide Ke (2) Gram Panchayat Nihali Wala and (3) Gram Panchayat Gratti Rahimeke, that the petitioners were the voters of old Gram Panchayat Dulichike which comprised of all the five villages mentioned above, but in the recent panchayat elections, the voters of old Gram Panchayat Dulichike were trifurcated into three gram panchayat and the petitioners became voters of Gram Panchayat Nihali Wala. According to the 6th respondent, the names of the petitioners are in the electoral list of village/Gram Panchayat Nihali Wala, the newly formed panchayat, therefore, they do not remain the voters of Gram Panchayat Dulichike, and as such were not entitled to file nomination papers for any post of Gram Panchayat Dulichike.

The sixth respondent has further alleged that u/s 5(2) of the Act, every person who was entered as a voter on-the electoral rolls for the Punjab Legislative Assembly pertaining to the area of any Sabha, shall be a member of that Sabha, and that the present electoral roll was prepared for the Punjab Legislative Assembly. According to this respondent, all persons who are ordinarily residents of the area of the Village or Abadi, or a group of Abadi which has been constituted as separate Gram Sabha u/s 4 of the Act, shall be a member of that Sabha. The sixth respondent has further urged that in this process, no person enrolled as a voter nor any person''s name is deleted from the electoral roll of the assembly.

According to the sixth respondent, annexure P-1 to P-3 are the voters list of the year 1988 when there was only one grant panchayat - Dulichike comprising of five villages, but the gram panchayat elections were held as per instructions of the Punjab Government letter No. 13-26/DPH dated 3.1.1993 whereby the Circle Patwari was required to submit the voters list of the trifurcated gram panchayat. It is further urged by the 6th respondent that the petitioners who have become voters of the newly formed gram panchayat, Nihali Wala as per the latest voters list supplied, they were not entitled to contest for any post to the Gram Panchayat, Dulichike.

Sixth respondent has also alleged that the petitioners did not file the nomination papers and as such they were not rejected. He has also alleged that no representation was submitted by the petitioners to the Deputy Commissioner, Ferozepur.

7th respondent filed a reply on behalf of respondents 7 to 13 making similar allegations and also alleging that this petition involves disputed questions of fact requiring proof and, therefore, this writ petition is not maintainable. Another plea taken by this respondent is that no election can be called into question except by way of an election petition in view of Section 13-B of the Act. According to the 7th respondent, the petitioners were voters of the old Gram Panchayat which comprised of five villages, but in the recent Panchayat elections, the voters list has been trifurcated. According to this respondent, the petitioners are residents of Village Kilche, which is one of the three villages comprised in the newly constituted Gram Panchayat Nihali Wala. He has also alleged that the names of the petitioners are included in the voters list of Gram panchayat Nihali Wala, and also denied that the petitioners are residents of Village Dulichike or that they are voters of Gram Panchayat Dulichike. This respondent has also alleged that the petitioners did not file their nomination papers on 15.1.1993. According to him, the petitioners not being Voters of Gram Panchayat Dulichike, were not entitled to participate in the election of Gram Panchayat, Dulichike.

We have heard the counsel for the parties and perused the records on file. Before the election held in 1993, the Gram Panchayat Dulichike consisted of five villages, namely, Dulichike, Kalu Wala, Saide Ke, Gratti Rahimeke and Nihali Wala. As admitted by the petitioners themselves, by a notification dated 31.12.1992, the Punjab Government reconstituted the gram panchayats (Annexure P-4) According to this notification, the Dulichike Gram Panchayat now consists of three villages only i.e. Dulichike, Kalu Wala and Saide Ke, while Gratti Rahimeke and Nihali Wala have been made two independent gram panchayats. No doubt, the petitioners were voters of Gram Panchayat Dulichike while it consisted of five villages, but after the reconstitution of the gram panchayats by the notification dated 31.12.1992, the petitioners ceased to be the voters of newly constituted Gram Panchayat Dulichike. The reasons given by the respondents is that the petitioners are not residents of Dulichike, but are residents of a village called Kilche which is comprised in the newly constituted Gram Panchayat of Nhali Wala. The respondent also contend that the names of the petitioners are in the voters list of Nihali Wala Gram Panchayat, the newly constituted gram panchayat. Therefore, the respondents contend that the names of the petitioners ceased to be in the voters list of gram panchayat Dulichike and so they has no right either to cast vote or contest the election to any post in the Gram Panchayat Dulichike.

It is admitted by the petitioners themselves that the Dulichike Gram Panchayat which comprised of five villages, has been trifurcated into three Gram Panchayats as per the notification dated 31.12.1992 (Annexure P-4). They have also not filed any replication to the reply filed by the respondents that petitioners are not residents of Village Dulichike but are residents of Village Kilche which is comprised in Gram Panchayat Nihali Wala and also that the names of the petitioners are found in the voters list of the Gram Panchayat Nihali Wala. The petitioners have not challenged the notification dated 3.12.1992 (Annexure P-4) by which the village panchayats have been reconstituted. Their only contention is that their names are not found in the voters list of Gram Panchayat, Dulichike. Obviously, their names cannot be in the voters list regarding Gram Panchayat Dulichike because they are not residents of any area coming within the newly constituted Gram Panchayat Dulichike, whereas they are not only the residents, but also the voters in the newly constituted Gram Panchayat, Nihali Wala. So, not being the voters of the Gram Panchayat of Dulichike as reconstituted, the petitioners can have no right either to vote or to take part in the election for any office of the newly constituted Gram Panchayat of Dulichike. They have also, no right to complain about the addition or deletion of any names from the voters list of Gram Panchayat Dulichike. Therefore, obviously, the petitioners can have no grievance at all when they were allegedly not allowed to file their nominations.

But even on facts, the official respondents deny that the petitioners filed their nominations and that the same were rejected. They have categorically stated that the petitioners did not file their nominations for election nor was any such nomination paper rejected. This being a disputed question of fact, cannot be decided in these proceedings under Article 226 of the Constitution of India. This is especially so when the petitioners have not produced anything to even prima facie show that they filed their nominations or the same were rejected. The petitioners, of course, claim to have made a representation to the Deputy Commissioner, Ferozepur but this was also denied by the respondents. Therefore, on this ground alone, we have to hold that this writ petition is not maintainable.

The other contention of the respondents is that if really the nomination papers of the petitioners were rejected, the only remedy open to the petitioners was to have filed an election petition challenging the election, and not by filing the writ petition. They also contend that the election cannot be challenged on the ground that the electoral rolls were invalid. The learned counsel for the respondents, in support of their contention, relied upon two decisions of the Hon''ble Supreme Court i.e. Kabul Singh Vs. Kundan Singh and Others, and Inderjit Barua and Others Vs. Election Commission of India, . But the learned counsel for the petitioners relied upon certain decisions of this Court that the High Court can pronounce on the legality or validity of the electoral roll on the basis of which the impugned elections are challenged. He cited decisions in Joginder Singh v. The State of Haryana (1986) 90 P.L.R. 375, Gurdial Singh, Ex-Sarpanch Vs. The State of Punjab and Others,

But in view of what we have discussed above, it is clear that the present case on our hands is not one where names of the petitioners were deleted illegally or improperly from the voters list relating to a constituency within whose area they live. This is a case where one gram panchayat was trifurcated into three gram panchayats. It so happened that the petitioners, being the residents of a village comprised within the village panchayat area of Nihali Wala, became the voters of that gram panchayat, and allege that their names have been deleted from the voters list in respect of the area of village panchayat of Dulichike. May be, before trifurcation of the village Panchayat Dulichike, the petitioners were voters of that Gram Panchayat. But, after the trifurcation, they had become the voters of the Village Panchayat Nihali Wala, a newly constituted gram panchayat. Since they ceased to be the voters of Gram Panchayat Dulichike, they had no right to contest in the election to the said Gram Panchayat, Dulichike. The alleged filing of nomination by them is disputed. They have also no right to complain about the deletion or addition of any names from the voters list of newly constituted Gram Panchayat Dulichike. In these circumstances, we are of the view that the petition has to fail.

In such circumstances, we are of the view that it is not necessary for us to go into the question whether relief prayed for by the petitioners can be granted to them in these writ proceedings or they should file only an election petition questioning the rejection of their alleged nomination papers, the validity of electoral roll and the election of private respondents. Therefore, the writ petition has to fail and is accordingly dismissed.