Mohinder Singh vs The Sub Divisional Magistrate and Others

N.K. Kapoor J.—Petitioner seeks quashing of annexure P-l dated 9.3.1994 and annexure P-2 dated 29.7.1994 or for issuance of an appropriate writ order or direction as the Court may deem fit and appropriate in the facts and circumstances of the case. An election to the Gram Panchayat was held on 22.1.1993, in which petitioner and Jaswant Singh-respondent No. 3 alone contested to the post of Sarpanch of the village. In all, 1624 votes were polled in which the petitioner secured 831 votes whereas respondent No. 3 secured 793 votes and so the petitioner was declared to have been elected with a margin of 38 votes. Petitioner accordingly took charge as Sarpanch of the village and started discharging its functions till date without any complaint either from authorities or any resident of the village. The election of the petitioner was challenged by respondent No. 3 on the ground that petitioner did not make and subscribe before the Returning Officer an oath of affirmation in the form specified and so he was not eligible to contest the election, this way his nomination paper has been illegally accepted-Other grounds urged by respondent N o. 3 in his election petition were that votes were polled in favour of the petitioner of persons who were dead prior to the date of polling and this was done in connivance with the Presiding Officer that votes were polled twice with regard to certain persons. Similarly, some votes were polled in the name of such persons who were never present during the polling hours and so on. The election petition filed by the defeated candidate was contested by the petitioner and in his written statement specific denial was made with regard to the material averments made in the election petition. According to the answering respondent, the Sub Divisional Magistrate exercising the powers of Prescribed Authority under the Punjab Gram Panehayat Election Rules examined the matter in the light of the pleadings of the parties, framed appropriate issues permitting the parties to adduce evidence and finally after scrutinizing the evidence led came to the conclusion that petitioner did not affirm the oath prescribed and so his nomination papers had been illegally accepted. Resultantly, the petition was accepted and the election of Mohinder Singh-petitioner was set aside.

The appellate Court also found no substance in any of the contentions raised by the petitioner-appellant and so dismissed the appeal as well. With these broad averments it was stated that the writ petition was wholly incompetent and deserves to be dismissed on this ground alone. Otherwise too, there is nothing on record to suggest that petitioner complied with the mandatory provisions with regard to the affirmation of oath at the time of submission of nomination form and so his nomination paper had been illegally accepted and rightly held by the Prescribed authority as well as by the appellate Court,

During the pendency of the writ petition, respondent No. 3 has filed an affidavit dated 6.7.1995 making averment to the effect that the matter between the contending parties stands compromised and so the answering respondent does not wish to pursue the civil writ petition. Court vide its interim order desired Advocate General, Punjab to be heard before passing any order on the interim civil miscellaneous No. 6853 of 1995, praying for disposal of the writ petition on the; basis of affidavit filed by Jaswant Singh-respondent No. 3. Before the matter could be disposed of one Mohinder Singh son of Jagir Singh, a resident of the village has filed an application under Order 1 Rule 10 CPC that Jaswant Singh-respondent has colluded with the petitioner and so he be permitted to contest the petition being a resident of the village and he be infact impleaded in place of respondent No. 3. It is in these circumstances that the Court directed that both the civil miscellaneous, one filed by Jaswant Singh and other by Mohinder Singh be heard and decided with the main case.

Learned counsel for the petitioner challenging the order passed by the Prescribed Authority and affirmed in appeal by the District Judge has termed these orders to be wholly illegal and un-warranted as per the relevant provisions of the Punjab Gram Panehayat Act and hence un-sustainable. According to the counsel both the authorities have failed to appreciate the fact that nomination papers of the petitioner were found to be in order. According to the petitioner, an oath of affirmation was duly made by him alongwith the nomination papers and it was only as a consequence thereof that he was declared eligible to contest the election. May be the form containing the oath mis-placed or removed merely to nonsuit an elected representative. Since no objection has been raised by any of the contending parties nor any objection was raised by the Returning Officer this by itself sufficiently proves the assertion of the petitioner that he subscribed the oath of affirmation in terms of provisions of the Punjab Gram Panchayat Act. This way both or-ders-annexure P-l and P-2 deserve to be set aside. In support of her submission, learned counsel took support from the decisions in Pashupati Nath Sukul and Others Vs. Nem Chandra Jain and Others, and Tara Singh v. Punjab State etc. (1994 )108 PLR 32.

Section 6 of the Punjab Gram Panchayat Act, 1952 deals with the Constitution of Gram Panchayat and disqualifications to the members thereof. As per Section 6 Sub-clause (1) every Sabha is to elect from amongst its members a Gram Panchayat bearing the name of its Sabha consisting of a Sarpanch and such number of Panches not being less than four and more than ten, as the Government may determine taking into account the population of the Sabha area. Each such Gram Panchayat constituted under this Section is to be notified by its name in the official gazette. The election of the Gram Panchayat is to be held in the prescribed manner by secret ballot and direct vote i.e. a person securing the highest number of votes is deemed to have been elected. Similarly in every Gram Panchayat there has to be atleast, two women Panches whether by election or by co-option. As per Section 5 Sub-clause (5) person possessing the enumerated disqualifications cannot become members of the Gram Panchayat/Gram Sabha like a person who is not a citizen of India and does not make and subscribe before an officer authorised in that behalf by the Director an oath or affirmation in the form specified in Schedule IV; is not a member of Sabha or is not qualified to be elected as member of Legislative Assembly; has been convicted of any offence involving moral turpitude unless a period of 5 years has elapsed since his conviction and so on as enumerated from (a) to (p) in Section 6 Sub-clause (5) of the Act. Presently, the dispute relates Section 6, Sub-clause (5) (a) which reads as:-

"5. No person who

(a) is not a citizen of India and does not make and subscribe before an officer authorised in that behalf by the Director an oath or affirmation in the form specified in Schedule-IV;"

Election of the petitioner has been set aside on the ground that he did not make and subscribe before an officer an oath of affirmation in the form specified in Schedule IV. The Prescribed Authority after carefully scrutinizing the evidence led has come to the conclusion that the petitioner did not subscribe to the oath in the form specified in Schedule IV and so set aside his election vide annexure P-l. District Judge too on re-appraisal of evidence found no ground to vary or reverse the findings recorded by the Prescribed Authority and so upheld the same. Thus, there is no manner of doubt that petitioner did not make and subscribe the oath at the time of submitting the nomination papers as per form specified in Schedule IV. Despite this proved fact it has been argued by the learned counsel for the petitioner that yet the petitioner could not be non-suited on this ground alone in view of the decision of the apex Court in Pashupati Nath Sukul''s case (supra). Court in the instant case was considering as to whether a person elected as a member of the Legislative Assembly but who has not made and subscribed the prescribed oath or affirmation as required by Article 188 of the Constitution of India can validly propose a person as a candidate at an election held for filling a seat in the Rajya Sabha. It was held that an elected member who has not taken oath but whose name appears in the notification published u/s 73 of the Act can take part in all non-legislative activities of an elected member. Right of voting at an election to the Rajya Sabha can also be exercised by him. It was found as a fact that the name of the proposer had been included before the date on which he proposed the name of the appellant as a candidate in the notification published u/s 73 of the Act, and in the electoral roll maintained u/s 152 of the Act. In these circumstances, it was held that there was no infirmity in the nomination. This decision has hardly any applicability as per facts of the present case. As per Section 6 Sub-clause (a) a person who is not a citizen and also a person who does not make and subscribe before an officer an oath or affirmation in the form specified in Schedule IV cannot be held to have been properly nominated. It is taken to be a disqualification and unless removed does not make such a person entitled to contest an election.

Similarly, decision in Tara Singh''s case (supra) is hardly helpful in determining the controversy raised in the present petition. In that case the matter pertaining to interpretation of Rule 51 (xi) 9c) of Punjab Municipal Election Rules, 1952 relating to the term "material irregularity" as well as with regard to form V and VII.

Thus, a bare reading of Section 6 Sub-clause 5 which makes reference to the various disqualifications intended to be removed before nomination of a person can be accepted as a step preceding the election. In case a person possesses a disqualification such a person cannot be even nominated and so any subsequent step in the form of his participation in the election or having been elected are wholly inconsequential. So even the plea raised by the counsel for the petitioner that it being in the nature of an irregularity it had to be proved by the contesting respondent that the result of the election has been materially affected. I find this submission also to be devoid of any substance for the reason that petitioner by not subscribing to the oath in terms of Section 6 Sub-clause (5) (a) had infact incurred a disqualification and so his nomination paper had been wrongly accepted by the Returning Officer. Thus I find no infirmity or illegality in the well considered order passed by the Prescribed Authority and affirmed in appeal by the District Judge calling for any interference in the writ jurisdiction of this court.

No doubt the contesting successful respondent has now filed an affidavit for acceptance of the writ petition but that could hardly be taken as a ground for setting aside the order passed by the Prescribed Authority in terms of the provisions of the Act. Otherwise too, present is not a private dispute between two rival claimants and so any concession given by one in favour of the other will not make any valid order as nonest or inoperative and precisely for this reason a voter of the village has come forward to contest the petition.

In view of what has been noticed. I find no merit in the writ petition and so dismiss the same.

No order as to costs.