Mukhtiar Singh vs State of Punjab

V.K. Bali, J.—Mukhtiar Singh and others through present petitions filed by them have approached this Court for setting aside the election of Gram Panchayat Dhabh Khushal Johian declared vide Annexures P-7 and P-8 in rather exceptional circumstances.

The facts as have been pleaded, reveal that the nomination and polling for the election of Gram Panchayat of village Dhabh Khushal Johian was fixed for 19th and 20th January, 1993 respectively and as per Section 5 of the Gram Panchayat Act, 1952 and the Rules as well as announcements by the State Government, the elections were to be held on the basis of the electoral roll for the Assembly elections i.e. the Electoral Rolls of 1988 and supplement rolls of 1989 on the basis of which February, 1992 Assembly Elections were held. Petitioner No. 1 Mukhtiar Singh, ex-Sarpanch of the village duly filed his nomination papers for his election to the post of Sarpanch and his vote No. was 432. Petitioner No. 2 Mukhtiar Kaur is stated to be wife of petitioner No. 1 and petitioner No. 3 Sawaran Singh is stated to be supporter of petitioner No. 1 and they both duly filed their nomination papers for the election of Sarpanch as covering candidates of petitioner No. 1 fearing that under undue political pressure, nomination papers of petitioner No. 1 might not be rejected illegally. Petitioner Nos. 4 to 9 filed their nomination papers for the election of Parsches against four seats out of which one was reserved for the candidate belonging to Scheduled Caste. Respondent No. 5 Harbans Singh was also candidate for the post of Sarpanch and it is pleaded that on account of the influence that he yields, he got deleted valid votes No. 643 to 858 to 896, 934 to 948 and 1005 to 1024 from the list. Petitioner No. 1 had filed an application on January 6, 1993 before the District Electoral Registration Officer praying that the aforesaid votes might not be deleted from the voter''s list. This application was marked to District Development and Panchayat Officer and then the Block Development and Panchayat Officers on January 6, 1993 for report after necessary action and the Block Development and Panchayat Officer had further marked it to the Naib Tehsildar, Jalandhar for correction of the votes. However, it is stated that no further action was taken in the matter. Another application was filed by the petitioner praying to delete some votes but no action, it is stated, was taken on the said application as well. All the petitioners, it is pleaded, had been validly enrolled on the electoral roll of village Dabh Khushal Johian being above 25 years of age and incurring no disqualification u/s 6, Sub-Section (5) of Section 102 (2) of the Punjab Gram Panchayat Act, 1952 or the Rules. They were eligible for contesting election of Sarpanch or Panch. Petitioners belong to Rai Sikh community and were eligible to contest the election of the Gram Panchayat as general candidates. They deposited Rs. 20/- which is the fee fixed for general category but inadvertently they filled Rai Sikh and signed the colour meant for scheduled caste candidates. It is significant to mention that no seat was reserved for a scheduled caste category of Sarpanch and it is only one seat out of panches which was reserved for scheduled caste candidate. Specimen of form of nomination paper filed by petitioner No. 1 has been annexed with this petition as Annexure P-5, perusal whereof would show that in the column under the caption "IF THE CANDIDATE IS MEMBER OF THE SCHEDULED CASTE, NAME OF THE PARTICULAR CASTE TO WHICH THE CANDIDATE BELONGS", it has been mentioned ''Rai Sikh.'' Further in the column under the caption "I HEREBY PROMISE TAKING OATH u/s 9 SUB-SECTION (1) OF THE ACT, I WILL RESIGN FROM THE MEMBERSHIP OF PARLIAMENT OR PUNJAB LEGISLATIVE ASSEMBLY, signatures of the candidate have been appended. Again in another column under the caption "I AM STATING HEREBY THAT I AM RAI SIKH WHICH IS DECLARED SCHEDULED CASTE BY THE STATE, signatures of the candidate are appended. It is for these mistakes, that have been quoted above, that the nomination papers of the persons who had sought election for the post of Sarpanch or panch were rejected. In so far as nomination papers of petitioners No. 1, are concerned, the same were also rejected on the ground that instead of depositing Rs. 20/- he had deposited Rs. 10/- only. As their nominations were rejected on the same ground, it is pleaded that the candidates who were left in the field i.e. respondent No. 5 and others, were elected unopposed as Sarpanch and Panches. It is this rejection of nominations of petitioners in the manner indicated above that has been challenged in the present writ petition.

Mr. Doad, learned counsel appearing on behalf of petitioners vehemently contends that none of the columns wherein petitioners had appended their signatures were material and the same could not possibly influence the election either way, Rai Sikh, he contends, is not described as Scheduled Caster anywhere and even if the petitioners belong to scheduled caste, they could always contest election for a seat meant for general category. It is further contended that insofar as the column with regard to resigning the seat of member Parliament or Member of Legislative Assembly is concerned, the same is wholly meaningless as no sitting M.P/M.L.A. would ever contest election of Sarpanch/Panch simply with a view to resign the seat of M.P/M.L.A, which is admittedly higher than that of Sarpanch/Panch.

Material facts of the case have not been denied and the cause of petitioners has been opposed on the solitary ground that u/s 13 (B) of the Punjab Gram Panchayat Act, 1952, remedy of election petition is available and writ should, therefore, be dismissed leaving it on the petitioner to avail alternative remedy under the Statute.

After hearing the learned counsel for the parties and going through the records of the case, I am of the considered view that the points raised by Mr. Doad have merit and, therefore, this writ must succeed. It may be repeated that the facts that have been given in the petition, have not been disputed at all. It is a case of wholesale rejection of nomination papers of a particular candidate and all others supporting him. It is also a case of electing the remaining person un-opposed. Even if the petitioners had mentioned in the column concerned that they belonged to reserved category whereas in fact they all belonged to general category, the could contest the election. In sofar as the post of Sarpanch is concerned, it was meant for a general category and no law or rule has been pointed out that could debar a person belonging to Scheduled Caste from contesting the election for the seat which is not restricted one i.e. an open seat. Petitioners, thus, could contest election for the seat which is meant for general category and they simply because they had mentioned themselves to be members of scheduled caste, they could not be debarred from contesting election. It appears that Returning Officer Presiding Officer-respondent No. 4 was also under no impression that the petitioners who actually did not belong to any reserved category had in fact sought to contest as general category candidate as only then the nomination of petitioner No. 1 could be rejected who had deposited only Rs. 10/- which could be done by a reserved category candidate. If, thus, nomination papers of petitioner No. 1 were rejected also on the ground that he had deposited only Rs. 10, it has to be concluded that he belonged to general category irrespective of the mention of scheduled caste in nomination papers. Mr. Doad appears to be right in saying that no sitting M.P. or M.L.A. would contest the election of Sarpanch /Panch of a Gram Panchayat as the post of M.P./M.L.A. is far higher that of Sarpanch/ Panch. There is not ever a single example of M.P. or M.L.A. contesting election of Sarpanch and resigning the seat earlier held by him. That apart, under the column in question petitioners had only appended their signatures which would mean that they were accepting the condition made out in the column in question. There is no reply to the contentions raised by learned counsel for the petitioners. However, it is only the plea of alternative remedy which is pressed into service. A Division Bench of this Court in Nachhattar Singh and another Vs. State of Punjab and others, , has held, "It is clear that while the remedy for the purpose of challenging the result of the election by way an election petition u/s 13 B of the Act may be available yet in the facts and circumstances of a particular case the High Court could interfere under Article 226 of the Constitution. The mere availability of an alternative remedy is not the solitary test; such remedy must, in addition be adequate and efficacious. It bears repetition that there is no constitutional bar to the maintainability of such a writ petition with respect to local bodies such as Municipal Committees, District Board or Gram panchayats in the manner indicated by the Constitution under Articles 329B with respect to elections held to the State Assemblies or Parliament and, in the absence of such a restraint, the scope of Article 226 is all pervasive and wide enough to read and remove an injustice suffered. This Court would not, therefore, throw out the writ petition at the very threshold and compound the sense of injury and injustice inflicted on the petitioners with another one at the hands of the Court by circumscribing artificially the scope of Article 226. The Court in exercising restraint must not clip its wings, though interference should be made to use the repeated words m the ''rearest of rare'' cases. We, therefore, held that though an alternative remedy by way of election petition is available to the petitioners, yet we find that it is not an efficacious one in the facts and circumstances of the present case."

The facts of the case aforesaid reveal that nomination papers of as many as 26 candidates were rejected only because the word ''Gram Panchayat'' was not mentioned before the name of the village. Nomination papers of one of the candidates were rejected on the ground that he was fixed for travelling in the train without ticket.

In view of what has been said above, this petition is allowed and the election of the Gram Panchayat, Dhabh Khushal Johian is set aside and a direction is issued to the respondent-State to hold the election afresh in accordance with the law. There shall, however, be no order as to costs.

Insofar as writ of petitioner No. 1 is concerned, the same would stand dismissed as his nomination was rejected for another reason as well, that is, he had deposited Rs. 10/- which could be deposited by a person belonging to Scheduled Caste whereas deposit of Rs. 20/- was essential for a candidate who was contesting election for a general category seat.