Nath Singh vs State of Punjab and ors.

D.V. Sehgal, J.

The petitioner was elected Sarpanch of Gram Panchayat, Khote, district Faridkot, in the election held on 24.9.1983 by securing 718 votes. He defeated Nikka Singh respondent No. 3 who secured 687 votes. Respondent No. 3 filed an election petition which is pending before the Prescribed Authority respondent No. 2, wherein he demanded inspection and recounting of the votes polled in the election. The petitioner objected to this demand. One of his objections was that the envelope containing the ballot papers being tern and there being no distinctive mark on the ballot papers so as to distinguish which vote was polled in favour of which particular candidate, the ballot papers could have been tampered with by their intermingling. In spite of this objection, respondent No. 2 vide impugned order dated 12.11.1984, Annexure P.1/A directed recount of the votes and as a result of the same concluded in the impugned order that while the petitioner had obtained 661 votes, respondent No. 3 had secured 687 votes, and one vote was invalid. He then adjourned the proceedings in the election petition to 20.11.1984 for arguments. It is admitted on both sides that the election petition is still pending before the Prescribed Authority and has not been finally decided. The petitioner through the present writ petition filed on 16.11.1985 has challenged the legality and validity of the impugned order Annexure P.1/A and has sought issuance of a writ of certiorari quashing the said order. The petition has been contested by respondent No. 3, who has filed his written statement.

The learned counsel for respondent No. 3 at the threshold of the arguments has raised two vital preliminary objections. His first submission is that the impugned order is an interim order which does not dispose of the election petition as such. An appeal is provided by Section 13V of the Punjab Gram Panchayat Act, 1952 (hereinafter called `the Act'') from a final order in the election petition which lies with the District Judge. He, thus, contends that the present writ petition against the interim order is not competent. He next submitted that the impugned order was passed on 12.11.1984 while the present writ petition has been filed a year after that. It is therefore, highly belated and ought to be dismissed on this score.

The learned counsel for the petitioner in reply submitted that though the impugned order is interim in nature, it virtually decides the election petition in favour of respondent No. 3. As such the writ petition should be decided on merits. As regards laches, his submission is that since the proceedings before the Prescribed Authority respondent No. 2 are still pending the order Annexure P.1/A could be challenged at any time and in such a situation the petition could not be said to be belated.

Having given my thoughtful consideration to the aforesaid pleas, I am of the considered view that the present writ petition against the interim order Annexure P.1/A cannot be entertained in the presence of a statutory remedy by way of appeal under Section 13V of the Act against the final order that might be passed by respondent No. 2 in the election petition. I find support for this view from a Division Bench judgment in Brij Sunder Sharma v. Shri Ram Dutt and others, A.I.R. 1964 Rajasthan 99, wherein it is held that the High Court would decline to go into the merits of a writ petition directed against the interlocutory order of the Election Tribunal directing a recount of the ballot papers as the order can be challenged in an appeal against the final decision of the Tribunal. The learned counsel for respondent No. 3 also invited my attention to my judgment dated 3.2. 1986 in Ajmer Singh v. Additional District Judge, Sangrur, and others (C.W.P. No. 480 of 1985) 1986 R.R.R. 153 : (1986 P.L.J. 391), and in particular to my observations that irrespective of the fact that a statutory remedy is available, if a person aggrieved from an order chooses to challenge the same by invoking the writ jurisdiction of the High Court the order passed on the writ petition is the final order and the impugned order merges in the order of the High Court. He proceeds to submit that if the present writ petition is decided on merits, whatever the outcome, the impugned order would merge in the order of this Court, and the appellate authority under Section 13V of the Act, who is the District Judge, shall not have the power to reopen the question of legality or otherwise of the impugned order of respondent No. 2 when an appeal against the final decision of respondent No. 2 in the election petition is preferred under Section 13V of the Act. This would take away a valuable right of appeal from either of the parties as provided by the statute. I find force in this submission. In the last paragraph of my judgment in Ajmer Singh''s case (supra), I inter alia, observed

"The learned Additional District Judge as the appellate authority under Section 13V of the Punjab Gram Panchayat Act, 1952, had no jurisdiction to sit on judgment or the order of this Court Annexure P.2 nor could he reopen the question of legality or otherwise of the order of the Prescribed Authority dated 2.1.1984 Annexure P.1".

Therefore, without adverting to the merits of the impugned order Annexure P.1/A passed by respondent No. 2, I would relegate the parties to the remedy available to them under the Act. When the election petition is decided by respondent No. 2, either of the parties, which is aggrieved by the decision, shall have the right to file an appeal under Section 13V of the Act and can take all or any of the contentions raised by them against the impugned order dated 12.11.1984 Annexure P.1/A, as they have raised in the present writ petition and the written statement and any other ground of attack against the same as may be available to them.

Consequently, on the ground that an alternative remedy is available under the law, I decline to exercise extraordinary jurisdiction under Articles 226/227 of the Constitution to interfere with the impugned order Annexure P.1/A and dismiss the writ petition. The parties are left to bear their own costs.