Paramjit Kaur and Others vs State of Punjab and Others

Ajay Tewari, J.—The petitioners have filed the present petition under Articles 226/227 of the Constitution of India for issuance of a writ of

certiorari for quashing the declaration of result in Form IX(Anneuxre P-8) and the notification dated 26.12.2008 (Annexure P-9) whereby

respondent No.5-Smt. Angrej Kaur was declared as elected member of the Gram Panchayat, Mansoorwala Kalan, Tehsil Zira, District Ferozepur

in the election scheduled on 22.6.2008 despite her not filing nomination papers and subsequent election of Sarpanch of Gram Panchayat vide

proceedings dated 6.1.2009 is liable to be quashed.

The facts of the case are that petitioners are electors of Mansoorwala Kalan. Respondent No.1 issued a notification dated 27.2.2008 for

holding general elections of the Panchayati Raj Institutions in the State of Punjab which were postponed by respondent No.2 in view of the

Resolution of the Punjab Vidhan Sabha. A notification dated 11.4.2008 was also issued by respondent No.1 to this effect. Another notification

dated 13.5.2008 was issued by respondent No.2 for holding general elections in the State as per election schedule reproduced below:

16.5.2008 Last date of filing nomination papers

17.5.2008 Scrutiny

19.5.2009 Withdrawal and allotment of symbols

26.5.2008 Polling

It is further stated that respondent No.5 was also a candidate in S.C. Women category, who was declared as elected unopposed on

19.5.2008. A written complaint dated 20.5.2008 was made to Punjab State Election Commissioner, Punjab alleging that the candidature of

petitioner No.1 was wrongly rejected and the Election Commissioner ordered the Deputy Commissioner to conduct an inquiry and to report and

on his report the election of the Gram Panchayat fixed for 26.5.2008 was countermanded. Thereafter elections were directed to be held on

22.6.2008 vide a letter dated 10.6.2008(Annexure P-5). Seven candidates including petitioner No.1 filed their nomination papers in different

category. Since there were seven seats these seven candidates were unanimously elected and declaration dated 14.06.2008 was made in Form

V(Annexure P-6).. It is noteworthy that respondent No.5 neither challenged the order countermanding the election nor filed nomination for the said

election nor challenged the declaration of the result of petitioner No.1 as having been elected. However, the Deputy Commissioner vide letter

dated 16.6.2008 (Annexure P-7) mentioned that members in SC Women Category who had filed their nomination papers earlier were to be

elected as having been declared elected unopposed.

Consequently the name of respondent No.5 Angrej Kaur was shown as having been elected in form No. IX(Annexure P-8). A notification

dated 26.12.2008(Annexure P-9) was issued by respondent No.2 mentioning the names of respondents No. 5 to 9 including Angrej Kaur as

having been elected member in the SC Women Category. The petitioners are aggrieved against the declaration of result in Form No. IX

mentioning Angrej Kaur as elected member of the Gram Panchayat and the notification dated 26.12.2008 as well and the exclusion of the name of

the petitioner No.1.

In the reply filed on behalf of respondents No.1, 2 and 4, the preliminary submissions taken were that the petition is not maintainable; that

elections tot he Gram Panchayat were scheduled to be held on 26.05.2008and nominations were to be received from 13.05.2008 to 16.05.2008,

scrutiny of nomination papers was to be conducted on 17.05.2008 and the date of withdrawal of nominations and allotment of symbols was fixed

for 19.05.2008 and that on the same date the result was declared u/s 54 of the Punjab State Election Commission Act, 1994 and two members

viz. Angrej Kaur and Buta Singh were declared elected unopposed. That on inquiry it was found that Returning Officer had wrongly rejected the

nomination papers of some candidates and the election was countermanded and fresh election was scheduled for 22.6.2008. The subsequent facts

were admitted. The action is defended on the ground that during this interregnum this Court held that the Election Commission had no power to

countermand those elections where the result had been declared and, since the election result of respondent No.5 stood declared on 19.05.2008

her election could not have been countermanded and thus the subsequent notification of election qua the seat to which respondent No.5 had been

elected and the subsequent election of petitioner No.1 to that seat would have no effect.

Learned Senior counsel for the petitioners has argued that once respondent No.5 acquiesced to the countermanding of her election, did not file

nomination for the subsequent election and also did not challenge the declaration of result of petitioner No.1, the Election Commission erred in

mentioning her name in the declaration under Form IX(Annexure P-8) and in the final publication Annexure P-9. As per learned Senior Counsel

even at the time of original election it cannot be held that the result of the petitioner No.1 was declared since voting for the remaining seats was yet

to take place. Further as per learned counsel even if it be accepted that the election qua the seat of respondent No.5 was wrongly countermanded

still once the subsequent election took place and the result of petitioner No.1 was declared the Election Commission would not vary it and the only

recourse for respondent No.5 would have been to file an election petition. In Rajpreet Singh v. State of Punjab and others reported as 2010 (4)

PLR 254 a Division Bench of this Court held as follows:-

A question whether after declaration of result of an election, the State Election Commission has the power and jurisdiction to countermand an

election, came up for consideration before a Division Bench of this Court in Balwinder Singh v. State of Punjab and others (CWP No. 10547 of

2008), decided on 23.12.2008. In the above said case, following proposition of law was under consideration of this

Court:

The question to be determined by us is whether or not the Punjab State Election Commission-respondent no.2, after the declaration of the result

by the Presiding Officer/Returning Officer in case of no contest under sub-section (2) of Section 54 and after contest u/s 69 of the Punjab State

Election Commission Act,1994, declaring a candidate as elected Panch of a Gram Panchayat, could countermand the election in exercise of the

powers vested in it and direct the holding of fresh election after setting aside the earlier result.

By making reference to the provisions of the Constitution of India, Punjab Panchayati Raj Act, 1994 and the Rules framed thereunder, it was

observed as under:

A perusal of all the aforesaid provisions of the Election Commission Act,1994 indicates that once the election process commences by issuance of

notification u/s 35 then the process gets completed on the declaration of the result and the ministerial act of publication thereof, although in certain

specified situations noticed u/s 58, polling can be adjourned and under given situations of destruction of ballot boxes u/s 59 and booth capturing u/s

60, the elections can be countermanded after the poll, but only before the declaration of the result by the Returning Officer.

The scheme of the Act further provides that in case where there is no contest in an election for the seat then the Returning Officer is mandated to

forthwith declare the result. A perusal of sub section (2) of Section 54 clearly indicates that if the number of candidates is equal to the number of

seats to be filled up in the election, the Returning Officer shall forthwith declare such candidates to be duly elected to fill up those seats and the

manner in which result is to be declared, is not prescribed. In cases wherever there is a contest, Section 69 of the Election Commission Act

provides that the Returning Officer after the counting of the votes and in the absence of any directions by the Election Commission to the contrary,

forthwith declare the result of the election in the prescribed manner. In cases of contest, the manner has been prescribed under sub rule (2) of Rule

33(e) of the Punjab Panchayat Election Rules,1994 reproduced hereinabove, to the effect that the Returning Officer shall record a statement in

Form IX, annexed to the Rules declaring such results. A reading of Rule 13 of the Election Rules,1994 (reproduced above) reveals that the

Returning Officer is to display the particulars of the validly nominated candidates, who are the contesting candidates in statutory Form V,

containing their names in alphabetic order along with particulars and symbols allotted to each of the contesting candidates. We have noticed that in

certain cases the Presiding Officers/Returning Officers have declared the result of unopposed candidates under subsection (2) of Section 54 of the

Election Commission Act,1994, in statutory Form V itself by declaring candidates to be elected since there was no contest. In certain cases result

has been declared in statutory Form IX. In our opinion, in the absence of any manner prescribed under sub-section (2) of Section 54 of the

Election Commission Act,1994, such declaration of results by the Presiding Officers/ Returning Officers either in statutory Form V or statutory

Form IX is a valid declaration of result under the rules. It is to be noticed that the legislature has consciously provided that in case there is no

contest, the Returning Officer is mandated to forthwith declare the result (under the provisions of the Election Commission Act,1994) whereas in

case of a contest and counting of votes, the State Election Commission can issue directions to the contrary before the declaration of the result in

Form IX, as is clear from a joint reading of Section 54(2) and Section 69, meaning thereby that the State Election Commission in contested

election only and before the declaration of the result by the Returning Officer, can issue directions in exercise of powers vested in it for the conduct

of free and fair elections. In Jagjit Singh v. State Election Commission, Punjab (supra) the State Election Commission had ordered the re-poll of

the election of Sarpanch and Panch of a village after the declaration of the result in Form IX. The Hon''ble Single Judge held that the impugned

orders of the State Election Commission were ultra vires the powers vested in it, which are to and once the result is declared the election is over

and the State Election Commission ceases to have any jurisdiction to order any re-poll as it becomes functus officio qua the poll. This view of the

learned Single Judge was affirmed by a Division Bench of this Court Randhir Singh v. State Election Commission, Punjab (supra). Another

Division Bench of this Court in Kashmir Kaur v. State of Punjab (supra), after relying on the decision of the Hon''ble Supreme Court in Civil

Appeal No. 4926 of 2000-Malkit Kaur v. Jatinder Kaur and Others, decided on 20.11.2001 held that once a Returning Officer has made the

entries and declared the result in Form IX then, thereafter the Returning Officer has no power to change the entries in the same even to correct any

errors or mistake and the said declaration as contained in Form IX could only be challenged by means of an Election Petition before an Election

Tribunal. The relevant para 5 of the same reads as under:-

We have heard counsel for the parties and perused the period. The question whether the Returning Officer can change the entries recorded in

Form-IX was considered and answered in the negative by the Supreme Court in Civil Appeal No. 4926 of 2000-Malkit Kaur v. Jatinder Kaur

and Others, decided on 20.11.2001. In that case, respondent no.1 had been declared elected by securing 691 votes as against 489 votes secured

by the appellant. Thereafter, the appellant approached Deputy Commissioner, Moga complaining that respondent no.1 had been declared elected

by mistake because in fact, she had secured 691 votes and she ought to have been declared elected. The Additional Deputy Commissioner called

for the Returning Officer who corrected the entries contained in Form-IX and declared the appellant as duly elected Sarpanch of the Gram

Panchayat. The writ petition filed by respondent no.1 was dismissed by the High Court. Their Lordships of the Supreme Court dismissed the

appeal and rejected the plea of the appellant that she was entitled to be declared elected as Sarpanch. The relevant portion of the order passed by

the Supreme Court reads as under:-

Learned counsel appearing for the appellant urged that earlier there being mistake and error in Form IX prepared by the Returning Officer, the

authority was justified in law to correct the form IX subsequently and the High Court committed error in setting aside the subsequent order of the

Returning Officer. We do not find any substance in the argument. Under the Act and the Rules thereunder once a candidate has been declared

elected in form IX, the Returning Officer ceased to have any power to alter the said declaration subsequently. The declaration as contained in form

IX could only be challenged by means of an election petition before an appropriate Tribunal. In that view of the matter, we do not find any merit in

this appeal. The appeal fails and is according dismissed.

Therefore, keeping in view the aforesaid provisions of the Act and discussion it is concluded that once the number of candidates is equal to the

number of seats to be filled up, meaning thereby that there is an uncontested election, then the Returning Officer is required to forthwith declare all

such candidates to be duly elected to fill those seats by issuance of declaration of the result, which may be either in Form V or Form IX. In case

where a contest takes place then the Returning Officer after the counting of the votes and in the absence of any directions of the Election

Commission to the contrary, since the questions of adjournment/ countermanding of the election on the ground of emergencies/ destruction of ballot

boxes, booth capturing etc. can crop up, is required to declare the result in statutory Form IX. In our opinion, it is thus clear that once the

declaration of result, either in Form V or in Form IX in case of uncontested election and in Form IX in case of a contested election, has been

issued/recorded by the Returning Officer then there can be no question of countermanding the election and tinkering with the result by the State

Election Commission or any other authority including the Returning Officer on the ground of improper rejection or acceptance of the nomination

papers or any other illegality committed by the Returning Officer (as alleged in the present two cases). The only remedy available to a candidate is

to file an Election Petition u/s 76 on the grounds mentioned in Section 89 of the Punjab State Election Commission Act, 1994.

In CWP No. 10724 of 2008 election of the petitioner was countermanded after she was declared successful on 19.5.2008. In view of findings

given by us, such an action on the part of the State Election Commission was not justified. Accordingly, this writ petition is allowed and result

declared in favour of the petitioner on 19.5.2008 is upheld.

In CWP No.10978 of 2008 respondent Nos.6 to 9 were declared elected in the first election as per schedule. Thereafter, their result was set

aside, election was countermanded and fresh election was fixed for 22.6.2008. However, the State Election Commission, vide order dated

14.6.2008 again declared respondent Nos.6 to 9 as elected members of the Gram Panchayat. In view of findings given in earlier part of this

judgment, no relief can be given to the petitioners in this case. Accordingly, this writ petition fails and dismissed. However, liberty is left with the

petitioners to lay challenge to the elections of respondent Nos.6 to 11. They may do so within a period of 30 days from the date of receipt of a

copy of this order. Question of limitation shall not be raised against them in entertaining their election petition.

In CWP No.10881 of 2008, the petitioners were declared elected on 26.5.2008, however, their elections were set aside by the State Election

Commission vide order dated 22.6.2008 and fresh election was ordered in the village. In view of findings given by us in this judgment, their writ

petition is allowed, order dated 22.6.2008, setting aside their elections is set aside and declaration of result in favour of the petitioners on

26.5.2008 is upheld.

In CWP No.10751 of 2008, the petitioners were declared elected on 26.5.2008. Thereafter, vide order dated 6.6.2008 (P5), their election

was set aside and fresh election was ordered in the village. In view of reasons given by us in the preceding part of this writ petition, this writ petition

is allowed and the result declared in favour of the petitioners on 26.6.2008 is upheld.

In CWP No.10414 of 2008,the petitioners were declared elected unopposed, however, subsequent thereto, vide order dated 25.5.2008

(P4), the State Election Commission set aside and countermanded their election and fresh election was ordered. In view of finding given by us in

earlier part of this judgment, this writ petition is allowed and declaration of result in favour of the petitioners is upheld.

In CWP No.11206 of 2008 the petitioners had filed nomination papers, which were rejected and the respondents were declared as Panches

of the Gram Panchayat on 19.5.2008. On a complaint made, election was countermanded and fresh election was fixed on 22.6.2008, however,

vide order dated 14.6.2008 (P5) election was postponed. In view of finding given by us in earlier part of this judgment, no relief can be given to

the petitioners. Result of the election was declared on 19.5.2008. Thereafter, the State Election Commission was not competent to interfere in the

same. This writ petition is dismissed. However, liberty is left with the petitioners to lay challenge to the elections of the private respondents. They

may do so within a period of 30 days from the date of receipt of a copy of this order. Question of limitation shall not be raised against them in

entertaining their election petition.

In CWP No.9829 of 2008 after scrutiny of nomination papers, the petitioners were declared elected unopposed, however, subsequent thereto

vide order dated 24.5.2008, their election was set aside and countermanded. In view of findings recorded by us in preceding part of this judgment,

this writ petition is allowed, election result declared in favour of the petitioners is upheld.

In CWP No.9876 of 2008, the petitioners were declared elected unopposed on 20.5.2008. However, subsequent thereto, their election was

set aside and countermanded vide order dated 24.5.2008. In view of findings recorded by us in preceding part of this judgment, this writ petition is

allowed, election result declared in favour of the petitioners is upheld.

It would be seen that the present case is completely covered by the finding of the Division Bench in paras 22, 23, 25, 27, 28, 29, 30 and 31

(supra). In this view of the binding precedent of the Division Bench it has to be held that the order countermanding the election of respondent No.5

was clearly illegal. The argument that respondent No.5 acquiesced would not avail against the statutory provisions as interpreted by this Court.

However, the petitioners may challenge the said election within 30 days as mentioned in the judgment of the Hon''ble Bench in Rajpreet''s case

(supra).

The petition is dismissed.