Prem Singh vs Addl.District Judge, Kurukshetra

G.C. Mital, J.

Kartar Singh was a sitting Sarpanch when fresh election for that office took place on 21st June, 1983. In that election Prem Singh was declared elected defeating Kartar Singh. On 20.7.1983 Kartar Singh filed election petition and one of the grounds raised was that the elected candidate was in unauthorised possession of Gram Panchayat land measuring 2 Marlas, comprised in Khewat No. 290 min Khatoni No. 458 min. Rect. No. 674 and he had constructed boundary walls on it. On 26.7.1983 the election petition filed an application before the Prescribed Authority, who is the Executive Magistrate, for appointment of a Local Commissioner on the plea that the elected candidate was wanting to remove the wall so as to destroy the evidence of illegal occupation of the Gram Panchayat land. The Tehsildar was appointed the Local Commissioner. On 9th August, 1983 he gave notice to the parties intimating them about his visit on 11.8.1983, to make the demarcation and find out the encroachments, if any. The Local Commissioner reported that at the time of his visit, there was no encroachment but their existed a wall, which seemed to have been removed about 3 months prior thereto. The elected candidate denied having encroached upon any Gram Panchayat land or having raised a wall. The Prescribed Authority gave opportunity to both the sides to lead evidence. Petitioner appeared as PW 1, produced Phul Chand, another resident of the village as PW 2 besides examining Narinder Singh, Tehsildar, who was the Local Commissioner, as PW 3. The documentary evidence produced on behalf of the election petitioner is as follows :

Exhibit No., Nature and contents of the document.

A1, Jamabandi for the year 197778 showing Khewat No. 290min Khatoni No. 458 min, Khasra No. 706 measuring 2 Marlas, gair mumkin rasta in the ownership of the Gram Panchayat and in the occupation of shareaam (public street).

A2, Deposit voucher of Rs. 100/ by the election petitioner.

A3, Jamabandi for the year 197778 of the same Khewat and Khatoni, but in regard to Khasra No. 674 showing 16 Marlas to be gair mumkin rasta in the ownership of the Panchayat and in occupation of shareaam (public street).

P4, Notice issued by the Local Commissioner to the parties on 9th August, 1983 to appear on 11.8.1983 at the spot to carry out measurements.

P5, Report of the Local Commissioner.

P6, Plan prepared by the Local Commissioner, annexed with the report, showing that out of the street having the width of 2 Karam covered by Khasra No. 674, 3/4th thereof had been encroached upon.

As against the above, the elected candidate appeared as RW 1 and produced Desa as RW 2 in support of his statement.

The Prescribed Authority by order dated 9th May, 1985 (Annexure P3) set aside the election under Section 5(5)(m) of the Punjab Gram Panchayat Act, 1952 (for short `the Act''), as amended by Haryana Amendments, after recording finding that the elected candidate was in illegal possession of the street owned by the Panchayat, on the date of filing of the nomination paper and a year prior thereto. The elected candidate went up in appeal. The learned Additional District Judge dismissed the appeal on 22.8.1985 by order Annexure P.5. This is a petition under Articles 226/227 of the Constitution of India by the elected candidate against the aforesaid orders.

Two main arguments have been advanced. One that the evidence of the elected candidate and his other witness has not been referred to by the Prescribed Authority and without considering the same, the matter could not be decided and, two, that there was no evidence on the record on the basis of which finding of encroachment could be recorded. Before, I proceed to consider the two points, it would be useful to notice the scope of jurisdiction of this Court under Articles 226/227 of the Constitution of India. In Syed Yakoob v. K.S. Radhakrishnan, AIR 1964 S.C. 477, the following dictum was laid :

"...An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however, grave it may appear to be. In regard to a finding of fact recorded by the Tribunal a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari.

A finding of fact recorded by the Tribunal cannot, however, be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or efficiency of evidence led on the point and the inference of fact to be drawn from the said finding being within the exclusive jurisdiction of the Tribunal, the points cannot be agitated before a writ Court."

Keeping the aforesaid dictum in view, I would proceed to decide to two points raised before me.

Adverting to the first point, a reading of the order of the Prescribed Authority shows that while in the resume of facts it was noticed that the elected candidate had appeared as RW 1 and Desa Singh had appeared as RW 2 but while discussing the matter under the issue framed in the case, their statements were not at all adverted to. This Court would have the jurisdiction to interfere if the Prescribed Authority had erroneously refused to examine RW 1 and RW 2. But if they are allowed to be examined, their statements are not adverted to while discussing evidence it would amount to as if their evidence was not considered admissible. Otherwise, their statements had also to be evaluated in arriving at a decision on question of fact. On all fours, we have a decision of this Court in Joginder Singh v. The Prescribed Authority under the Gram Panchayat Act (Executive Magistrate 1st Class), Bhatinda and others, 1966 P.L.R. 169. That was also a case of writ arising out of election petition where the statement of an elected candidate''s witness was noticed in the judgment by the Prescribed Authority but his evidence was completely ignored while discussing the matter. The relevant passage may be quoted with advantage :

"...It is, however, unfortunate that the learned Executive Magistrate who decided the election petition has somehow completely ignored his important piece of evidence and has not discussed it all after mentioning the fact that Jagnandan Singh appeared as a witness before him. It is impossible to sustain any judgment or order given in quasijudicial proceeding which is either based on no evidence or is given in complete disregard of the evidence on the record. The finding of the Prescribed Authority is wholly inconsistent with the statement of R.W. 2 Jagnandan Singh..." Therefore, it is clear that the order of the Prescribed Authority cannot be sustained. It would have to be seen whether the matter should be remitted to the Prescribed Authority to decide the same afresh or the matter should be concluded here, which would be dealt with in the later part of the judgment after the second point is considered.

Adverting to the second point, in the election petition it was not stated as to when the returned candidate had unauthorisedly occupied the Gram Panchayat land and as to when he had constructed the boundary wall. All that was said was as follows :

"That he was not eligible to contest the election, as he is in un authorised possession of the Gram Panchayat land measuring 2 Marlas comprised in Khewat No. 290 min. Khatoni No. 458 min. Rect. No. 706, and he has constructed the boundary wall on it."

When the matter came to the stage of evidence, the defeated candidate stated as AW 1 that the wall was constructed about 10 years ago. He did not state as to when the wall was removed. He even did not state that the wall was removed after the filing of the election petition and before the Local Commissioner visited the spot. The other witness, AW 2 stated that at the present moment the passage was being used by all persons, including the parties and they could pass their tractors and bullockcarts etc. Even he did not state as to when the encroachment was removed. Although he had stated that the wall was in existence for the last 10/15 years. Then we have the statement of Local Commissioner as AW 3. He did not see any encroachment but his opinion was that probably the wall was removed about a month before his visit. Since he had mentioned in his report that the encroachment seems to have been removed a month ago, he was crossexamined on this aspect. To support that, he stated that the encroachment may have been removed few months ago and then said about a month ago, then again stated it can be more than a month ago and finally stated that he cannot tell exactly the time when the encroachment may have been removed. We have documentary evidence on record to prove the possession of the street. Reference may be made to Exhibit A3 Jamabandi of 197778 which shown the possession of `Makbuja Shareaam'' i.e. used by public as a thoroughfare. If the elected candidate had constructed the wall 10/15 years ago, as is the case set up in evidence of AW1 and AW2, then in the Jamabandi of 197778 there would have been a mention that the elected candidate was in possession of 3/4th of the thoroughfare, as has been reported by the Local Commissioner. This would have been mentioned in the Jamabandi only if the wall had existed, otherwise not. In spite of the fact that Jamabandi Exhibit A3 was produced by the election petitioner, this was not noticed by the Prescribed Authority while discussing the evidence under the issue framed although reference of this exhibit was made in the resume of facts in the opening part of its order. No reference of Exhibit A3 while discussing the matter under the issue also vitiates the order of the Prescribed Authority.

The Prescribed Authority has to be careful in deciding the matter on which the election can be set aside. This has always to be borne in mind because election process is not only time consuming but is too expensive process for the State and unless the cogent ground is really made out the election is not to be lightly interfered with. In this case, the Prescribed Authority did not keep in view this important aspect of the matter and that is why it made no reference to the evidence of the elected candidate and it also made no reference to the Jamabandi, Exhibit A3, which is an important document while appreciating the oral evidence of AW 1 and AW 2.

In the election petition there was a vague averment about the encroachment of public street and the construction of wall. There is another interesting feature in the statement of AW2. In examinationinchief he stated that Prem Singh had been in possession of the street and is still in possession. He also stated that he was in possession of the same at the time of election. But in crossexamination he had to admit that tractors and bullockcarts passed through the street. If street to the extent of 11/2 karams, out of the total width of 2 karams had been encroached upon the tractors and bullockcarts could not pass. He has not made any statement as to when the wall was removed. If the elected candidate had been in possession of the street by raising a wall and had included that part in his Bara, 10 to 15 years ago, this fact would have come in the Jamabandi as also in Khasra Girdawari, if any. Exhibit A3 is the relevant Jamabandi for the years 1977 78, which is well within the 10 years of the alleged construction of the wall and it does not mention that any part of the street is in possession of the elected candidate. Rather, it indicates that the possession is shown to be of the public at large for common use as street.

The inspection note as also the statement of the Local Commissioner as AW 3 further go to show that there was no wall. Regarding the report that the wall may have been removed about a month before the inspection, the defeated candidate merely stated that the wall was removed after the filing of the election petition but did not specify the exact time of its removal.

When the elected candidate appeared in the witness box, no question was put to him as to when he had removed the wall, after the filing of the election petition or sometime before the visit of the Local Commissioner. Nor such suggestion was put to RW2, who appeared to support the elected candidate. Therefore, their statements that there was no encroachment on the street in dispute remained unchallenged and uncontroverted.

Considering the entire evidence on the record, I am driven to the conclusion that it is a case where there is no evidence to reach at a conclusion that the wall existed in the disputed street, which may amount to encroachment or unauthorised possession of the elected candidate during the period of one year preceding the date of election because according to the Jamabandi Exhibit A. 3, for the year 197778, produced by the defeated candidate, at that time no wall existed and the possession was of the general public for their common use as street. If at all any wall was constructed 10 to 15 years prior to the making of the statements by AW 1, AW 2, which statements were made in the year 1985, the wall was constructed sometime between 1970 and 1975 but did not exist in 197778. It is not the case of the defeated candidate that the wall was constructed after the Jamabandi of 1977 78 came into being. Hence, I am constrained to set aside finding of the Prescribed Authority that a ground for setting aside the election has been made out as provided in Section 5(5)(m) of the Act.

The order of the Appellate Authority, Annexure P5, also cannot be sustained substantially for the aforesaid reasons. Although while discussing the material on record, reference was made to the statement of the elected candidate and his witness Desa but no reference was made to Exhibit A3. The Jamabandi which is a material document on the record. Witnesses may tell lie but their veracity can be tested with reference to Jamabandi Exhibit A3 for the year 197778. I have no doubt in my mind that if the Appellate Authority had appreciated this Jamabandi, it would have certainly come to the conclusion that the defeated candidate and his witness were telling lie in Court when they said that the elected candidate was in unauthorised possession of the street for the last 10/15 years. It is important to note that the defeated candidate was the previous Sarpanch. If the present elected Sarpanch had been in possession of the street by raising a wall, 10/15 years ago, as is the case made out in evidence, as Sarpanch, he would have taken action against him for removal of the encroachment. The present defeated Sarpanch was the Sarpanch immediately till before the elections were announced and yet no such action was taken. Therefore, it is clear that when he failed in the present election, a false and a vague plea was raised and with the help of the statement of AW2 and the report of Local Commissioner sought to have the election set aside.

It was then urged before me on behalf of the elected candidate that the precise plea on the basis of which election has been set aside was vague and was not in terms of Section 5(5)(m) of the Act, and therefore, should have been struck off without going any further. The precise plea in the election petition has already reproduced above at page 7 of the judgment. The provisions of Section 5(5)(m) of the Act is as follows :

"5. Establishment and constitution of Gram Panchayat. (5) No person who is not a member of the Sabha and who(m) is, or has been during the period of one year preceding the date of election, in unauthorised possession of an or other immovable property belonging to the Gram Panchayat, shall be entitled to stand for election ... ...."

To start with I was not impressed with the argument but on the peculiar facts of this case and keeping in view that I am dealing with an election matter, where the pleadings have to be precise and exact, I find merit in this contention. It had to be precisely pleaded that the elected candidate is or has been during the period of one year preceding the date of election, in unauthorised possession of the street, which vested in the Gram Panchayat. In the averment there was no mention of any street although some revenue numbers were mentioned. It was not pleaded as to when the boundary wall was constructed. On such a vague plea also, the election petition on the facts of this case could have been rejected outright. In any event, since there is no evidence that wall was in existence in 197778, it will be inferred that even if there are any walls before that, it ceased to exist since before 197778. Since there is no plea or evidence that wall was made again, it is held that no encroachment of street is proved. Finding to the contrary recorded in P3 and P5 are hereby reversed.

In view of the finding recorded on the second point, remand is not necessary because the decision of the Prescribed Authority and the Appellate Authority has to be quashed.

For the reasons recorded above, this petition is allowed, the orders Annexures P3 and P5 are hereby quashed and the election petition filed by the defeated candidate is dismissed. However, the parties are left to bear their own costs.