Shri Jang Singh vs State of Punjab

Amarjeet Chaudhary, J.—In this petition, the petitioner-Jang Singh, who is resident of Village Malikpur, Tehsil and District Mansa, has challenged the election of respondent No. 4, who was declared elected for the office of Sarpanch of Village Malikpur, Tehsil Mansa. The election has been impugned on the ground that the votes of certains persons, who are reported to have died or are serving in the Army and posted outside the village, have been polled. In order to substantiate the allegation, the petition has placed on record lists of persons, who according to the petitioner, are dead or are serving in the Army and were not present in the village on the day of polling and their votes have been polled at the behest of Ex-Minister Baldev Singh.

The other plea of the petitioner is that the Returning Officer had submitted a complaint to the Deputy Commissioner, Mansa, in which he had stated that the Ex-Minister and his supporters had threatened him of dire consequences.

The argument of the learned counsel for the petitioner is that the election was not fair and coercive methods were adopted by the returned candidate, his supporters and Ex-Minister, Baldev Singh.

Respondent No. 2, Dr. Swaran Singh, Deputy Commissioner, Mansa has filed written statement on behalf of respondents 1 to 3, controverting the stand of the petitioner. Respondent No. 3 has also filed separate reply in which he has stated that he had made a complaint to the Deputy Commissioner, to the effect that supporters of respondent No. 4 had not allowed to conduct the election smoothly.

Learned counsel for the returned candidate as well as State counsel have argued with vehemence that the election of the Sarpanch is not amendable to challenge under Article 225 of the Constitution of India as disputed question of facts as alleged by the petitioner cannot be gone into in writ jurisdiction. The remedy available to the petitioner was to challenge the election by way of election petition.

This Court has given thoughtful consideration to the respective submissions made at the Bar by learned counsel for the parties and perused the paper book. After considering the same, this Court is of the considered view that the election to the post of Sarpanch is not amendable to challenge under Article 226/227 of the Constitution of India. In this petition, the petitioner has produced a list of certain persons who are reported to have died and another list of such persons, alleged to have been serving in the Army and were not present in the village on the day of polling. Whether the votes of such persons (alleged to have died or serving in the Army) the names of whom are given in the lists, copies of which are Annexures P-1 & P-2 to the writ petition, were polled and whether-Bal-dev Singh, who is Ex-Minister had adopted coercive methods are disputed questions of fact, which cannot be gone into on writ jurisdiction side. These can only be proved by adducing evidence. The other important aspect of the matter is that the petitioner has not impleaded Baldev Singh, Ex-Minister as a party, who was the necessary party to the dispute as some allegations were also levelled against him. Had he been impleaded as a party, he would have been the best person either to deny or to repudiate the allegations.

Article 243(o) of the Constitution provides that no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State.

The Supreme Court in N.P. Ponnuswami Vs. Returning Officer, Namakkal Constituency and Others, , has held that the entire process of election commences from inviting nomination papers and ends with the declaration of the election.

Section 13(B) of the Gram Panchayat Act, 1952 provides:-

"13-B. Election Petitions.

No election of a Sarpanch or Panch shall be called in question except by an election petition in accordance with the provisions of this Chapter (II-A of the Act.)".

Respondent No. 2 in his written statement has stated that he had not received any report alleged to have been made by respondent No. 3 to him for any irregularity committed in the election. A Division Bench of this Court minder Inder Sain v. Punjab State etc. 1992(12) LRS 1 has held that co-option of member being an election as defined in Rule 2(1) of the Punjab Municipal Election Rules, 1952, the only remedy available in this regard would be to file an election petition under Rule 52 of the Punjab Municipal Election Rules, 1952.

If doubts and dispute arise out of or in connection with an election, that can be sorted out by a thorough inquiry in proceedings taken in election petition and the High Court would not interfere under Article 226 of the Constitution of India. The extra ordinary jurisdiction of the High Court can be invoked if the statute does not provide for any alternative remedy.

This Court in Mohan Singh v. State of Punjab and Ors., (Civil Writ Petition No. 1351 of 1993) decided on 4.6.1993 has held that the statutory provision is not to be short-circuited by invoking extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India.

In view of the aforesaid discussion, this writ petition is dismissed being not maintainable. However, it will be open to the petitioner to file an election petition, if so advised. The period taken pursuing the writ petition is not to be taken into account while calculating limitation. There will be no order as to costs.