Tarlok Singh vs Gurmel Singh and others

I.S. Tiwana, J.—The election to the office of Sarpanch of Gram Panchayat, Daad, District Ludhiana, was held on September, 24, 1983. There were only two contesting candidates i.e. the Petitioner Tarlok Singh and Gurmel Singh Respondent. Respondent Gurmel Singh having secured 22 votes more than the Petitioner was declared elected. Though initially there were four candidates, including father of this Respondent, who had filed nomination papers, yet the other two withdrew their nominatton papers within the prescribed time. Thus, only two candidates, as already noticed above, remained in the field.

Subsequently, Tarlok Singh filed a petition u/s 13(o) of the Punjab Gram Panchayat Act, 1952, (hereafter the Act), for setting aside the election of Respondent Gurmel Singh on the ground that on the dates of the nominations and election he was under age being less than 25 years of age and was thus not eligible to be a candidate.

On a contest having been raised by Tarlok Singh, the Prescribed Authority tried the petition on a number of issues, including the one "Whether the Respondent was not qualified to be elected as Sarpanch at the time of e]ection?" After screening the evidence on the record-documentary as well as the oral the Prescribed Authority as also the Appellate Authority i.e. the District & Sessions Judge, Ludhiana, have recorded a conclusive finding of fact that on the dates of nominations and election Respondent Gurmel Singh was not 25 years of age and was thus not eligible to be a candidate. In the light of this finding, the Prescribed Authority set aside the election of Gurmel Singh and declared Tarlok Singh Petitioner as elected. The Appellate Authority, however, reversed the later part of the relief granted in favour of Tarlok Singh and ordered re-election. It is this order of the Appellate Authority which is now impugned by Tarlok Singh on the ground that in the instant case the Appellate Authority had no choice except to declare him elected as Sarpanch of Gram Panchayat, Daad, and it could not order re-election. Gurmel Singh Respondent, on the other hand, has also filed Civil Writ Petition No. 2003 of 1985 challenging the correctness of the finding of these two Authorities about his age. Apparently, both these petitions can conveniently be disposed of through this common order and I proceed to do that.

So far as Gurmel Singh''s petition is concerned, the same can conveniently be disposed of on the short ground that in these proceedings under Article 226 of the Constitution, the finding of fact recorded by these authorities cannot be set aside on re-appraisal of evidence, as is sought to be urged by his learned Counsel. I, therefore, dismiss his petition straight away.

So far as this petition is concerned i.e. C.W.P. No. 876 of 1985 1 find merit in the same. The principal contention of Shri Ujagar Singh the learned Senior Advocate for Gurmel Singh Respondent is that the birth certificate Exhibit P.2, which has primarily been relied upon by the two Authorities for recording the conclusion that Gurmel Singh was not 25 years of age at the time of nomination or election in question is not admissible in evidence. This submission is based on the further argument that there is not enough evidence on record to show that the birth certificate Exhibit P. 2 relates to Gurmel Singh Respondent, I am afraid, the argument of admissibility of birth certificate Exhibit P. 2, as has been noticed above, is based on the factual finding as to whether it relates to Gurmel Singh or not and this finding, as has been pointed out is not assailable in these proceedings; thus he cannot successfully urge that the certificate in question is not admissible in evidence. It is conceded that the moment it is accepted that this certificate relates to Gurmel Singh Respondent, the argument about its admissibility does not arise at all.

The next argument raised by the learned Counsel for the Respondent is that in the given facts and circumstances of this case, the direction given by the Appellate Authority about re-election deserves to be sustained. The submission is as follows:

Since in this case there were four contesting candidates and Gurmel Singh''s nominations paper been rejected on the ground of disqualification from which he suffered even then the election was bound to be held because, according to the learned Counsel, three candidates including Respondents, father still remained in the field. In a nut-shell the argument is that had Gurmel Singh''s nomination papers been rejected by the Returning Officer, the other two candidates and more particularly his father would not have withdrawn from the election and in that situation the result of the election would have been different. I, however, see no merit in this submission for the reason that the argument besides being conjectural is founded on a misconception that there were four contesting candidates in this election. The stage of contest comes only after all the formalities i.e. nominations, scrutiny and withdrawal of nomination papers are over, In the instant case, concededly at that stage there were only two candidates left i.e. Petitioner Tarlok Singh and Respondent Gurmel Singh: the other two having withdrawn prior to that stage, It is elementary that in a case where there are only two contesting candidates and later the elected one is found disqualified to contest, his election being void, the other candidates has to be declared elected. For this conclusion of mine, I rely(sic) on the following observations of their Lordships of the Supreme Court in Durai Muthuswami Vs. N. Nachiappan and Others, -

There was only one seat to be filled and there were only two contesting candidates. If the allegation that the 1st Respondent''s nomination has been improperly accepted is accepted the conclusion that would follow is that the Appellant would have been elected as he was the only candidate validly nominated. There can be, therefore, no dispute that the result of the election in so far as it concerns the returned candidate has been materially affected by the improper acceptance of his nomination because but for such improper acceptance he would not have been able to stand for the election or be declared to be elected.

Shri Ujagar Singh, however, refers to certain judgments in which there were more than two contesting candidates and the elected candidate''s election have held to be void, the relief of declaration of having been elected was declined to the Petitioner. In the light of these judgments, he urges that in the instant case too, the learned Appellate Authority was justified in declining that relief to the Petitioner. I do not feel the necessity of discussing these judgments in any great detail for the reason that in none of these cases there were only two contesting candidates. His submission that in the instant case there were four contesting candidates has already been repelled by me above.

I, therefore while dismissing C.W.P. No. 2003 of 1985 filed by Gurmel Singh, allow this petition and set aside the order of the Appellate Authority to the extent that it has modified the order of the Prescribed Authority declaring the Petitioner to have been elected as Sarpanch of Gram Panchayat, Daad. In other words, Tarlok Singh''s declaration as having been elected as Sarpanch of Gram Panchayat, Daad is maintained. He is also allowed costs of this petition which I determine at Rs. 500/.