Punjab-Haryana High Court
Karnail Singh And Another vs State Of Punjab And Others on 7 January, 2009
Equivalent citations: AIR 2009 (NOC) 972 (P. & H.)
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal, Jaswant Singh
C.W.P. No. 10804 of 2008 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
C.W.P. No. 10804 of 2008
DATE OF DECISION: JANUARY 07, 2009
Karnail Singh and another
.....PETITIONERS
Versus
State of Punjab and others
....RESPONDENTS
C.W.P. No. 10877 of 2008
Malkit Kaur
.....PETITIONER
Versus
State of Punjab and others
....RESPONDENTS
C.W.P. No. 11431 of 2008
Balkar Singh
.....PETITIONER
Versus
State of Punjab and others
....RESPONDENTS
CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE JASWANT SINGH
---
Present: Mr. Vikas Singh, Advocate,
for the petitioner in CWP No.10804 of 2008.
Mr.Raj Kumar Garg, Advocate,
for the petitioners in CWP No.10877 and 11431 of 2008.
Mr.N.D.S.Mann, Addl.A.G.,Punjab.
Ms.Jatinder Jit Kaur, Advocate,
with Mr.T.S.Chadha, Advocate,
for respondent No.3 in CWP No.11431 of 2008.
..
C.W.P. No. 10804 of 2008 -2-
SATISH KUMAR MITTAL, J.
This order shall deal with CWP Nos.10804 of 2008, 10877 of 2008 and 11431 of 2008.
In CWP No.10804 of 2008, the petitioners, who contested the election for the seat of Panch of Gram Panchayat of Village Moond Khera and secured 2 and 108 votes, respectively, and were declared defeated, have filed this petition for quashing the election result, whereby respondent No.6 (Amar Singh) and respondent No.7 (Hasan Ali) have been declared elected by the Presiding Officer, who had secured 49 and 21 votes, respectively, the same being unconstitutional, illegal and void; and further for quashing the Instructions dated 26.6.2003 (Annexure P3) issued by the Secretary to Government Punjab, Rural Development and Panchayat Department, Chandigarh, on the basis of which the above-said result was declared.
It is the case of the petitioners that Gram Panchayat of Village Moond Khera consists of five Members (known as Panches), who are to be elected by the electorals of the Gram Sabha. As per Section 11 of the Punjab Panchayati Raj Act, 1994 (hereinafter referred to as the `Panchayati Raj Act'), out of five seats of Panches, one was reserved for Scheduled Caste candidate, two for Women and the remaining two seats were to be filled up from General Category.
In the Panchayat elections held on 26.05.2008, nine candidates, including the petitioners contested against the aforesaid five seats of Panches. Two candidates nominated themselves for one seat reserved for Scheduled Caste and three candidates for two seats reserved for `Women'. The remaining four candidates contested the election as General Category C.W.P. No. 10804 of 2008 -3- candidates. In the said election, the aforesaid nine candidates secured votes as follows:-
1. Gurmail Kaur (Scheduled Caste) 163
2. Karnail Singh(Scheduled Caste) 02 3. Jasveer Kaur (Woman) 127 4. Sandeep Kaur (Woman) 125 5. Jarnail Kaur (Woman) 108 6. Amar Singh (General) 49 7. Hassan Ali (General) 21 8. Surjeet Singh (General) 04 9. Raheem Din (General) 01 The Returning Officer declared Gurmail Kaur elected against the seat reserved for Scheduled Caste candidate, who secured 163 votes;
Jasveer Kaur and Sandeep Kaur against two seats reserved for Women, who secured 127 and 125 votes, respectively; Amar Singh and Hassan Ali against two seats meant for General Category, who secured 49 and 21 votes, respectively. Petitioner No.2 Jarnail Kaur, who secured 108 votes and petitioner No.1 Karnail Singh, who secured two votes, were declared defeated.
The contention of the learned counsel for the petitioners is that under Section 11 of the Panchayati Raj Act, seats are to be reserved for Scheduled Castes, Scheduled Caste (Woman), Women and for Backward Classes on the basis of their respective population in the village. As far as General Category is concerned, this Section does not provide for any reservation. The unreserved seats are to be filled up from the candidates belonging to General Category. Thus, when a seat is to be filled up from General Category, then a Scheduled Caste (Man or Woman), Backward Class (Man or Woman) and Woman are entitled to contest the said seat. If a Scheduled Caste candidate or a Scheduled Caste (Woman) or a Woman candidate secures more votes, he or she can be declared elected in General C.W.P. No. 10804 of 2008 -4- Category, irrespective of the fact whether he or she has nominated himself or herself for the seat reserved for Scheduled Caste or Woman.
It is further contended that earlier the State of Punjab had issued instructions dated 22.04.2003 wherein it was explained that a Man or Woman belonging to Scheduled Caste Category can also contest the election of the General Category. A man belonging to Scheduled Caste or a woman belonging to Scheduled Caste can contest the election against the seats meant for General Category. It further provides that a woman belonging to Scheduled Caste can also contest the election reserved for man belonging to Scheduled Caste. The woman belonging to General Category can contest the election meant for General Category. Clause 4 of the said Instructions further provides that in case man or woman belonging to Scheduled Caste category gets more votes than the man or woman of General Category, then they will be declared elected against the General Category and the man or woman belonging to Scheduled Caste category getting lesser votes will be considered against the seats reserved for them.
It is the case of the petitioners that these Instructions were based on the principle that where there is only one ballot paper provided to the voter which he may cast for any candidate either nominated in the reserved seat or the General Category, there is no separate voting between General Category and reserved category candidates. If a candidate, whether he belongs to General Category or reserved category, secures maximum number of votes, such candidates, whether man or woman, will deem to have been elected in General Category and the candidates securing lesser votes in a reserved category will be declared elected against the seats reserved for reserved category. For this principle, the petitioners place C.W.P. No. 10804 of 2008 -5- reliance upon a Division Bench judgment of this Court in Manjit Singh Versus State Election Commission, Punjab,Chandigarh and others (CWP No.12031 of 1998, decided on 7.9.1999).
It is further the case of the petitioners that the State of Punjab has illegally replaced Clause 4 of the Instructions dated 22.04.2003 by a new Clause vide Instructions dated 26.06.2003 which provide that if a person files nomination papers for any reserved seat, he cannot be declared elected against the General Category seat even though he might have secured more votes than the candidate of General Category. The State of Punjab has issued these Instructions dated 26.06.2003 on the basis of a decision of this Court in Asha Rani Versus State of Punjab and others (CWP No.11633 of 1998, decided on 16.07.2001) wherein it was held that once a person files nomination in the reserved category, he cannot claim to be treated against the general seat. The decision in Asha Rani's case (supra) is based on a Division Bench decision of this Court in Malkiat Kaur Versus State of Punjab and others, (CWP No.10005 of 1998, decided on 03.07.1998.
The contention of the petitioners is that on the basis of votes polled by each candidate, according to the result declared by the Returning Officer, the petitioners are entitled to be declared elected as there is no bar to a woman being elected as General Category Panch. Gurmail Kaur and Jasveer Kaur, who secured maximum votes (i.e. 163 and 127) are to be declared elected in the General Category instead of Amar Singh and Hassan Ali, who secured less votes (i.e. 49 and 21). As far as two seats reserved for Women are concerned, Sandeep Kaur (125) and petitioner No.2-Jarnail Kaur (108) are to be declared elected. Against one seat reserved for C.W.P. No. 10804 of 2008 -6- Scheduled Caste, petitioner No.1, who remained the only Scheduled Caste candidate after declaration of Gurmail Kaur in General Category, should have been declared elected. But the Returning Officer by following the subsequent Instructions dated 26.06.2003 has declared elected respondent No.6 Amar Singh and respondent No.7 Hasan Ali instead of the petitioners.
In CWP No.10877 of 2008, petitioner Malkit Kaur, who contested the election for the seat of Panch of Gram Panchayat of Village Burj Bhalai Ke, Tehsil & District Mansa and nominated herself for the seat reserved for Woman and secured 441 votes and was declared defeated, has filed this petition for quashing the election result of respondent No.4- Satnam Singh, who secured only two votes.
In this case, Gram Panchayat of Village Burj Bhalai Ke consists of seven Panches, out of which, one seat was reserved for Scheduled Caste, one for Scheduled Caste (Woman), one for Woman and the remaining four seats were to be filled up from General Category. Against these seven seats, eight persons contested the election. Three candidates nominated themselves for one seat reserved for Scheduled Caste, one candidate for one seat reserved for S.C.(Woman), two candidates for one seat reserved for Woman and two candidates nominated themselves for four seats meant for General Category. After the election, one candidate, namely, Gursewak Singh, out of the three candidates nominated for one seat reserved for Scheduled Caste, who secured 39 votes, was declared elected and the other two candidates, namely, Gora Singh and Darshan Singh, who secured 17 and 21 votes, respectively, were declared defeated. Similarly, Gurdeep Kaur, who had nominated herself for one seat reserved for S.C.(Woman) and who secured six votes, was declared elected. On the same pattern, out of C.W.P. No. 10804 of 2008 -7- two candidates nominated for Women, one Charanjit Kaur, who secured 524 votes, was declared elected and the petitioner, who secured 441 votes, was declared defeated. Out of four seats meant for General Category, only two candidates, who contested for the general seat and who secured only two and seven votes respectively, were declared elected. The case of the petitioner is that since she had secured 441 votes should not have been declared defeated and respondent No.4, who had secured only two votes, should not have been declared elected.
In CWP No.11431 of 2008, petitioner Balkar Singh, who contested the election as a Backward Class candidate for one seat reserved for Backward Class and secured 47 votes, has been declared defeated whereas other two persons from General Category, who had secured only 38 and 35 votes, respectively, have been declared elected on the basis of Clause 4 of the Instructions dated 26.06.2003.
In the written statement filed by the respondent-State, the respondents have taken the stand that if a candidate has filed his nomination papers for any reserved seat, he has been considered only against the said seat as he cannot be declared elected from the other seat for which he has not filed his nomination papers. For example, if a candidate has filed his nomination papers specifically for the Scheduled Caste category, he or she cannot be considered and declared elected against the general seat or against the seat reserved for Scheduled Caste (Woman) or Woman category. If a candidate files her nomination paper, whether a Woman or a Scheduled Caste or a Scheduled Caste (Woman), she cannot be considered and declared elected against the seat meant for General Category on the ground that such candidate has secured more votes than the candidate who C.W.P. No. 10804 of 2008 -8- contested the election for General Category and secured less votes. However, it has been admitted that a woman candidate, a Scheduled Caste candidate (man or woman) and Backward Class candidate (man or woman) can contest the election for the seat meant for General Category, but if they file the nomination papers for the seat reserved for a specific category, then they will be considered only in that category and cannot be considered and declared elected on the general seats on the ground that they have secured more votes. It has been replied that each of the elected candidate has been considered and declared elected for the category for which he/she has contested and filed his/her nomination papers. Therefore, the petitioners are not entitled to be declared elected for the category for which they have not contested and filed their nomination papers.
In nutshell, the stand of the State is that each reserved seat is a compartment in itself and is a separate constituency and a candidate who has specifically nominated himself to contest the election against the reserved seat of a particular category can only be considered and declared elected in that category if he secures maximum number of votes in that category. But he cannot claim a seat in other category for which he has not nominated himself/herself on the basis that he/she has secured more votes than the elected candidate in that category. In support of its stand, learned counsel for the State is relying upon Clause 4 of the Instructions dated 26.06.2003 which were circulated on the basis of a decision of this Court in Asha Rani's case (supra) and a Division Bench judgment of this Court in Malkiat Kaur's case (supra).
Learned counsel for the petitioners while referring to various provisions of the Constitution as well as the Panchayati Raj Act, Punjab C.W.P. No. 10804 of 2008 -9- State Election Commission Act, 1994 (hereinafter referred to as `the Election Commission Act') and Punjab Panchayat Election Rules, 1994, (hereinafter referred to as `the Rules') submitted that under Section 10 of the Panchayati Raj Act, the area of a Gram Panchayat has not been divided into different territorial constituencies for the purpose of electing Members of the Panchayat from those territorial constituencies as required in Clause (2) of Article 243C of the Constitution of India, but the entire Panchayat area has been treated as a "multi member single constituency". After notifying the number of seats in a Gram Panchayat on the basis of population of the Gram Sabha area, the seats of the Panches of the Gram Panchayat have been reserved for Scheduled Castes, Scheduled Caste (Woman), Woman and Backward Class in accordance with the provisions of Section 11 of the Panchayati Raj Act. Learned counsel submits that the election of the seats of the multi member single constituency is one for which one electoral has been given one vote to cast in favour of a candidate of his choice either for the reserved seat or for general seat as provided under Section 22 of the Rules. He submits that no separate election is held for a reserved seat. He further submits that admittedly a Scheduled Caste candidate (Man or Woman) or a Backward Class (Man or Woman) are also eligible to contest the election of the seat meant for General Category. Therefore, they cannot be disqualified to consider themselves to be elected against the seat meant for General Category merely because they nominated themselves to contest the election for the seat reserved for Scheduled Caste or Scheduled Caste (Woman) or Backward Class category. In this regard, learned counsel referred to Section 55 of the Election Commission Act which provides that "a member of the Scheduled Castes shall not be disqualified to hold a seat C.W.P. No. 10804 of 2008 -10- not reserved for members of those castes, if he is otherwise qualified to hold such seat under the Constitution of India and this Act." Learned counsel further submits that under the Election Commission Act and the Rules no provision has been made for filing separate and different nomination papers for a seat reserved for a particular category. Secdtion 37 of the Election Commission Act provides that "any person may be nominated as a candidate for election to fill a seat if he is qualified to be chosen to fill that seat under the provisions of this Act." Sub-section (2) of Section 38 further provides that in a constituency where any seat is reserved, a candidate shall not be deemed to be qualified to be chosen to fill that seat unless his nomination paper contains a declaration by him that he is a member of Scheduled Caste or Backward Class. Learned counsel submits that by submitting a nomination paper with a declaration, such person also makes himself eligible to be considered and elected or to fill up the reserved seat. But that does not mean that he will not be considered against the general seat in case he has secured more votes in that category. While further referring to Rule 9 of the Rules, learned counsel submitted that every candidate to the election of the Panches of the Gram Panchayat, whether for reserved or unreserved seat, has to file the nomination papers in Form-IV. The candidate nominated himself for the seat reserved for Scheduled Caste or Backward Class "shall also be accompanied" by a declaration in Form- IV-A-I. Sub-rule (5) provides that every candidate, who contested the election of the Panches, is required to accompany a fee of Rs.100/- with his nomination paper. However, for a candidate belonging to Scheduled Caste or Backward Class, the fee will be Rs.50/-. While referring to these provisions, learned counsel submits that a candidate, nominating himself for C.W.P. No. 10804 of 2008 -11- a reserved category by filing the declaration that he belongs to a particular caste or sex, does not forfeit his right to contest for the general seat because the election of a `multi member single constituency' is an election where the electoral has to elect the seat of several Panches reserved for different categories by casting a single vote. Such an election is being held for whole of the constituency. Learned counsel submits that in an election where the electorals are to elect the candidates to fill up several seats reserved for different categories in one election by single vote, then the result of the poll has to be prepared in a manner that a candidate who secures maximum votes should have been declared elected, even against the seat meant for General Category, and thereafter, a candidate securing lesser votes in reserved category, should be considered and declared elected against the seat reserved for that category. In support of his contention, learned counsel for the petitioners strongly relies upon the Instructions dated 22.4.2003 and the judgment of this Court in Manjit Singh's case (supra) and a judgment of the Supreme Court in V.V.Giri Versus D.Suri Dora and others, AIR 1959 SC 1318. Learned counsel further submitted that the judgments of this Court in Asha Rani's case and Malkiat Kaur's case (supra) do not lay down the correct law as in those judgments various provisions of Panchayati Raj Act, the Election Commission Act, the Rules and the aforesaid two judgments in Manjit Singh's case (supra) and a judgment of the Supreme Court in V.V.Giri's case (supra) have not been considered.
On the other hand, learned counsel for the respondents while relying upon the judgment of this Court in Asha Rani's case (supra) and and a Division Bench judgment of this Court in Malkiat Kaur's case (supra) and putting much emphasis on the wording of Section 37 of the Election C.W.P. No. 10804 of 2008 -12- Commission Act to the effect that any person may be nominated as a candidate for election to fill a seat if he is qualified to be chosen to fill that seat, and in a constituency where any seat is reserved, a candidate shall not be deemed to be qualified to be chosen to fill that seat unless his nomination paper contains a declaration by him specifying the particular caste, submitted that a candidate is to file a nomination paper against a particular seat i.e. against the reserved seat of Scheduled Caste or a Scheduled Caste (Woman) or a Woman or a Backward Class or against the seat meant for General Category and the said candidate shall make himself eligible to contest the said seat only. And he will be considered only against that seat and not against other seat either meant for General Category or other category and he will be declared elected if he secures maximum number of votes in that category. Learned counsel submitted that the law laid down in Malkiat Kaur's case and Asha Rani's case (supra) is in consonance with the provisions of the Constitution and the Panchayati Raj Act as well as the Election Commission Act.
On consideration of various submissions made by the learned counsel for the parties, in our opinion, the following issues/questions are to be considered and answered in these petitions.
(i) Whether in a `multi member single constituency' a candidate who has nominated himself as a candidate for the reserved seat, i.e., for Scheduled Caste or for Scheduled Caste (Woman) or for Backward Class or for Woman, is as such entitled to be considered and elected on the seat meant for general category in case he secures more votes than the candidate of general category, or whether such candidate will be entitled to be considered and elected only against that reserved seat and not against the general category seat?
(ii) Whether a candidate who has filed his or her nomination paper for a seat reserved for a particular category, shall be considered to have forfeited his or her claim for being considered and elected as a general candidate against the C.W.P. No. 10804 of 2008 -13- seat meant for general category, if otherwise he or she is qualified to contest the election for the seat meant for general category?
(iii) In what manner the result of the election is to be declared in a multi member single constituency where some seats are reserved for Scheduled Castes, Backward Classes and Women, and particularly, when the election of all the seats reserved or unreserved in a whole constituency is held from one joint electoral roll prepared on a purely secular basis without any reference to religion, race, caste or sex? Before giving an opinion on the aforesaid questions, it is imperative to first deal and understand with the concept of a `multi member single constituency' or a `single member constituency'. A constituency in common parlance is a demarcated area or a group of people which is a unit for electing atleast one representative. A constituency may either be a Territorial (Geographic) Constituency or a Non-territorial (Functional) Constituency. When a constituency is geographically demarcated i.e. it involves a defined area. It is called `Territorial Constituency'. All the people living in that area together elect their one or more representatives. A `single member constituency' is one from which only one representative is elected. A multi member constituency is one where two or more than two representatives are elected. A reserved constituency is one from which only persons belonging to reserved category, i.e., Scheduled Castes, Scheduled Tribes, Backward Classes or Women, as the case may be, can contest the election. The candidates belonging to other categories or classes cannot contest the election from the reserved constituencies. From such constituencies, only a person belonging to that category can contest the election.
Article 243C of the Constitution provides that a Panchayat shall consist the number of Members/Panches in a Panchayat keeping in view the C.W.P. No. 10804 of 2008 -14- ratio between the population of the territorial area of a Panchayat to be filled up by direct election. Clause (2) of the said Article further provides that all the seats in a Panchayat shall be filled by persons chosen by direct election from territorial constituencies in the Panchayat area and, for this purpose, each Panchayat area shall be divided into territorial constituencies in such manner that the ratio between the population of each constituency and the number of seats allotted to it shall, so far as practicable, be the same throughout the Panchayat area. It is pertinent to mention here that in the Panchayati Raj Act, according to this clause of Article 243C no provision has been made for dividing various seats of Gram Panchayats in different territorial constituencies. Under Section 10 of the Panchayati Raj Act, instead of dividing the territorial area of a Panchayat in different territorial constituencies in accordance with the number of seats in a Panchayat and adopting the concept of a `single member constituency', the concept of `multi member single constituency' has been adopted. The whole territorial area of a Panchayat has been taken a territorial constituency which contains several seats of Panches which are to be filled up by persons chosen by direct single election for the whole territorial area by casting a vote in favour of a candidate nominated for any seat either a reserved seat or a general seat. Section 11 of the Panchayati Raj Act, which is in consonance with the provisions of Article 243D of the Constitution, provides for reservation of seats for Scheduled Castes, Scheduled Caste (Woman), Women and Backward Classes for the offices of Panches. Accordingly, the seats of the Panches in various Gram Panchayats have been reserved for these categories, according to the percentage of the population provided in last census report, by issuing notification under Section 11 of the Panchayati C.W.P. No. 10804 of 2008 -15- Raj Act.
Section 2(b) of the Election Commission Act defines the "constituency" means an area of a Panchayat or a Municipality delimited as a constituency for the purpose of elections to these bodies. Section 2(h) defines "elector" in relation to a constituency means a person whose name is entered in the electoral roll of that constituency for the time being in force. It is mentioned here that under the Panchayati Raj Act there is no provision which provides that a seat of the Panch shall be treated as a different constituency. Further there is no provision for a separate electoral roll for different seats. It is also pertinent to mention here that a single electoral roll has been prepared for whole territorial area of a Panchayat purely on secular basis without any reference to religion, race, caste or sex. Any elector from the said electoral roll is entitled to cast a single vote in favour of a candidate of his choice contesting the election against any seat, whether reserved or unreserved.
Section 37 of the Election Commission Act provides for nomination of candidates for election. Any person may be nominated as a candidate for election to fill a seat if he is qualified to be chosen to fill that seat under the provisions of the said Act. Section 38 of the said Act provides for presentation of nomination paper and requirements for a valid nomination. Sub-section (2) provides that in a constituency where any seat is reserved, a candidate shall not be deemed to be qualified to be chosen to fill that seat unless his nomination paper contains a declaration by him specifying the particular caste of which he is a member and the area in relation to which that caste is a Scheduled Caste of the State. Section 39 provides for deposits of prescribed amount by a candidate. A candidate shall C.W.P. No. 10804 of 2008 -16- not be deemed to be duly nominated for election from a constituency unless he deposits or causes to be deposited a prescribed amount for an election to a Panchayat.
Rule 9 of the Rules provides that every nomination paper shall be presented to the Returning Officer in Form-IV in person by the candidate himself. Sub-rule (2) further provides that the nomination paper of a reserved category candidate shall also be accompanied by a declaration in Form-IV-A-I. Sub-rule (3) provides the nomination of each candidate shall be made on a separate nomination Form as prescribed in sub-rule (1) and must be subscribed by the candidate himself as assenting to the nomination. Sub-rule (4) further provides that the nomination of a member of a member of Scheduled Caste from a constituency reserved for Scheduled Castes or Backward Classes, as the case may be, shall be accompanied by a caste certificate and declaration in Form-IV-A-I. Sub-rule (5) also provides that the nomination paper of a candidate belonging to General Category must be accompanied by a fee of Rs.100/- and for a candidate belonging to Scheduled Caste and Backward Class, the nomination paper must be accompanied by a fee of Rs.50/-.
From the reading of these provisions and other provisions of the Act which lay down qualification and disqualification of a person to contest the election against the reserved seat, a person belonging to the Scheduled Caste or Scheduled Caste (Woman) or a Backward class is not prohibited to contest the election against the seat meant for General Category. A man belonging to Scheduled Caste or a woman belonging to Scheduled Caste or a woman belonging to General Category can also contest the election for the seat meant for General Category. According to C.W.P. No. 10804 of 2008 -17- sub-rule (1) of Rule 9 of the Rules, every candidate is required to present the nomination paper in Form-IV and only those candidates who want to nominate themselves for a seat reserved for Scheduled Caste, are also required to file a declaration in Form-IV-A-I. Thus, this rule does not make a candidate disqualified to be considered and elected on a seat meant for General Category, who has nominated himself for a seat reserved for Scheduled Caste category or Backward Class category by filing a declaration in Form-IV-A-I. These rules do not provide that a candidate nominated for a seat reserved for a category will be considered only in that category and he cannot be taken eligible to be declared elected against the seat meant for General Category.
Section 41 of the Election Commission Act provides for scrutiny of nomination papers. Sub-section (7) provides that immediately after all the nomination papers have been scrutinised and decisions accepting or rejecting the same have been recorded, the Returning Officer shall prepare a list of validly nominated candidates, that is to say, candidates whose nominations have been found valid, and affix it to the notice board of his office. Section 43 further provides that immediately after the expiry of the period for withdrawal of nomination papers, the Returning Officer shall prepare and publish a list of contesting candidates. Sub-section (2) further provides that the list referred to in sub-section (1) shall contain the names in alphabetical order and the addresses of the contesting candidates as given in the nomination papers together with such other particulars as may be prescribed. It is also pertinent to mention here that under these provisions the Returning Officer is not required to publish a separate list of contesting candidates for different categories. This also indicates that the election of a C.W.P. No. 10804 of 2008 -18- multi member constituency for all the seats is one and the Returning Officer is only required to prepare the list of contesting candidates containing the names in alphabetical order with such other particulars as may be prescribed, that is, a candidate nominated for a seat of reserved category and for a seat of General Category.
Rule 22 of the Rules provides for voting in the election. The voting shall be by secret ballot and not by proxy according to the voters list supplied by the Election Commission. Every person shall be entitled to a single non-transferable vote. No separate ballot boxes are to be provided for different seats. For all the reserved seats, one more ballot box is issued. Rule 33 provides for counting of votes. The Presiding Officer after the close of the poll and in presence of the candidate or polling agent, count the valid votes given in each candidate with the aid of persons appointed to assist in the counting of votes. Sub-rule (2) of Rule 33 provides that the Returning Officer shall declare the election of the candidate who is found to have obtained the largest number of valid votes, or, if more than one member is to be elected for the Gram Panchayat, then the candidates who are found to have obtained the largest number of valid votes shall be declared to have been elected. It is pertinent to mention here that these provisions do not provide that if different candidates have nominated themselves for a reserved seat of a particular category, those candidates will only be considered against the seat reserved for that category, and the candidates who have secured maximum number of votes in that category will be declared elected, and the other candidates who have secured lesser votes will not be considered for the seat meant for General Category. Rather these provisions provide that the Returning Officer shall declare the election of a C.W.P. No. 10804 of 2008 -19- candidate who is found to have obtained the largest number of valid votes or if more than one member is to be elected for the Gram Panchayat, then the candidates who are found to have obtained the largest number of votes shall be declared to have been elected.
Neither under the Panchayati Raj Act nor under the Election Commission Act nor under the Rules any separate declaration of result by the Returning Officer reservation-wise is required to be made. The entire election process of the Offices of Panches in a `multi member single constituency' is indivisible. In our considered opinion, in such election, where by a single secret ballot, the electors are to elect several persons for different seats reserved for different categories, special procedure for declaration of result is required to be adopted. Such procedure was provided under Section 54 of the Representation of the People Act, 1951 prior to 1961. However, the election of double member single constituency was abolished, therefore, the said section 54 was repealed w.e.f. 20.9.1961 by the Representation of People (Amendment) Act, 1961. The provisions of the aforesaid Section 54, which were repealed in 1961, are reproduced below:-
"54. Special procedure at elections in constituencies where seats are reserved for Scheduled Castes or Scheduled Tribes.- (1) The provisions of this section shall apply in relation to any election in a constituency where the seats to be filled include one or more seats reserved for the Scheduled Castes or for the Scheduled Tribes (hereinafter referred to as "reserved seats").
(2) If the number of contesting candidates qualified to be chosen to fill the reserved seats is equal to the number of such seats, all those candidates shall be forthwith declared to be elected to fill the reserved seats, and the procedure laid down in section 53 shall be followed for filling the remaining seat or seats.
(3) If the number of contesting candidates qualified to be chosen to fill the reserved seats exceeds the number of such C.W.P. No. 10804 of 2008 -20- seats, but the total number of contesting candidates is equal to the total number of seats to be filled, the Returning Officer shall first select by lot, to be drawn by him in such manner as he may determine, the candidates to be declared elected to the reserved seats out of the candidates qualified to be chosen to fill those seats and then declare the candidates so selected to be duly elected to fill the reserved seats and thereafter declare the remaining candidates to be duly elected to fill the remaining seats.
(4) If the number of contesting candidates qualified to be chosen to fill the reserved seats exceeds the number of such seats, and the total number of contesting candidates also exceeds the total number of seats to be filled, a poll shall be taken; and after the poll has been taken, the Returning Officer shall first declare those who, being qualified to be chosen to fill the reserved seats, have secured the largest number of votes, and then declare such of the remaining candidates as have secured the largest number of votes to be duly elected to fill the remaining seats.
Illustration.- At an election in a constituency to fill four seats of which two are reserved there are six contesting candidates A, B, C, D, E and F, and they secure votes in descending order, A securing the largest number. B, C and D are qualified to be chosen to fill the reserved seats while A, E and F are not so qualified. The Returning Officer will first declare B and C duly elected to fill the two reserved seats, and then declare A and D (not A and E) to fill the remaining two seats.
(5) If the number of contesting candidates qualified to be chosen to fill the reserved seats is less than the number of such seats,-
(a) all those candidates shall be forthwith declared to be duly elected to fill reserved seats;
(b) the procedure laid down in section 53 shall be followed for filling the seats other than the reserved seats; and
(c) the Election Commission shall, by notification in the Official Gazette, call upon the constituency to elect a person or persons to fill the remaining reserved seat or seats :
Provided that where a constituency having been already so called upon has failed to elect a person or the requisite number of persons to fill the reserved seat or seats, the Election Commission shall not be bound to call against upon the constituency to elect a person or persons to fill the vacancy or vacancies until it is satisfied that if called upon again, there will be no such failure on the part of the constituency or such members."C.W.P. No. 10804 of 2008 -21-
It appears to us that in the Panchayati Raj Act, the legislation while enacting Section 10 has adopted the concept of a `multi member single constituency' without correspondingly making special provisions for declaration of result of the election of various seats reserved for different categories in a `multi member single constituency'. The provisions for declaration of result have been borrowed from the Representation of People Act in which the concept of multi member single constituency was abolished in 1961 with repeal of special procedure for declaring the result.
To fill up the gap, the Punjab Government issued various clarifications/explanations regarding the Panchayat elections from time to time. Vide Circular dated 22.4.2003, it was provided that in case men or women belonging to Scheduled Caste category get more votes than the women or men of general category, then they will be declared elected against the general category and the men or women belonging to Scheduled Caste getting lesser votes will be considered against the quota reserved for them. It appears that the aforesaid clarification/explanation was issued on the basis of a Division Bench judgment of this Court in Manjit Singh's case (supra) (CWP No.12031 of 1998, decided on 7.9.1999), where a candidate belonging to Backward Class, who was declared defeated in that reserved category, though he had secured 230 votes, was declared elected by this court while setting aside the election of a candidate of general category, who had received 185 votes on the principle that the said Backward Class candidate was entitled to be declared successful in the general category on account of his merit position.
In our opinion, the above-said judgment does not lay down the correct law. The concept of declaration of result on the principle that if C.W.P. No. 10804 of 2008 -22- candidates belonging to Scheduled Caste category or Backward Class category get more votes than the candidates of general category, then they will be declared elected against the general category and a candidate belonging to Scheduled Caste or Backward Class category getting lesser votes, will be considered against the quota reserved for them, is contrary to the Schemes and provisions of the Act and the Rules as discussed in detail here-above. Those provisions have not at all been considered and referred in the aforesaid judgment of this Court.
The second clarification was issued by the Punjab Government vide Memo dated 26.6.2003 (which has been challenged in these petitions). This clarification provides that if a person files nomination papers for any reserved seat, he cannot be declared elected against the general seat even though he might have secured more votes than the candidate of general category. This clarification was issued on the basis of the decision given by this Court in Asha Rani's case (supra), which is based on the earlier Division Bench judgment of this Court in Malkiat Kaur's case(supra). In our opinion, the Division Bench judgments of this Court in Malkiat Kaur's case and Asha Rani's case (supra) also do not lay down the correct law and the interpretations given by the judgments are totally contrary to the provisions of the Scheme and the Act as discussed and detailed above. For example, in Asha Rani's case (supra), one seat was reserved for woman. Two candidates, namely, Nikki and Surjit Kaur contested the election against the seat reserved for `Woman'. They secured 123 and 73 votes, respectively. Nikki, who secured 123 votes was declared elected in general category as she had secured the highest number of votes, i.e., more than Asha Rani, who contested the election against the general seat. Surjit Kaur C.W.P. No. 10804 of 2008 -23- was declared elected against the seat reserved for woman. This Court set aside the election of Surjit Kaur, and Nikki was declared elected against the seat reserved for Woman whereas Asha Rani was declared elected from the general category, though she had secured less votes than Surjit Kaur. Thus, a person who has secured more votes has been declared defeated and a candidate who has secured less votes has been declared elected in general category.
Similarly in CWP No.10804 of 2008 a woman (Jarnail Kaur, who was polled 108 votes), who contested the election of Panch against one seat reserved for Woman along with one Sandeep Kaur (who secured 125 votes), was declared defeated and the candidates in general category, who secured 49 and 21 votes, respectively, were declared elected. In the same manner, in CWP No.10877 of 2008, a woman contested the election against the seat reserved for woman was declared defeated, though she had secured 441 votes and a candidate of general category, who secured only two votes, was declared elected. In our opinion, these results, which are contrary to the basic democratic principles, are in contravention to the provisions of Panchayati Raj Act, the Election Commission Act and the Rules and some observations made by the Supreme Court in V.V.Giri's case (supra), but these results have been declared on the basis of the Instructions dated 26.6.2003.
In Malkiat Kaur's case (supra), in a multi member single constituency of village Lakha, Block Jagraon, which constitutes seven members, two seats were reserved for Scheduled Castes, one for Scheduled Caste (Woman), two for Women and two meant for general category. For the seat reserved for Scheduled Caste (Woman), two candidates, namely C.W.P. No. 10804 of 2008 -24- Harjinder Kaur and Malkiat Kaur filed their nomination papers and for two seats reserved for General (Women), only two candidates, namely Mukhtiar Kaur and Rajinder Kaur filed their nomination papers. The contention of Malkiat Kaur, who was declared defeated against the seat reserved for Scheduled Caste (Woman), to consider her claim against the seat reserved for General (Woman), was rejected by this Court while observing that the claim of a candidate who filed her nomination paper against the reserved seat cannot be considered and declared elected against the general seat.
The aforesaid two judgments, i.e., Malkiat Kaur's case and Asha Rani's case (supra) have assumed a reserved seat as a different compartment and all the candidates contesting against the said reserved seat have to be considered and declared elected only against the said seat to the exclusion of other seats meant for General Category, even though the defeated candidate in the reserved category secures more votes than a candidate in General Category. In our opinion, if we peruse various provisions and Scheme of the Act, as discussed and detailed above, the aforesaid two decisions also do not depict the correct position of law.
Thus, from the above, it is clear that there are two views given by different Division Benches of this Court with regard to the manner of declaration of result in a `multi member single constituency'. One view has been propounded in Manjit Singh's case (supra) and the other in Malkiat Kaur's case (supra) followed in Asha Rani's case (supra). In our opinion, both the views do not lay down the correct principle to be followed in the declaration of result in a `multi member single constituency'. Therefore, all the aforesaid three judgments require re-consideration by a Larger Bench. C.W.P. No. 10804 of 2008 -25-
Let the matter be placed before the Hon'ble Chief Justice for constitution of a Larger Bench.
(SATISH KUMAR MITTAL)
JUDGE
January 07, 2009 ( JASWANT SINGH )
vkg JUDGE