Punjab-Haryana High Court
Dalbir Singh vs State Of Haryana And Others on 12 July, 1994
Equivalent citations: AIR1995P&H95, AIR 1995 PUNJAB AND HARYANA 95, (1994) 2 CURLJ(CCR) 478, (1994) 2 LJR 550, (1994) 3 PUN LR 25
ORDER A.L. Bahri, J.
1. Election to the office of Sarpanch of Gram Panchayat Jatwas District Mohindergarh was held in December, 1991. Dalbir Singh petitioner and Sher Singh respondent No. 4 contested the ejection. Dalbir Singh petitioner Secured 263 votes and Sher Singh respondent 250 votes. The petitioner was thus declared elected. The election was challenged through election petition by Sher Singh inter alia on the ground that Dalbir Singh was below 25 years of age and thus could not contest the election. The Prescribed Authority vide order An-nexure P. 1 on November 5, 1993 accepted the election petition and declared the election of Dalbir Singh as illegal as he was below 25 years of age at the relevant time and thus not eligible for contesting the election. Thus Sher Singh was declared as the elected Sarpanch of the Gram Panchayat. An appeal was filed against the aforesaid order by Dalbir Singh which was dismissed by the Additional District Judge on April 22, 1994. Copy of the order is Annexure P. 2. These orders are impugned in this petition filed by Dalbir Singh inter alia on the ground that the petitioner at the relevant time was not less than 25 years of age and that in view of the provisions of S. 13-O(2) and S. 13-OO(2) of the Gram Panchayat Act, Sher Singh, respondent No. 4, could not be declared as elected by the prescribed authority.
2. On notice of motion written statement has been filed by the contesting respondent Sher Singh inter alia asserting that on the evidence produced it was established that Dalbir Singh was below 25 years of age at the relevant time and further asserting that the answering respondent was rightly declared to have been elected after election of Dalbir Singh was set aside.
3. The question as to whether Dalbir Singh was below 25 years of age at the relevant time is a question of fact. The Authorities have determined this fact on the evidence prod need by the parties. Such a finding is not open to challenge in proceed-ings unde Article 226 of the Constitution.
4. Learned counsel for the petitioner has referred to the provisions of Section 13-O(2) and Section 13-OO(2) of the Punjab Gram Panchayat Act and according to the interpretation placed thereon, respondent No. 4 Sher Singh could not be declared elected and fresh election was required to be conducted on setting aside of the election of the petitioner. There is no force in this contention. Section 13-O(1) of the Act provides different grounds, on proof of which election can be set aside. One of such grounds being that on the date of his election the elected person was not qualified or disqualified to be elected under this Act. It is not disputed that at the time of election a candidate was required to be of 25 years of age. Sub-section (2) of Section 13-O provides as under:--
"(2) When an election has been set aside under sub-section (1), a fresh election shall be held in Hr."
Section 13-OO provides that if in an election petition the petitioner presses for additional claim for a declaration that on declaration of the election as void, he or any other candidate be duly elected then such relief could be granted. Reference be made to S. 13-OO(2) which reads as under :--
"(2) If a petitioner has claimed an additional declaration specified in sub-section (1) and the prescribed authority is of opinion that in fact the petitioner or any other candidate received a majority of valid votes, it shall after declaring the election of the returned candidate to be void, declare the petitioner or such other candidate, as the case may be to have been duly elected."
5. The contention of learned counsel for the petitioner is that on declaration of petitioner's election being void, fresh election was required to be held and Sher Singh respondent No. 4 could not be declared to be elected. He has further argued that no finding has been recorded by the Authorities while passing the order aforesaid that Sher Singh had received majority of valid votes to attract the provisions of sub-section (2) of Section 13-OO referred to above.
6. On the other hand Shri M.L. Merchea, Advocate, has relied upon the decision of Single Bench of this Court in Tarlok Singh v. Gunnel Singh, 1986 Pun LJ 513. The decision aforesaid fully apply to the facts of the present case. There were two candidates. Election of one was held to be void and the other was declared as elected. It was observed in para 5 as under:--
"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 candidate has to be declared elected."
7. Reliance was placed on the decision of the Supreme Court in Durai Muthuswami v. N. Nachiappan, AIR 1973 SC 1419. The following observations of the Supreme Court were noticed (at p. 1421):--
"There was only one seat of be filled and there were only two contesting candidates. If the allegation that the 1st respondent's nomination has been improperly 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."
8. Provisions of Section 13-O(2) and Section 13-OO(2) are to be harmoneously construed. Section 13-O(2) will be attracted when in the election petition filed no claim is being made for declaration of any other candidate as elected in a case of declaring the election of elected candidate as void. This would suggest that the election petition could be filed by a person who was not contesting the election himself i.e. avoter. Such a person obviously could not claim declaration in his favour that he be declared elected in case of declaring the election of the winning candidate as void. The present is a case where such additional relief was claimed. That being the position sub-section (2) of Section 13-OO would be attracted to the case. We approve the ratio of the decision aforesaid. Since there were two candidates for the post of Sarpanch, namely, the petitioner Dalbir Singh and respondent Sher Singh, the election of Dalbir Singh having been set aside on the ground that he being below 25 years of age could not contest the same, the only candidate remaining in the field being Sher Singh was to be declared as elected. The stress placed by the learned counsel for the petitioner on the phraseology used in sub-section (2) that such a candidate to be so declared must have received "majority of valid votes" would mean that out of the total number of valid votes polled the person would be so declared must have received majority thereof. This contention as such cannot be accepted. The intention of the Legislature in using the phraseology "majority of valid votes" in the context means that out of the remaining candidates, election of the winning candidate having been set aside, the person receiving majority of votes would be declared as elected. Just to explain further it may be observed that if there remained 3 candidates who had contested the election, the person receiving majority of valid votes among them would be declared as elected. That is the true scope of Section 13-OO(2) of the Act. In the present case, as already stated, above, Dalbir Singh being found to be not eligible for contesting the election on the ground that he was below 25 years of age, the only candidates who contested the election was Sher Singh. There was no other alternative but to declare him (Sher Singh) as elected.
9. Finding no merit in the writ petition the same is dismissed. There will be no order as to costs.
10. Petition dismissed.