Punjab-Haryana High Court
Date Of Decision: 16.7.2 vs State Of Punjab And Others on 16 July, 2010
Bench: Mukul Mudgal, Jasbir Singh
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
1. Civil Writ Petition No.9400 of 2008
Date of Decision: 16.7.2010
Rajpreet Singh
..Petitioner
versus
State of Punjab and others
..Respondents
2. Civil Writ Petition No.10966 of
2008
Balbir Kaur
..Petitioner
versus
State of Punjab and others
..Respondents
3. Civil Writ Petition No.10979 of
2008
Surjit Singh and others
..Petitioners
versus
State of Punjab and others
..Respondents
4. Civil Writ Petition No.10751 of
2008
Lakhveer Singh and others
..Petitioners
versus
Civil Writ Petition No.9400 of 2008 2
The State Election Commission, Punjab and others
..Respondents
5. Civil Writ Petition No.10414 of 2008
Mohinder Singh and others
..Petitioners
versus
State of Punjab and others
..Respondents
6. Civil Writ Petition No.10881 of
2008
Jassa Singh and others
..Petitioners
versus
State Election Commissioner, Punjab and others
..Respondents
7. Civil Writ Petition No.11206 of
2008
Surjit Singh and others
..Petitioners
versus
Punjab State Election Commission and others
..Respondents
8. Civil Writ Petition No.9829 of 2008
Hans Kaur and another
Civil Writ Petition No.9400 of 2008 3
..Petitioners
versus
State of Punjab and others
..Respondents
9. Civil Writ Petition No.9876 of 2008
Gurial Singh and others
..Petitioners
versus
State of Punjab and others
..Respondents
10. Civil Writ Petition No.10967 of 2008
Jasbir Kumar and others
..Petitioners
versus
The State Election Commission and others
..Respondents
11. Civil Writ Petition No.10724 of 2008
Pardeep Kaur
..Petitioner
versus
Punjab State Election Commission and others
..Respondents
12. Civil Writ Petition No.10787 of 2008
Kashmir Kaur and another
Civil Writ Petition No.9400 of 2008 4
..Petitioners
versus
State of Punjab and others
..Respondents
13. Civil Writ Petition No.10835 of 2008
Pargat Singh and others
..Petitioners
versus
State of Punjab and others
..Respondents
14. Civil Writ Petition No.10978 of 2008
Gurdev Singh and others
..Petitioners
versus
State of Punjab and others
..Respondents
CORAM: HON'BLE MR. JUSTICE MUKUL MUDGAL, CHIEF JUSTICE
HON'BLE MR. JUSTICE JASBIR SINGH
1. Whether Reporters of local papers may be allowed to see the judgment?
2. Whether to be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr.Manoj Tanwar, Advocate for the petitioner
In CWP No.9400 of 2008
Mr.Arjun Partap Atmaram, Advocate
for the petitioners in CWP No.10751 of 2008
Mr.S.S.Brar, Advocate for respondent Nos.3 to 5,
6 to 8, 10 and 11 in CWP No.10751 of 2008
Mr.S.S.Walia, Advocate
Civil Writ Petition No.9400 of 2008 5
for the petitioners in CWP No.10414 of 2008
Ms.Manpreet Kaur, Advocate for Mr.G.S.Gill, Advocate
for the petitioners in CWP No.11206 of 2008
Mr.S.S.Swaich, Advocate
for the petitioners in CWP No.9829 of 2008
Mr.Parvez Singh, Advocate
for the petitioners in CWP No.9876 of 2008
Mr.S.C.Chhabra, Advocate
for respondent No.5 in CWP No.9876 of 2008
Mr.Mansur Ali and Mr.H.S.Deol, Advocates
for the petitioner in CWP No.10966 of 2008
Ms.Taranjeet Kaur and Mr.G.P.Vashist, Advocates
for the petitioners in CWP No.10978 of 2008 and
CWP No.10979 of 2008
Mr.P.P.S.Duggal, Advocate
for respondent No.4 in CWP No.10978 of 2008 and
CWP No.10979 of 2008
Mr.Ghulam Nabi Malik, Advocate for respondent
Nos.6 to 9 in CWP No.10978 of 2008
Mr.N.S.Shekhawat and Mr.J.S.Multani, Advocates for
Respondent No.13 in CWP No.10978 of 2008
Mr.D.D.Sharma, Advocate
for the petitioners in CWP No.10881 of 2008
Mr.Mansur Ali, Advocate
for respondent Nos.2 to 7 in CWP No.10881 of 2008
Mr.Gulshan Sharma, Advocate
for the petitioners in CWP No.10967 of 2008
Mr.D.S.Pheruman, Advocate
for the petitioners in CWP No.10787 of 2008
Mr.C.L.Panwar, Advocate
for the petitioner in CWP No.10724 of 2008
Mr.A.S.Jattana, Advocate
for the private respondents in CWP No.10724 of 2008
Mr.Aman Bahri, Advocate
for the petitioner in CWP No.10835 of 2008
Mr.H.S.Sidhu, Additional Advocate General, Punjab
Jasbir Singh, J.
1. This order will dispose of CWP Nos.9400 of 2008, 10966 of 2008, 10979 of 2008, 10751 of 2008, 10414 of 2008, 10881 of 2008, 11206 of 2008, 9829 of 2008, 9876 of 2008, 10967 of 2008, 10724 of 2008, 10787 of 2008, 10835 of 2008 and 10978 of 2008 as common question of law and facts are involved in all these cases.
Civil Writ Petition No.9400 of 2008 6
2. To dictate judgment, facts are being mentioned from CWP No.9400 of 2008.
3. In all these writ petitions, following questions are for consideration of this Court:-
a) Whether Election Commission, when exercising the powers of superintendence, directions and control regarding conduct of the Gram Panchayat elections, can countermand elections at any stage or not?
b) Whether an election to the Gram Panchayat can be countermanded on any ground other than the one mentioned in the Punjab State Election Commission Act, 1994 or not?
4. It is necessary to note here that in the State of Punjab, to conduct elections to the Gram Panchayats, the following schedule was fixed:-
i) Date of Nomination : 16.5.2008
ii) Scrutiny of nomination papers : 17.5.2008
iii) Date of withdrawal : 19.5.2008
iv) Date of election : 26.5.2008
5. In pursuance of the election schedule to conduct Gram Panchayat elections, as referred to above, the petitioner filed his nomination papers for the post of Panch on 16.5.2008. After scrutiny his name was put in the final list of the contesting candidates. The final list was displayed on the notice Board on 19.5.2008. Election Symbol was also allotted to the petitioner and he started canvassing for his election which was going to be conducted on 26.5.2008. However, vide order dated 25.5.2008 (P1) election of the Gram Panchayat was countermanded. It was further ordered that fresh programme/schedule, to conduct election shall be notified afterwards. At that stage, this writ petition was filed. Civil Writ Petition No.9400 of 2008 7
6. Similarly, many other writ petitions were filed in which election to the Gram Panchayat was countermanded after declaration of the result and in some other cases, when nomination papers were rejected arbitrarily, the aggrieved candidates came to this Court. There were also instances that nomination papers were initially accepted, however, later on shown to have been rejected and vice-versa which also gave rise to the filing of several writ petitions to this Court. This writ petition and many others were admitted for regular hearing on 13.6.2008. Regarding interim stay, following directions were issued by a Division Bench of this Court:-
"Both the parties have argued for and against grant of interim injunction. After countermanding, almost in all the cases, fresh elections have been ordered to be held. The petitioners are praying for stay of the fresh elections whereas respondents are opposing any interim measure at this stage. On consideration of various factors, statutory provisions and judgments referred to here-in-above, prima facie, we are of the considered view that in the cases where candidates have been declared elected in accordance with Section 54 of the Punjab State Election Commission Act, 1994 or where the Returning Officer has declared the result under Section 69 of the Punjab State Election Commission Act, 1994 and elections have been countermanded thereafter, the holding of fresh elections shall remain stayed. In other cases where the election has been countermanded before the date of polling, respondent-State may hold fresh election. However, the outcome of the election shall remain subject to decision of these writ petitions."
7. Before proceeding further, it is necessary to note in brief, the controversy involved in all these writ petitions. CWP No.9400 of 2008
Election was countermanded before the date of election. CWP No.10787 of 2008 Civil Writ Petition No.9400 of 2008 8 Vide order dated 22.5.2008, one post of Panch was ordered to be reserved for Backward category candidate.
CWP No.10724 of 2008
Election was countermanded after the petitioner was declared successful on 19.5.2008 against the post reserved for woman candidate. CWP No.10967 of 2008
Election was countermanded due to disturbance in the polling booth on the date of election.
CWP No.10835 of 2008
Election was countermanded before the date of voting, however, one candidate i.e. petitioner No.8 was declared elected unopposed. CWP No.10978 of 2008
Respondent Nos.6 to 9 were declared elected in the first election, however, thereafter, election was countermanded and fresh election was ordered to be conducted on 22.6.2008. Before that in terms of order passed by the State Election Commission, Punjab (R-13) dated 14.6.2008 respondents named above were declared elected. CWP No.10966 of 2008
As per allegations of the petitioner, she was not allowed to file her nomination papers for the election to the post of Panch. On a complaint made and orders issued by this Court, election was postponed and re- conducted on 22.6.2008, however, at that time also, as per written statement filed, the petitioner did not file her nomination papers. CWP No.10881 of 2008 Civil Writ Petition No.9400 of 2008 9
The petitioners were declared elected on 26.5.2008, however, their elections were set aside by the State Election Commission vide order dated 22.6.2008 (P12) and fresh election was ordered in their village. CWP No.10979 of 2008
As per allegation of the petitioners, in the first election their nomination papers were rejected without any justification. They came to this Court. On directions issued, order was passed by the State Election Commission countermanding the election before the date of polling. Thereafter, election programme was re-issued and polling was to take place on 22.6.2008, however, before the date of polling election was stayed under orders passed by the State Election Commission on 14.6.2008 (P6) CWP No.10751 of 2008 The petitioners were declared elected on 26.5.2008 (P2), however, subsequent thereto, on an order passed by the State Election Commission on 6.6.2008 (P5), their election was set aside and fresh election was ordered in their village.
CWP No.10414 of 2008
The petitioners were declared elected unopposed, however, subsequent thereto, vide order dated 25.5.2008 (P4), the State Election Commission set aside and countermanded their election. CWP No.11206 of 2008
Nomination papers of the petitioners were rejected and the respondents were declared elected as Panches of the Gram Panchayat on 19.5.2008. On a complaint made, election was countermanded and fresh Civil Writ Petition No.9400 of 2008 10 election was fixed on 22.6.2008, however, vide order dated 14.6.2008 (P5) election was postponed.
CWP No.9829 of 2008
After scrutiny of nomination papers, the petitioners were declared elected unopposed, however, subsequent thereto vide order dated 24.5.2008, their election was set aside and countermanded. CWP No.9876 of 2008
The petitioners were declared elected unopposed on 20.5.2008. However, subsequent thereto, their election was set aside and countermanded vide order dated 24.5.2008.
8. The Hon'ble Supreme Court in People's Union for Civil Liberties and another v. Union of India (UOI) and another, (2009) 3 SCC 200 has observed that 'Democracy is a part of the basic structure of our Constitution and rule of law and free and fare election are basic features of democracy..... Democracy also contemplates that elections should be free and fair and the voters should be in a position to vote for the candidates of their choice. The pre-requisite of this is that the elections are not rigged and manipulated and the candidates or their agents are not able to resort to unfair means and malpractices.'
9. In all these cases, it is to be seen whether there exists sufficient safeguards and the powers with the State Election Commission as envisaged in the provisions of Section 210 of the Punjab Panchayati Raj Act, 1994 (in short 1994 Act) to conduct fair and free election.
Above said provision reads thus:-
Civil Writ Petition No.9400 of 2008 11
"Election Commission to conduct Panchayat election The superintendence, direction and control of the preparation of electoral rolls for and conduct of, all elections to the Panchayats, shall be vested in the Election Commission."
10. The provision, referred to above, is pari materia to the provisions of Article 243K of the Constitution of India, which envisages that the powers of superintendence, directions and control of the preparation of electoral rolls for and the conduct of all elections of Panchayats shall vest in the State Election Commission. To give effect to the above said provision, the State of Punjab enacted the Punjab State Election Commission Act, 1994 (in short, the EC Act). This Act is a complete code in itself. It provides for constitution, qualification and salary of the members of the State Election Commission and their term of office. The EC Act also lays down the qualifications/disqualification for membership of the Panchayats/ Municipalities and also mode and method to settle disputes regarding disqualification etc. It also provides for the appointment of administrative machinery for the conduct of elections. How electoral rolls, for a constituency, shall be prepared is also envisaged. Complete procedure has been provided for conduct of elections stating that process shall start on issuance of a notification under Section 35 of the EC Act mentioning the schedule to conduct Panchayat election and as to how the nomination papers will be presented, accepted and scrutinized. Provision has also been made for withdrawal of the candidature and thereafter publication of list of the contesting candidates.
Section 53 of the EC Act lays down the procedure of election in case death of a candidate. It reads thus:-
Civil Writ Petition No.9400 of 2008 12
"53. Death of candidate before poll. If a candidate whose nomination has been found valid on scrutiny under Section 41 and who has not withdrawn his candidature under section 42 dies and a report of his death is received before the publication of the list of contesting candidates under section 43, or if a contesting candidate dies and a report of his death is received before the commencement of the poll, the Returning Officer shall, upon being satisfied of the fact of the death of the candidate, countermand the poll and report the fact to the Election Commission and also to the prescribed authority and all proceedings with reference to the election, shall be commenced afresh in all respect as if for a new election.
Provided that no further nomination shall be necessary in the case of a person who was a contesting candidate at the time of the countermanding of the poll:
Provided further that no person who has given a notice of withdrawal of his candidature under sub-section (1) of section 42 before the countermanding of the poll, shall be in- eligible for being nominated as a candidate for the election after such countermanding." (Emphasis supplied) Section 58 of the EC Act gives power to the State Election Commission to adjourn the poll in case of emergencies. It reads thus:-
"58 Adjournment of Poll in Emergencies (1) If at any election, the proceedings at any poling station provided under Section 19 are interrupted or obstructed by any riot or violence, or if at an election it is not possible to take the poll at any polling station on account of any natural calamity or any other sufficient cause the concerned Presiding Officer of the Returning Officer, as the case may be, shall announce an adjournment of the poll to a date to be notified later by the Election Commission and where the poll is so adjourned by a Presiding Officer, he shall forthwith inform the concerned Returning Officer." (Emphasis supplied) Section 59 of the EC Act provides for fresh poll in case of destructions etc. of the ballot boxes. The provision reads as under:-
"59. Fresh Poll in the case of Destructions etc. of Ballot Boxes.
(1) If at any election.-
(a) any ballot box used at a polling station or at a place fixed for the poll is unlawfully taken out of the custody of Civil Writ Petition No.9400 of 2008 13 the Presiding Officer or the Returning Officer, or is accidentally or intentionally destroyed or lost, or is damaged or tampered with, to such an extent, that the result of the poll at that polling station, or place cannot be ascertained; or
(b) any voting machine develops a mechanical failure during the recording of votes; or
(c) any such error or irregularity in procedure as is likely to vitiate the poll is committed at a polling station or at a place fixed for the poll; the Returning Officer shall forthwith report the matter to the Election Commission. (2) The Election Commissioner shall, after taking all material circumstances into account, either-
(a) declare the poll at the polling station or place to be void and shall appoint a day, and fix the hours, for taking a fresh poll at that polling station or place and notify the day so appointed and the hours so fixed in such manner, as it may deem fit; or
(b) if satisfied that the result of a fresh poll at that polling station or place will not in any way affect the result of the election or that the mechanical failure or the voting machine or the error or irregularity in procedure is not material;
Issue such direction to the Returning Officer, as it may deem proper for the further conduct and completion of the election.
(3) The provisions of the Act and the rules or orders made thereunder shall apply to every fresh poll as they apply to the original poll." (Emphasis supplied) The State Election Commission is also given power to adjourn / countermand the poll on the basis of booth capturing. Section 60 in that regard reads as under:-
"60. Adjournment of poll or countermanding of election on the ground of booth capturing (1) If at any election-
(a) booth capturing has taken place at a polling station or at a place fixed for the poll (hereinafter in this section referred to as a place) in such a manner that the result of the poll at that place cannot be ascertained; or
(b) booth capturing has taken place in any place for counting of votes in such a manner that the result of the counting at the place cannot be ascertained;Civil Writ Petition No.9400 of 2008 14
the Returning Officer shall forthwith report the matter to the Election Commission (2) The Election Commission shall, on the receipt of a report from the Returning Officer under sub-section (1) and after taking all material circumstances into account, either-
(a) declare that the poll at that place shall be void and appoint a day, and fix the hours for taking fresh poll at that place and notify the date so appointed and hours so fixed in such manner as it may deem fit; or
(b) if satisfied that in view of the large number of places involved in booth capturing, the result of the election is likely to be affected, or that booth capturing had affected counting of votes in such a manner as to affect the result of the election;
countermand the election in that constituency.
Explanation- In this section, the expression "booth capturing" shall have the same meaning as is assigned to it in Section 123."
The State Election Commission is also given power to declare the poll as void in case of destruction or loss of ballot paper(s) at the time of counting. Section 67 of the EC Act in that regard reads as under:-
"67 Destruction, loss etc. of ballot paper at the time of counting-
(1) If at any time before the counting of votes is completed, any ballot papers used at a polling station or at a place fixed for the poll are unlawfully taken out of the custody of the Returning Officer or are accidentally or intentionally destroyed or lost or are damaged or tampered with, to such an extent that the result of the poll at that polling station or place cannot be ascertained, the Returning Officer shall forthwith report the matter to the Election Commission.
(2) The Election Commission shall, after taking all material circumstances into account, either-
(a) direct that the counting of votes shall be stopped or declare the poll at the polling station or place to be void and appoint a day and fix the hours, for taking a fresh poll at that polling station or place and notify the date so appointed and hours so fixed in such manner, as it may deem fit; or...."Civil Writ Petition No.9400 of 2008 15
Section 72 of the EC Act provides that for the purpose of that Act, the date on which the candidate is declared to be elected shall be the date of election of that candidate. In the Act provision has also been made for setting up of Tribunals to settle the election disputes.
Section 89 of the EC Act lays down the grounds on which an election can be declared void. It reads as under:-
"89. Grounds for declaring election to be void- (1) Subject to the provisions of sub-section (2), if the Election Tribunal is of the opinion.-
(a) that on the date of his election, a returned candidate was not qualified, or was disqualified to be chosen to fill the seat under the Constitution of India or under this Act; or
(b) that any corrupt practice has been committed by a returned candidate or his election agent or by other person with the consent of a returned candidate or his election agent; or
(c) that any nomination has been improperly rejected; or
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected-
(i) by the improper acceptance of any nomination; or
(ii) by any corrupt practice committed in the interest of the returned candidate by an agent other than his election agent; or
(iii) by the improper reception, refusal of rejection of any vote or the reception of any vote which is void; or
(iv) by any non-compliance with the provisions of the Constitution of India or of this Act of any rules or orders made under this Act;
the Election Tribunal shall declare the election of the returned candidate to be void.
(2). If in the opinion of the Election Tribunal a returned candidate has been guilty by an agent, other than his election agent, of any corrupt practice but the Election Tribunal is satisfied-
(a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice as committed contrary to the Civil Writ Petition No.9400 of 2008 16 orders, and without the consent, of the candidate or his election agent;
(b) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and
(c) that in all other respects, the election was free from any corrupt practice on the part of the candidate or any of his agent;
then the Election Tribunal may decide that the election of the returned candidate is not void.
(3) In this section, the expression 'agent' has the same meaning as assigned to it in Explanation (1) given under clause (9) of Section 108, but does not include election agent." What would amount to a corrupt practice and electoral offences has also been described in Section 108 of the EC Act. The State Election Commission is empowered to extend time for completion of election. Section 138 of EC Act in that regard reads thus:-
"138. Extension of time for completion of election- The Election Commission may for sufficient reasons to be recorded in writing, extend the time for completion of any election by making an amendment to this effect in the notification issued under Section 35."
Jurisdiction of Civil Court has been barred to entertain any challenge to an order made by a Returning Officer.
11. Reading of provisions mentioned above clearly indicates that the EC Act is a complete code in itself. The legislature has taken care of all the eventualities and the circumstances under which the State Election Commission can interfere in an election and pass appropriate orders for smooth completion of the election process. As per established law, the election process starts with the issuance of a notification under Section 35 of the EC Act. It contemplates various stages like filing of nomination papers, scrutiny, withdrawal and publication of list of contesting candidates Civil Writ Petition No.9400 of 2008 17 and ultimately, if need be, polling in an election and then declaration of result as provided in Section 69 of the EC Act.
12. To give effect to the provisions of EC Act, the State of Punjab has also notified the Punjab Panchayat Election Rules, 1994 (in short 1994 Rules). The complete procedure regarding conduct of election has been mentioned therein. It has also been provided as to how fresh poll in the case of destruction of ballot boxes is to be conducted (Rule 30). It also contemplates procedure regarding adjournment of polls in case of emergencies (Rule 31). Procedure for cancellation of Election Programme has also been given in Rule 32 of 1994 Rules.
Rule 33 of the 1994 Rules provides for counting of votes on conclusion of an election. Section 54 of the EC Act lays down the procedure in contested and uncontested elections. It reads as under:-
"54. Procedure in contested and uncontested elections.- (1) If the number of contesting candidates is more than the number of seats to be filled a poll shall be taken.
(2) If the number of such candidates is equal to the number of seats to be filled, the Returning Officer shall forthwith declare all such candidates to be duly elected to fill those seats. (3) If the number of such candidates is less than the number of seats to be filled, the Returning Officer shall forthwith declare all such candidates to be elected and the Election Commission shall, by notification in the Official Gazette, call upon the constituency or the elected members to elect a person or persons to fill the remaining seat or seats, as the case may be:
Provided that where the constituency or the elected members having already been called upon under this sub- section, has or have failed to elect a person or the requisite number of person, as the case may be, to fill the vacancy or vacancies, the Election Commission shall not be bound to call again upon the constituency, or such members to elect a person or persons until it is satisfied that if called upon again, there shall be no such failure on the part of the constituency of such members.Civil Writ Petition No.9400 of 2008 18
Section 69 of the EC Act mandates that result of election shall be declared after conclusion of counting of votes. It reads thus:-
"69. Declaration of results.- When the counting of the votes has been completed, the Returning Officer shall, in the absence of any direction by the Election Commission to the contrary, forthwith declare the result of the election in the manner provided by this Act or the rules made thereunder."
13. As per established procedure, in case of uncontested election, result is to be declared forthwith in Form 5 annexed with 1994 Rules. In the case of a contested election after conclusion of counting of votes, result is to be declared in Form 9 of the forms annexed with the 1994 Rules.
As per ratio of the judgment of the Hon'ble Supreme Court in Kishansing Tomar v. Municipal Corporation of the City of Ahmedabad and others, (2006) 8 SCC 352, the Hon'ble Supreme Court held that in terms of Article 243K and Article 243ZA(1), the powers of the State Election Commission are akin to the powers of Election Commission of India under Article 324 of the Constitution of India. It was further held that from a reading of the above said provisions, it is clear that the power of the State Election Commission, in respect of conduct of election is no less than the Election Commission of India in their respective domains. These powers are, of course, subject to the law made by the Parliament or by the State Legislature provided the same do no encroach upon the plenary powers of the State Election Commissions.
14. The scope of the powers of the Election Commission of India came up for consideration in Union of India v. Association for Democratic Reforms and another, AIR 2002 Supreme Court 2112. In that case, after Civil Writ Petition No.9400 of 2008 19 making reference to various judgments of the Hon'ble Supreme Court on the subject mentioned above, the Court laid down seven propositions of law. The proposition Nos.1 and 2 are extracted as under:-
"1. The jurisdiction of the Election Commission is wide enough to include all powers necessary for smooth conduct of elections and the word 'elections' is used in a wide sense to include the entire process of election which consists of several stages and embraces many steps.
2. The limitation on plenary character of power is when the Parliament or State Legislature has made a valid law relating to or in connection with elections, the Commission is required to act in conformity with the said provisions. In case where law is silent, Article 324 is a reservoir of power to act for the avowed purpose of having free and fair election. Constitution has taken care of leaving scope for exercise of residuary power by the Commission in its own right as a creature of the Constitution in the infinite variety of situations that may emerge from time to time in a large democracy, as every contingency could not be foreseen or anticipated by the enacted laws or the rules. By issuing necessary directions, Commission can fill the vacuum till there is legislation on the subject. In Kanhiya Lal Omar's case, the Court construed the expressions "superintendence, direction and control" in Article 324(1) and held that a direction may mean an order issued to a particular individual or a precept which may have to follow and it may be a specific or a general order and such phrase should be construed liberally empowering the election commission to issue such orders".
Reading of the ratio of the judgment, mentioned above, clearly indicates that the power of the Election Commission is wide enough to include all powers which are necessary to conduct fair and free elections. However, powers of the Election Commission are subject to any law made by the State Legislature. In what circumstances, the State Election Commission has the power to countermand, postpone and defer an election, are clearly mentioned. It is also amply clear that in the case of uncontested election Civil Writ Petition No.9400 of 2008 20 result has to be declared forthwith and in the case of contested election result has to be declared on conclusion of counting of the votes.
15. A question whether after declaration of result of an election, the State Election Commission has the power and jurisdiction to countermand an election, came up for consideration before a Division Bench of this Court in Balwinder Singh v. State of Punjab and others (CWP No.10547 of 2008), decided on 23.12.2008. In the above said case, following proposition of law was under consideration of this Court:-
"The question to be determined by us is whether or not the Punjab State Election Commission-respondent no.2, after the declaration of the result by the Presiding Officer/Returning Officer in case of no contest under sub-section (2) of Section 54 and after contest under Section 69 of the Punjab State Election Commission Act,1994, declaring a candidate as elected Panch of a Gram Panchayat, could countermand the election in exercise of the powers vested in it and direct the holding of fresh election after setting aside the earlier result."
16. By making reference to the provisions of the Constitution of India, Punjab Panchayati Raj Act, 1994 and the Rules framed thereunder, it was observed as under:-
"A perusal of all the aforesaid provisions of the Election Commission Act,1994 indicates that once the election process commences by issuance of notification under Section 35 then the process gets completed on the declaration of the result and the ministerial act of publication thereof, although in certain specified situations noticed under Section 58, polling can be adjourned and under given situations of destruction of ballot boxes under Section 59 and booth capturing under Section 60, the elections can be countermanded after the poll, but only before the declaration of the result by the Returning Officer.
The scheme of the Act further provides that in case where there is no contest in an election for the seat then the Returning Officer is mandated to forthwith declare the result. A perusal of sub section (2) of Section 54 clearly indicates that if the number of Civil Writ Petition No.9400 of 2008 21 candidates is equal to the number of seats to be filled up in the election, the Returning Officer shall forthwith declare such candidates to be duly elected to fill up those seats and the manner in which result is to be declared, is not prescribed. In cases wherever there is a contest, Section 69 of the Election Commission Act provides that the Returning Officer after the counting of the votes and in the absence of any directions by the Election Commission to the contrary, forthwith declare the result of the election in the prescribed manner. In cases of contest, the manner has been prescribed under sub rule (2) of Rule 33(e) of the Punjab Panchayat Election Rules,1994 reproduced hereinabove, to the effect that the Returning Officer shall record a statement in Form IX, annexed to the Rules declaring such results.
A reading of Rule 13 of the Election Rules,1994 (reproduced above) reveals that the Returning Officer is to display the particulars of the validly nominated candidates, who are the contesting candidates in statutory Form V, containing their names in alphabetic order alongwith particulars and symbols allotted to each of the contesting candidates. We have noticed that in certain cases the Presiding Officers/Returning Officers have declared the result of unopposed candidates under sub-
section (2) of Section 54 of the Election Commission Act,1994, in statutory Form V itself by declaring candidates to be elected since there was no contest. In certain cases result has been declared in statutory Form IX. In our opinion, in the absence of any manner prescribed under sub-section (2) of Section 54 of the Election Commission Act,1994, such declaration of results by the Presiding Officers/ Returning Officers either in statutory Form V or statutory Form IX is a valid declaration of result under the rules.
It is to be noticed that the legislature has consciously provided that in case there is no contest, the Returning Officer is mandated to forthwith declare the result (under the provisions of the Election Commission Act,1994) whereas in case of a contest and counting of votes, the State Election Commission can issue directions to the contrary before the declaration of the result in Form IX, as is clear from a joint reading of Section 54(2) and Section 69, meaning thereby that the State Election Commission in contested election only and before the declaration of the result by the Returning Officer, can issue directions in exercise of powers vested in it for the conduct of free and fair elections. In Jagjit Singh v. State Election Commission, Punjab (supra) the State Election Commission had ordered the re-poll of the election of Sarpanch and Panch of a village after the declaration of the result in Form IX. The Hon'ble Single Judge held that the impugned orders of the State Election Commission were ultra vires the powers vested in it, which are to supervise the elections Civil Writ Petition No.9400 of 2008 22 and once the result is declared the election is over and the State Election Commission ceases to have any jurisdiction to order any re-poll as it becomes functus officio qua the poll. This view of the learned Single Judge was affirmed by a Division Bench of this Court Randhir Singh v. State Election Commission, Punjab (supra). Another Division Bench of this Court in Kashmir Kaur v. State of Punjab (supra), after relying on the decision of the Hon'ble Supreme Court in Civil Appeal No.4926 of 2000- Malkit Kaur v. Jatinder Kaur and others, decided on 20.11.2001 held that once a Returning Officer has made the entries and declared the result in Form IX then, thereafter the Returning Officer has no power to change the entries in the same even to correct any errors or mistake and the said declaration as contained in Form IX could only be challenged by means of an Election Petition before an Election Tribunal. The relevant para 5 of the same reads as under:-
"5. We have heard counsel for the parties and perused the period. The question whether the Returning Officer can change the entries recorded in Form-IX was considered and answered in the negative by the Supreme Court in Civil Appeal No.4926 of 2000- Malkit Kaur v. Jatinder Kaur and others, decided on 20.11.2001. In that case, respondent no.1 had been declared elected by securing 691 votes as against 489 votes secured by the appellant. Thereafter, the appellant approached Deputy Commissioner, Moga complaining that respondent no.1 had been declared elected by mistake because in fact, she had secured 691 votes and she ought to have been declared elected. The Additional Deputy Commissioner called for the Returning Officer who corrected the entries contained in Form-IX and declared the appellant as duly elected Sarpanch of the Gram Panchayat. The writ petition filed by respondent no.1 was dismissed by the High Court. Their Lordships of the Supreme Court dismissed the appeal and rejected the plea of the appellant that she was entitled to be declared elected as Sarpanch. The relevant portion of the order passed by the Supreme Court reads as under:-
"Learned counsel appearing for the appellant urged that earlier there being mistake and error in Form IX prepared by the Returning Officer, the authority was justified in law to correct the form IX subsequently and the High Court committed error in setting aside the subsequent order of the Returning Officer. We do not find any substance in the argument. Under the Act and the Rules thereunder once Civil Writ Petition No.9400 of 2008 23 a candidate has been declared elected in form IX, the Returning Officer ceased to have any power to alter the said declaration subsequently. The declaration as contained in form IX could only be challenged by means of an election petition before an appropriate Tribunal. In that view of the matter, we do not find any merit in this appeal. The appeal fails and is according dismissed."
Therefore, keeping in view the aforesaid provisions of the Act and discussion it is concluded that once the number of candidates is equal to the number of seats to be filled up, meaning thereby that there is an uncontested election, then the Returning Officer is required to forthwith declare all such candidates to be duly elected to fill those seats by issuance of declaration of the result, which may be either in Form V or Form IX. In case where a contest takes place then the Returning Officer after the counting of the votes and in the absence of any directions of the Election Commission to the contrary, since the questions of adjournment/ countermanding of the election on the ground of emergencies/ destruction of ballot boxes, booth capturing etc. can crop up, is required to declare the result in statutory Form IX. In our opinion, it is thus clear that once the declaration of result, either in Form V or in Form IX in case of uncontested election and in Form IX in case of a contested election, has been issued/recorded by the Returning Officer then there can be no question of countermanding the election and tinkering with the result by the State Election Commission or any other authority including the Returning Officer on the ground of improper rejection or acceptance of the nomination papers or any other illegality committed by the Returning Officer (as alleged in the present two cases). The only remedy available to a candidate is to file an Election Petition under Section 76 on the grounds mentioned in Section 89 of the Punjab State Election Commission Act,1994."
17. This Court is of the opinion that most of the writ petitions under consideration will be covered by the ratio of the judgment in Balwinder Singh's case (supra), which as per information supplied, was also upheld by the Hon'ble Supreme Court.
Civil Writ Petition No.9400 of 2008 24
18. In view of the facts mentioned above, following answer is rendered to the two propositions mentioned in the beginning of this judgment:-
a) The State Election Commission, when exercising the powers of superintendence, directions and control regarding conduct of Election, can countermand that election before declaration of result. Once the result is declared in Form 5 or Form 9 of the Forms annexed with the 1994 Rules, the only remedy available to an aggrieved candidate is to file an election petition under Section 89 of the EC Act.
b) An election to the Gram Panchayat can be countermanded, postponed and deferred etc. in terms of the EC Act and 1994 Rules. To exercise that power the State Election Commission has to detail the reasons to support his action under any of the provisions of the aforesaid Act and the Rules.
19. It is evident from the interim order passed by this Court on 13.6.2008 that fresh elections were stayed only in those cases where final result had already been declared and in other cases where elections were countermanded before the date of polling liberty was granted to the State of Punjab to conduct fresh elections.
20. In CWP No.9400 of 2008, election was countermanded before the date of elections. In CWP No.10967 of 2008, election was countermanded due to some disturbance in the polling booth on the date of election. In CWP No.10835 of 2008, election was countermanded before the date of voting, however, one candidate i.e. petitioner No.8 was declared elected unopposed. Qua above said writ petitions, it is held that order passed by the State Election Commission was perfectly justified. Action in countermanding the elections was as per Act and the Rules except qua setting aside the result of petitioner No.8 in CWP No.10835 of 2008. Civil Writ Petition No.9400 of 2008 25 Accordingly, all these three writ petitions are dismissed. However, it is made clear that in CWP No.10835 of 2008, election of petitioner No.8 shall not be disturbed.
21. In CWP No.10787 of 2008 vide order dated 22.5.2008, before the date of election, one post of Panch was ordered to be reserved for Backward Class category candidate. Reading of written statement clearly indicates that a report was received from the District Development and Panchayat Officer dated 16.5.2008, intimating that in the concerned village, out of total strength of population of 880 about 293 voters belong to Scheduled Caste category and 180 belong to Backward Class category. Taking note of the same, one post was reserved for Backward Class candidate. It appears that there was some discrepancy in calculating the number of voters of a particular category. The said mistake was rectified before the date of election, which this Court feels that the State Election Commission was competent to do so for smooth conduct of election. Accordingly, this writ petition fails and is dismissed.
22. In CWP No.10724 of 2008 election of the petitioner was countermanded after she was declared successful on 19.5.2008. In view of findings given by us, such an action on the part of the State Election Commission was not justified. Accordingly, this writ petition is allowed and result declared in favour of the petitioner on 19.5.2008 is upheld.
23. In CWP No.10978 of 2008 respondent Nos.6 to 9 were declared elected in the first election as per schedule. Thereafter, their result was set aside, election was countermanded and fresh election was fixed for 22.6.2008. However, the State Election Commission, vide order dated Civil Writ Petition No.9400 of 2008 26 14.6.2008 again declared respondent Nos.6 to 9 as elected members of the Gram Panchayat. In view of findings given in earlier part of this judgment, no relief can be given to the petitioners in this case. Accordingly, this writ petition fails and dismissed. However, liberty is left with the petitioners to lay challenge to the elections of respondent Nos.6 to 11. They may do so within a period of 30 days from the date of receipt of a copy of this order. Question of limitation shall not be raised against them in entertaining their election petition.
24. In CWP No.10966 of 2008, as per allegations of the petitioner, she was not allowed to file her nomination papers for the election to the post of Panch. On her complaint, election was postponed and re-conducted on 22.6.2008. As per written statement, even in the second election, she did not file any nomination papers. In view of findings given in earlier part of this judgment, no relief can be given to the petitioner in this case. Accordingly, this writ petition fails and dismissed. However, liberty is left with the petitioner to lay challenge to the elections of the private respondents. She may do so within a period of 30 days from the date of receipt of a copy of this order. Question of limitation shall not be raised against her in entertaining their election petition.
25. In CWP No.10881 of 2008, the petitioners were declared elected on 26.5.2008, however, their elections were set aside by the State Election Commission vide order dated 22.6.2008 and fresh election was ordered in the village. In view of findings given by us in this judgment, their writ petition is allowed, order dated 22.6.2008, setting aside their Civil Writ Petition No.9400 of 2008 27 elections is set aside and declaration of result in favour of the petitioners on 26.5.2008 is upheld.
26. In CWP No.10979 of 2008 as per allegation of the petitioners, they filed their nomination papers, which were rejected without any justification. They came to this Court. As per directions issued, the State Election Commission countermanded the election before the date of polling and fresh date of polling was fixed on 22.6.2008. However, the same was stayed by the State Election Commission vide order dated 14.6.2008 (P6). It appears that in terms of the interim order dated 13.6.2008, passed by this Court, fresh elections must have been conducted in this village. We have not been informed to the contrary. Accordingly, in this writ petition no relief can be given to the petitioners and this writ petition stands disposed of.
27. In CWP No.10751 of 2008, the petitioners were declared elected on 26.5.2008. Thereafter, vide order dated 6.6.2008 (P5), their election was set aside and fresh election was ordered in the village. In view of reasons given by us in the preceding part of this writ petition, this writ petition is allowed and the result declared in favour of the petitioners on 26.6.2008 is upheld.
28. In CWP No.10414 of 2008 ,the petitioners were declared elected unopposed, however, subsequent thereto, vide order dated 25.5.2008 (P4), the State Election Commission set aside and countermanded their election and fresh election was ordered. In view of finding given by us in earlier part of this judgment, this writ petition is allowed and declaration of result in favour of the petitioners is upheld.
Civil Writ Petition No.9400 of 2008 28
29. In CWP No.11206 of 2008 the petitioners had filed nomination papers, which were rejected and the respondents were declared as Panches of the Gram Panchayat on 19.5.2008. On a complaint made, election was countermanded and fresh election was fixed on 22.6.2008, however, vide order dated 14.6.2008 (P5) election was postponed. In view of finding given by us in earlier part of this judgment, no relief can be given to the petitioners. Result of the election was declared on 19.5.2008. Thereafter, the State Election Commission was not competent to interfere in the same. This writ petition is dismissed. However, liberty is left with the petitioners to lay challenge to the elections of the private respondents. They may do so within a period of 30 days from the date of receipt of a copy of this order. Question of limitation shall not be raised against them in entertaining their election petition.
30. In CWP No.9829 of 2008 after scrutiny of nomination papers, the petitioners were declared elected unopposed, however, subsequent thereto vide order dated 24.5.2008, their election was set aside and countermanded. In view of findings recorded by us in preceding part of this judgment, this writ petition is allowed, election result declared in favour of the petitioners is upheld.
31. In CWP No.9876 of 2008, the petitioners were declared elected unopposed on 20.5.2008. However, subsequent thereto, their election was set aside and countermanded vide order dated 24.5.2008. In view of findings recorded by us in preceding part of this judgment, this writ petition is allowed, election result declared in favour of the petitioners is upheld.
Civil Writ Petition No.9400 of 2008 29
16.7.2010 (MUKUL MUDGAL) (JASBIR SINGH)
gk CHIEF JUSTICE JUDGE