Ram Avtar Singh Vs. State of Haryana and Others - Court Judgment

Excerpt:

.....decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a..........by courts in electoral matters has been prohibited, laying down that no election to any panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by thelegislature of a state. besides, documents have been attached with the file showing that the petitioner was holding some land in his possession unauthorizedly as contained in annexure r-5/3 and also some land was allotted to him, for which rs. 860/- have been deposited by him as per annexure r-5/1 and also rs. 1425/- have been deposited by him as per annexure r-5/2 vide which some land was allotted to him.4. we have heard the learned counsel for the parties and also bestowed our thoughtful consideration over the record on the file.5. mr. c.b. goel, learned counsel for the petitioner, argued that this court in civil writ petition no. 17781 of 1994 (manjit kaur v. state of haryana) has held that reference to section 175 of the haryana panchayati raj act relating to disqualification makes it clear that it is only the person who commits one of the acts specified therein that such a person incurs disqualification. any.....

Judgment:

ORDER

M.L. Koul, J.

1. The petitioner, who was seeking election as Sarpanch of village Basunda, was denied election to such post by the Presiding Officer who rejected his nomination paper on 7-12-1994 holding that he was in unauthorised possession of Shamlat land regarding which the matter was pending in the Court of law.

2. Aggrieved of the said order, the petitioner is seeking the writ of certiorari for quashment of such order of rejection contained in Annexure P-1, and a direction in the form of mandamus asking the respondents Nos. 1 to 4 to allow the petitioner to contest for the said post of Sarpanch for which, election was to be held on 19-12-1994. It is contended by the petitioner that his nomination paper has been rejected by the presiding officer wrongly, who has no jurisdiction whatsoever to cancel the nomination paper of the petitioner, for no documents were produced before the Presiding officer to show that the petitioner was in unauthorized possession of some shamlat land and the order of rejection was passed illegally without jurisdiction by the Presiding officer with mala fide intentions.

3. The return has been filed by the other side and they controverted the allegations of the petitioner on the ground that this petition is not maintainable, for a bar is laid down within the terminology of Article 243-O of the Constitution of India whereby interference by Courts in electoral matters has been prohibited, laying down that no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by theLegislature of a State. Besides, documents have been attached with the file showing that the petitioner was holding some land in his possession unauthorizedly as contained in Annexure R-5/3 and also some land was allotted to him, for which Rs. 860/- have been deposited by him as per Annexure R-5/1 and also Rs. 1425/- have been deposited by him as per Annexure R-5/2 vide which some land was allotted to him.

4. We have heard the learned counsel for the parties and also bestowed our thoughtful consideration over the record on the file.

5. Mr. C.B. Goel, learned counsel for the petitioner, argued that this Court in Civil Writ Petition No. 17781 of 1994 (Manjit Kaur v. State of Haryana) has held that reference to Section 175 of the Haryana Panchayati Raj Act relating to disqualification makes it clear that it is only the person who commits one of the acts specified therein that such a person incurs disqualification. Any disqualification alleged to have been incurred by the husband would not disentitle the wife to contest the election. We have found that it has been specifically observed in that case that if the husband has incurred some disqualification within the purview of Section 175 of the Haryana Panchayati Raj Act for his previous conduct as ex-Sarpanch of the Gram Pan-chayat, that would not in any manner disentitle his wife to contest the election and her nomination paper could not be rejected. In the case on hand, the petitioner has incurred the disqualification for his holding some land unauthorized and he got the other land allotted in his favour, for which the money had been deposited by him. Both these circumstances constitute the disqualification and he in no manner can be held to be entitled to contest the election holding that his nomination paper has been rejected illegally. Whether the petitioner has been wrongly or rightly disqualified for contesting the election is a matter which cannot be looked into by this Court as per the bar laid down under Article 243-O of the Constitution of India which envisages that no election to any Panchayat shall be called in question except by an election petition presented under anylaw made by the Legislature of a State.

6. Section 176(1) of the Haryana Panchayati Raj Act, 1994, entitles any person contesting an election or any person qualified to vote to challenge the election of a member of a Gram Panchayat, Panchayat Samiti or Zila Parishad or Sarpanch of Gram Panchayat, Chairman or Vice-Chairman, President or Vice- President of Panchayat Samiti or Zila Parishad respectively and such person, at any time within thirty days after the dale of the declaration of results, can file an election petition to the Civil Court having jurisdiction in the area where the election has been or should have been held, for the determination of such question. This provision of the aforesaid Act has been authoritatively inter- preted by one of the Division Benches of this court, of which one of us (Koul, J.) was a member. The said Bench in Civil Writ Petition No. 18057 of 1994 (Smt. Guddi Devi v. The State Election Commission, Haryana,) has held as under:--

'However, we are of the firm-view that the provision of sub-section (4)(a) for setting aside the election of a candidate on the basis of corrupt practice within the meaning of subsection (5) cannot in any manner be interpreted to mean that only ground for setting aside the election would be on the basis of corrupt practice and not on the basis of illegal rejection or acceptance of nomination papers of a candidate or illegalities or irregularities committed in preparation of electoral rolls and all such matters connected with the conduct of the election process right from its very beginning upto its final culmination with the declaration of the election results. Mere fact that neither under the Act nor under the Rules framed by the State Legislature any remedy has been provided against illegal rejection or illegal acceptance of nomination papers or illegalities or irregularities committed in preparation of the electoral rolls before the culmination of the election process, in our view, would not, in any manner, debar the affected party from taking up all such objections in the election petition while challenging the validity of election at stage subsequent to the declaration of the election.results, Rather such an interpretation which we have taken is in consonance with the prime object of completing the entire election process expeditiously and without any undue delay and would certainly be helpful in hold ing the election process according to the schedule. The mistakes, irregularities or illegalities committed in the election process can certainly be rectified at a later stage when the affected party approached the competent authority by way of election petitioner'.

7. In view of the above interpretation of the relevant provisions of the law and the other circumstances of the case that the results of election have been declared by which Puran Singh (respondent No. 5) has been declared successful and he holds the post of Sarpanch of village Basunda, we feel that the election of respondent No. 5 cannot be called in question by way of writ jurisdiction exercisable by this Court under Art. 226 of the Constitution of India. The writ petition, being misconceived, is rejected. However, the petitioner is relegated to the remedy of civil action by filing an election petition before the competent authority within fifteen days from today. The period spent by the petitioner in prosecuting this writ petition shall be deemed to have been condoned in his favour if he filed the election petition before the competent authority within the stipulated period. The election petition if filed be decided within a period of three months.

8. Petition dismissed.