Charanjit Singh Vs. State of Punjab and ors. - Court Judgment

S.S. Nijjar, J.

1. In this writ petition under Articles 226/227 of the Constitution of India, the petitioner is aggrieved against the action of respondent No. 3, in declaring respondent No.4 elected as Chairman of the Block Samiti, Dhilwan.

2. The constitution of the Gram Sabha, Gram Panchayat, Panchayat Samiti and Zila Parishad is provided under the Punjab Panchayat Raj Act, 1994 (hereinafter referred to as 'The Act'). Section 98 of the Act provides for establishment of Panchayat Samiti for every block in the District having jurisdiction over the entire block area, excluding such portion as are included in Municipality, Corporation, Notified Area Committee etc. Section 99 of the Act provides for the composition of Panchayat Samiti which shall consist of 15 to 25 directly elected members from territorial constituencies as well as Member of Legislative Assembly and Member of Legislative Council as given in Section 99 of the Act. As per Section 105 of the Act, Chairman/Vice-Chairman of the Panchayat Samiti is to be elected from amongst the elected members. The State Government has the power under the Act to direct holding of elections to the various bodies mentioned above. The Election Commission is given the superintendence, direction and control of the preparation of electoral rolls for, and conduct of elections to the Panchayats, by virtue of Section 210 of the Act. The definition of 'Panchayat' as given in Section 2(zj) means a Gram Panchayat, Panchayat Samiti and Zila Parishad constituted under the Act. Section 227 of the Act empowers the State Government to make rules for carrying out the purpose of this Act. The State of Punjab has enacted Punjab Panchayat Election Rules, 1994 (hereinafter to as 'The Rules') which are to apply to Gram Panchayats, Panchayat Samities and Zila Parishads constituted under the Act. Under these Rules, provisions for the issuance of Notification of Election, preparation for electoral roils, registration, revision, publication of election programme have been made. Detailed provisions are also made with regard to appointment of Presiding Officer/Polling Officer, design of ballot boxes, manner of voting, procedure of commencement of polls. Necessary provisions are also made with regard to counting of votes, adjournment of polls in emergency and cancellation of election programmes etc.

3. Rule 45 of the Rules makes detailed provisions for election of Chairman/Vice-Chairman of the Punjab Samities and Zila Parishads. The aforesaid rule is as under:-

'45. Election of Chairman and Vice-Chairman of Panchayat Samiti and Zila Parishad.- (1) After the election of directly elected members and representatives of Sarpanches in case of Panchayat is notified by the Government and the above members have taken the oath or affirmation under Section 104 of the Punjab Panchayat Raj Act, 1994 the Deputy Commissioner or any other officer appointed by him in this behalf, not below the rank of Extra Assistant Commissioner shall call a meeting as laid down under Section 105 and 168 of the Punjab Panchayati Raj Act, 1994, after giving [a minimum of twenty four hours] [substituted vide Government of Punjab notification No. G.S.R 68/P.A. 19/94/S.139/And/94 dated the 19th October, 1994] notice in Form X to such members to elect Chairman and Vice-Chairman of the Panchayat Samiti or Zila Parishad, as the case may be in separate meetings in accordance with the provisions of these rules;

Provided that where the seat of Chairman and Vice-Chairman of Panchayat Samiti or Zila Parishad, as the case may be is reserved for Scheduled Castes or women, the proposer or seconder shall propose or second the name of the persons belonging to such reserved categories only.

(2) Two-thirds of the total number of members shall constitute a quorum,

(3) As soon as the members have assembled at the appointed rime and place, the Presiding Officer shall call upon the members present to propose candidates for the two offices and every proposal shall also be seconded by a member. The names of the candidates', their proposers and seconders shall be recorded in Form XI and read out by the Presiding Officer to the Members present.

(4) If at the first meeting there be no quorum as specified in Sub-rule (2), the Presiding Officer shall adjourn the meeting.

(5) When a meeting is adjourned under Sub-rule (4) another meeting shall be convened by the Presiding Officer by giving not less than twenty four hours notice to the members.

(6) No quorum shall be necessary for the second meeting.

(7) If there are two or more such candidates for the seat of Chairman and Vice-Chairman, the votes of the members present at the meeting shall be taken by ballot in Form-XII.

The copy of the result of the election in respect of Chairman and Vice-Chairman of Panchayat Samiti or Zila Parishad as the case may be, shall be immediately sent to the concerned Officer conducting the election to the Districts Electoral Officer, the Election Commission and the State Government, and a copy of the result may also be given to the elected candidate.

4. The State of Punjab enacted the Punjab State Election Commission Act, 1994 (hereinafter referred to as 'The Commission Act') for the constitution of State Election Commission and for vesting the superintendence, direction and control of the preparation of electoral rolls and the conduct of elections to the Panchayats and Municipalities in the State of Punjab. Section 58 of the Commission Act provides as under:-

'58. Adjournment of poll in emergencies.- (1) If at an election, the proceedings at any polling 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 or 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.

(2) Whenever a poll is adjourned under Sub-section (1), the Returning Officer shall immediately report the circumstances to the prescribed authority and the Election Commission and the Returning Officer shall, as soon as may be, with the previous approval of the Election Commission, appoint the day on which the poll shall be taken, and fix the polling station or place at which and the hours during which, the poll shall be taken and shall not count the votes cast at such election until such adjourned poll is completed.

(3) In every such case as aforesaid, the Returning Officer shall notify in such manner, as the Election Commission may direct, the date, place and hours of polling fixed under Sub-section (2).'

5. The election for the Chairman/Vice-Chairman, Block Samiti, Dhilwan was fixed on 28.1.2003. The petitioner and respondent No. 3 were contesting for the office of Chairman, Although there were only two candidates, the ballot-papers contained provisions for 10 candidates from Sr. Nos. 1 to 10. The name of respondent No. 4 was at Sr. No. 1 and that of the petitioner was at Sr. No. 2. According to the petitioner, the lines were drawn in such a narrow manner that there was literally no room for even marking a cross in between these two lines. It is also the case of the petitioner, that 8 members voted in his favour and 7 in favour of respondent No. 4. The Returning Officer rejected one of the votes which could have gone to the petitioner. Both the candidates were left seven votes each. There was an uproar in the Office of the Returning Officer. Keeping in view the law and order situation, the Returning Officer passed the following order:-

'ORDER

Keeping in view the law and order situation, the election of Chairman Block Samiti Dhilwan is hereby adjourned.

Date: 28.1.2002 Sd/-Returning Officer, DTO

Kapurthala

28.1.2003.'

6. The Returning Officer did not in fact pass any order rejecting one of the votes as invalid. It was also never declared that there was a tie between respondent No. 4 and the petitioner, both having obtained seven votes each. The order rejecting the invalid vote was passed by respondent No. 3 on 30.1.2003 in a meeting of which no notice was given to the petitioner. According to the petitioner, the action of respondent No. 3 is wholly without jurisdiction and against the provisions of Section 58 of the Commission Act read with Rule 31 of the Rules.

7. Written statements have been filed by the respondents. In the preliminary submissions of the written statement filed on behalf of respondents No. 1 to 3, it has been submitted that the petitioner has not availed the alternative remedy of election petition as provided under Section 74 of the Commission Act. It has also been stated that the petitioner has misrepresented the facts. He has wrongly stated that he had secured 8 candidates in the election. Seven votes each were cast in favour of the two candidates and one vote was found to be invalid. It has been further averred that the meeting was not adjourned as envisaged under Section 58 of the Commission Act read with Rule 31 of the Rules. The declaration of the result, keeping in view the law and order situation, was postponed till 30.1.2003. Hence the result was correctly declared on 30.1.2003. The petitioner had also filed an application before the Deputy Commissioner seeking the same' relief which is sought in the present petition. By order dated 29.1.2003, the plea of the petitioner was rejected. This fact has not been disclosed by the petitioner, and therefore, the writ petition deserves to be dismissed.

8. We have considered the submissions made by the learned counsel for the parties and have perused the paper-book.

9. A perusal of Section 58 of the Commission Act read with Rule 31of the Rules makes it abundantly clear that the concerned Presiding Officer or Returning Officer can announce an adjournment of the poll to a date to be notified later by the Election Commissioner. Where the poll is adjourned by a Presiding Officer, he shall forthwith inform the concerned Returning Officer. The Returning Officer is duty bound under Sections 58(2) of the Commission Act to immediately report the circumstances to the prescribed authority and the Election Commission. Only thereafter, with the previous approval of the Election Commission, the Returning Officer shall appoint the day on which the poll shall be taken. The Returning Officer has to notify the date, and fix the polling station or place at which and the hours during which, the poll shall be taken. Rule 31 of the Rules also makes it clear that the Returning Officer or the Presiding Officer, the District Election Officer or the Election Commission may adjourn the poll in a Sabha area of constituency at any time in case the poll is interrupted Or obstructed by law and order situation or by a natural calamity or for any other sufficient reason to be recorded in writing. Sub Rule (2) of Rule 31 of the Rules leaves no manner of doubt that once the poll has been adjourned in terms of Sub-rule (1), the matter has to be reported by the Returning Officer to the Election Commission as soon as practicable. Thereafter, it i; the Election Commission who shall appoint a day for fresh poll and shall fix a time in which such poll shall be held. In the present case, the order passed by the Returning Officer on 28.1.2003 is quite clear that the election of the Chairman Block Samiti, Dhilwan was adjourned keeping in view the law and order situation. Once this order was passed, normal consequences were to follow as provided under Section 58 of the Commission Act read with Rule 31 of the Rules. The matter had to be reported to the Election Commission. Thereafter, it was for the Election Commission to issue a fresh notification for re-fixing the poll. We are of the considered opinion that the respondents have acted wholly, without jurisdiction by declaring respondent No. 4 as elected by draw of lots.

10. Consequently, the writ petition is allowed by quashing the entire election process and the declaration of respondent No. 4 as elected Chairman of the Block Samiti, Dhilwan. Respondents No. 1 to 3 are directed to hold fresh election in accordance with law. No costs.

Sd/-

S.S. Grewal, J.