Open iDraf
Sham Lal v. State Election Commission, Chandigarh and Ors

Sham Lal
v.
State Election Commission, Chandigarh and Ors

(High Court Of Punjab And Haryana)

Civil Writ Petition No. 9800 of 1996 | 12-08-1996


G.S. SINGHVI, J, J.

(1) A short but important question which arises for adjudication in this petition is whether the Election Tribunal constituted under the Punjab State Election Commission Act, 1994 (hereafter referred to as '1994 Act') has power to restrain elected representatives from assuming office.

(2) SHRI Nanak Singh was declared elected as Sarpanch of Gram Panchayat, Bhudha Theh, Tehsil Baba Bakala, Block Raiya, District Amritsar in the election held in the year 1992. Sometime in the year 1995 Shri Nanak Singh resigned from the office of Sarpanch. Election to fill the casual vacancy caused in the office of the Sarpanch due to the resignation of Nanak Singh was held on 20th June, 1996 and as per election result declared by the Returning Officer the petitioner has been shown as elected. Annexure P-I is a copy of the report sent by the Returning Officer to the Election Commission. According to this report the petitioner secured 1511 votes against 955 votes of respondent No. 4 and 60 votes of respondent No. 5 and thus the petitioner defeated respondent No. 4 by over 550 votes.

(3) RESPONDENT No. 4 filed an election petition before the Election Tribunal on 24-6l996 challenging the election of the petitioner. Respondent No. 4 also prayed for grant of stay. Respondent No. 1 entertained the election petition and admitted the same. He issued notice to the respondents including the petitioner for 8-7-1996 and passed the order of status quo. It is given out that on 8-7-1996 the proceedings of the election petition were adjourned to 30th July, 1996 and now these are fixed for 13th August, 1996.

(4) PETITIONER has challenged the order of status quo passed by the Election Tribunal on the ground that the Tribunal has no jurisdiction to pass any order which has the effect of preventing the elected representative from assuming the office. His case is that '1994,act' does not vest any power in the Election Tribunal to stay the result of election or frustrate the democratic will of the people by preventing the elected representative from taking oath of office. Respondent No. 4 has contested the writ petition by alleging that the declaration of election made in favour of the petitioner is arbitrary and without jurisdiction because polling, which was scheduled to take place between 7. 00 a. m. to 3. 00 p. m. , was adjourned due to obstruction and violence. According to the respondent No. 4 the poll had been adjourned by the Returning Officer at about 11. 00 a. m. and, therefore, no notice was issued for holding the polls and the people were not given opportunity to cast their votes and, therefore, the petitioner cannot be treated as duly elected Sarpanch.

(5) PART IX which contains Articles 243 to 243-O has been added in the Constitution by the Constitution (73rd Amendment) Act, 1992. Article 243-B mandates constitution of Panchayats at the village, intermediate and district levels. Articles 243-C and 243-D relate to composition of Panchayats and reservation of seats. Article 243-E specifies the tenure of Panchayats. Article 243-F enumerates the disqualifications. Article 243-G specifies powers, authority and responsibilities of Panchayats. Article 243-H empowers the Legislature of a State to enact laws for conferring powers to impost taxes and to create funds of the Panchayats. Article 243-I envisages constitution of Finance Commission to review financial position of the Panchayats. Article 243-J deals with audit of accounts of Panchayats. Article 243-K relates to elections. By Article 243-L provisions of Part IX of the Constitution have been made applicable to Union Territories. Article 243-M declares that subject to certain exceptions the provisions of Part IX shall not apply to the scheduled areas and tribal areas. Article 243-N saves the existing Panchayat Laws. Article 243-O contains bar against interference by Courts in electoral matters.

(6) IN exercise of powers under Articles 243-A, 243-B, 243-C, 243-D, 243-G, 243-H and other provisions the State Legislature has enacted the Punjab Panchayati Raj Act, 1994 (hereafter referred to as 'panchayati Raj Act'). '1994 Act' has been enacted by the State Legislature in exercise of its power under Art. 243-K of the Constitution. Section 10 of the Panchayati Raj Act relates to the constitution of Gram Panchayats and S. 13 of it deals with oath of Panches and Sarpanches. Chapter XII of 'l994 Act' relates to election petitions. For the purposes of deciding the question posed by us earlier, it will be useful to reproduce Art. 243-K of the Constitution. Sections 10 and 13 of the Panchayati Raj Act and Ss. 3, 75, 81, 87, 88, 89, 94 and 101 of '1994 Act' which read as under :-"constitution of India:article 213-K. Elections of the Panchayats (1) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor. (2) Subject to the provisions of any law made by the Legislature of a State, the conditions of service and tenure of office of the State Election Commissioner shall be such as the Governor may by rule determine; Provided that the State Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of a High Court and the conditions of service of the State Election Commissioner "shall not be varied to his disadvantage after his appointment. (3) The Governor of a State shall, when so requested by the State Election Commission, make available to the State Election Commission such staff as may be necessary for the discharge of the functions conferred on the State Election Commission by clause (1). (4) Subject to the provisions of this Constitution, the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the Panchayats. ""the Punjab Panchayati Raj Act, 1994 : 10 Constitution of Gram Panchayat : (1) Every Gram Sabha shill elect from amongst its members a Gram Panchayat for the Gram Sabha area bearing the name of its Gram Sabha and consisting of a Sarpanch and such number of Panches as indicated below against each slab of population taking Gram Sabha to be a multi-member single constituency, namely :- Sl. No. Population Number of Panches

(1) For population exceeding 200 but not exceeding 1,000 Five (2) For population exceeding 1,000 but not exceeding 2,000 Seven (3) For population exceeding 2,000 but not exceeding 5,000 Nine (4) For population exceeding 5,000 but not exceeding 10,000 Eleven (5) For population-exceeding 10,000thirteen

" (2) Every Gram Panchayat constituted under this section shall be notified by its name in the Official Gazette and it shall by the name so notified come into office with effect from the date of its first meeting at which quorum is present and be a body corporate having perpetual succession and a common seal, and subject to any restriction by or under this Act or any other law, shall have power to acquire, hold, administer and transfer property movable or immovable, and to enter into contracts and shall by the said name sue and be sued.

13 Oath of Panches and Sarpanches:after having been elected and before entering upon the duties of his office, a Panch as well as a Sarpanch shall take an oath as specified in Schedule I and in the manner prescribed. " "punjab State Election Commission Act, 1994 : 73 the State Government, in consultation with the Election Commission, for each district or part thereof, an Election Tribunal at the district or Sub-Divisional Head Quarters. (2) The State Government shall, by notification in the Official Gazette, appoint an IAS or PCS or a Class I Officer of the State Government having adequate administrative, legal or magisterial experience, as the Presiding Officer of an Election Tribunal.

75 (I) Only the Election Tribunal having jurisdiction shall have the power to adjudicate upon the election petitions. (2) The Election Tribunal in its discretion may, in the interests of justice or convenience, try an election petition wholly or partly, at a place other than its specified headquarters. 81. (I) Subject to the provisions of this Act and of the rules made there under, every election petition shall be tried by the Election Tribunal, as nearly as may be, in accordance with the procedure contained in the Code of Civil Procedure, 1908 to the trial of suits :provided that the Election Tribunal shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witness or witnesses, if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of the election petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings of the election petition. (2) The provisions of the Indian Evidence Act, 1872 shall, subject to the provisions of this Act, be deemed to apply in all respects to the trial of an election petition. 87. At the conclusion of the trial of an election petition, the Election Tribunal may make an order for :- (a) dismissing the election petition; or (b) declaring the election of all or any of the returned candidates to be void; or (c) declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected. 88. Where any charge is made in the petition of any corrupt practice" having been committed at the election, the Election Tribunal shall also make an order at the time of making an order under S. 87 indicating :- (i) whether any corrupt practice has or has not been proved to have been committed at the election, and the nature of that corrupt practice; (ii) the names of all persons, who have been proved at the trial to have been guilty of any corrupt practice; and (iii) the total amount of costs payable and specifying the persons by whom these costs shall be paid and the persons to whom these costs shall be paid :provided that a person who is not a party to the petition, shall not be named in the order under sub-clause (iii) unless:- (a) he has been given notice to appear before the Election Tribunal and to show cause why he should not be so named; and (b) if he appears in pursuance of the notice, he has been given an opportunity of cross examining any witness, who has already been examined by the Election Tribunal and has given evidence against him, of calling evidence in his defence and of being heard. 89. (1) Subject to the provisions of subsec. (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, insofar 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 or 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 or 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 was committed contrary to the 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 S. 108, but does not include election agent. 94. (1) Subject to the provisions contained in S. 101 relating to the stay of operation of an order of the Election Tribunal, every such order shall take effect as soon as it is pronounced by the Election Tribunal. (2) Where by an order under S. 87, the election of a returned candidate is declared to be void, acts and proceedings in which that candidate has, participated as a member of a Panchayat or a Municipality before the date of such declaration shall not be invalidated by reason of that order, nor shall such candidate be subjected to any liability or penalty on the ground of such participation. 101. (1) An application may, be made to the Election Tribunal for stay of operation of an order made by it under S. 87 or S. 88 before the expiry of the period allowed for appearing therefrom and the Election Tribunal may, on sufficient cause being shown and on such terms and conditions, as it may think fit, stay the operation of the order, but no application for stay shall be made to the Election Tribunal after an appeal has been preferred to the High Court. (2) Where an appeal has been preferred against an order made under S. 87 or S. 88, the High Court may, on sufficient cause being shown and on such terms and conditions, as it may think fit, stay the operation of the order appealed from. (3) When the operation of an order is stayed by the Election Tribunal or, as the case may be, by the High Court, the order shall be deemed never to have taken effect under subsec. (1) of S. 94 and a copy of the stay order shall immediately be sent by the Election Tribunal or, as the case may be, by the High Court, to the Election Commission.

(7) PERUSAL of the provisions contained in Part IX of the Constitution generally and Art. 243-K in particular shows that the Legislature of State has been vested with the power to make-laws with respect to all matters relating to or in connection with elections to the Panchayats. With a view to avoid judicial interdiction in the process of election constitutional bar has been imposed against entertaining of any petition involving challenge to the validity of laws relating to delimitation of constituencies. At the same time it has been made clear that no election to any Panchayat shall be challenged except by way of an election petition presented to an authority which is constituted by or under any law made by the State Legislature. In order to provide a forum for adjudication of election disputes, comprehensive provisions have been made in Chapter XII of 'l994 Act'. Provisions of that Chapter deal with the constitution of Election Tribunal, presentation of election petitions, contents thereof and the relief, trial of election petitions, the procedure to be followed by the Election Tribunal, the manner of recording of evidence, the decision of the Tribunal, the grounds for setting aside the election and appeal etc. It is thus clear that the entire gamut of challenge to the election is regulated by the statutory provisions contained in Ss. 73 to 107. None of these provisions confer power upon the Election Tribunal to pass injunction/stay order during the pendency of the election petition. Sections 87 and 88 refer to the nature of orders which can be passed by the Election Tribunal. Section 87 provides that at the conclusion of trial of election petition the Tribunal may dismiss the election petition or declare the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected. In cases where an election petition is filed on the ground of any corrupt practice the Tribunal is required to make further order whether any corrupt practice has or has not been proved to have been committed and also to indicate the nature of such corrupt practice; the name of persons who have been found guilty of corrupt practice and the costs payable. This shows that only at the time of final adjudication the Election Tribunal can make appropriate order. But it has no power to pass injunction/ stay order. The only provision under which an order of injunction or stay order can be passed is to be found in S. 101 which authorises the Election Tribunal and the High Court to stay the operation of the order made under S. 87 or 88 of 'l994 Act'. The Election Tribunal can suo motu stay an order passed by it under S. 87 or 88. Likewise in an appeal filed under S. 100 against the order of the Election Tribunal, the High Court can stay the operation of the order passed by the Election Tribunal.

(8) PROHIBITIVE provisions contained in Art. 243-O and absence of any provision in Part IX of the Constitution or Chapter XII of '1994 Act' except S. 101 empowering the Election Tribunal to pass an injunction/ stay order in an election petition gives a clear indication of the legislative intendment, namely, not to allow any obstruction in the process of elections or the implementation of the will of the people which is reflected in the result of the elections. If the Legislature had so desired nothing prevented it from conferring statutory power upon the Election Tribunal to grant interim stay or injunction or restraint order during the pendency of the election petition. However, for obvious reasons the Legislature did not consider it appropriate to permit an Election Tribunal to obstruct execution of people's will which is manifested in the result of the ballot. We, therefore, hold that the Election Tribunal constituted under 'l994 Act' has no power to pass any injunction or stay order or any other order which may impede the implementation of the result of elections. We are also of the opinion that once a person has been elected as Panch or Sarpanch, he cannot be prevented from assuming office by taking oath as envisaged in S. 13 and the only mechanism by which an elected Sarpanch or Panch can be divested of his office is final verdict of the Election Tribunal or no confidence motion.

(9) IN support of the view which we have taken, it will be appropriate to refer to a few decisions. In Jyoti Basu v. Debi Ghosal, AIR 1982 SC 983, the Apex Court examined the nature of the election laws and observed :-

"a right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute,'there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An election petition is not an action at common law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to common law and equity must remain strangers to Election Law unless statutorily embodied. A Court has no right to resort to them on considerations of alleged policy because policy in such matters, as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, Court is put in a straight jacket. Thus the entire election process commencing from the issuance of the notification calling upon a constituency to elect a member or members right up to the final resolution of the dispute, if any, concerning the election is regulated by the Representation of the People Act, 1951, different stages of the process being dealt with by different provisions of the Act. There can be no election to Parliament or the State Legislature except as provided by the Representation of the People Act, 1951 and again, no such election may be questioned except in the manner provided by the Representation of the People Act. So the Representation of the People Act has been held to be a complete and self-contained code within which must be found any right claimed in relation to an election or an election dispute. We are concerned with an election dispute. The question is who are parties to an election dispute and who may be impleaded as parties to an election petition. We have already referred to the Scheme of the Act. We have noticed the necessity to rid ourselves of notions based on common law or equity. We see that we must seek an answer to the question within the four corners of the statute. What does the Act say?"

(Underlining is ours)

(10) IN Baddula Krishnaiah v. State Election Commissioner, A. P. , AIR 1996 SC 1595, legality of an interim order passed by the High Court of A. P. directing the Election Commissioner not to declare the result of the election of Gram Panchayat and its subsequent order directing that 20 persons should be allowed to participate in the election were called in question before the Apex Court. Their Lordshipi held that the High Court was not entitled to interfere with the election process. The Apex Court observed :-

"thus, it would be clear that once an election process has been set in motion, though the High Court may entertain or may have already entertained a writ petition, it would not be justified in interfering with the election process giving direction to the election officer to stall the proceedings or to conduct the election process afresh, in particular when election has already been held in which the voters were allegedly prevented to exercise their franchise. As seen, that dispute is covered by an election dispute and remedy is thus available at law for redressal. Under these circumstances, we hold that the order passed by the High Court is not correct in law in giving direction not to declare the result of the election or to conduct fresh poll for 20 persons, though the writ petition is maintainable. The High Court, pending writ petition, would not be justified in issuing direction to stall the election process. "

(11) IT will also be useful to refer to a decision of the Supreme Court on the power of the Consumer Forums to grant stay order in the proceedings under the Consumer Protection Act, 1986. In Morgan Stanley Mutual Fund v. Kartick Das, 1994 AIR SCW 2801, their Lordships held that the Forum does not have power to grant interim relief by observing as under :-

"a careful reading of the above discloses that there is no power under the Act to grant any interim relief or even an ad interim relief. Only a final relief could be granted. If the jurisdiction of the Forum to grant relief is confined to the four clauses mentioned under Sec. 14, it passes our comprehension as to how an interim injunction could ever be granted disregarding even the balance of convenience. "

(12) WE may also refer to the decisions of this Court in which scope of power of the Election Tribunal constituted under the Punjab Gram Panchayat Act, I 952 has been considered in the context of the provisions of Order 39 of the C. P. C. In Kundan Singh v. Executive Magistrate, 1st Class, Barnala, (1975) 77 Pun LR 661, this Court held:-

"that the operation of sub-section (1) of Section 13-G is confined to the procedure applicable for the trial of a suit and not to any ancillary matter which does not directly relate to such procedure. Moreover, while defining the powers of the prescribed authority, Section 11 (1) of the Act has scrupulously avoided to refer to Order 39 of the Code of Civil Procedure, An Election Tribunal is a specially constituted Court of limited jurisdiction and has no authority to pass any order outside those limits, in the absence of any specific provision to the contrary, an Election Tribunal has no inherent jurisdiction like that vested in an ordinary Civil Court. The first respondent (the prescribed authority) appears to me to have out-stepped the limits of his jurisdiction in granting the application for temporary injunction as no law has vested such a jurisdiction in him. "

(13) SIMILAR views were expressed in Kartar Singh v. Sub-Divisional Officer, Rampura Phul, 1981 Pun LJ 202, Bhupinder Singh v. State of Punjab, 1994 Pun LJ 40 and Sukhdev Singh v. Executive Magistrate, Samana, 1994 Punj LJ 60.

(14) IN our opinion, the ratio of the decision in the aforementioned cases deserves to be applied while interpreting the provisions of '1994 Act' and we respectively concur with the views expressed in the aforementioned decisions of this Court.

(15) SHRI Chatrath wanted us to go into the correctness of the election result declared by the Returning Officer by arguing that the Returning Officer had no jurisdiction to hold election after he had adjourned the process of election at 11. 00 a. m. on 20th June, 1996. We are afraid we cannot enter into that controversy because the same is subject-matter of election petition filed by the petitioner. In our opinion, it would be proper to leave this issue for adjudication by the Election Tribunal. We, therefore, decline to examine the merits of challenge to the election of the petitioner.

(16) FOR the reasons mentioned above, the writ petition is allowed, Order dated 24-6l996 passed by the Election Tribunal directing that status quo be maintained is quashed. The petitioner shall be allowed to take oath and function as Sarpanch of Gram Panchayat, Budhha Theh. The petitioner shall get costs of Rs. 5,000/- from respondent No. 4, because at his instance the petitioner has been prevented from occupying his elective office for over one month.

(17) HOWEVER, keeping in view the desirability of expeditious adjudication of election disputes and the fact that the Election Tribunal has already fixed the date of hearing as 13th August, 1996, we direct that the Tribunal should hear and decide the election petition filed by respondent No. 4 at the earliest and in any case this should be done within a period of two months after 13-8-1996.

(18) WE also direct that a copy of this order be sent to the State Election Commission, Punjab for circulation amongst the officers who are appointed to act as Election Tribunals.

(19) BEFORE parting with the case we would like to enter a caveat on the desirability of constituting the Tribunals by appointing members of Indian Administrative Service or Provincial Civil Service or Class I Officers of the State Government. We do not wish to suggest even for a moment that officers of these cadres cannot adjudicate the dispute relating to the election but want to point out that lack of time available at the disposal of such officers and absence of their continued association with judicial work results in passing of wholly inappropriate orders by them which give rise to unnecessary litigation in the higher Courts. There is no necessity to emphasise in detail the obvious difference between the bent of mind of judicial officers on thy, one hand and the administrative officers on the other hand. Officers belonging to the former class have to keep them abreast with latest development in law and the decisions of the High Courts and the apex Court whereas those belonging to the latter class neither have the time nor the aptitude to keep in touch with such developments. It would, therefore, be appropriate for the Government to examine the desirability of amending Section 73 (2) of l 994 Act' by making a provision for constituting Election Tribunals consisting of judicial officers. Petition allowed.

Advocates List

For the Appearing Parties Anu Chatrath, G.K. Chatrath, Nasib Singh Gill, Advocates.

For Petitioner
  • Shekhar Naphade
  • Mahesh Agrawal
  • Tarun Dua
For Respondent
  • S. Vani
  • B. Sunita Rao
  • Sushil Kumar Pathak

Bench List

HON'BLE MR. JUSTICE G.S. SINGHVI

HON'BLE MR. JUSTICE M.L. SINGHAL

Eq Citation

(1997) 115 PLR 1 687

1997 (1) RCR (Civil) 82

AIR 1997 P&H 164

1997 (1) RLR 274