Punjab-Haryana High Court
Chand Singh vs State Of Punjab And Others on 7 November, 2024
Bench: Sureshwar Thakur, Sudeepti Sharma
Neutral Citation No:=2024:PHHC:147580-DB
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IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH.
CWP-28385-2024
Reserved on: 23.10.2024
Pronounced on: 07.11.2024
Chand Singh
.....Petitioner
Versus
State of Punjab and others .....Respondents
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Argued by: Mr. Manish Kumar Singla, Advocate
Mrs. Shikha Singla, Advocate,
Mr. Dinesh Kumar, Advocate and
Mr. Kuljinder Singh, Advocate
for the petitioner.
Mr. Maninder Singh, Sr. DAG, Punjab.
Mr. R.S. Birdi, Advocate
for respondent No.8.
****
SURESHWAR THAKUR, J.
1. Through the instant writ petition, the petitioner herein prays
for the issuance of a writ of Certiorari for setting aside the impugned
order dated 14.10.2024, whereby the elections for the post of Sarpanch
of Gram Panchayat Dalla, Cluster No.8, Block Jagraon, District
Ludhiana, has been cancelled just few hours before the start of polling,
the same being illegal, arbitrary and against the principles of natural
justice, as the petitioner has been condemned unheard, and is beyond
jurisdiction. The petitioner further seeks a mandamus directing the
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official respondents to immediately hold the elections for the post of
Sarpanch of Gram Panchayat Dalla, Cluster No.8, Block Jagraon,
District Ludhiana, between the candidates (i.e. the petitioner and
respondent No.8) whose nomination papers were validly accepted and
election symbols were allotted by the Returning Officer.
Factual Background
2. Respondent No.3 prepared programme for conducting
general elections of Gram Panchyats in the State of Punjab, which was
published vide notification dated 27.09.2024.
3. The present petition pertains to the election for the post of
Sarpanch of Gram Panchayat Dalla, Cluster No.8, Block Jagraon,
District Ludhiana. Scrutiny of the nomination papers was completed on
05.10.2024. After scrutiny of nomination papers, as required under
Section 41 of the Punjab State Election Commission Act, 1994,
(hereinafter referred to as ‘the Act of 1994’), respondent No.6 found
four candidates to be eligible for the post of Sarpanch and pasted the list
on the notice board/wall of the office. Those four candidates are I) the
petitioner, II) respondent No.8, III) Karamjit Singh and IV) Jagjit Singh.
4. The last date for withdrawal of nomination was 07.10.2024,
and, two candidates as per Section 43 of the Act of 1994, namely
Karamjit Singh and Jagjit Singh withdrew their nomination papers, and,
the list of contesting candidates was published as per Section 43 of the
Act of 1994.
5. Accordingly, both the candidates i.e. the petitioner and
respondent No.8 were allotted election symbols. The petitioner was
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allotted Tractor as election symbol, while respondent No.8 was allotted
Bucket as election symbol and the list of validly nominated candidates
was published.
6. When on 15.10.2024 the petitioner along with his election
agents and supporters reached the polling station then he came to know
that the election for the post of Sarpanch has been cancelled through the
making of the impugned order by the State.
Submissions of the learned counsels for the petitioner
7. Learned counsel for the petitioner submits, that the
impugned order dated 14.10.2024 (Annexure P-2) is illegal, arbitrary
and against the principles of natural justice, besides breaches the rule of
audi alteram partem. Moreover, he submits that the impugned order
transgresses the mandatory provisions of the Act of 1994, and the
apposite provisions existing in the Punjab Panchayat Election Rules,
1994 (hereinafter referred to as ‘the Rules of 1994’).
8. They further submit that the impugned order shows that the
alleged application submitted by respondent No.8, whereins, he claimed
that the present petitioner has embezzled the panchayat funds during his
earlier tenure as a Panch, thus became received in the office of
respondent No.3, on 05.10.2024, whereas, the last date for scrutiny of
nominations was 05.10.2024, thereupons when subsequent to
05.10.2024 rather no objection(s)/ application(s) were amenable to be
filed nor the said were entertainable. Resultantly, it is argued that both
the entertainment of the applications besides the makings of the
impugned decision thereons, is illegal, arbitrary and malafide.
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Submissions of the learned State counsel
9. On the other hand, the learned State counsel has
vehemently submitted before this Court, while banking his submissions
upon the provisions as embodied in Section 208 of the Punjab
Panchayati Raj Act, 1994 (hereinafter referred to as the ‘Panchayati Raj
Act’) that since the relevant disqualification as embodied in clause ‘c’ of
Section 208 of the Panchayati Raj Act, clause whereof becomes
extracted hereinafter, did become cogently established against the
present petitioner, therebys he submits that the exercise of jurisdiction
by the respondent concerned, does not suffer from any material
illegality nor it become ingrained with any vice of gross impropriety.
“208. Disqualifications for membership.– A person
shall be disqualified for being chosen as, and for being a
member of a Panchayat if,-
xxx
(c) has been convicted of any offence involving moral
turpitude or an offence implying of any defect of a Sarpanch or
Panch of Gram Panchayat or member of a Panchayat Samiti or
Zila Parishad, unless a period of five years has elapsed since
his conviction ; or
xxx”
10. He further submits that since therebys the Election
Commissioner concerned, became ably empowered to recourse the
provisions (supra), as the present petitioner did acquire the apposite
ineligibility to contest the elections. More so, when the said fact
becomes unfolded by the report of the BDPO concerned. Therefore, he
submits, that the effect of an able empowerment (supra) becoming
invested in the Election Commissioner concerned, when becomes
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combined with the present petitioner, thus evidently incurring the
(supra) statutory disqualification, is but that, therebys an inevitable
conclusion becoming garnered qua the impugned order rather not
suffering from any illegality.
11. The learned State counsel further submits, that the said
power was amenable to be exercised, even during the currency of the
elections, as the statutory coinage “for being chosen”, as becomes
explicitly expressed in the provisions (supra), does cover even the phase
when the elections are ongoing.
12. Furthermore, he submits that since Section 12 of the Act of
1994, provisions whereof become extracted hereinafter, especially with
thereins a mandate occurring vis-a-vis upon arousal of a dispute relating
to the incurring of a disqualification by the concerned, thereupon the
said dispute becomes enjoined to become referred, thus to the State
Election Commission, hence for the latter making an opinion thereons.
He further submits that though sub Section 2 of Section 12 of the Act of
1994, thus requires that the apposite opinion be elicited from the State
Election Commission concerned. However, he further submits that yet
the independent formation of an opinion by the State Election
Commission, as unfolded in the impugned decision, when becomes so
made after the making of an indepth enquiry in terms of the provisions
engrafted in Section 12 of the Act of 1994. Resultantly, ipso facto
therebys when the said opinion ultimately would when be binding even
upon the State Government, as such, it also but becomes the binding and
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conclusive decision of the State Government, thus within the ambit of
sub Section 1 of Section 12 of the Act of 1994.
“12. State Government to decide disputes regarding
disqualification.–
(1) if any question arises as to whether a member or any
Panchayal or Municipality has become subject to any of the
disqualifications specified in Article 243For 243V of the
Constitution of India or in section 11 the question shall be
referred for decision of the State Government and his decision
shall be final.
(2) Before giving any decision on such question, the
State Government shall obtain the opinion of the Election
Commission and shall act according to such opinion.”
13. In other words, he submits that the independent formation
of an opinion as becomes ably made, thus within the contours of sub
Section 2 of Section 12 of the Act of 1994, thus therebys also the
impugned decision but becomes the final and conclusive decision as
made by the State Government. Reiteratedly, the above submission is
planked on the ground that when the opinion formed by the State
Election Commission, thus would become the hinge for the State
Government but resting its decision thereons. Therefore, reiteratedly he
submits that the said formed opinion is to be foisted, thus the pedestal of
a binding and conclusive order as may even become passed by the State
Government.
14. Emphatically the opinion formed by the State Election
Commission concerned, is required to become foisted thus the pedestal
of passing of a binding and conclusive verdict hence by the State
Government, especially when the said opinion is rendered in terms of
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the provisions embodied in Section 125 of the Act of 1994, provisions
whereof becomes extracted hereinafter. He further augments the said
argument, by submitting that since in the formation of an opinion by the
State Election Commission, the latter in terms of Section 125 of the Act
of 1994, is required to undertake an enquiry, thus in the manner as
becomes undertaken by the Civil Court of competent jurisdiction, while
trying a suit as cast under the Code of Civil Procedure.
“125. Power of Election Commission.– (1) Where in
connection with the tendering of any opinion to the State
Government under section 12. the Election Commission
considers it necessary or proper to make an inquiry and the
Election Commission is satisfied that on the basis of the
affidavits filed and the documents produced in such enquiry by
the parties concerned of their own accord, it cannot come to a
decisive opinion on the matter which is being inquired into, the
Election Commission shall have, for the purpose of such
inquiry, the powers of a Civil Court, while trying a suit under
the Code of Civil Procedure, 1908 (central Act 5 of 1908) in
respect of the following matters, namely
(a) summoning and enforcing the attendance of any
person and examining him on oath;
(b) requiring the discovery and production of any
documents or other material object producible as evidence; –
(c) receiving evidence on affidavits;
(d) requisitioning any public record or a copy thereof
from any court or office; and
(e) issuing commissions for the examination of witnesses
or documents,
(2) The Election Commission shall also have the power to
require any person, subject to any privilege which may be
claimed by that person under any law for the time being in
force, to furnish information on such points or matters as in its
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opinion may be useful for or relevant to, the subject-matter of
the inquiry.
(3) The Election Commission shall be deemed to be a Civil
Court and when any such offence as described in section 175,
section 178, section 179, section 180 or section 228 of the
Indian Penal Code, 1860 (Central Act 45 of 1860) is committed
in the view or presence of the Election Commission, the
Election Commission may. after recording the facts constituting
the offence and the statement of the accused, forward the case
to a Magistrate having jurisdiction to try the same and the
Magistrate to whom any such case is forwarded, shall proceed
to hear the complaint against the accused as if the order for
forwarding the case to the said Magistrate had been made
under section 482 of the Code of Criminal Procedure, 1973
(Central Act 2 of 1974).
(4) Any proceeding before the Election Commission shall be
deemed to be judicial proceedings with the meaning of sections
193 and 228 of the Indian Penal Code, 1860 (Central Act 45 of
1860).”
15. As such, he submits that the report of the BDPO concerned,
as became relied upon by the State Election Commissioner concerned,
when became so relied upon, on an enquiry in terms of (supra)
provisions, thus becoming made, besides became relied upon only on an
objective satisfaction thus being made by the Election Commissioner
concerned, about the veracity of the apposite affidavit. Therefore,
therebys he contends that the enquiry as made in terms of Section 125
of the Act of 1994, when is made to enable the authority concerned, to
render a well informed opinion to the State Government. Resultantly, he
submits that when the opinion formed on the basis of the enquiry
(supra), undertaken by the Election Commission, thus also binds the
State Government, therebys reiteratedly the decision of the Election
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Commissioner, rather is to be construed to be a decision, even on the
part of the State Government, wherebys it acquires conclusivity,
whereupon it is unamenable for a challenge being made theretos.
For the reasons to be assigned hereinafter, this Court finds merit in
the instant writ petition, and, as such, is led to quash and set aside
the impugned order dated 14.10.2024 (Annexure P-2) with a
mandamus upon the respondents concerned, to forthwith announce
the schedule for conducting elections to the post of Sarpanch for
Gram Panchayat Dalla, Cluster No.8, Block Jagraon, District
Ludhiana, but with a further direction that the announced list of
candidates shall be the only ones who would be permitted to contest
the elections to the post of Sarpanch of Gram Panchayat Dalla,
Cluster No.8, Block Jagraon, District Ludhiana
16. The arguments (supra), raised before this Court by the
learned State counsel, appear to be impressive on the facade, but are
most mechanically and idly raised, besides they are raised on complete
wants, qua the (supra) provisions embodied in the Panchyati Raj Act,
rather imperatively requiring combined and harmonious readings
thereofs, thus being made along with the provisions embodied in
Sections 11 and 12 of the Act of 1994, besides along with the provisions
embodied in Section 89 of the Act of 1994, provisions whereof becomes
extracted hereinafter. Moreover, the said submissions are made with the
learned State counsel but with his being completely unmindful to the
mandates as become respectively enclosed in Rules 31 and 32 of the
Rules of 1994, provisions whereof also becoming extracted hereinafter,
besides with his remaining oblivious vis-a-vis the mandate enclosed in
Section 89 of the Act of 1994, respectively wherebys on proof
emanating in satiation to the ingredients enclosed thereins, thus the
State Election Commission becomes empowered to cancel or adjourn
the elections, and on cogent proof becoming adduced vis-a-vis the
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ingredients spelt in the provisions (supra), whereons an election petition
becomes constituted therebys the Election Tribunal becomes
empowered to declare the concluded elections to be vitiated.
“89. Grounds for declaring election to be void.– (1)
Subject to the provisions of subsection (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 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 as committed contrary to the orders, and
without the consent, of the candidate or his election agent;
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(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 Erection Tribunal may decide that the election
of the returned candidate is not void.
(3) In his 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.”
Rules 31 and 32 of the Rules of 1994
“31. Adjournment of polls in emergencies (Section
58).– (1) The Returning Officer, the Presiding Officer, the
District Election Officer or the Election Commission may
adjourn the poll in a sabha area or constituency at any time in
case the poll is interrupted or obstructed by
(i) any riot or violence; or
(ii) a direct or indirect threat to the election process or
conduct of poll: or
(iii) an action of snatching or destroying the [ballot-
papers;] or
(iv) any type of natural calamity: or
(v) booth-capturing at the polling station or at a place
fixed for polling ‘ or
(vi) any other sufficient reason to be recorded in writing.
(2) Whenever the polling is adjourned in terms of the provisions
of (sub-rule (l) the Returning Officer shall as soon as
practicable, report the matter to the Election Commission who
shall appoint a day for a fresh poll and shall fix the time at
which such poll shall be held.
32. Cancellation of Election Programme.– (1) Subject
to the provisions of rule (30) the Election Commission or
District Election Officer, for reasons to be recorded in writing,
may by an order, cancel the election programme at any time,
before the commencement of the poll, [if, –]
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(i) electors are threatened or prevented from exercising
their franchise; or
(ii) electors are threatened or prevented directly or
indirectly not to contest the [elections; or]
(iii) there is any type of natural calamity]
(2) Whenever an election programme is cancelled In terms of
the provisions of sub-rule (1), the Election Commission shall
frame a fresh election programme as provided in section 35 in
respect of that Sabha area or constituency.”
17. Reiteratedly, the said submission(s) are also made with a
complete un-mindfulness to the statutory rules, as embodied in Rule 32
of the Rules of 1994, to the true tenor and spirit of the mandates as
enclosed in Rules 31, and 32 of the Rules of 1994, whereunders, on
proof of the mandates enclosed thereins, thus the State Election
Commission becomes empowered to cancel or adjourn the announced
election programme.
18. At the very outset, the election programme became
announced on 27.09.2024, and, as stated (supra), only two candidates
were left in the fray, one amongst whom was the present petitioner and
the other being respondent No.8.
19. Both the (supra), were declared to be the ones to be left in
the fray for contesting elections to the post of Sarpanch in the Gram
Panchayat Dalla, Cluster No.8, Block Jagraon, District Ludhiana.
Conspicuously also, both became allotted (supra) election symbols.
20. Emphasizingly also the acceptance of the nomination
papers of the petitioner were made on the ground, that there was no
objection furnished by the BDPO concerned, with respect to an
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information, that he has misappropriated the funds of Gram Panchayat
during his previous tenure, and as such, he had not incurred the apposite
disqualification as embodied in clause ‘c’ (supra) of Section 208 of the
Panchayati Raj Act.
21. Be that as it may, yet subsequently, on a complaint being
made by the other contesting contestant i.e. respondent No.8, thus the
said Election Commission, elicited a report report from the BDPO
concerned, who thereins in deviation from his earlier report favourable
to the present petitioner, rather made speakings therein, that the present
petitioner had incurred the disqualification, as occurs in Clause ‘c’ of
Section 208 of the Panchayati Raj Act. Consequently, the said Election
Commission was led to pass the impugned order.
22. Now assuming that the present petitioner acquired the
apposite disqualification, whereby he became forbidden to “become
chosen or becoming elected as Sarpanch to the Gram Panchayat
concerned”. However, yet the determination of the imperative factum
qua the incurring of the apposite disqualification by the present
petitioner for his being, thus chosen by the electorate, as the Sarpanch of
the Gram Panchayat concerned, but could have been done only at the
post election stage, rather than the same becoming taken as a prohibitive
fact besides a determination being made thereovers. Tritely, both the
rearing of the prohibitive imperative factum (supra), thus was
unamenable nor was amenable to become determined nor was required
to be put to a quietus, thus by the State Government, rather during the
phase of the ongoing elections. In other words, the said prohibitive fact
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was unamenable for being either raised or becoming determined by the
State Government or through its agencies rather during phase of the
ongoing elections. Moreover, the verdict to be made by the State
Government in terms of sub Section 1 of Section 12 of the Act of 1994,
thus was to be made at the post election stage wherebys alone but at the
said phase it would have an effective binding and conclusive effect.
23. The reason for making the said conclusion, becomes
spurred from the fact, that though Section 208 of the Panchayati Raj Act
opens with the statutory phrase “A person shall be disqualified for being
chosen as, and for being a member of a Panchayat if”, besides when the
disqualifying statutory norm appertaining to the instant case, as occurs
in clause ‘c’ thereof, thus voicing that the concerned “has been convicted
of any offence involving moral turpitude or an offence implying of any defect
of a Sarpanch or Panch of Gram Panchayat or member of a Panchayat
Samiti or Zila Parishad, unless a period of five years has elapsed since his
conviction.”
24. However, at the outset, the said provisions, thus exist in the
Panchayati Raj Act, whereupon the statute (supra), thus is completely
different from the Act of 1994. Resultantly, though two legislations
become enacted, i.e. the Act of 1994 and the Panchayati Raj Act, which
may be overlapping besides may be complementary. However, the inter-
se distinction between the Panchayati Raj Act, and, Act of 1994, is that,
though the competent authority when exercising thereunders, an able
jurisdiction, thus may proceed to pass an order for removing the
democratically elected candidate, whereas, the State Election
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Commission while trying an election petition, but on cogent proof
becoming adduced vi-a-vis the grounds taken in the election petition,
rather may well proceed to declare the apposite election to become
vitiated.
25. Be that as it may, even otherwise, recourse to two different
statutes which may be overlapping or may be complementary and/or
when therebys there may be investment of complementary competent
jurisdiction, thus in the authorities concerned, to snatch the office
concerned, from the democratically elected person to the post
concerned, but yet the effect of the two enactments (supra), is to be
gauged.
26. The relevance of gauging the effect of the two enactments,
besides the effect of the provisions thereof being availed or recoursed,
but in the alternative, is to set at rest the conundrum, whether the
relevant provisions embodied in the special enactment (supra), are to be
availed at the pre-election stage or at the post election stage or during
the currency of the ongoing elections.
27. The answer to the said conundrum is very simple inter alia
on the following grounds: (a) the phrase “A person shall be disqualified
for being chosen as, and for being a member of a Panchayat if”, as exists in
the opening of Section 11 of the Act of 1994, especially the one “being
chosen”, thus requires the impartings thereto of a signification, to the
extent that it pertains only to the post election stage. Even if the said
phrase opens with the explicit expression “for being chosen”, yet to the
said phrase, no connotation can be imparted, that therebys even during
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the course of the ongoing elections, thus the aggrieved becoming foisted
with a leverage to avail the (supra) provisions.
28. The reason for so concluding, is also extremely simple
inasmuch as, if the above interpretation is not assigned to the phrase
“for being chosen”, therebys there would be open and blatant conflict
with the declaration of law made by the Hon’ble Supreme Court in case
titled as ‘N.P. Ponnuswami Versus The Returning Officer, Namakkal
Constituency and others’, reported in 1952 SCC Online (SC) 3,
wherein in paragraph 25 thereof, paragraph whereof becomes extracted
hereinafter, it becomes expostulated, that once the election process
commences therebys vis-a-vis the ongoing elections rather no
interference is required to be made. Contrarily, the remedy to the
aggrieved is to institute an election petition in terms of the relevant
statutory provisions, thus before the Election Tribunal concerned.
“25. The conclusions which I have arrived at may be
summed up briefly as follows :–
(1) Having regard to the important functions which the
legislatures have to perform in democratic countries, it has
always been recognized to be a matter of first importance that
elections should be concluded as early as possible according
to time schedule and all controversial matters and all disputes
arising out of elections should be postponed till after the
elections are over, so that the election proceedings may not be
unduly retarded or protracted.
(2) In conformity with this principle, the scheme the
election law in this country as well as in England is that no
significance should be attached to anything which does not
affect the “election”; and if any irregularities are commit- ted
while it is in progress and they belong to the category or class
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have the effect of vitiating the’ ‘election” and enable the
person affected to call it in question, they should be brought
up before a special tribunal by means of an election petition
and not be made the subject of a dispute before any court
while the election is in progress.”
29. It is but trite that even if there are concurrent vestments of
jurisdiction under the Panchayati Raj Act, and in the Act of 1994, thus
whereunders the competent authority(ies), become invested with the
jurisdiction to divest the democratically elected candidate to the post
concerned, from the post he/she becomes elected. Moreover, though
therebys the choice lies with the aggrieved to avail the remedy either
under the Panchayati Raj Act or under the Act of 1994. However,
reiteratedly the availment of the said remedies, as created respectively
under Section 89 of the Act of 1994 or under Section 208 of the
Panchayati Raj Act, is to be done only at the post election stage and not
when the elections are ongoing.
30. Be that as it may, even within the Act of 1994, thus the
supra statute preserves a duo of alternative remedies to the aggrieved.
The said alternative remedies are respectively cast in Section 89 of the
Act of 1994 and in Section 11 and 12 of the Act of 1994. If the
aggrieved chooses to avail the remedy cast under Section 89 of the Act
of 1994 through his instituting an election petition before the Election
Tribunal concerned, therebys the said dispute is to be rested by a
decision being made on the relevant lis by the Election Tribunal
concerned. However, when the aggrieved chooses to avail the remedy
cast under Section 11 and 12 of the Act of 1994, therebys the State
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Government in terms of sub Section 2 of Section 12 of the Act of 1994,
becomes enjoined to elicit an opinion from the State Election
Commission, opinion whereof binds the State Government and also
becomes the plank for resting thereons thus a binding and conclusive
decision.
31. As such, within the same statute (supra) i.e. there are
(supra) two alternative remedies preserved vis-a-vis the aggrieved.
Moreover, the statutory remedy enshrined in Section 208 of the
Panchayati Raj Act, is also alternate to the twin remedies (supra). In
case the aggrieved intends to draw leverage from the provisions
encapsulated in Section 208 of the Panchayati Raj Act, therebys too,
since there is no statutory provision encapsulated in the Panchayati Raj
Act, thus empowering the authority concerned, to after the conducting
of an in depth enquiry into the relevant complaint, rather cause the
removal of the democratically elected person concerned, nor when any
authority becomes designated to do so. As such, this Court is of the
considered opinion, that therebys too, the provisions embodied in
Sections 11 and 12 of the Act of 1994, and the one embodied in Section
125 of the Act of 1994 thus are able conjoint provisions for becoming
adopted by the State Government rather for ultimately the latter
proceeding to order for the removal of the democratically elected person
from the post concerned.
32. Therefore, at this stage the arguments (supra), raised by the
learned State counsel, that the opinion formed by the State Election
Commission, thus in terms of the mandate enclosed in sub Section 2 of
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Section 12 of the Act of 1994, is to be foisted conclusivity and finality,
but becomes an ill made argument and requires rejection.
33. Moreover, the factum that there is a complete bar against
any interference being made with the announced election schedule,
especially when the elections are ongoing, thus even at the instance of
the State Election Commission, as has been untenably done, through the
making of impugned order dated 14.10.2024, becomes also generated,
from Rule 32 of the Rules of 1994, whereunders alone, but on evident
proof emerging vis-a-vis the thereins spelt ingredients, thus an able and
competent jurisdictions becomes foisted in the State Election
Commission, thus to proceed to cancel or adjourn the polling.
Significantly, in the (supra) rules, there occurs no mandate wherebys the
State Election Commission becomes empowered to even post, the
allotment of election symbols to the nominated candidates concerned,
that too merely on receiving an adverse report against the present
petitioner from the BDPO concerned, as appertaining to his allegedly
misappropriating the funds of Gram Panchayat, to thus cancel the
elections.
34. Further fortifying vigor to the above inference, becomes
garnered from the factum, that in the making of the impugned order, the
Election Commissioner, though has purportedly exercised jurisdiction
under Section 208 (c) of the Panchayati Raj Act, whereas, as stated
(supra), the invested thereunders jurisdiction was to be exercised only
after adherence being made to the provisions embodied, respectively in
Sections 11, 12 of the Act of 1994 and in Section 125 of the Act of
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1994. However, in the instant case, given the piquant heretos (supra)
alluded facts, the said exercised jurisdiction, but ex facie becomes
exercised with a gross illegality and/or with a material impropriety.
Inevitably for reasons (supra) qua even the (supra) limited jurisdiction
invested in the State Election Commission, but was in view of the
verdict rendered by Hon’ble Apex Court in N.P. Ponnuswami’s case
(supra),thus ably exercisable not during the currency of the ongoing
elections but the same rather was ably exercisable only post the
conclusion of the election process.
35. Significantly though the provisions enclosed in Rule 31 and
32 of the Rules of 1994, purportedly empower the State Election
Commission to either cancel or adjourn the elections. However,
readings of the mandates enclosed in (supra) provisions, do not unveil,
that the instant factual scenario, thus evidently did fall in alignment with
the (supra) enclosed mandates in the (supra) provisions. Therefore,
therebys too, the cancellation of the elections by the State Election
Commission concerned, was unwarranted or became exercised most
arbitrarily and in a malafide manner.
36. Emphatically, when after allotment of election symbols, to
the contesting candidates, thus the announced election programme was
to culminate, in the electorate being led into polling booth. However,
contrarily on account of the arbitrary cancellation of the election
programme, the electorate was debarred to enter the polling booth,
therebys they became arbitrarily forbidden to exercise their lawful
franchise. In sequel, therebys the electorate has been untenably
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forbidden to choose a candidate to the democratic office of the Sarpanch
of the Gram Panchayat concerned.
37. Furthermore, since Section 89 of the Act of 1994, does also
detail therein, the ingredients of the provisions enshrined also in Section
208(c) of the Panchayati Raj Act. Resultantly, when thereins become set
forth the grounds for declaring vitiated, the election as became
conducted, but only upon an election petition becoming filed before the
Election Tribunal concerned. Resultantly, after the making of a
notification wherebys the present petitioner were declared to be the ones
to be chosen by the electorate, as such, the said State Election
Commission was required to be ensuring, that the electorate became
permitted to exercise their franchise. Therefore, even in the event of the
present petitioner becoming, on the anvil of Clause ‘l’ of Section 11 of
the Act of 1994, being purportedly disqualified, therebys reiteratedly the
said was to be taken as a ground, for the election(s) being set aside, but
only through an election petition becoming filed before the Election
Tribunal concerned. Moreover, if the remedy under Section 208 of the
Panchayati Raj Act, was also chosen in the alternative, to the statutory
remedy (Supra), the same being but complementary to the remedy
created under Section 89 of the Act of 1994, therebys also on the
relevant motion being cast, but under Sections 11 and 12 of the Act of
1994, thereupons the said State Election Commission was required to
purvey to the State Government the elicited and well informed opinion,
thus for enabling the State Government to make a final and conclusive
decision, whether the returned candidate has incurred or not incurred the
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statutorily prohibited disqualification against his being chosen by the
electorate. Necessarily, the said exercise was to be done only post the
culmination of the election process through the declaration of results
being made and not during the phase of the ongoing elections.
38. Additionally, besides the purported incurring of the
statutory disqualification (supra), wherebys the present petitioner
became besides forbidden to be chosen to the democratic office
concerned, thus was to be taken as a ground for his removal but only on
a motion being made before the competent authority. The said motion
was reiteratedly required to be made not during the spell when the
elections were in progress, but was required to be set forth through the
casting an apposite motion but only after the conclusion of the elections
Final Order of this Court
39. In aftermath, there is merit in the instant writ petition and
the same is allowed, and, the impugned order dated 14.10.2024
(Annexure P-2) is hereby quashed and set aside with a mandamus upon
the respondents concerned, to forthwith announce the schedule for
conducting elections to the post of Sarpanch for Gram Panchayat Dalla,
Cluster No.8, Block Jagraon, District Ludhiana, but with a further
direction that the announced list of candidates shall be the only ones
who would be permitted to contest the elections to the post of Sarpanch
of Gram Panchayat Dalla, Cluster No.8, Block Jagraon, District
Ludhiana. Needless to say, the aggrieved from the announced election
results, may avail the remedy either under Section 208 read with clause
c of the Panchayati Raj Act, and alongwith the provisions incorporated
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under Sections 11 and 12 of the Act of 1994, besides alongwith the
provisions engrafted under Section 125 of the Act of 1994 and/or may
avail the remedy created under Section 89 of the Act of 1994 as all
supra remedy(ies) though are alternative but are also complementary to
each other.
40. On availment(s) of the said remedy(ies), the competent
authority shall lawfully and expeditiously decide the same.
(SURESHWAR THAKUR)
JUDGE
(SUDEEPTI SHARMA)
07.11.2024 JUDGE
Ithlesh
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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