Punjab-Haryana High Court
Seema Sharma And Others vs State Of Punjab And Others on 10 January, 2025
Bench: Sureshwar Thakur, Vikas Suri
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
(123) CWP-388-2025(O&M)
Date of Decision: 10.01.2025
Seema Sharma and others .....Petitioners
Versus
State of Punjab and others ....Respondents
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
HON'BLE MR. JUSTICE VIKAS SURI
Present: Mr. Chetan Mittal, Senior Advocate with
Mr. Kunal Mulwani, Advocate,
Mr. Harneet Singh Oberoi, Advocate and
Mr. Ritvik Garg, Advocate for the petitioners.
Mr. Maninder Singh, Senior DAG, Punjab.
****
SURESHWAR THAKUR, J. (Oral)
1. In the instant petition, the petitioners espouse for the hereinafter
reliefs:-
“to issue a writ in the nature of certiorari for setting aside the
order/notice dated 07.01.2025 (Annexure P-7), and all the
proceeding arising therefrom with regard to conducting of the
elections for the seat/position of Mayor, Senior Deputy Mayor
and Deputy Mayor for Municipal Corporation, Patiala, which is
to being held as on 10.01.2025, despite of the fact that the
elections of 7 Municipal Councilors is yet to be conducted and
admittedly the quorum is not complete and the entire process of
election of Mayor, Senior Deputy Mayor and Deputy Mayor is
being done in utter derogation of Punjab Municipal Corporation
Act. Further it is an admitted position that the election of 7
1 of 72
::: Downloaded on – 25-01-2025 03:00:33 :::
Neutral Citation No:=2025:PHHC:002956-DBCWP No.388 of 2025(O&M) 2
wards of Municipal Corporation Patiala was
deferred/withdrawn by the ruling government in the light of
statement given by State in COCP No.5302 of 2024 vide order
dated 20.12.2024 (Annexure P-5).
And
In the meantime, the operation of order/notice dated 07.01.2025
(Annexure P-7), and all the proceeding arising therefrom,
whereby elections to the post of Mayor, Senior Deputy Mayor
and Deputy Mayor, for Municipal Corporation, Patiala is to be
held on 10.01.2025, may kindly be stayed during the pendency
of the present writ petition
And
Any other writ, order or direction as this Hon’ble Court in the
facts and circumstances may deem fit and proper, be also
passed.”
2. The genesis of the instant petition becomes borrowed from the
declaration of the election programme by the State of Punjab, as became
made through the issuance of a notification dated 04.10.2023. The said
notification is embodied in Annexure P-7, annexure whereof, is appended
with CWP No.23649 of 2023, wherebys, the election programme became
notified for conducting elections to the various local self-governments
located within the territory of the State of Punjab.
3. In the writ petition supra, a challenge was made to the issuance
of the said notification. The ground taken in the said writ petition related to
an untenable delimitation of wards being made in respect of the areas falling
within the respective domains of the Municipal Corporations of Ludhiana,
2 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 3
Amritsar and Jalandhar. However, the supra ground taken therein became
rejected through a decision becoming made, thus, on the supra writ petition
along with connected therewith writ petitions (on 13.12.2024). The relevant
paragraphs of the said judgment becomes extracted hereinbefore:-
“13. The learned counsels for the petitioner(s) submits, that
the impugned de-limitation notification(s) are illegal, arbitrary
and against the principles of natural justice, besides breach the
Rule of audi alteram partem. Moreover, he submits that the
impugned notification(s) transgresses the mandatory provisions
of the 1976 Act, and, also breaches the prescribed procedure for
de-limitation, as exists in the Punjab Delimitation of Wards of
Municipal Corporation Order, 1995 besides causes breaches to
the apposite provisions existing in the Election Rules, 1994.
The allegedly breached provisions occurring in Section 7-A and
8 of the 1976 Act, are extracted hereinafter.
7-A. Power of Government to direct holding of general
elections –
(1) Subject to the provisions of this Act and the rules made
thereunder, the Government may, by notification, in the Official
Gazette, direct that a general election or an election to fill a
casual vacancy of the Councillors of the Corporation, shall be
held by such date as may be specified in the notification and
different dates may be specified for elections for different
Corporations or group or groups of Corporations.
(2) As soon as a notification is issued under sub-section (1), the
State Election Commission shall take necessary steps for
holding such general election.
8. Delimitation of wards.-
(1) For the purposes of election of councillors, the City
3 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 4
shall be divided into single-member wards in such manner that
the population of each of the wards shall, so far as practicable,
be the same throughout the City.
(2) The Government shall, by order in the Official
Gazette, determine the extent of each ward and the wards in
which seats shall be reserved for Scheduled Castes.
14. They further submit that the respondent has not decided
the objections submitted by the petitioner(s) before the issuance
of the impugned notification(s), despite his becoming enjoined
to pass a well reasoned decision thereons. They rest their
submissions upon the provisions, as occur in Sections 7 and 8 of
the Delimitation of Wards of Municipal Corporation Order,
1995, provisions whereof, are extracted hereinafter.
7. Scheme for delimitation of wards to be sent to
Government – The Board shall, as soon as may be, after it
has prepared the Scheme for the de-limitation of the ward of the
City, send the same to the Government for consideration.
8. Publication of scheme for delimitation of wards –
(1) The Government shall -
(a) publish in the official Gazette the scheme for the
delimitation of the wards received by it under clause 7 for
inviting objections or suggestions from the affected persons of
the city ;
(b) specify a date on or after which the scheme along
with objections or suggestions, if any, shall be considered by it ;
and
(c) consider all objections and suggestions, which may
have been received by it before the specified date ;
(2) The Government after considering the objections
and suggestions under sub-clause (I), shall make its final
4 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 5
order and shall get the same published in the Official Gazette.
[Provided that before the start of election process, the
State Government, may, for good and sufficient reasons, to be
recorded in writing, review the order made in the form of final
notification after inviting objections and suggestions in writing
from the public through the public notices in two newspapers
having circulation in the locality in respect of all or any of the
Ward. After considering such objections or suggestions, the
State Government may supersede the previous orders in the
form of final notification directly or after obtaining the opinion
of the Boards.
15. Moreover, clause 6 of the Delimitation of Wards of
Municipal Corporation Order, 1995, provisions whereof are
extracted hereinafter, ordains the principles for carrying out the
delimitation of wards of a City. The learned counsels for the
petitioner(s) submit, that the entire exercise of de-limitation has
been carried but without adherence being made to the said
principles. Therefore, they submit that the impugned
notification(s) be quashed and set aside.
6. Principles for delimitation of wards of a City.
[Section 8] – The following principles shall be observed by the
Board in the delimitation of wards of a city, namely :
(a) All wards shall as far as practicable, be geographically
compact areas, and in delimiting them, due regard shall be had
to the physical features like facilities of communication and
public convenience;
(b) Wards in which seats are reserved for the Scheduled
Castes, shall be located, as far as practicable, in those areas
where the proportion of their population to the total population
of the City, is the largest and such seats shall be allotted by
rotation to different wards in the City;
5 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 6
(c) Seats numbers reserved for women (including number of
seats reserved for women, if any, belonging to Scheduled
Castes) by the Government shall, be kept reserved for women,
and such seats shall be allotted by rotation to different wards in
the Corporation;
(d) Two seats reserved for Backward Classes, by the
Government, shall be kept reserved for the Backward Classes,
and such seats shall be allotted by rotation to different wards in
the Corporation; and
(e) Each Corporation shall be divided into two wards in such
manner that the population of each ward as far as practicable,
is the same throughout the Corporation, with a variation upto
ten per cent above or below the average population figures.
[(f) In every Municipal Corporation, the Board while drafting
the Scheme for delimitation of wards, shall allot numbers to all
wards having due regard to the principle of contiguity:]
[Provided that the principle of rotation shall no be applicable
where the delimitation or wards of a Municipal Corporation
has been done under the provisions of sub clause (ii) of clause
(4) of the order.]
16. In support of their arguments, the learned counsel
for the petitioner(s) refer to a judgment rendered by a Division
Bench of this Court in case titled as Rajesh Kumar Sharma
and Others Vs. State of Punjab and Others, to which CWP No.
7548 of 2023 becomes assigned, whereins, the de-limitation
exercise carried out by the respondents was declared illegal
owing to breaches being caused to the Rules 3 to 8 of the Rules
of 1972. The relevant paragraphs, as exist in the said judgment
are extracted hereinafter.
24.2 In the light of the above, the approach of the respondents
seems not be bona fide and any such attempt to defeat the legal
6 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 7
rights of the public would be resisted by this Court. The respondents
cannot be allowed to take shelter of the bar contained under Article
243ZG of the Constitution of India as this would amount to
subjecting the petitioners to irreversible repercussions and
consequences, which cannot be substantially redressed afterwards.
xxxx
26.3 The Hon’ble Supreme Court recently held that as a
general rule, the courts should not interfere in election matters,
however, clarified that the courts must interfere in election process if
there is unjust executive action or attempt to disturb level playing
field. The conduct of elections to the Urban Local Bodies is the sole
domain of State Election Commission and it is not bound to hold
election as per the tentative date of election announced by the
Department of Local Bodies. The stage of judicial hands off for the
courts to interfere in any manner would arise only after the
notification by the State Election Commission announcing the
schedule of election indicating date of nomination and date of voting
and Model Code of Conduct is implemented. It is the stage when the
elections can be termed as “imminent” otherwise the authority
(Secretary to Government of Punjab, Department of Local Bodies)
which is responsible for carrying out delimitation and issuance of
notification under Section 13-A of the Municipal Act announcing the
proposed tentative date of elections. The same authority in order to
avoid the scrutiny of this court can issue two notifications one after
the other by finalizing the delimitation under Rule 8 of the Rules of
1972 and announcement of elections within few days. As is done in
the present case, the notifications for announcement of election were
issued during the pendency of these writ petitions. In our considered
opinion in such as a scenario, the officials responsible for the
complete derogation of the principles provided under Rule 6 of the
Rules of 1972 for delimitation, cannot be allowed to take shelter of
the bar under Article 243ZG of the Constitution of India. Allowing
them to do so, in fact, would mean allowing them to eat their cake
and have it too.
28 As an upshot of above discussion, we hold that the entire
delimitation exercise, since inception, in Municipal Councils of Dera
Baba Nanak, Dharamkot and Municipal Corporation Phagwara
7 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 8
impugned in CWP Nos.7548, 17204 and 16079 of 2023
respectively is conducted on irrelevant consideration and by
committing glaring breach of Rules 3 to 8 of the Rules of 1972.
As such, the entire delimitation exercise is declared to be
illegal. Once we have declared the entire delimitation exercise
from the very beginning having not been conducted validly,
subsequent notifications issued on the basis of such delimitation
cannot survive either. As such, notifications dated 27.01.2023,
18.01.2023 and 05.09.2023 are declared invalid having no
force of law.
Submissions of the learned State Counsel.
17. On the other hand, the learned State Counsel
submits that delimitation of the wards of the Municipal
Corporations concerned, has been carried out owing to the
reason that there was variation in the population or voting
figures in some of the wards of the City, which require
adjustment. The due procedure provided for the delimitation of
the wards as provided under the Delimitation of the Wards of
the Municipal Corporation Order, 1995, has been duly
followed.
18. He further submits that the objections given by the
petitioner(s) alongwith other objections received in this regard
were duly considered by the Competent Authority and a
decision was accordingly taken. The draft notification(s) were
issued and finalized after considering all the objections.
19. Furthermore, the State Election Commission has notified
the Election Programme, thus to all the Deputy Commissioners-
cum-District Electoral Officers in the State of Punjab. Thus, the
8 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 9
election process has commenced and the instant petition would
amount to the said municipal election being ‘called in question’,
therebys, attracting the constitutional bar as engrafted in Article
243-ZG of the Constitution of India. The said Article 243-ZG of
the Constitution of India is extracted hereinafter.
Article 243-ZG. Bar to interference by Courts in
electoral matters – Notwithstanding anything in this
Constitution, —
(a) the validity of any law relating to the delimitation of
constituencies or the allotment of seats to such constituencies,
made or purporting to be made under article 243ZA shall not
be called in question in any court;
(b) no election to any Municipality 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
the Legislature of a State.
Inferences of this Court.
20. Tritely put, once the election process has
commenced through pronouncement of the election programme,
therebys, there can be no interference with the said announced
election schedule, as therebys it would breach the principle of
law stated in the judgments rendered by the Apex Court in case
titled as ‘N.P.Ponnuswami Versus The Returning Officer,
Namakkal Constituency and others, reported in 1952 SCC
Online (SC) 3 and in case titled as ‘Mohinder Singh Gill
Versus The Chief Election Commissioner, New Delhi,
reported in (1978) 1 Supreme Court Cases 405. The relevant
paragraphs as occur in the verdicts (supra) are extracted
9 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 10
hereinafter.
(N.P.PONNUSWAMI VERSUS THE RETURNING OFFICER,
NAMAKKAL CONSTITUENCY)
15. The question now arises whether the law of elections in this
country contemplates that there should be two attacks on matters
connected with election proceedings, one while they are going on by
invoking the extraordinary jurisdiction of the High Court under article
226 of the Constitution (the ordinary jurisdiction of the courts having been
expressly excluded), and another after they have been completed by means
of an election petition. In my opinion, to affirm such a position would be
contrary to the scheme of Part XV of the Constitution and the
Representation of the People Act, which, as I shall point out later, seems
to be that any matter which has the effect of vitiating an election should be
brought up only at the appropriate stage in an appropriate manner before
a special tribunal and should not be brought up at an intermediate stage
before any court. It seems to me that under the election law, the only
significance which the rejection of a nomination paper has consists in the
fact that it can be used as a ground to call the election in question. Article
329(b)was apparently enacted to prescribe the manner in which and the
stage at which this ground, and other grounds which may be raised under
the law to call the election in question could be urged. I think it follows by
necessary implication from the language of this provision that those
grounds cannot be urged in any other manner, at any other stage and
before any other court. If the grounds on which an election can be called
in question could be raised at an earlier stage and errors, if any, are
rectified, there will be no meaning in enacting a provision like article 329
(b) and in setting up a special tribunal. Any other meaning ascribed to the
words used in the article would lead to anomalies, which the Constitution
could not have contemplated, one of them being that conflicting views may
be ex- pressed by the High Court at the pre-polling stage and by the
election tribunal, which is to be an independent body, at the stage when
the matter is brought up before it.
xxxx xxxx
20. It was argued that since the Representation of the People Act
was enacted subject to the provisions of the Constitution, it cannot bar the
jurisdiction of the High Court to issue writs under article 226 of the
Constitution. This argument however is completely shut out by reading the
Act along with article 329 (b). It will be noticed that the language used in
that article and in section 80 of the Act is almost identical, with this
10 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 11
difference only that the article is preceded by the words “notwithstanding
anything in this Constitution”. I think that those words are quite apt to
exclude the jurisdiction of the High Court to deal with any matter which
may arise while the elections are in progress.
xxxxx xxxx
24. It may be pointed out that article 329 (b) must be read as
complimentary to clause (a) of that article. Clause (a) bars the jurisdiction
of the courts with regard to such law as may be made under articles 327
and 328 relating to the delimitation of constituencies or the allotment of
seats to such constituencies. It was conceded before us that article 329 (b)
ousts the jurisdiction of the courts with regard to matters arising between
the commencement of the polling and the final selection. The question
which has to be asked is what conceivable reason the legislature could
have had to leave only matters connected with nominations subject to the
jurisdiction of the High Court under Article 226 of the Constitution. If Part
XV of the Constitution is a code by itself, i. e., it creates rights and
provides for their enforcement by a special tribunal to the exclusion of all
courts including the High Court, there can be no reason for assuming that
the Constitution left one small part of the election process to be made the
subject-matter of contest before the High Courts and thereby upset the
time-schedule of the elections The more reasonable view seems to be that
article 329 covers all “electoral matters”.
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 which, under the law by which elections are
governed, would 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 in11 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DBCWP No.388 of 2025(O&M) 12
progress.
xxxx xxxx
‘MOHINDER SINGH GILL VERSUS THE CHIEF ELECTION
COMMISSIONER, NEW DELHI
29. Thus, there are two types of decisions, two types of
challenges. The first relates to proceedings which interfere with the
progress of the election. The second accelerates the completion of the
election and acts in furtherance of an election. So, the short question
before us, in the light of the illumination derived from Ponnuswami, is as
to whether the order for re-poll of the Chief Election Commissioner is
“anything done towards the completion of the election proceeding’ and
whether the proceedings before the High Court facilitated the election
process or halted its progress. The question immediately arises as to
whether the relief sought in, the writ petition by the present appellant
amounted to calling in question the election. This, in turn, revolves round
the point as to whether the cancellation of the poll and the reordering of
fresh poll is ‘part of election’ and challenging it is ‘calling it in question’.
21. A reading of hereinabove extracted underlined
portions of the conclusions as became drawn in the verdict
(supra) rendered by the Hon’ble Supreme Court in
N.P.Ponnuswami’s case (supra), thus unfold that :
a) Elections should be concluded as early as possible
according to the 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 be
not retarded or protracted.
b) The election laws as prevalent in this Country, do
carry the import that no significance should be attached to
anything which does not affect the election and that if any
irregularities are committed while it is in progress, and wherebys
they would have the effect of vitiating the election yet the
person affected by such purported vitiations, thus has the
12 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DBCWP No.388 of 2025(O&M) 13
remedy to challenge the declaration of result, before a special
Tribunal by means of an election petition being filed and ;
c) that any subject covering a dispute relating to
the commission of any irregularities when the elections are in
progress is not amenable to be agitated before a Court of Law.
22. In terms of the above culled out principles of law,
as carried in the verdict (supra), the apt deduction therefrom but
naturally, is that, any purported irregularities arising from
breaches being caused to the principles appertaining to the
carryings out of the de-limitation exercise, thus is a dispute
though may purportedly vitiate the election, yet the said dispute
cannot at this stage be raised before this Court by the aggrieved.
Contrarily, the said dispute is to be agitated by the
aggrieved, but only after the declaration of the results, and
only before the Election Tribunal concerned.
23. In sequel, in view of the above expostulations of
law made in verdict (supra), especially when the expostulations
of law (supra) are not reversed by a Bench strength of the
Hon’ble Supreme Court, thus larger in size vis-a-vis the Bench
strength which delivered the verdict (supra), wherebys there is a
complete bar, against the invocation of the writ remedy by the
aggrieved, even if the said grievance becomes hinged, upon, any
purported breaches being caused to the statutory provisions
relating to the de-limitation exercise. Moreover, in the wake of
the said grievance but purportedly vitiating the elections, rather
the remedy to the aggrieved, is only through the filing of an
13 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 14
election petition before the Election Tribunal concerned.
Consequently, the said expostulation of law is not required to be
derogated from.
24. Furthermore, the principles (supra) rendered in
N.P.Ponnuswami’ case (supra) became reiterated in the verdict
rendered by the Apex Court in ‘Mohinder Singh Gill’s case
(supra). Consequently, since the verdict (supra) reiterated the
principles of law expounded by the Apex Court in
N.P.Ponnuswami’ case (supra), thereupon, the said reiterated
principles, thus also apply with their fullest force, to the instant
case, wherebys there is a bar against the invocation of the writ
remedy by the aggrieved rather during the course of
undertakings of the announced election schedule, at the instance
of the respondent.
25. Moreover, since in the instant case, the tenure of
the elected councillors to the Municipal Corporations concerned
rather has expired, therebys, when Article 243U of the
Constitution of India, provisions whereof are extracted
hereinafter, thus casts a constitutional mandate upon the
authorities concerned, besides make a per-emptory injunction
upon the authorities concerned, to coterminii therewith, to thus
draw an election schedule. Resultantly the election programme
was to be announced, as aptly done, and, was required to be
potentialized rather than the same being interfered with.
243U. Duration of Municipalities, etc.
(1) Every Municipality, unless sooner dissolved under any law for
14 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 15
the time being in force, shall continue for five years from the date
appointed for its first meeting and no longer:
Provided that a Municipality shall be given a reasonable opportunity
of being heard before its dissolution.
(2) No amendment of any law for the time being in force shall have
the effect of causing dissolution of a Municipality at any level, which
is functioning immediately before such amendment, till the
expiration of its duration specified in clause (1).
(3) An election to constitute a Municipality shall be completed,- (a)
before the expiry of its duration specified in clause (1);
(b) before the expiration of a period of six months from the date of its
dissolution:
Provided that where the remainder of the period for which the
dissolved Municipality would have continued is less than six months,
it shall not be necessary to hold any election under this clause for
constituting the Municipality for such period.
(4) A Municipality constituted upon the dissolution of a Municipality
before the expiration of its duration shall continue only for the
remainder of the period for which the dissolved Municipality would
have continued under clause (1) had it not been so dissolved.”
26. Be that as it may, the continuous updation and
revampings of electoral rolls, is also a paramount necessity for
ensuring, that therebys all the voters, who acquire the apposite
eligibility, do become empowered to exercise their franchise.
The effect thereof, would be that therebys the democratic
process would be fully activated. Moreover, to give effectivity
to the roster reservation system, as becomes contemplated in
Article 243 T of the Constitution of India, thereupons, the said
constitutional mandate is also required to be fully galvanized.
The apposite galvanizations to the (supra) constitutional
mandate, would occur only when the occurrences of respective
increases in the populations’ in the wards concerned, thus
15 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 16
becomes gauged from or becomes raised upon a census being
carried out. Moreover, subsequently to ensure the well
administration of the wards concerned, which may not
effectively take place owing to an immense increase in the
demographic sizes within the apposite wards, thereupons, the
de-limitation of wards is also a concomitant thereto necessity.
27. The respondent concerned, to facilitate the makings
of lawful de-limitation of the wards concerned, but after a
census being conducted, for determining the demographic
increases in the wards concerned, thus proceeded to make the
exercise of delimitation of wards. In the said regard, the draft
rules became prepared which become appended with the
respective writ petition(s). The said draft Rules are
encyclopedic and therefore, they need not be ad verbatim
extracted.
28. Be that as it may, what would be required to
discerned from the draft rules is :
a) Whether therebys there was adherence to the Rules
of natural justice, besides to the principles set forth in Clauses 3
to 8 of the Delimitation of Wards of Municipal Corporation
Order, 1995 besides whether the provisions embodied in
Section 8 of the Act of 1976, becoming borne in mind in the
carryings out of the de-limitation exercise.
b) Whether the objections, as became preferred by the
petitioner(s) were considered before the issuance of the
impugned notification(s).
16 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 17
c) Whether there was untenable exclusion of voters in
the voting list, thus on account of de-limitation being carried
out.
29. In the above endeavour, it is apparent on a reading
of the draft rules, whereafters on consideration of the apposite
objections, the impugned notification(s) became issued, that the
exercise of de-limitation was taint free nor it breached the Rules
(supra). In sequel, the undertakings of the well purpose of
makings the de-limitation exercise, thus for takings into account
the apposite demographic increases in the wards concerned,
rather for concomitantly the reservation system becoming
drawn, as has been drawn, but has also been achieved. Naturally
also therebys, prima facie, there appears to be no exclusion of
voters in the voters list, even after the completion of the de-
limitation exercise, especially, when no tangible evidence in
respect of the relevant exclusions has been put forth as such.
Even if such a grievance is put forth, therebys, it was to be
ventilated before and also was to be decided rather only by the
Election Tribunal concerned, who on receiving such a motion,
with averments thereins, that on account of inapt exclusions of
the eligible voters, from the voters list, thus may have
proceeded to declare the election to be vitiated, the same being
materially affected therebys.
30. However, the said grievance is stated to be neither
put forth before the Election Tribunal concerned, through an
election petition being cast therebefore, nor has been stated to
17 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 18
be under consideration before the State Election Tribunal.
Resultantly therebys, the completed de-limitation exercise, as
done, but on the basis of a census, thus as a necessary precursor
of the de-limitation of the wards taking place, but when
naturally also becomes the hinge for the creation of a
reservation roster for endowing the apposite representations to
the category(ies), whose population size so deserves. In sequel,
the de-limitation exercise, as undertaken but cannot be faulted
on any score, especially, when the election programme has been
announced, election programme whereof, is un-interfereable in
terms of the expostulations of law made in the verdicts (supra).
Importantly also, when there is no grievance that in pursuance
to the de-limitation exercise, their being any evident deprivation
of the rights of exercising franchise vis-a-vis any of the voters,
therebys, also the de-limitation exercise cannot be faulted.
31. Moreover, when roster reservation system has
already been notified, wherebys, the benefit of the apposite
reservation to the deserving categories, in terms of their
apposite demographic sizes, thus has been endowed in the now
created fresh wards. Therefore, unless there is evidence to
display, that the Census Department, had made an incorrect
evaluation of the demographic sizes of the category(ies),
deserving reservation. In sequel, thereupon alone, the census
statistics which became borne in mind, while carrying out the
de-limitation exercise besides for creating a reservation roster,
but may have lead this Court to make an interference with the
18 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 19
election programme.
32. However, when the said evidence is amiss,
thereupon, the reservation roster as created in terms of the
demographic sizes of the categories deserving endowments of
reservation in the wards concerned, rather is to be deemed to be
aptly drawn.
33. Reiteratedly, since all (supra) has been done in
accordance with law, besides has been ensued from adherence
being made to the rules of natural justice. Moreover, when
supra have ensued from prima facie, no breach being made to
the principles (supra). In addition, reiteratedly when in terms of
the population sizes of the deserving categories, assignments of
reservation in terms of the drawn reservation roster, thus has
been endowed to them qua the apposite wards. Consequently,
reiteratedly therebys, the parameters relating to even the
creation of reservations vis-a-vis the deserving categories, thus
in terms of their increased size of population in the wards
concerned, but has also been well borne in mind, by the
respondents concerned. As such therebys too, no fault can be
found in the impugned notification(s).
34. Though the learned counsels for the petitioner(s)
vehemently argue on the basis of a judgment rendered by a
Division Bench of this Court in Rajesh Kumar’s case (supra),
relevant paragraphs whereof have been extracted above,
whereins, this Court has set forth, the principle that if there are
glaring breaches caused vis-a-vis the supra rules/procedure
19 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 20
relating to the de-limitation exercise, therebys, there is necessity
of interference being made by the Writ Court, in the announced
election programme but irrespective of the fact that there is a
constitutional bar envisaged in Article 243-ZG of the
Constitution of India, against interference being made with the
announced election programme.
35. However, the said principle has been founded upon
certain judgments of the Hon’ble Supreme Court, as detailed in
paragraphs No. 10, 13 and 14 of the said verdict, paragraphs
whereof are extracted hereinafter, but the said judgments have
been not been specifically detailed in the supra paragraphs nor
the principles expostulated thereins have been reproduced in the
judgment rendered by the Division Bench of this Court.
10. The petitioners before this Court in the instant writ petitions are challenging
the delimitation process of the wards on the ground that the State Government,
while carrying the delimitation process of the wards, has completely brushed
aside the constitutional and statutory provisions. As a general rule, it is not for
the Court to indicate in what manner the delimitation of the wards would be done
so long as the same is done in conformity with the constitutional and statutory
provisions or without committing a breach thereof. However, if the
infirmities/illegalities committed by the respondent-State while carrying out the
exercise of delimitation of wards are grave and palpably illegal, this Court can
interfere under writ jurisdiction especially when the election process is yet to be
put into motion by the State Election Commission to hold elections by issuing a
schedule of election containing the date of filing nomination papers, voting and
result etc.
xxxx xxxx
13. The sequence and events of the case would indicate that the petitioners have
approached the concerned quarters by way of representations well in time and
also approached this Court by filing the present writ petition much before the
issuance of notifications dated 01.08.2023 and 05.10.2023 and thus, the
respondents cannot take the shelter of technicalities and plead the bar under
Article 243ZG of the Constitution of India by issuing the notification of finalizing
delimitation on 01.08.2023 and 05.10.2023 during the pendency of writ petitions.
20 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 21
The issues raised by the petitioners cannot be frustrated by efflux of time. The
Hon’ble Supreme Court in Union Territory of Ladakh (supra) has held as
under:-
“32. The Court would categorically emphasize that no litigant should
have even an iota of doubt or an impression (rather, a misimpression)
that just because of systemic delay or the matter not being taken up by
the Courts resulting in efflux of time the cause would be defeated, and the
Court would be rendered helpless to ensure justice to the party
concerned. It would not be out of place to mention that this Court can
even turn the clock back, if the situation warrants such dire measures.
The powers of this Court, if need be, to even restore status quo ante are
not in the realm of any doubt. The relief(s) granted in the lead opinion
byHon. Khehar, J. (as the learned Chief Justice then was), concurred
with by the other 4 learned Judges, in Nabam Rebia and Bamang Felix
v Deputy Speaker, Arunachal Pradesh Legislative Assembly, (2016) 8
SCC 1 is enough on this aspect. (emphasis supplied).
14. The Full Bench decision in Prithivi Raj (supra) has its own persuasive value
but in the facts and circumstance of this case, we respectfully borrow the opinion
of the Hon’ble Supreme Court in Union Territory of Ladakh (supra),Ashok
Kumar (supra) and State of Goa Vs. Fouziya Imtiaz Shaikh (2021) 8 SCC 401.
In view of the above discussion, we hold that the present petitions are
maintainable.
36. Therefore, it appears that though thereins became
noticed certain palpable breaches vis-a-vis the rules (supra),
which constrained this Court, to thus purportedly depart from
the norms set forth in the N.P.Ponnuswami’ case (supra),
rather against the Writ Court making any interference with the
announced election programme, yet the judgment rendered by
this Court, in case (supra) did not subsequently rescind the
election programme but proceeded to in the operative part
thereof, operative part whereof becomes extracted hereinafter,
rather permit the carryings ahead of the announced elections to
the Municipal Constituencies, on the strength of the earlier
completed de-limitation exercise, but with a direction to the
State Election Commission, to conclude the
revision/finalization of the electoral rolls. Consequently, it
appears that the supra were ideally made, as they became not
21 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 22
fully effectuated.
28.1. Consequently, CWP Nos.7548, 17204 and 16079 of 2023
are allowed in the above terms and following directions are
issued:
(i) The State Election Commission is at liberty to hold election
to the Municipal constituencies (wards) as it existed before the
impugned delimitation exercise (which resulted into issuance of
notifications dated 27.01.2023, 18.01.2023 and 05.09.2023) in
the first fortnight of the November as intended by the State
Government vide notifications dated 01.08.2023 and
05.10.2023.
(ii) As per the information given by the learned State counsel,
process of revision and finalization of the electoral roll is
underway. Therefore, the State Election Commission is at
liberty to conclude the revision/finalization of the electoral rolls
and issue appropriate notification for conducting elections to
local bodies by giving schedule of election, providing dates for
filing nomination papers, scrutiny of nomination papers and
voting etc.
37. Since post the making of the said verdict, the
election programmes to various Municipal Corporations,
Councils, and, Nagar Panchayat in the State of Punjab rather
have been announced. Therefore, there can be no interference in
the announced election programme nor the verdict (supra) does
hold any force.
38. As such, on a cumulative reading of the judgment
(supra) it becomes unfolded that thereins there is no firm trite
expostulation of law, to the extent that even when the de-
limitation exercise is flawed thus on account of any supra
breaches being made, therebys, the Writ Court is empowered to
interfere with the election programme.
39. The other primary reason which prevailed upon the
Division Bench of this Court, which pronounced the verdict in
Rajesh Kumar’s case (supra), to declare the delimitation
exercise to be illegal, was banked upon the fact that since an
22 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 23
earlier notification became issued, wherebys, the de-limitation
exercise became notified, yet subsequently an ill informed
notification becoming issued. If so, in the instant case, there is
only one notification, thus making the requisite de-limitation
exercise and it is not succeeded by any subsequent notification,
as happened in the facts and circumstances of Rajesh Kumar’s
case (supra). Additionally also, in the instant case unlike in the
facts in Rajesh Kumar’s case (supra), whereins, there was
blatant departure from the Rules (supra). Contrarily, in the
instant case(s), there are for reasons (supra) no blatant
departures from the Rules (supra). Importantly also herein, there
is reverence meted to the principles enshrined in the statutory
provisions (supra). In summa, the judgment rendered by the
Division Bench of this Court is completely in applicable to the
facts at hand.
40. Now in view of the supra, obviously, the judgment
pronounced in Rajesh Kumar’s case (supra) rather was not
required to be meted reverence. Moreso, when the challenge
made to the said judgment, before the Hon’ble Supreme Court
rather did not result in the said challenge temporarily
succeeding through an order becoming passed by the Apex
Court, thus staying the operation of the said judgment.
Consequently, when the operative part of the judgment made in
Rajesh Kumar’s case (supra) remains undisturbed nor also
when the observations, as occur in the case (supra) do not
appear to be finding any weight whatsoever with the Apex
23 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 24
Court. Resultantly, it holds no force at all.
41. In aftermath, the principle of law declared (supra)
in N.P.Ponnuswami’s case (supra) and Mohinder Singh Gill’s
case (supra), thus come to the fore front, wherebys, thus no iota
of leverage becomes bestowed upon this Court, to, in the
exercise of its writ jurisdiction, hence on evident breaches being
made to the statutory provisions (supra), especially when the
election schedule becomes announced, thus make any
interference(s) in the announced election programme.
42. Now, bearing in mind, the expostulation of law
declared by the Apex Court in case titled as Kishan Singh
Tomar vs. Municipal corporation of City of Ahmedabad and
others, reported in (2006) 8 SCC 352 and in case titled as
Suresh Mahajan vs. State of Madhya Pradesh and another,
reported in (2022) 12 SCC 770, whereins, in the relevant
paragraphs thereof, paragraphs whereof are extracted
hereinafter, thus becomes pointedly established, the trite
pointed statement of law, that the ongoing activity of de-
limitation or formations of wards, rather may not be relevant
consideration to detain the announced election programme by
the State Election Commission, in respect to elections of local
bodies, as and when the said elections become due much less
overdue.
[Kishan Singh Tomar’s case (supra)]
“21. In terms of Article 243 K and Article 243 ZA (1) the same
powers are vested in the State Election Commission as the
24 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 25
Election Commission of India under Article 324. The words in
the former provisions are in pari materia with the latter
provision.
22. The words, ‘superintendence, direction and control’ as well
as ‘conduct of elections’ have been held in the “broadest of
terms” by this Court in several decisions including in Re :
Special Reference No. 1 of 2002 (2002) 8 SCC 237 and
Mohinder Singh Gill’s case (1978) 1 SCC 405 and the question
is whether this is equally relevant in respect of the powers of the
State Election Commission as well.”
[Suresh Mahajan vs. State of Madhya Pradesh and another]
“11. In any case, the ongoing activity of delimitation or
formation of ward cannot be a legitimate ground to be set forth
by any authority much less the State Election Commission – to
not discharge its constitutional obligation in notifying the
election programme at the opportune time and to ensure that
the elected body is installed before the expiry of 5 (five) years
term of the outgoing elected body. If there is need to undertake
delimitation – which indeed is a continuous exercise to be
undertaken by the concerned authority – it ought to be
commenced well-in-advance to ensure that the elections of the
concerned local body are notified in time so that the elected
body would be able to take over the reigns of its administration
without any disruption and continuity of governance (thereby
upholding the tenet of Government of the people, by the people
and for the people). In other words, the amendment effected to
the stated enactments cannot be reckoned as a legitimate
ground for protracting the issue of election programme of the
concerned local bodies.
15. We once again reiterate that the process of delimitation
work and/or triple test compliance is a continuous, complex,
time consuming and more so without any timeline (directly
linked to the expiry of the term of the outgoing elected body).
Whereas, the conduct of elections for installing newly elected
25 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 26
body to take over the reins from the outgoing elected
representative whose term had expired, is explicitly provided
for by the Constitution and the relevant enactments. Therefore,
the former need not detain the issue of election programme by
the State Election Commission, in respect of local bodies as and
when it becomes due much less overdue, including where the
same is likely to become due in the near future.
30. We once again make it clear that if delimitation is not done
by the State Government in terms of Amendment Act(s) of 2022
or the triple test requirement is completed “in all respects” for
providing reservation to OBC category, the State Election
Commission shall give effect to this order also in respect of
upcoming elections of local bodies which would/had become
due by efflux of time.
31. We also make it clear that this order and directions given
are not limited to the Madhya Pradesh State Election
Commission/State of Madhya Pradesh; and Maharashtra State
Election Commission/State of Maharashtra in terms of a similar
order passed on 04.05.2022, but to all the States/Union
Territories and the respective Election Commission to abide by
the same without fail to uphold the constitutional mandate.”
43. Moreover, when the learned State Counsel has also
placed on record the copy of the order dated 08.12.2024, as
made by the State Election Commission, Punjab, wherebys, the
schedule for the elections to various Municipal Corporations,
Councils, and Nagar Panchayats, in the State of Punjab, thus
has been announced. Therefore, the breaches, if any, to the
Rules (supra) by the competent authority in the latter making
de-limitation of wards also thus cannot undo the announced
election programme.
44. Additional support to the above finding becomes
26 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 27
lent by the decision recorded by this Court in case titled as
Beant Kumar alias Beant Kinger Vs. State of Punjab and
Others, to which CWP-PIL-142 of 2024 becomes assigned,
whereins, the hereinafter extracted operative part has been
rendered, thus on a controversy similar to the instant one,
especially, when the said judgment has been upheld by the
Apex Court vide order dated 11.11.2024, as made upon, in case
titled as The State of Punjab and Others Vs. Beant Kumar
and Another, to which SLP (Civil) Nos. 26468-26469 of 2024
became assigned.
4.1 The upshot of the aforesaid discussion is that this Court has
no hesitation in issuing a writ of mandamus directing the State
Election Commission, Punjab, and the State of Punjab to
forthwith comply with the constitutional mandate and initiate
the process of holding elections by notifying election
programmes in all the Municipalities and Municipal
Corporations in question within 15 days from the date of this
order without conducting the fresh exercise of delimitation.
Final Order of this Court.
45. In aftermath, this Court finds no merit in the writ
petition(s) (supra) and with the observation(s) aforesaid, the
same are dismissed.”
4. Moreover, in another writ petition bearing No.26745 of 2024,
thus, a challenge was made to the apposite notification wherebys the election
programme was notified for the conducting of elections to the various gram
sabhas concerned. The said challenge became grooved in the premise, that
there was an arbitrary rejection of the nomination papers by the Returning
Officer concerned. However, through a decision made on the said writ petition
27 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 28
bearing CWP No.26745 of 2024, the said writ petition was dismissed. The
grounds for dismissing the said writ petition are extracted hereinafter:-
“Reasons for rejecting the submissions of the counsel for the
petitioner(s).
23. However, to the considered mind of this Court, the
expostulations of law, as carried in the relevant paragraphs of
the verdicts pronounced in case N.P.Ponnuswami Vs. Union of
India and Others (supra), in case Mohinder Singh Gill and
Anr. Vs. The Chief Election Commissioner and Others
(supra) and in case ‘West Bengal, State Election Commission
and Ors. (supra), when do candidly, make an expostulation of
law, to the extent that the constitutional bar, created in the
relevant constitutional provision (supra), rather against the
makings of any interferences in the announced election
programme, when also but embraces the entire gamut of the
election process, commencing from the filing of the nomination
papers and lasting upto the declaration of results, whereupons,
the all encompassed thereins election processes’, thus require no
interference therewiths being made rather at any stage by the
Courts of law. Apparently, the said trite expostulations of law as
carried thereins, when do cover the subject at hand, therefore,
the asked for mandamus cannot be passed by this Court.
24. Conspicuously for the reason that in paragraph No. 34, of
the verdict rendered by the Apex Court in case titled as ‘West
Bengal State Election Commission Vs. Communist Party of
India (Marxist) (supra), para whereof is extracted hereinafter,
28 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 29
the Apex Court, thus had discountenanced the passing of a
mandamus by the Calcutta High Court, wherebys a direction
was made upon the respondent concerned, to re-draw the
election programme. Therefore, the asked for mandamus is
never passable, as prima facie, appears to be done by the Co-
ordinate Bench of this Court nor is passable by this Court nor
the interim relief granted by the Co-ordinate Bench of this
Court can be made absolute nor the election petition(s) are
maintainable.
34. For the reasons indicated earlier, we allow the appeals and set aside
the impugned judgment and order of the Calcutta High Court directing the
acceptance of nominations in the electronic form. Pending applications, if
any, are also disposed of. There shall be no order as to costs.
25. The judgment delivered by the Apex Court in case
Union Territory of Ladakh & Others Vs. Jammu and
Kashmir National Conference and Another (supra) also is
clearly distinguishable, on two counts:
1) Allotments of election symbol being made thereins, thus
to facilitate the candidate therein to participate in a
democratically held election.
2) The decisions respectively passed by the Single Bench of
the Jammu and Kashmir High Court and the affirming thereto
decision passed by the Division Bench of that High Court, were
apparently drawn much, before the completion of the election
schedule, therebys, there was no breach to the trite canon of law
declared in verdict titled as N.P.Ponnuswami Vs. Union of
India and Others (supra), in case titled as Mohinder Singh
29 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DBCWP No.388 of 2025(O&M) 30
Gill and Anr. Vs. The Chief Election Commissioner and
Others (supra) besides in case titled as ‘West Bengal, State
Election Commission and Ors. (supra), wherebys, there is a
complete interdiction against the High Courts, to in the
exercisings of writ jurisdiction, thus to make an interference
with the electoral process or to make any tinkerings with the
announced election programme.
3) A circumspect reading of paragraph No. 31, as carried in
the verdict (supra), does clearly brings forth a crystal clear
underlining, that the verdicts challenged before the Apex Court,
were passed so as to not make any interference with the notified
election schedule. Furthermore, it has also specifically
underlined therein, that the appellant before the Apex Court, yet
chose to not comply with the said well made orders. Resultantly
the appellants were declared to become estopped to plead that
any interference at the belated stage is barred to be made.
Tritely, when there was no interference as such, in the
announced election programme, rather with the appellant in the
said case despite palpably omitting to comply with the well
timed orders passed by the learned Single Judge of Jammu and
Kashmir High Court and by the Division Bench of the said
High Court, yet proceeding to make a challenge thereto,
therebys thus, the Hon’ble Apex Court after dismissing the SLP
(supra) passed directions upon the appellant to allot the election
symbol to the candidate concerned. Moreover, thereins there
were no irregularities relating to the nomination papers but only
30 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 31
when the nomination papers thereins being found in order, yet
the election symbols remaining untenably unallotted, whereas,
the allotment of election symbol to the candidate concerned
after acceptance of his nomination papers, rather was a statutory
necessity for enabling the candidate concerned, to exercise his
right to contest a democratically held election. In sequel, the
Apex Court on account of the omission (supra) by the appellant
in the SLP (supra), to not comply with the well timed orders
passed by the Jammu and Kashmir High Court, thus proceeded
to direct the appellants to allot the election symbol to the
candidate concerned.
26. Since in the instant cases there is no dispute with respect
of non allotment of election symbols to the candidate
concerned, after acceptance of the nomination papers.
Contrarily, when the subject dispute relates to improper
rejection of the nomination papers. As such, in view of the
supra principles of law, as become culled out by this Court,
from the verdicts (supra) rendered by the Hon’ble Apex Court,
therebys, vis-a-vis the subject in dispute, thus no iota of
jurisdiction becomes bestowed upon this Court, to tinker with
the already announced election programme.
Arguments with regard to the observation(s) made in para No.
21 of the order passed by the Co-ordinate Bench of this Court
that a candidature should not be rejected without affording an
opportunity of hearing and even an opportunity to make
correction in an error shall be provided at the time of scrutiny.
27. The learned State counsel has argued that the Court has
31 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 32
misread the statutory provisions as occur in Section 41 of the
‘Act of 1994. As per Section 41 (7) of the ‘Act of 1994’, the
Returning Officer is duty bound to affix it on the notice board
of his office, the list of the validly nominated candidates and not
of the rejected candidates.
28. That infact the judgment passed by the Apex Court in
case titled as “N.P. Ponnuswami vs Union of India and Others
(supra), thus covering the same proposition i.e., qua a challenge
relating to the rejection of nomination papers of the candidate,
whereins the Hon’ble Apex Court after discussing the scope of
Article 329(b) of the Constitution of India, had ultimately
concluded that therebys there is exclusion of power to be
exercised by the High Courts under Article 226 of the
Constitution of India. As such, the said argument is liable to be
rejected.
29. Furthermore, since though provisions of Section 41 of the
‘Act of 1994’ and Rule 11 of the Punjab Panchayat Election
Rules, 1994, do make an injunction upon the Returning Officer
to endorse on each nomination papers his decision relating to
either accepting or rejecting the same besides encumbers upon
him a statutory duty to record brief statement of reasons in case
the nomination papers are rejected. The said provisions are
extracted hereinafter.
41. Scrutiny of nominations.–
(1) On the date fixed for the scrutiny of nominations under section 35, the
candidates, their election agents, one proposer of each candidate and one
other person duly authorised in writing by each candidate, but no other
32 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 33
person, may attend at such time and place as the Returning Officer may
appoint, and the Returning Officer shall give them all reasonable facilities
for examining the nomination papers of all candidates which have been
delivered within the time and in the manner laid down in section 38.
(2) The Returning Officer shall then examine the nomination papers and
shall decide all objections which may be made to any nomination and may,
either on such objection or on his own motion, after such summary
inquiry, if any, as he thinks necessary, reject the nomination on any of the
following grounds, namely:– (a) that on the date fixed for the scrutiny of
nominations, the candidate either is not qualified or is disqualified for
being chosen to fill the seat under this Act; or (b) that there has been a
failure to comply with any of the provisions of section 38 or section 39.
(3) Nothing contained in clause (b) of sub-section (2) shall be deemed to
authorise the rejection of the nomination of any candidate on the ground
of any irregularity in respect of a nomination paper, if the candidate has
been duly nominated by means of another nomination paper in respect of
which no irregularity has been committed
(4) The Returning Officer shall not reject any nomination paper on the
ground of any defect which is not of a substantial character.
(5) The Returning Officer shall endorse on each nomination paper his
decision accepting or rejecting the same and, if the nomination paper is
rejected, shall record in writing a brief statement of his reasons for such
rejection.
(6) For the purposes of this section, a certified copy of an entry in the
electoral roll for the time being in force of the constituency shalt be
conclusive evidence of the fact that the person referred to in that entry is
an elector for that constituency, unless it is proved that he is subject to a
disqualification specified under this Act.
(7) Immediately after all the nomination papers have been scrutinised and
decisions accepting or rejecting the same have been recorded, the
Returning Officer shall prepare a list of validly nominated candidates, that
is to say, candidates whose nominations have been found valid, and affix it
to the notice board of his office.
(Rule 11 of the Election Rules, 1994)
11. Scrutiny of nomination papers and decision of objections (Section
41)
(1) The Returning Officer shall examine the nomination papers at the time
appointed in this behalf, hear objections, if any, presented by the objectors
in person as to the eligibility of any candidate and determine these
objections after such enquiry as he may consider necessary. The decision
33 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 34
rejecting or accepting a nomination paper and brief statement of reasons
thereof shall be endorsed on the nomination paper and signed by the
Returning Officer.
Provided that the Returning Officer may–
(a) permit any clerical error in the nomination paper in regard to names
or numbers to be corrected in order to bring them in conformity with the
corresponding entries in the electoral rolls: and
(b) where necessary, direct that any clerical or printing error in the said
entries shall be overlooked.
(2) The person objecting under sub-rule (1) must be a candidate of the
concerned Panchayat or Sabha Area, as the case may be.
30. However, though as revealed by Annexure P-4 (in CWP-
27163-2024) for instance, Annexure whereof is extracted
hereinafter, that there is but an ex facie breach caused to the
statutory mandate (supra) to the extent that no detailed order for
rejection has been recorded.
Name of Village/Panchayat – Randhawa Colony
Sr. No. Candidate Ward No. Sarpanch/Panch Nomination accepted
or rejected
1. Randeep Kaur Sarpanch Rejected
2. Kuldeep Kaur Sarpanch Rejected
3. Surinder Singh W1 Panch Accepted
4. Amarjot Singh W2 Panch Rejected
5. Amrik Singh W3 Panch Accepted
xxxx xxxx xxxx xxxx
31. However, if any breach has been done to the above, yet
the relief to mitigate the said breach thus cannot be agitated at
this stage before this Court. The reason being that therebys this
Court would be transgressing the clear expressions (supra)
rendered by the Hon’ble Apex Court, wherebys there is a
complete bar against the High Court, to in the exercise of the
writ jurisdiction, thus make any tinkerings with the announced
34 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 35
election programme, even on the touchstone of their being
improper rejection of the nomination papers, besides the said
nomination papers being rejected without adherence rather
being made by the Returning Officer concerned, qua the
necessity (supra). Contrarily, if therebys the election process is
vitiated, yet the purported therebys vitiation caused to the
election process, is redressable not at this stage, but only
through an election petition becoming filed.
32. Fortifying strength to the above inference becomes
drawn from the provision carried in Sub Section (1)(c) of
Section 89 of the ‘Act of 1994’, wherebys one amongst the
various grounds as set forth thereins, to challenge an election,
thus is the ground relating to the improper rejection of
nomination papers, be it on the ground(s), thus also covering the
premise that there being gross transgression qua the statutory
duties cast upon the Returning Officer concerned, rather arising
from cryptic non speaking order of rejection being passed by
the Returning Officer concerned. Even otherwise the said is a
disputed question of fact and cannot be decided in the instant
petition rather the said fact can be clinchingly decided only in
an election petition, as thereins, on the contested pleadings, the
issues are to be formulated besides evidence has to be adduced
on the said formulated issues. However, the said exercise for
clinchingly resting any disputed question of fact, thus cannot be
undertaken in the instant writ proceedings.
Further submissions of the learned counsel for the
35 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 36
petitioner(s).
33. The learned counsel for the petitioner(s) have further
vehemently argued that the schedule of the elections, did not
provide sufficient time to the candidates concerned, to file
nomination papers. Resultantly, they contend that the
democratic right of the candidate(s) concerned, to participate in
the elections rather has been truncated. However, the said
argument becomes rudderless in the face of the provisions of
Section 35 of the ‘Act of 1994’, provisions whereof become
extracted hereinafter.
35. Appointment of dates for nominations, etc.– As soon as the
notification calling upon a constituency to elect a member or members is
issued, the Election Commission shall, by notification in the Official
Gazette, appoint —
(a) the last date for making nominations, which shall be the Third day
after the date of publication of the first mentioned notification, or, if that
day is a public holiday, the next succeeding day which is not a public
holiday;
(b) the date for the scrutiny of nominations, which shall be the day
immediately following the last date for making nominations or, if that day
is a public holiday, the next succeeding day which is not a public holiday;
(c) the last date for the withdrawal of candidatures, which shall be the
First day after the date for the scrutiny of nominations or, if that day is a
public holiday, the next succeeding day which is not a public holiday;
(d) the date or dates on which a poll shall, if necessary, be taken, which
or the first of which shall be a date not earlier than the Seventh day but
not later than the Tenth day after the last date for the withdrawal of the
candidatures; and
(e) the date before which the election shall be completed.
34. In terms of the said provisions, the State Election
Commission, Punjab has published notification dated
27.09.2024, notification whereof is extracted hereinafter. A
36 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 37
reading of the said notification would reveal, that the said
schedule/programme, was made in conformity with the
provisions (supra), therebys, the argument raised by the counsel
for the petitioner(s) has no force and is rejected.
“Punjab Government Gazette
EXTRAORDINARY
Published by Authority
CHANDIGARH, FRIDAY, SEPTEMBER 27, 2024 (ASVINA 5, 1946 SAKA)
STATE ELECTION COMMISSION, PUNJAB
[email protected] S.C.O. 49, Sector 17-C Chandigarh, 160017.
https://sec.punjab.gov.in ⾦:0172-2771226, 2710162.
NOTIFICATION
The 27th September, 2024
No. SEC-PE-SA/2024/08.-Whereas, the Department of Rural
Development and Panchayats, Punjab has issued Notification no.
S.O.48/P.A.9/1994/S.209/2024 dated 19.09.2024 stating that the
General Elections to elect members of the Gram Panchayats shall be held
by 20.10.2024.
2. Now, therefore, in pursuance of the provisions contained in Section 35
of the Punjab State Election Commission Act, 1994, the State Election
Commission, hereby appoints the following dates for General Elections of
Gram Panchayats in the State of Punjab, with 27.09.2024 (Friday) as date
of Notification.
PROGRAMME
(a) 27.09.2024 (Friday)
First date for filing of Nominations (between 11 a.m. to 3 p.m.)
(a) 04.10.2024 (Friday) (upto 3 p.m.) as the last date for filing
Nominations.
(b) 05.10.2024 (Saturday) as the date for Scrutiny of Nominations.
(c) 07.10.2024 (Monday) as the last date for withdrawal of
candidatures, if any (upto 3 p.m.)
(e) 15.10.2024 (Tuesday) as the date on which a poll shall, if
necessary, be taken,
(f) 16.10.2024 (Wednesday) as the date by which the election shall
be completed.
NOTE: – No nomination will be received on 28.09.2024 (Saturday)
being public holiday for the purposes of Negotiable Instrument
Act.
1. Counting of votes will take place at the polling stations immediately after
the close of poll itself.
1. In pursuance of the provisions of Section 57 of the Punjab State Election
Commission Act, 1994, the Election Commission hereby fixes poll hours
37 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 38
from 8.00 a.m. to 04.00 p.m. during the poll on 15th October, 2024.
2. Model Code of Conduct for Gram Panchayats has come into force from
the date of announcement of elections i.e. 25.09.2024 within the revenue
jurisdiction of the Gram Panchayats, till the completion of the poll.
(Raj Kamal Chaudhuri)
State Election Commissioner, Punjab”
Further arguments of the learned counsel for the petitioners.
35. The learned for the petitioner(s) have also relied upon a
judgment rendered by the Division Bench of this Court in case
titled as Jagdev Singh and Others Vs. State of Punjab and
Others, to which CWP No. 12348 of 2015 became assigned,
whereby they contend that yet there is a bestowment of
jurisdiction in this Court, to even at this stage make an
interference with the announced election schedule.
36. However, the said argument is rejected, as in the judgment
(supra), the ground shown for rejection of the nomination papers
was that ‘the voter number of candidate, proposer and seconder do
not tally with voter list’. Moreover, the said petition became
allowed only in view of the provisions of Section 38 (4) of the
‘Act of 1994’ and Rule 11 (1) (a) of the Election Rules, 1994,
provision whereof are extracted hereinafter, wherebys, there is
permissibility in the Returning Officer to enable the makings of
corrections of any bona fide or clerical errors.
37. Since none of the petitioner(s) either averred nor prima facie,
proved that any statutorily curable clerical error existed in the
rejected nomination papers and yet no opportunity in terms of the
provisions (supra) becoming granted to redress the said error.
38 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DBCWP No.388 of 2025(O&M) 39
Consequently, no leverage can be drawn either from the verdict
(supra) nor from the hereafter extracted statutory provisions as
embodied in Rule 11 of the Election Rules, 1994.
38. Presentation of nomination paper and requirements for a valid
nomination.-
(1) xxxx
(2) xxxx
(3) xxxx
(4) On the presentation of nomination paper, the Returning Officer
shall satisfy himself that the names and electoral roll numbers of the
candidates and his proposer as entered in the nomination paper are the same
as those entered in the electoral rolls.
Provided that no misnomer or inaccurate description or clerical or
technical or printing error in regard to the name of the candidate or his
proposer or any other person, or in regard to any place, mentioned in the
electoral roll or the nomination paper and no clerical or technical or printing
error in regard to the electoral rolls numbers of any such person in the
electoral roll or the nomination paper, shall affect the full operation of the
electoral roll or the nomination paper with respect to such person or place in
any case where the description in regard to the name of the person or place is
such as to be commonly understood; and the Returning Officer shall permit
any such misnomer or inaccurate description or clerical or technical or
printing error to be corrected and where necessary direct that any such
misnomer, inaccurate description, clerical or technical or printing error in
the electoral roll or in the nomination paper shall be overlooked.
(Rule 11 of the Election Rules, 1994)
11. Scrutiny of nomination papers and decision of objections
(1) xxxx
Provided that the Returning Officer may –
(a) permit any clerical error in the nomination paper in regard to
names or numbers to be corrected in order to bring them in conformity with
the corresponding entries in the electoral rolls ; and
(b) where necessary, direct that any clerical or printing error in the
said entries shall be overlooked.
38. Assumingly, if there is any such clerical error which is as such
curable, therebys, if the said has vitiated the election(s), yet the
remedy to the aggrieved is to file an election petition before the
Election Tribunal concerned.
39 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 40
Arguments with regard to exercise of NOTA option (none of
the above).
39. It has been argued by the learned counsel for the petitioner(s)
that even if only one candidate is left in the fray, yet the
respondents were required to hold the elections between that
candidate and NOTA. In this regard, the learned State counsel has
referred to a judgment rendered by the High Court of Andhra
Pradesh in case titled as A.V.Badra Naga Seshayya Vs. State
of Andhra Pradesh, to which Writ Petition (PIL) No. 131 of
2020 became assigned. The relevant paragraph as occur in the said
verdict is extracted hereinafter.
As per the said Rules, in case of Postal Ballot Papers used for
conduct of poll at polling stations with Ballot Boxes or Electronic Voting
Machines (EVMs), provision is required to be made for ‘None of the
Above’ (NOTA). In cases where candidates have been declared
uncontested, NOTA do not apply, looking to the legislative intent, because
option may be permitted to be exercised on contest of election. During
deliberations, while discussing on the nomenclature of NOTA, it clearly
reflects that this contingency applies in case where there is contest of
election and as per the language set up in Rule 35-A of the Rules also, it
reflects that, when there is an election through Ballot Boxes or EVMs.,
only then, the said option can be exercised. Looking to the said legislative
intent and amendment of the word NOTA, the relief as prayed for cannot
be granted; however, the petitioner is at liberty to approach the State
Government or the Central Government to do the needful for the cause
espoused in this public interest litigation.
In view of the aforesaid, we are not inclined to interfere in this writ
petition and the same is accordingly dismissed. No order as to costs.
40. The learned State counsel has further alluded to Section
54 of the ‘Act of 1994’, provisions whereof become extracted
hereinafter.
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
40 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 41
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 persons, 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 will be no such failure on
the part of the constituency of such members ”
41. Since Sub Section (3) of Section 54 of the ‘Act of
1994’ makes a candid expression, that when the number of
candidates contesting against a particular seat, is less than the
number of seats to be filled, and/or wherebys the implication, is
that, in case only a single candidate is left in the fray, therebys, a
statutory injunction is made upon the Returning Officer, to
forthwith declare elected thus as unopossed, hence the singular
candidate left in the fray. Consequently, when no elections
became held to the seat concerned, nor also when there was any
necessity for the electorate through theirs entering the polling
booth concerned, to thus exercise NOTA. Resultantly, the non
assigning of any right of NOTA to the electorate concerned,
rather is completely irrelevant. The said exercising of NOTA by
the Electorate would arise only, if there was a contest amongst at
least two candidates. Contrarily, when there is no contest,
especially, also when even Sub Section (3) of Section 54 of the
‘Act of 1994’ makes a statutory injunction upon the Returning
Officer, to thus declare elected as unopposed, thus even the
41 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 42
singular candidate who is left in the fray. As such, when there is
no breach made to the statutory provision (supra). Resultantly
the non assigning of an opportunity to the electorate to exercise
NOTA, but also therebys becomes reiteratedly inconsequential.”
5. Though, the decision made on the writ petition supra, covered
the issue relating to the conducting of elections to the various gram sabhas
concerned, but the necessity of making an allusion to the supra paragraphs
which exist thereins, but arises from the fact that the exposition of law as
made thereins, to the extent that once an election programme becomes
notified, therebys it is unamenable for being tinkered with, rather in the
exercise of extra-ordinary writ jurisdiction by this Court, wherebys thus, the
supra exposition of law made in supra judgment rendered by this Court in
case supra, is also equally applicable to the issue at hand.
6. The issue at hand relates to the challenge made to the notified
election programme for conducting elections for the seat/position of Mayor,
Senior Deputy Mayor and Deputy Mayor of Municipal Corporation, Patiala,
though, the direct elections to the other local self-bodies within the territory
of the State of Punjab become effectively concluded.
7. However, though the said direct elections became conducted
and also became concluded in terms of the supra decisions becoming made
by this Court, yet it appears that one of the purported contestants to the
ward(s) falling within the domain of Municipal Corporation, Patiala, made a
representation before the Returning Officer concerned. The said
representation is extracted hereinafter:-
42 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DBCWP No.388 of 2025(O&M) 43
“To
The State Election Commissioner Punjab,
Sector 17, Chandigarh.
Subject: For issue instructions to the RO’s & SSP of Patiala
not to harass the BJP Candidates of Municipal
Corporation Elections. As the officials of the
Patiala region are working on the instance of ruling
party, they are not allowing the candidates to enter
in the office to file Nomination papers and
threatening them to face dire consequences if they
contest the election.
Respected Sir,
I am writing to bring to your immediate attention a matter
of grave concern that undermines the sanctity of free and fair
elections, that today is the last day of filing the Nomination
form for the Municipal Corporation elections, it has come to the
notice that the police officials & administration officers of the
Patiala region including the SHO, DSP, SSP, SDM’s and at
various places bad elements of the area are harassing the
candidates of the BJP Party, on the instance of the ruling AAP
Party and not allowing them to fill the Nomination forms, at
Ghanaur 11 candidates are standing outside the office of RO,
but they are not allowing to enter in the office. Earlier also the
complaint was moved as the SHO of Police Station, Ghanaur
namely Sahab Singh threatening BJP candidates namely
Gautam Sood and taken him in illegal custody, but despite of
moving specific complaint no action was taken against him.
That these threats, aimed at discouraging the participation
of BJP candidates, are in blatant violation of constitutional
principles, the Representation of the People Act, 1951 (RPA
43 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 44
Act), and the established norms of free and fair elections. Such
actions not only infringe upon the rights of the candidates but
also tarnish the democratic ethos of our country.
It is, therefore, you are requested to issue instructions to
the Ro’s SSP to take strict action against the said officials and
not to harass the BJP Candidates.
Regards Dated: 12.12.2024
Suneel Dutt Bhardwaj,
Office Secretary,
BJP Punjab Office, Sector 37."
8. Since no action was taken on the said representation, therefore,
a writ petition bearing CWP No.33633 of 2024 became filed before this
Court, thus, claiming the passing of a mandamus upon the respondent
concerned to make a lawful decision thereons. On the said writ petition, the
hereinafter extracted mandamus did becomes so passed:-
“1. Disposed of with liberty to avail the necessary remedies
but at the appropriate stage.
2. However, the respondent No.2 is directed to lawfully
decide the representation (dated 12.12.2024) filed by the
petitioners, today itself. The respondents concerned are also
directed, that as and when municipal elections are conducted to
the Municipal Corporation concerned, thereupon the
respondents concerned, shall ensure that complete compliance
is made to guidelines issued by the State Election Commission,
Punjab, relating to Videography of the nomination process till
its withdrawal.
3. Chief Secretary, Government of Punjab, is directed to
circulate this order to all the Returning Officers concerned.”
9. It appears that the said order was passed on 12.12.2024, which
was the last date for the filing of nomination papers. Though, it is not
44 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 45
specifically stated in the said representation, that the nomination papers
which the petitioners in supra writ petitions, were carrying, rather for theirs
becoming filed before the Returning Officer concerned, thus becoming torn.
Nonetheless, it appears that subsequently the said ground was taken as a
ground before the learned Contempt Bench of this Court. Further,
imperatively also since it is not disputed amongst the counsel(s) appearing
today before this Court, that the date when the said order was passed, rather
was the last date for the filing of the nomination papers. Therefore, it
appears qua given the deficit of time available with the Returning Officer
concerned to pass a well-reasoned order, on the apposite representation, but
only after making compliance to the principles of natural justice, that no
such order became passed on the said representation. Moreover, obviously
when in view of the supra expositions of law as made in judgments supra,
there is but a grave impermissibility against interference being made with
the election programme. Moreover, when it has also been expostulated in
judgments supra that in case there are any deep pervasive vitiations seeping
in the process of undertaking the exercise of conducting elections. Therebys
but on the declaration of results, the remedy available to the aggrieved, is
none other than the filing of an election petition before the Election Tribunal
concerned. Therefore, therebys also the non-passing of a speaking order in
terms of the supra mandamus, thus on the supra representation, but cannot
be construed to be tantamounting to restrain the Returning Officer concerned
to proceed to ensure the conducting of elections.
10. Be that as it may, an incisive reading of the supra order, makes
graphic underlinings that therebys apart from a decision being ordered to be
made upon the representation supra, which however, for reasons supra could
45 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 46
not be made, rather a direction was also passed upon the Returning Officers
concerned, to ensure that complete compliance is made to the guidelines
issued by the State Election Commissioner, Punjab, as relates to
videography being done of the nomination process commencing from the
date of filing of the nomination papers and till the withdrawals thereofs,
thus, taking place.
11. Moreover, the representation supra related to some miscreants
pre-empting the aspirants concerned to file nomination papers, but since a
reading of the election programme, as declared in the apposite notification,
rather made detailings, that the process of filing nomination papers, thus
commenced from 09.12.2024 and lasted upto 12.12.2024. Therefore, if as a
matter of fact, there was some veracity in the representation supra, therebys
the petitioners concerned, than filing the supra writ petition, thus, whereins
they asked for a decision being made on the representation, when did also
became endowed, with the privilege to access the police authorities or when
also became endowed with a privilege to file complaints before the
jurisdictional Magistrate concerned, with relief thereins, that FIRs be
registered against the miscreants concerned. However, none of the supra
recourses remained adopted. In consequence, the non-adoption of the supra
recourses at the instance of the aggrieved, but leads to the drawing of a,
prima facie, inference by this Court, that the representation supra, whereins
the supra echoings occur, rather prima facie, was maneuvered to somehow
or the other, thus, cause with-holdings or pausings in the conducting of
elections, whereas, if the said purported deterrence was caused by certain
miscreants, the remedy to the aggrieved was to file an election petition
before the Election Tribunal concerned but only after the declaration of
46 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 47
results taking place.
12. In the face of the supra backdrop, which patently reveals, that
the said representation was not amenable to be decided, yet the petitioners
who received the supra mandamus from this Court, rather merely on account
of no decision being made thereons, rather proceeded to prefer Contempt
Petition bearing No.5302 of 2024 before this Court. The contents of the said
Contempt Petition are extracted hereinafter:-
1. That the petitioner filed the above said civil writ petition
in this Hon’ble court in the nature of mandamus directing the
respondent No.1 to 3 to conduct videography of the entire
nomination process till the completion of the withdrawal
process to maintain transparency and fairness in the Municipal
Election Scheduled for 21.12.2024 and further for issuance of a
writ in the nature of mandamus directing the respondent No.1 to
3 to ensure that the candidates are not stopped from filing the
nomination paper by deployment of security force and ensure
that forms of the candidates are not rejected on unnecessary
grounds in view of the section 38 & 41 of the Punjab State
Election Commission Act, 1994 and an opportunity to rectify
the mistake if any be given and for issuance of a writ in the
nature of Certiorari seeking quashing of the corrigendum
bearing no. SEC/ME/SAM/2024 (Anx.P-3) issued in the
evening of 11.12.2024 by resp. no. 2 vide which the last date for
submitting the form 1 & 2 for election symbols has been
propone to 12.12.2024 from 14.12.2024, thus, causing a great
hardship to the candidates.
2. That in pursuance to above mentioned grievance
raised before this Hon’ble court, the Hon’ble court after
considering above mentioned prayer clause was pleased to pass
following orders:-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH47 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DBCWP No.388 of 2025(O&M) 48
(135) CWP-33633-2024 (O&M)
Date of Decision: 12.12.2024VIJAY KUMAR AND OTHERS
.. Petitioners
VersusSTATE OF PUNJAB AND OTHERS .Respondents
CORAM: HON’BLE MR. JUSTICE SURESHWAR THAKUR
HON’BLE MS. JUSTICE KIRTI SINGHPresent:- Mr. Ankush Verma, Advocate &
Mr. N.K. Verma, Advocate for the petitioners.
Mr. Maninder Singh, Sr. DAG, Punjab.
SURESHWAR THAKUR, J. (Oral)
1. Disposed of with liberty to avail the necessary remedies but
at the appropriate stage.
2. However, the respondent No.2 directed to lawfully is decide
the representation (dated 12.12.2024) filed by the petitioners,
today itself. The respondents concerned are also directed, that
as and when municipal elections are conducted to the Municipal
Corporation concerned, thereupon the respondents concerned,
shall ensure that complete compliance is made to the guidelines
issued by the State Election Commission, Punjab, relating to
Videography of the nomination process till its withdrawal.
3. Chief Secretary, Government of Punjab, is directed to
circulate this order to all the Returning Officers concerned.
(SURESHWAR THAKUR)
JUDGE
(KIRTI SINGH)
JUDGE
December 12, 2024″
Copy of order dated 12.12.2024 is annexed herewith as
Annexure P-1.
3. That on mere reading of the above mentioned
direction that it is very clear that this Hon’ble High court
specifically directed the respondents alongwith the Chief
Secretary, Government of Punjab to comply with guidelines48 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DBCWP No.388 of 2025(O&M) 49
issued by State Election Commission, Punjab relating to the
Videography of nomination paper till its withdrawal, whereas,
the directions were issued only to assure and clarify specifically
with regard to transparency and non-violation of democratic
rights of participants/aspirants in the municipal corporation
elections.
4. That this Hon’ble High court also considered that the
representation, which was moved before authorized considered
by the present petitioner dated 12.12.2024 was not decided as
the supports and opposite candidate of Aam Adami party
alongwith the government officials destroyed nomination paper
of the present petitioner an illegal, arbitrary manner. It is also
pertinent to mention here that the said representation before the
was submitted concerned SSP, who intentionally did not
decided the same as he clearly wants to facilitate the ruling
government and its supports. It is also pertinent to mention here
that not just the respondent in the writ petition have
willfully/intentionally violated the Hon’ble High court
Directions by not complying with the above narrated order
dated 12.12.2024. it is also worthwhile to mention here that till
date no FIR of theft and grievance injury has been lodged by
said accused persons namely Harman Sandhu, Simar Sandhu,
Sandeep Kumar and Ashwani Kumar. The copy of complaint
dated 12.12.2024 moved by the present petitioner before the
authorizes concerned about the alleged occurrence is annexed
herewith as Annexure P-2.
Therefore, in the light of the above mentioned
submissions that it is just necessary that acts of the SSP Patiala
also fall under section 10 and 12 of Contempt of Court as by
intentionally delaying the legal process, he has violated the
directions passed by Hon’ble Punjab and Haryana High court
and in connivance with respondent NO.3, they have declared
accused namely Sh. Harman Singh Sandhu as un-contested
Municipal Councilor from ward NO.50. 5. That it is also
49 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 50
pertinent to mention here that the present petitioner, whose
nomination form was illegally destroyed again after filing CWP
NO. 33633 of 2024 submitted his nomination paper before the
respondent NO.2, whereas, respondent NO.2 under influence of
authorities concerned, which include Deputy Commissioner,
Municipal Corporation Patiala namely Dr. Rajat Oberoi, PCS,
illegally cancelled the nomination of present petitioner in
complete non compliance of directions passed by Hon’ble High
court, which was specifically with regard to guidelines issued
by State Election Commission, Punjab. It is pertinent to
mention here that the respondent NO.2 cancellation the
nomination paper vide communication dated 13.12.2024,
whereas, a specific reply in pursuance to quarries raised by
respondent No.2 was submitted before the authorized concerned
but the respondent NO.2 in order to facilitate Harman Sandhu
opposite candidate from Aam Adami Party illegally cancelled
the nomination paper of the present petitioner and violated
directions passed by the Hon’ble High court. The copy of reply
to the objections submitted by the present petitioner alongwith
receipt of Tax paid till date and copy of sale deed are annexed
herewith as Annexure P-3. The copy of objections raised by
Harman Sandhu, which were facilitated by respondent NO.2 are
annexed herewith as Annexure P-4. The copy of order dated
13.12.2024 passed by respondent NO.2 cancelling the
nomination paper of the present petitioner in an illegal, arbitrary
and perverse manner is annexed herewith as Annexure P-5.
6. That in the light of above mentioned facts the
conduct of all the three respondent including their accomplices
namely Sh. Nanak Singh SSP, Patiala and Deputy
Commissioner, Municipal Corporation Sh. Rajat Oberoi falls
under section 10 and 12 of Contempt Act.
7. That the conduct of SSP Patiala during the
Municipal Corporation Election can be easily seen from a free
hand given to supports of Aam Adami Party during the
50 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 51
nomination paper as they were openly snatching nomination
paper of the candidate and destroying the same. The video
recording of above mentioned acts are annexed herewith as
Annexure P-6.
8. That in pursuance of above mentioned illicit act of
facilitation done by administration in order to support their
political goons, the result is very clear that they illegally
declared 15 un- opposed elected candidates from Municipal
Corporation, Patiala. The copy of media report vide which 15
wards from where Aam Adami party won election un-opposed
is annexed herewith as Annexure P-7.
9. That the officials respondents including the aids
namely Sh. Nanak Singh SSP, Patiala in criminal conspiracy
with local SHO, Civil, Patiala namely Sh. Amritpal Singh tried
to kidnap the present petitioner early in the morning at 05
O’clock as on 11.12.2024. The video recording of Sh. Amritpal
Singh badly knocking doors of house of the present petitioner
early morning at 05 O’clock as on 11.12.2024 in order to
illegally kidnapped him and to stop him from filing nomination
paper is annexed herewith as Annexure P-8.
10. That it is just necessary the way, respondent No.2
intentionally cancelled nomination paper of petitioner in
pursuance the to present direction passed by this Hon’ble court
shows their malafide intentional that initially by using police
force at early morning 05.00am as on 11.12.2024, which is the
date of nomination, when the authorities were unsuccessful,
they in connivance with opposite candidate of Aam Admi Party
from Ward NO.50 namely Sh. Harman Sandhu initially
destroyed first nomination paper filed by the present petitioner
before respondent No.2, whereas, in pursuance the same present
writ petition was filed, this Hon’ble High court after considering
grievance of the present petitioner was pleased to pass order
dated 12.12.2024. The respondent authorities in pursuance to
considering direction passed by this Hon’ble court did not paid
51 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 52
any heed and intentionally violating all democratic petitioner,
right of the present cancelled simply the nomination paper on
frivolous grounds, as the order passed by authority concerned is
malafide and against the law as the property narrated by the
authorities concerned in their order dated 13.12.2024 is
frivolous and nowhere concerned with the present petitioner.
This Hon’ble court at the time of passing directions very well
narrated that the nomination process should be video recording
only to check out the transparency, whereas, when the
authorities concerned could not do any illicit act, they by one
way or the other raised frivolous objections just to violate
direction passed by this Hon’ble court in order to facilitating the
ruling government.
11. That it is just necessary such in situation, when this
Hon’ble court has stood as a custodian of legal and democratic
rights of the petitioner, the compliance of order dated
12.12.2024 may kindly be made as concerned legally if the
authorities scrutinized the nomination paper, the petitioner who
is a strong candidate in Ward NO.50, democratic right his has
intentionally violated in order to declare Harman Sandhu
candidate of Aam Adami Party as unopposed Municipal
Councilor from Ward NO.50, the act and conduct of
respondents authorities is in complete violation and they
deserves to be prosecuted in accordance with law.
12. That the present petitioner approached the
respondent authorities and tried to give his representation but
the respondent authorities by using their muscle power did not
considered the same and when it was communicated to them
that their act and conduct falls under contempt of courts act,
they were well stated that their legal team will deal the same.
13. That on mere reading of above mentioned facts, it
is very clear from the authorities concerned were only focused
to stop the present petitioner from filing nomination or contest
election from Ward NO.50. it is also worthwhile to mentioned
52 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 53
here that the petitioner has previously contested Corporation,
election from Municipal Patiala of more than 3 occasions,
whereas, the petitioner have previously served as municipal
councilor in last term from 2018 till 2023. It is also worthwhile
to mention here that the present election have been declared in
a well known legal prolong legal battle contested till Hon’ble
Supreme Court by various aggrieved persons. The ruling
government through officials respondents by high jacking the
democratic process have shown their colors that they are
nowhere concerned in transparent elections and their prime
objective is to facilitate their supports by violating and
democratic rights of parties/ citizens/ aspirants. opposite
14. That it is pertinent to mention here that the way
illegally nomination paper of the present petitioner has been
rejected.
15. That the act and conduct of the officials
respondents including respondent NO.1, who is the main
conspirator and decider of illicit act which are to be done as and
when the ruling government direct the officials respondents to
accommodate them is very clear that it is also very clear they
are going to highjack the election booth in upcoming election,
which are to be conducted on 21.12.2024.
16. That the act of the respondent in not complying the order
dated 12.12.2024 is amounts to contempt and liable to be
punished under the Contempt of Courts Act, 1971.
17. That the non compliance of the order dated 23.02.2024
passed by this Hon’ble court, by the respondent are amounts to
contempt of court and therefore, respondent are liable to be
punished accordingly.
18. That no such or similar contempt petition has
earlier been filed by the petitioners either in this Hon’ble Court
or before the Hon’ble Supreme Court of India.
It is, therefore, respectfully prayed that present petition
53 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 54
may kindly be allowed and the respondents may kindly be
punished for willfully, deliberately and intentionally disobeying
the order dated 12.12.2024 (Annexure P-1) passed by this
Hon’ble court in CWP NO.33633 of 2024 in case titled “Vijay
Kumar and others Vs. State of Punjab and others”, by the
respondents, in the interest of justice.
It is further prayed that petitioner be exempted from filing
the certified/true typed copies of Annexures, in the interest of
justice.
13. A keen perusal of paragraphs No.6 to 9 of the Contempt
Petition, unveils, that thereins occur attributions of purported indulgences of
contumacious conducts, rather by the police agencies, but yet the supra
extracted mandamus was made in terms of the supra representation, which
however, became addressed to the Election Commissioner concerned. As
such, the echoings which occur in paragraphs No.6 to 9 of the Contempt
Petition, when do graphically make such attributions which are beyond the
domain of the supra representation. Therefore, any attribution of any
purported ill-indulgences of contumacious conduct, thus, by the officers
named in paragraphs No.6 to 9, but reiteratedly was not only beyond the
domain of the representation but also was beyond the domain of the supra
mandamus as became passed by this Court in Civil Writ Petition bearing
CWP No.33633 of 2024, which however, could not be obeyed, thus for all
the supra stated reasons.
14. Moreover, since as stated supra, even if there was some
dereliction on the part of the officers named in paragraphs No.6 to 9 of the
Contempt Petition, yet since there was facilitation to the petitioners to file
nomination papers commencing from 09.12.2024 till 12.12.2024. However,
54 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 55
significantly yet the making of the supra representation occurred on
12.12.2024, which was the last date for the filing of the nomination papers.
The above fact leads to an inference, that therebys a belated representation
became filed but merely to stall the conducting of the direct elections to the
wards concerned.
15. However, assumingly if the said pre-emptions were, as a matter
of fact, employed by some miscreants, therebys if some actions before the
police agencies became drawn, besides if the said drawn actions against the
miscreants before the police agencies also remained unactioned, therebys the
aggrieved were bestowed with a privilege to make a motion before the
jurisdictionally empowered Courts, to make a direction upon the police
authorities to register an FIR against the errant miscreants/officers
concerned. However, for supra evident omissions on the part of the
aggrieved, after no action being taken by the police authorities on the
relevant motions, thus, to access the jurisdictionally competent Magistrate
Courts, thereby garners a prima facie, inference that both the representations
supra and also the pursuant thereto, but for reasons supra a pretextual
allegation, being made against the errant miscreants/officers concerned, vis-
a-vis, theirs taking no action on the complaints as became made before them
by the aggrieved concerned. The effect of supra pretextual allegations being
made leads to further inferences that they were ill-maneuvered to attempt to
ill-forestall the conducting of the direct elections concerned.
16. Though, the supra mandamus made by this Court, for all supra
stated reasons, was not required to be resulting in the drawing of contempt
actions against the errant officers, but yet it appears that through the making
of the hereinafter extracted supra consensual order, that therebys, prima
55 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 56
facie, there has occurred the ill-stalling of the election process for direct
elections to the 7 wards of Municipal Corporation, Patiala. Moreover, it also
appears that though thereins i.e. in the representation supra, there are no
detailings about the tearings of the nomination forms, at the instance of the
rival candidates concerned or by the agents of the rival candidates
concerned. If so, the supra decision as became rendered by the learned
Contempt Bench of this Court appears to, prima facie, create a ground in
favour of the aggrieved which was however, not as such detailed in the
representation. Even the said created ground but was not required to be
resulting in the hereinafter consensual order being made, resultantly therebys
prima facie, the said passing of the consensual order, thus prima facie,
breaches the supra expostulated principles of law made in the verdict supra.
17. Conspicuously also the fact whether the aggrieved carrying
nomination papers, at the relevant time, or were carrying some other papers,
besides the fact whether, as a matter of fact, the nomination papers were torn
or some other papers were torn, but was contentious fact which may have
materially affected the election results. Therebys, the prejudice ensuing, if
any, to the aggrieved therefroms and/or therebys, the election result
becoming materially affected, but was a grievance which was to be
ventilated only through an election petition becoming filed before the
Election Tribunal concerned, yet only after the pronouncement of election
results and not earlier thereto as has been ill-done through the passing of the
hereinafter extracted order:-
“In COCP-5302-2024, reply dated 20.12.2024 filed on
behalf of the respondents is taken on record. Copy thereof has
been supplied to counsel opposite.
56 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DBCWP No.388 of 2025(O&M) 57
Registry to tag the same at appropriate place.
At the outset, learned Advocate General, Punjab, on
instructions, submits that a decision has been taken by the State
to defer the elections pertaining to the following Wards:-
MUNICIPAL CORPORATION, PATIALA:
1. Ward No.1
2. Ward No.32
3. Ward No.33
4. Ward No.36
5. Ward No.41
6. Ward No.48
7. Ward No.50
MUNICIPAL COUNCIL, DHARAMKOT, DISTRICT
MOGA:
1. Ward No.1
2. Ward No.2
3. Ward No.3
4. Ward No.4
5. Ward No.9
6. Ward No.10
7. Ward No.11
8. Ward No.13
It has also been assured by learned Advocate General, Punjab,
that proceedings in accordance with law shall be initiated
against the erring officials/ private individuals, those who are
visible in the videos appended by the petitioner(s) along with
the present contempt petitions, at the earliest.
List on 15.01.2025.
A photocopy of this order be placed on the file of connected
case(s).”
18. Therefore, prima facie, by the aforesaid submission and
assurance before the learned Contempt Bench of this Court, purportedly
57 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 58
urging to exceed its jurisdiction, has created a piquant situation before this
Court, to the extent that therebys the same evidently travelled, beyond the
countours of the supra expositions of law made in the judgments referred to
in the supra extracted portion, of the decision made by this Court in CWP
No.23649 of 2023 on 13.12.2024.
19. Though preeminently, the relevance of this Court making the
above, prima facie, observations, thus, to a substantial extent fortifies the
hereinafter extracted inferences, whereby this Court has rejected the
submissions addressed before this Court by the learned counsel for the
petitioners, that the instantly announced election programme, thus for
conducting indirect elections to the respective offices of the Mayor, Senior
Deputy Mayor and Deputy Mayor, thus is required to be quashed and set
aside. The relevant submissions addressed before this Court by the learned
counsel for the petitioners are referred to hereafter:-
I. Learned Senior Counsel for the petitioners submits
that since the strength of the electoral college for electing the
Mayor, Senior Deputy Mayor and Deputy Mayor of Municipal
Corporation, Patiala, thus, is 60. Therefore, he submits that
since on account of the supra order passed by the learned
Contempt Bench of this Court, the entire composition of the
electoral college is not complete, therebys he submits that till
the entire composition of the electoral college to, thus, elect the
Mayor, Senior Deputy Mayor and Deputy Mayor of Municipal
Corporation, Patiala, thus, is complete rather thereuptos the
impugned election programme is required to be quashed and set
aside.
58 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DBCWP No.388 of 2025(O&M) 59
II. He further submits that the apposite strength of the
electoral college would be complete only when the election
programme is announced for conducting direct elections to the
7 wards of the Municipal Corporation, Patiala. Since
uncontrovertedly the election programme has not been
announced for conducting elections to the 7 wards, nor when
any apposite declaration of result in respect of such, elected
councillors, has been made, thus qua the 7 wards of Municipal
Corporation. Therefore, he alludes to Section 56 of The Punjab
Municipal Corporation Act, 1976 (hereinafter in short referred
to as ‘the Act of 1976’), provisions whereof are extracted
hereinafter:-
“56. First meeting of Corporation after general elections. –
The first meeting of the Corporation after a general election
shall be held as early as possible after the publication of the
results of the election of the councillors under section 17 and
shall be convened by the Divisional Commissioner.”
III. The further submission which he rests on the supra
extracted provision, is that, since it is mandated thereins, that
the first meeting of the Corporation after the holding of the
general elections, thus, is to be held as early as possible, but yet
only after the declaration of the results being made in terms of
Section 7-A read with Section 2 (14) of the Act of 1976,
provisions whereof becomes extracted hereinafter:-
“7-A. Power of Government to direct holding of general
elections –
(1) Subject to the provisions of this Act and the rules made
59 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DBCWP No.388 of 2025(O&M) 60
thereunder, the Government may, by notification, in the Official
Gazette, direct that a general election or an election to fill a
casual vacancy of the Councillors of the Corporation, shall be
held by such date as may be specified in the notification and
different dates may be specified for elections for different
Corporations or group or groups of Corporations.
(2) As soon as a notification is issued under sub-section (1), the
State Election Commission shall take necessary steps for
holding such general election.
2. Definitions.- In this Act, unless the contest otherwise requires
xx xx xx xx
(14) “election” means and includes the entire election process
commencing on and from the date of notification calling for
election of Councillors and ending with the date of declaration
and notification of results thereof.”
IV. Therebys, he submits that the scheduled meeting
for the conducting of indirect elections to the respective office of
the Mayor, Senior Deputy Mayor and Deputy Mayor, is required
to be deferred till the apposite declaration of results are made in
terms of Section 7-A read with Section 2 (14) of the Act of
1976, whereas, since the apposite declaration of results to the
supra 7 wards of the Municipal Corporation, Patiala, rather has
not been made. Consequently, he submits that in case yet the
appositely announced election programme is yet permitted to
continue, therebys a pervasive breach would be caused to the
supra statutory provisions.
REASONS FOR REJECTING THE SAID SUBMISSIONS
20. The reasons for rejecting the said submissions are inter alia
founded upon the hereinafter premises:-
60 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DBCWP No.388 of 2025(O&M) 61
I. On a combined reading being made of the supra
provisions embodied respectively in Section 56 and Section 7-A
of the Act of 1976, though gives arousal to the inference, that
the first meeting of the Corporation after the holding of the
general elections is to take place as early as possible. However,
the taking place of the said meeting, is to happen only after the
publication of results of the elections of the Councillors, who
are so elected in terms of Section 7-A of the Act of 1976.
Moreover, though the elections to the 7 wards have not taken
place, but the non-conducting of elections theretos nor any
declaration of apposite result in respect thereof, rather cannot
lead to an inference that there can be any deferment of the
announced election programme, thus, for conducting indirect
elections to the respective offices of the Mayor, Senior Deputy
Mayor and Deputy Mayor of the Municipal Corporation,
Patiala.
II. Though Section 7-A of the Act of 1976 speaks
about the conducting of general elections or the conducting of
elections to fill up the casual vacancies of the Councillors in the
Corporation. However, if this Court concludes, that till the said
apposite elections, as become generated through passing of the
supra order by the learned Contempt Bench of this Court, thus,
are held, rather thereupto, no meeting is amenable to be held,
thus for therebys, indirect elections to the respective offices of
the Mayor, Senior Deputy Mayor and Deputy Mayor, being
conducted. Resultantly, therebys this Court would be untenably
61 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 62
interdicting the transaction of business of the Corporation,
which is to take place in the Corporation meetings, and in
respect whereof, the procedure so established is the one
embodied in Chapter V of the Act of 1976. Moreover, if the
said done, therebys this Court would be derogating from the
supra inferences, wherebys this Court has, prima facie,
concluded that the supra deferment made vis-a-vis the direct
elections to the 7 wards of Municipal Corporation, Patiala, but
was in transgression of the supra established norms in the supra
detailed verdicts.
III. The engraftment of the supra Chapter in the Act of
1976, is with a purposive legislative intent, to ensure that the
business of the Corporation becomes conducted by the supra
respectively indirectly elected Mayor, Senior Deputy Mayor
and Deputy Mayor. Since the precursor to the conducting of the
transaction of the Corporation stems from the elections to the
offices of the Mayor, Senior Deputy Mayor and Deputy Mayor,
becoming successfully concluded. Therefore, for ensuring that
the transaction of the business of the Corporation becomes not
withheld, merely on account of this Court accepting the supra
submissions addressed before this Court by the learned counsel
for the petitioners, thereupons the hereinafter ill-consequences
would ensue:-
(a) The democratic functioning of the affairs of the
Municipal Corporation, thus becoming severely affected,
wherebys but damage would be caused to the democratic
62 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 63
functioning of democratic institutions, which are established
both under the Constitution and the makings of enactment
supra.
(b) The said constitutional purpose besides the supra
statutory purpose, is required to be furthered, than becoming
stalled, which would so happen in case this Court accepts the
supra ill-submissions addressed before this Court by the learned
counsel for the petitioners.
IV. A detailed reading of the provisions as embodied in
Sections 55, 57, 58, 59 and 60, provisions whereof are extracted
hereinafter:
“55. Transaction of business by the Corporation
meetings. – (1) The Corporation shall ordinarily hold at
least one meeting in every month for the transaction of
business.
(2) The Mayor or in his absence the Senior Deputy
Mayor, and in the absence of both, the Deputy Mayor
may, whenever he thinks fit, and shall upon a requisition
in writing by not less than one-fourth of the total number
of councillors, convene a special meeting of the
Corporation.
(3) Any meeting may be adjourned until the next or any
subsequent date, and an adjourned meeting may be further
adjourned in like manner.
57. Notice of meetings and business. – A list of the
business to be transacted at every meeting except at an
adjourned meeting shall be sent to the registered address
of each councillor at least seventy-two hours before the
time fixed for such meeting and no business shall be
brought before or transacted at, any meeting other than
63 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 64
the business of which a notice has been so given:
Provided that any councillor may send or deliver to
the Corporation Secretary notice of any resolution going
beyond the matters mentioned in the notice given of such
meeting so as to reach him at least forty-eight hours
before the date fixed for the meeting and the Corporation
Secretary shall with all possible despatch take steps to
circulate such resolution to every councillor in such
manner as he may think fit.
Explanation. – In this section ‘registered address’
means the address for the time being entered in the
register of addresses of councillors maintained in this
behalf by the Corporation Secretary.
58. Quorum. – (1) The quorum necessary for the
transaction of business at a meeting of the Corporation
shall be one-third of the total number of members.
(2) If at any time during a meeting of the Corporation
there is no quorum it shall be the duty of the Mayor or the
person presiding over such meeting either to adjourn the
meeting or to suspend the meeting until there is a quorum.
(3) Where a meeting has been adjourned under sub-
section (2), the business which would have been brought
before the original meeting if there had been a quorum
present thereat, shall be brought before, and may be
transacted at an adjourned meeting, whether there is
quorum present or not.
59. Presiding Officer. – (1) The Mayor or in his absence,
the Senior Deputy Mayor, and in the absence of the both,
the Deputy Mayor shall preside at every meeting of the
Corporation.
(2) In the absence of the Mayor and both the Deputy
Mayors from the meeting, the members present shall elect
one from among their own number to preside.
(3) The Mayor or the person presiding over a meeting
64 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 65
shall have and exercise a second or a casting vote in all
cases of equality of votes.
60. Meeting for election of Mayor. – Notwithstanding
anything contained in section 59 –
(a) meeting for the election of a Mayor shall be convened
by the Divisional Commissioner who shall also nominate
a council who is not a candidate for such election to
preside over the meeting;
(b) if during the election of Mayor it appears that there is
any equality of votes between any candidates at such
election and that the addition of a vote would entitle any
of those candidates to be elected as Mayor, then the
person presiding over the meeting shall decide between
them by lot to be drawn in the presence of the candidates
and in such manner as he may determine, and the
candidate on whom the lot falls shall be deemed to have
received an additional vote.”
21. Does beget the hereinafter extracted inferences:-
(i). A reading of Section 58 as relates to the requisite
quorum, for the effective transaction of the apposite business,
thus taking place at a meeting of the Corporation, when makes
plain speakings, that the requisite quorum, is to become
comprised to the extent of at least one-third of the total number
of members making their participation in the convened meeting.
However, to the considered mind of this Court, the requisite
quorum supra, is necessary only for transacting the business of
the Corporation, but only after the indirect elections qua the
respective offices supra, becoming conducted. Therefore
therebys, there cannot be any ill-stalling vis-a-vis the
65 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 66
transactions of the business of the Corporation, thus, through
any restraint being made against the respondents to make any
pauses, in the appositely notified election programme, thus till
the announcement of results takes place in respect of the 7
wards of the Municipal Corporation, Patiala.
(ii). The further reasons for stating so becomes also
garnered, from the factum, that the subsequent thereto provision
embodied in Section 59 of the Act of 1976, when declare that
the said meetings are to be presided over by a Mayor or in his
absence, by the Senior Deputy Mayor, and in the absence of the
both, by the Deputy Mayor. Therefore, the quorum prescribed
in Section 58 of the Act of 1976, is only meant for transacting
the business of the Corporation. The transaction of the business
of the Corporation, as reiteratedly as stated supra would occur
only when the directly elected Councillors concerned, thus,
become respectively elected as Mayor, Senior Deputy Mayor
and Deputy Mayor, hence by the electoral college concerned.
(iii). Tritely, the provisions of Section 58 of the Act of
1976, do not appertain to the said quorum being also satisfied
when meetings are held for electing a Mayor, Senior Deputy
Mayor and Deputy Mayor. Therefore, the provisions embodied
in Section 60 of the Act of 1976 rather is the one which is
relevant for deciding whether the instantly convened meeting,
thus, was ordered to be convened in terms thereof. Though, the
said provision states only about the convened meeting relating
to the election of a Mayor. Nonethelesss, the provisions relating
66 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 67
to the convening of the meeting, thus, for electing the Mayor,
Senior Deputy Mayor and the Deputy Mayor, becomes
embodied in Section 38 of the Act of 1976, provisions whereof
become extracted hereinafter:-
“38. Election of Mayor, Senior Deputy Mayor, Deputy
Mayor and their term of office. – (1) The Corporation shall, in
the prescribed manner, elect one of its members to be the Mayor
and other two members to be the Senior Deputy Mayor and the
Deputy Mayor of the Corporation.
(2) The election under sub-section (1) shall be conducted at a
meeting of the Corporation to be convened immediately after
the meeting held for making and subscribing oath or affirmation
by the councillors under section 35 but not later than one month
from the date on which election of the councillors is notified
under section 17.
(2-A) The term of office of a Mayor, Senior Deputy Mayor and
Deputy Mayor shall be co-terminus with their term as
councillors.
(3) On the occurrence of any casual vacancy in the office of the
Mayor, Senior, Deputy Mayor or Deputy Mayor, the
Corporation shall within one month of the occurrence of such
vacancy elect one of its members as Mayor or Senior Deputy
Mayor or Deputy Mayor, as the case may be, and every person
so elected shall hold office for the remainder of his
predecessor’s term of office.
(4) The Mayor or the Senior Deputy Mayor or the Deputy
Mayor shall hold office from the time of his election until the
election of his successor in office, unless in the meantime he
resigns his office as Mayor or Senior Deputy Mayor or Deputy
Mayor or his term of office as a member of the Corporation
terminates in any manner or unless in the case of any of the
Deputy Mayors he is elected as Mayor. They shall be eligible
for re-election.
67 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 68
(5) The Mayor shall be entitled to the payment of such
honorarium and may be given such facilities in respect of
residential accommodation, telephone, conveyance and the like
as may be prescribed.
(6) The Mayor shall have access to the record of the
Corporation and may issue directions to the Commissioner or
call for reports from him with a view to ensuring proper
implementation of the decision of the Corporation.”
22. Though Section 38 of the Act of 1976 also speaks about the
elections being held for electing Mayor, Senior Deputy Mayor and Deputy
Mayor of the Corporation, but yet when Section 60 of the Act of 1976, also
speaks about the conducting of elections to the office of the Mayor.
Therefore, prima facie, though it appears that two statutory provisions with
an alike purpose have been created in the Act of 1976. Resultantly, this
Court is required to be discovering the legislative intent behind the
incorporation of Section 38(1) in the Act of 1976 and also a similar thereto
provision which exists in Section 60 of the Act of 1976, which specifically
relates to the convening of a meeting for electing a Mayor.
23. In the said endeavor, this Court finds that the fine nuance qua
the purpose or the intent of the legislature, to make two supra provisions, is
that, qua therebys the legislature did not intend to create any apposite inter
se conflict. Contrarily, the intent of the legislature appears to be well
nuanced to the extent, that unless in terms of sub-Section (2) of Section 38
of the Act of 1976 and also in terms of Section 35 of the Act of 1976,
provisions whereof are extracted hereinafter, rather thus, the meeting is
convened, but with the condition precedent that the oath or affirmation in
terms of Section 35 of the Act of 1976, thus, becoming subscribed by the
68 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 69
elected Councillors concerned, that thereupons alone Section 60 of the Act
of 1976 would come into play and not earlier.:-
“35. Oath or affirmation by councillors.-(1) Every councillor
other than an associate councillor, shall, before taking his seat,
make and subscribe at a meeting of the Corporation an oath or
affirmation according to the following form namely:-
“I, A, B., having been elected [-]1 as councillor of
the Municipal Corporation of ——– do swear in the
name of God solemnly affirm that I will bear true faith
and allegiance to the Constitution of India as by law
established and that I will faithfully discharge the duty
upon which I am about to enter.”
(2) If a person sits or votes as a councillor before he has
complied with the requirements of sub-section (1), he shall be
liable in respect of each day on which he so sits or votes to a
penalty of three hundred rupees to be recovered as an arrear of
tax under this Act.”
As such, Section 60 of the Act of 1976 is not got to be read in
isolation from the prior thereto supra provisions, but has to be blended
therewith besides is to be read harmoniously along with the provisions as
embodied in Sections 38 and 35 of the Act of 1976.
24. On making a harmonious reading of all supra statutory
provisions, therebys this Court draws an inference that since in terms of sub-
Section (2) of Section 38 of the Act of 1976, an imperative statutory
obligation becomes cast upon the authorities concerned to:-
(a) notify a meeting for the conducting of elections to the
office of the Mayor, Senior Deputy Mayor and Deputy Mayor.
(b) Thus with a condition precedent that the convening of the
69 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DBCWP No.388 of 2025(O&M) 70
meeting for the purpose supra is to take place not later than one
month from the date on which the elections of the Councillors,
is notified under Section 7-A of the Act of 1976.
(c) Thus with further condition precedent that the elected
Councillors in terms of Section 35 of the Act of 1976 subscribe
to the oath of office.
25. Now, since it is fairly stated at the bar by the counsels
concerned, that more than one month has elapsed, inter se, the apposite
declaration of results and the making of the impugned notification.
Moreover, when it is also fairly stated at the bar by the contesting counsels
concerned, that the elected Councillors, in terms of Section 35 of the Act of
1976, have subscribed to the oath of office. Resultantly, when the
provisions embodied in sub-Section (2) of Section 38 of the Act of 1976, are
couched in a mandatory phraseology, whereupons there becomes cast a dire
statutory obligation upon the authorities concerned, to upon the supra
conditions precedent, rather becoming satisfied to, thus, proceed to draw an
election programme for conducting elections to the offices of the Mayor,
Senior Deputy Mayor and Deputy Mayor. Resultantly, the said announced
election programme, thus, cannot be interfered, at this stage, by this Court,
as therebys, gross pervasive breaches would be caused to the supra
mandatory statutory provisions.
26. Now the further question which is to be answered by this Court
relates to the fact that since election to supra wards, has been deferred and
also when the members to the supra wards have not been elected, therefore,
whether therebys the provisions supra embodied in Section 7-A of the Act of
1976 are yet required to be galvanized.
70 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 71
27. The answer to the above question, is that, the supra statutory
provisions, are yet to be galvanized, irrespective of the fact that the elections
have not been conducted to the deferred 7 wards nor also the lack of
declaration of result in respect of the said wards, which fall within the
domain of the Municipal Corporation, Patiala, does materially affect, the
instantly announced election programme. The reasons for so stating, is
borrowed from the fact, that sub-Section (2) of Section 38 of the Act of
1976, makes trite speakings, wherebys becomes enjoined a statutory
obligation, upon the authority concerned, to ensure the convening of the
apposite meeting, thus immediately within one month since the apposite
declarations of results being made. Since the factual matrix available on
record suggests that with the declaration of result being made on 21.12.2024,
wherebys the announced election programme becomes concluded on
24.12.2024. Therefore, within the domain of sub-Section (2) of Section 38
of the Act of 1976, the notified election programme has been ably notified,
besides when the elected Councillors in terms of Section 35 of the Act of
1976, have also subscribed to the oath of office, whereupons with the
apposite supra conditions precedent, thus becoming satiated. Resultantly,
reiteratedly therebys, thereupons no breach can be caused to the supra
mandatory statutory provisions.
28. Further, the consequent effect of the above inferences, but is
that, there was no necessity to await the outcome of the results of the
elections to be held to the seven remaining wards of the Municipal
Corporation. The reasons for making the supra inference ensues from the
fact that though Section 7-A of the Act of 1976, thus, permits the holding of
election to a casual vacancy, which occurs to any of the democratically
71 of 72
::: Downloaded on – 25-01-2025 03:00:34 :::
Neutral Citation No:=2025:PHHC:002956-DB
CWP No.388 of 2025(O&M) 72
elected offices concerned but yet when in Chapter V, there is endowment of
a latitude to the Corporation to yet transact business. Therefore, with the said
statutory endowment as bestowed to the Corporation, to conduct business,
even in the absence of remaining unfilled vacancies vis-a-vis the offices of
the Councillors. As but a natural corollary thereto, on the same analogy,
even without awaiting the results of the elections of the seven remaining
wards, thus, the meeting scheduled for conducting the instant elections, thus,
cannot be restrained from being so conducted. Additionally since the
provisions of Section 58 of the Act of 1976 relates to the quorum only for
transacting corporation business, but when the stated supra does not cover
the instant aspect relating to the conducting of indirect elections to the supra
offices, which, however, are to be conducted in terms of Section 38 of the
Act of 1976, especially also when for the reasons supra, the conditions stated
thereins are evidently satisfied, therefore, at this stage, the said provision is
irrelevant.
29. With the following observations, the instant writ petition stands
dismissed and accordingly stands disposed of.
(SURESHWAR THAKUR)
JUDGE
JANUARY 10, 2025 (VIKAS SURI)
d.gulati JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
72 of 72
::: Downloaded on - 25-01-2025 03:00:34 :::