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CASE NO.: Appeal (civil)  6325 of 2005

PETITIONER: Harnek Singh                                             

RESPONDENT: Charanjit Singh & Ors.                                   

DATE OF JUDGMENT: 07/10/2005

BENCH: Ashok Bhan & S.B. Sinha

JUDGMENT: J U D G M E N T [Arising out of S.L.P. (C) No. 21724 of 2003]

S.B. SINHA, J :

       Leave granted.

       Whether a writ court should entertain a dispute as regard validity or  otherwise of an election falls for decision in this appeal which arises out of a  judgment and order dated 18.9.2003 passed by the Punjab and Haryana High  Court in CWP No. 1987 of 2003.

       The basic fact of the matter is not in dispute.  The Appellant and the  First Respondent contested an election for the post of the Chairman, Gram  Panchayat, Block Samiti, Dhilwan, District Kapurthala, Punjab.  The Special  Secretary, Government of Punjab, Department of Rural Development and  Panchayats by a letter dated 10.1.2003 fixed the date for election to the post  of the Chairman and Vice-Chairman of the Panchayat Samitis on 28th  January, 2003.  4th February, 2003 was fixed for election to the post of  Chairman and Vice-Chairman of the Zila Parishads.  The Special Secretary  authorized the Deputy Commissioner of each district to chalk-out the  election programme of Chairman and Vice-Chairman.  It is not in dispute  that pursuant to or in furtherance of the said authorization the  Deputy  Commissioner appointed the District Transport Officer, Dhilwan as the  Returning Officer.  A meeting was called for holding election on 28.1.2003.   In the said meeting both the contestant secured equal number of votes.  A  party which was led by the First Respondent herein allegedly created  commossion and stopped the legal process of electing the Chairman by toss  which was the next step for completion of the electoral process.  The  situation could not be controlled by the local police and hence the election  process was adjourned by the Returning Officer stating:

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

       Election process was to be completed on 30th January, 2003 at 11.00  A.M. in the Office of D.P.O., Dhilwan.  The First Respondent came to know  thereabout and by a letter dated 29th January, 2003 questioned the authority  of the Returning Officer to fix 30th January, 2003 for holding re-election  stating:

"That now the petitioner has come to know that the  above said officer without any authority and  against all provisions of law has fixed election for  30.1.2003."

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       It was contended that in terms of Rule 31 of the Punjab Panchayat  Election Rules framed under the Punjab Panchayati Raj Act, the Election  Commission could only fix a fresh date for poll and fix a time at which such  poll shall be held.  Therein it was prayed:

"That petitioner prays that action may be taken in  this respect according to law and matter be referred  to Election Commission for fixing of date, time,  hour and place for holding the election of  Chairman, Block Samiti, Dhilwan.  It is further  prayed that the above said officer be directed to  not to hold any meeting or proceeding in  connection with the election of Chairman, Block  Samiti, Dhilwan on 30.1.2003 or any other date  until a direction is issued by the Election  Commissioner, Punjab."

       The Deputy Commissioner, however, by an order dated 29th January,  2003 relying on or on the basis of Rule 45(1) of the Punjab Panchayat Rules  refused to refer the matter to the Election Commission stating:

"The officer appointed under section 105 of the  Punjab Panchayati Raj Act, 1994 to conduct the  meeting of Panchayati Samiti for election of  Chairman and Vice Chairman is empowered to  adjourn the meeting and fix time place and hours  of polling.  The present application is devoid of  any merit and hence is dismissed."

       A writ petition was filed by the Respondents in the High Court of  Punjab and Haryana alleging inter alia therein that the Returning Officer did  not have the power to fix a date of the adjourned meeting to elect the  Chairman of the Panchayat Samiti and only the State Election Commission  is empowered therefor.  Accepting the contention of the Respondents, the  High Court set aside the election of the petitioner as Chairman of the  Panchayat Samiti.  Aggrieved by the order of the High Court, the Appellant  is before us.

       Mr. S. Muralidhar, learned counsel appearing on behalf of the  Appellant, relying on the decisions of this Court in C. Subrahmanyam Vs. K.  Ramanjaneyullu and Others [(1998) 8 SCC 703] and Jaspal Singh Arora Vs.  State of M.P. and Others [(1998) 9 SCC 594], would contend that an  election dispute could not have been entertained by the High Court in  exercise of its jurisdiction under Article 226 of the Constitution of India.

       Mr. R.S. Randhawa, learned counsel appearing on behalf of the  Respondents, on the other hand, would submit that whereas the Punjab  Panchayati Raj Act only lays down the manner of holding election, the  substantive provisions therefor are to be found in the Punjab State Election  Commission Act, 1994 and the Punjab Panchayat Election Rules, 1994.

       Drawing our attention to various provisions and in particular Section  44 occurring in Chapter VIII of the Punjab State Election Commission Act,  1994 as also Section 58 occurring in Chapter X thereof  as well as Rule 31  of the Rules, the learned counsel would contend that the Deputy  Commissioner is merely a delegatee of the State Government.  According to  the learned counsel, only a meeting was fixed and not an election and as  such an election petition will not be maintainable.   

       It was further contended that recourse to filing of an election petition

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as envisaged under Section 89 of the Punjab State Election Commission Act  could not be resorted to as therein jurisdiction of the Deputy Commission  could not have been questioned.

       It is not correct to say that only a meeting was fixed.  The meeting  was fixed for holding election.  The parties hereto took part in the election  process on 28th January, 2003.  The Returning Officer in his proceeding  dated 28th January, 2003 observed:

"After the completion of the process of election,  ballot box was opened in the presence of all.  15  no. of votes were found in that box and these votes  were counted in the presence of all the members.   During counting of votes, one vote was declared  invalid due to wrong marking and from the rest of  14 valid votes, 7 votes have gone in favour of Shri  Harnek Singh and 7 votes in favour of Charanjit  Singh.  Therefore, both have secured equal no. of  votes.

       Now due to this result of the election will be  declared as per rule 35 of Punjab Panchayat  Election Rule, 1994.  As soon as they were  informed regarding draw of lots, Shri Charanjit  Singh and his supporter Shri Sukhapal Singh  Khera came inside and started creating ugly  scenes.  They created interruption in the process  and started raising slogans and tried to do  manhandling.  Due to this law and order problem  was created and local police was unable to control  the same.  Therefore, the remaining process for the  election of Chairman is being stopped due to  compulsion and seriousness of the situation."

                It is, therefore, clear that on 30th January, 2003, only lot was to be  drawn and, thus, the election process which was started on 28th January, and  could not be completed owing to commotion created by the Respondents’  group, was to be completed.

       It may be true that the Respondent herein questioned the jurisdiction  of the Deputy Commissioner and/ or the Returning Officer in fixing a date  for election but in his writ petition he had prayed inter alia for the following:

"(a) issue a writ, order or direction quashing the  entire process, manner and method adopted by  respondent No. 3 in holding the election and for  quashing the result declared by respondent no. 3 in  declaring respondent no. 4 elected as Chairman of  the Block Samiti to be illegal and bad. (b) issue a writ, order or direction, quashing the  action of respondent no. 3 in rejecting the valid  vote case in favour of the petitioner, the same  being actuated with malice and motive and  otherwise being arbitrary and illegal. (c) issue a writ, order or direction declaring the  petitioner elected as Chairman of the Block Samiti  on the basis of votes cast in his favour if necessary  by calling for the records of the election and ballot  papers and after examining the same. (d) issue a writ, order or direction commanding the  respondents to restart the election process from the  stage respondent no. 3 illegally adjourned and  reassemble the meeting or alternatively, to direct  the respondent to hold a fresh election by

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following the process of law and the procedures  and rules prescribed in the Act and the Rules. (e) issue a writ, order or direction quashing the  order passed by DC on the representation filed by  the petitioner, the same being illegal and in  violation of the statutory provision. (f) dispense with service of advance notice on the  respondents."

       Prayers (b) and (c) aforementioned, evidently, could not have been  granted in favour of the petitioner by the High Court in exercise of its  jurisdiction under Article 226 of the Constitution of India.  It is true that the  High Court exercises a plenary jurisdiction under Article 226 of the  Constitution of India.  Such jurisdiction being discretionary in nature may  not be exercised inter alia keeping in view of the fact that an efficacious  alternative remedy is available therefor. [See Mrs. Sanjana M. Wig Vs.  Hindustan Petro Corporation Ltd., 2005 (7) SCALE 290]

       Article 243-O of the Constitution of India mandates that all election  disputes must be determined only by way of an election petition.  This by  itself may not per se bar judicial review which is the basic structure of the  Constitution, but ordinarily such jurisdiction would not be exercised.  There  may be some cases where a writ petition would be entertained but in this  case we are not concerned with the said question.

       In C. Subrahmanyam (supra), a 3-Judge Bench of this Court observed  that a writ petition should not be entertained when the main question which  fell for decision before the High Court was non-compliance of the provisions  of the Act which was one of the grounds for an election petition in terms  Rule 12 framed under the Act.

       Yet again in Jaspal Singh Arora (supra), this Court opined:

"3. These appeals must be allowed on a short  ground. In view of the mode of challenging the  election by an election petition being prescribed by  the M.P. Municipalities Act, it is clear that the  election could not be called in question except by  an election petition as provided under that Act.  The bar to interference by courts in electoral  matters contained in Article 243-ZG of the  Constitution was apparently overlooked by the  High Court in allowing the writ petition. Apart  from the bar under Article 243-ZG, on settled  principles interference under Article 226 of the  Constitution for the purpose of setting aside  election to a municipality was not called for  because of the statutory provision for election  petition and also the fact that an earlier writ  petition for the same purpose by a defeated  candidate had been dismissed by the High Court."

       Mr. Randhawa placed strong reliance on a decision of this Court in  Election Commission of India Through Secretary Vs. Ashok Kumar and  Others [(2000) 8 SCC 216].  In that case while laying down the law as to  under what circumstances an application for judicial review would be  maintainable against an order passed by the Election Commission and  referring to the provisions of Section 100 of the Representation of the People  Act, 1951, this Court observed:

"\005The conclusions which inevitably follow are: in  the field of election jurisprudence, ignore such

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things as do not materially affect the result of the  election unless the requirement of satisfying the  test of material effect has been dispensed with by  the law; even if the law has been breached and  such breach satisfies the test of material effect on  the result of the election of the returned candidate  yet postpone the adjudication of such dispute till  the election proceedings are over so as to achieve,  in larger public interest, the goal of constituting a  democratic body without interruption or delay on  account of any controversy confined to an  individual or group of individuals or single  constituency having arisen and demanding judicial  determination."

       It was held that Section 100 of the Representation of the People Act  provides for a complete remedy.

       Section 89(1)(d)(iv) of the Punjab State Election Commission Act,  1994 reads, thus:

"89. Grounds for declaring election to be void. \026  (1). Subject to the provisions of sub-section (2), if  the Election Tribunal is of the opinion, -  

***             ***             *** (d)     that the result of the election, in so far as it  concerns a returned candidate, has been materially  affected, -  

(i)     ***     *** (ii)    ***     *** (iii)   ***     *** (iv)    by any non-compliance with the provisions  of the Constitution of India or of this Act or of any  rules or orders made under this act;

the Election Tribunal shall declare the election of  the returned candidate to be void."

       In view of the aforementioned provision, which is in pari materia with  Section 100(1)(d)(iv) of the Representation of People Act, a writ petition  may not be held to be maintainable.      

       In this view of the matter, we are of the opinion that it was not a fit  case where the High Court should have exercised its writ jurisdiction.

       Furthermore, it was not even a case where the Respondent was not  aware of the postponed date.    It is not in dispute that the Respondent was  present on the adjourned date of poll but refused to sign the proceeding book  as would appear from the records which have been produced before us.  The  Respondent, however, contested the said statement contending that the same  had been done with a mala fide motive.  But, it is not in dispute that he took  part in the proceedings.   

       We, therefore, do not think that it was a fit case in which the High  Court should have exercised its discretionary jurisdiction.

       For the reasons aforementioned, the impugned judgment is set aside.   The Appeal is allowed.  No costs.