(1.) THIS petition was referred to a Division Bench by me as the vires and validity of Section 8(2)(a) of the Punjab Gram Panchayat Act, 1952, had been challenged in addition to certain other points which had been raised.
(2.) THE Petitioner was elected a Sarpanch of Kheri Gangan Gram Panchayat in the election held on 26th November, 1960. Respondents 1 to 4 were also candidates for the office of the Sarpanch but they were defeated at the poll. No objection was raised by any one of these Respondents to the nomination of the Petitioner at the time of scrutiny of nomination papers by the returning officer. After the result of the election had been declared, Respondent No. 1 filed ah election petition challenging the election of the Petitioner as Sarpanch. This petition was filed under Section 8 of the Punjab Gram Panchayat Act, 1952 (to be referred to as the Act). The election petition was tried by Respondent No. 5 being the prescribed authority. It appears that the main ground on which the election had been challenged was that the Petitioner was a tenant or a lessee under the Gram Panchayat as he was holding plot No. 55 -11/6 belonging to the said Panchayat and was, therefore, disqualified under Section 6(5)(1) of the Act for being elected to the office of the Sarpanch. The finding arrived at by the prescribed authority in the order, dated 31st August, 1961, was that the present Petitioner had forcibly occupied a portion of the aforesaid plot belonging to the Gram Panchayat. The following portion of its order deserves to be reproduced:
(3.) NOW , Section 8(2)(a) leaves it to the prescribed authority to find after such enquiry as it may deem necessary that a failure of justice has occurred and if it so finds, the election can be set aside and a fresh election shall thereupon be held. It is contended that the effect of this provision in the section is that it is left entirely to the choice of the prescribed authority to regulate its own procedure in the manner of enquiry and that it has the discretion to decide as to how much evidence should be allowed to be examined and what type of evidence can be examined. The other important objection that has been raised is that no grounds whatsoever have been indicated for setting aside the election or for declaring it void as is to be found in almost every similar legislation or rules relating to elections. It is urged that on the face of the statute there can be discrimination in the absence of any specification and indication by the legislature as to the grounds on which the election is to be set aside and that it is left to the whim and caprice of each prescribed authority to apply whatever conception it may have of the expression "failure of justice". Thus the legislature, it is said, has failed to indicate with certainty the policy and purpose underlying Section 8 and that a discretion has been given to the prescribed authority who is of the status of an Ilaqa Magistrate without there being any provision for appeal against his order to apply his own notions of justice which is a very general word and the definitions of which are legion.