DEVI RAM Vs. STATE OF PUNJAB AND OTHERS

JUDGEMENT

(1.) DEVI Ram petitioner has approached this Court under Article 226 of the Constitution in the following circumstances. The election to the Panchayat Samiti Ranian Block of a member representing the Market Committee in the Block under section 5(2) (a) (iii) of the Punjab Panchayat Samitis and Zila Parishads Act, 1961 (hereinafter called the Act) was scheduled to be hold on 21st June, 1964. Shri Kehar Singh, P. C. S., General Assistant to the Deputy Commissioner, Hissar respondent No. 3 in this court had been appointed the Returning Officer for this election and the nomination papers were to be filed before him on the day of the election i. e. 21st June, 1984 between 9 and 9.30 A.M., and the scrutiny of the nomination papers was to be made immediately thereafter; polling, if necessary, was in turn to follow the scrutiny immediately thereafter. The petitioner claim to be a producer member of the Market Committee, Sirsa which is a Market Committee in the Ranian Block; the is resident of village Bhuratwala, which village is situated within the jurisdiction of Panchayat Samiti Ranian Block. The petitioner and Arjan Singh, respondent No 4, who is also a member of the Market Committee, Sirsa, filed their nomination papers for the election in question with respondent No. 3 Arjan Singh objected to the petitioner's nomination papers on the ground that village (sic)twala, in which the petitioner resides, not being within the jurisdic -(sic)et Committee, Sirsa, the petitioner was not eligible to be (sic) Section 5(2) (a)(iii) of the Act. The petitioner controverted this argument with the contention that Bhuratwala village is admittedly within the jurisdiction of the Panchayat Samiti, Ranian, and the petitioner had been duly appointed by the Government as a producer member of the Market Committee, Sirsa, and indeed his name as a producer member of the said Market Committee was on the list of electors for this election, with the result that he was fully eligible to seek election. According to the writ petition, even Arjan Singh admitted that village Bhuratwala was within the jurisdiction of the Panchayat Samiti, Ranian, but in spite of this admission, the Returning Officer rejected the petitioner's nomination paper on the sole ground that village Bhuratwala was not within the jurisdiction of the Market Committee, Sirsa. Arjan Singh was accordingly declared elected on that very day. The petitioner, soon after the announcement of the order rejecting his nomination paper applied in writing to the Returning Officer for a copy of the said order rejecting his nomination paper and also for a copy of the objections. The Returning Officer assured the petitioner that copies would be supplied to him in due course. Thereafter, the Returning Officer was several times approached for the required copies but the Returning Officer put him off saying that he was making enquiries whether or not such copies could under the rules be supplied to him. The petitioner thereupon applied to the Sub -Divisional Magistrate who was officiating as Deputy Commissioner, Hissar, complaining about the non -supply of the required copies. The Sub -Divisional Magistrate also marked the complaint to the Returning Officer with the remark that copies should be supplied to him or some rule should be quoted which deny him this right. The petitioner again approached the Returning Officer on 3rd July, 1964 with the aforesaid order of the Sub Divisional Magistrate, but the Returning Officer told him that the nomination papers and orders thereon had been sealed and the copies could only be supplied by the Deputy Commissioner. After getting this reply, the petitioner applied to the Deputy Commissioner for copy of the order rejecting his nomination paper. It is in these circumstances that the present writ petition has been filed challenging the order of the Returning Officer, rejecting the petitioner's nomination paper, describing it to be wholly without jurisdiction and perverse on the face of it. It has also been averred in the petition that the primary members of the Panchayat Samiti Ranian would shortly be called upon to co -opt six members representing women and schedule castes to the Panchayat Samiti Ranian Block and they would then be called upon to elect a Chairman and a Vice -Chairman of the Panchayat Samiti as well as two representatives of the Panchayat Samiti to the Zila Parishad. The declaration of Arjan Singh's election as a member of the Panchayat Samiti, Ranian Block, being void and ineffective, the co -option of members and the election of Chairman and Vice -Chairman of the Panchayat Samiti as well as of the representatives of the Panchayat Samiti to the Zila Parishad would be vitiated if Arjan Singh were allowed to take part in these proceedings as a primary member. For these reasons, it has been averred that the petitioner has no other equally efficacious and speedy remedy except by way of the present writ petition. This petition was presented to this Court on 13th July, 1964. On 14th July, 1964, we issued rule directing the petition, to be heard by a Division Bench as the question raised was of considerable importance. Shri H.S. Wasu accepted notice and opposed the petitioner's prayer directing Arjan Singh not to take part in the co -option of members to the Pantheist Samiti, Ranian, under section 16 of the Act and also to refrain from taking part in the election of Chairman, Vice Chairman and representatives of the Panchayat Samiti to the Zila Parishad, After hearing Shri Wasu, we granted an interim order restraining Arjan Singh from taking part in the co -option of members and in the election of Chairman, Vice Chairman and representatives of the Zila Parishad.

(2.) IN the written statement filed by the Deputy Commissioner, Hissar, it is admitted that the petitioner is a producer member of the Sirsa Market Committee, though it is denied that the Sirsa Market Committee represents the whole of the Ranian Block. It has also been pleaded that village Bhuratwala to which the petitioner belongs does not fall within the notified area of the said Market Committee. The allegation in paragraph 13 of the petition that the petitioner had to apply to the Sub Divisional Magistrate who was officiating as Deputy Commissioner, complaining about the non -supply of copies, has been admitted, though this admission is followed by an averment that certified copies have been supplied to the petitioner. In the written statement filed by the Returning Officer also, it is admitted that the petitioner is a producer member of the Sirsa Market Committee, though like the other written statement it is denied that the Sirsa Market Committee represents the whole of Ranian Block or that village Bhuratwala falls within the notified area of the said Market Committee. Paragraph 11 of the petition is admitted; in other words, the Returning Officer had assured the petitioner that copies would be supplied to him in due course. In reply to paragraph 12, it is averred that the petitioner's application for the supply of certified copies of the order of the Returning Officer was sent to the said officer on 1st July, 1964 which was forwarded by him to the D. D. & P. O. in whose charge the sealed election papers of the Block Samiti's election are kept. Thereafter the petitioner is stated to have approached the Returning Officer in his office only once on 3rd July, 1964 with a reminder which was also forwarded to the D. D. & P. O. for necessary action. The petitioner was also told that since the nomination papers including the order of the Returning Officer rejecting his nomination papers had been sealed on 21st June, 1964 and sent to the D. D. & P. O. D. C. for record and his application for supply of copy had also been sent to the said officer for necessary action, the petitioner should approach him for the purpose. Later on the certified copy was supplied to the petitioner. Arjan Singh's written statement in substance merely avers that the rejection of the petitioner's nomination paper was correct and lawful. He has, however, also raised a preliminary objection that it was open to the petitioner to file an election petition against the election of the answering respondent as a member of the Panchayat Samiti and since he had not done so, the present writ petition could not be maintained, particularly because no reason has been assigned for not filing the election petition as provided by law.

(3.) THE petitioner's learned counsel has in support of his challenge to the impugned order passed by the Returning Officer read to us section 5 (2) (a) (iii) of the Act and has submitted that a plain reading of this provision shows that the Returning Officer's order is completely misconceived and erroneous in law. This section, so far as relevant for our purposes, is in the following terms :