KULWANT SINGH Vs. PRESCRIBED AUTHORITY

JUDGEMENT

(1.) Both Civil Writ Petitions No. 189 and 915 of 1974 arise out of the same order passed by the Prescribed Authority on December 31, 1973. Kulwant Singh and Makhan singh contested election to the office of Sarpanch of Gram Panchayat of village Jahangir, Tehsil and District Amritsar, held on 22.6.72 in which Kulwant Singh was declared elected. Makhan Singh filed an election petition before the petition on various grounds. Kulwant Singh contested the election petition and declined the allegations levelled by Makhan Singh. The following issues were framed by the Prescribed Authority :-

(2.) Mr. H.S. Giani, learned counsel for Kulwant Singh contends that no re-counting is provided in the Gram Panchayat Act, 1952, (hereinafter referred to as the Act) or the rules framed thereunder and that the Prescribed Authority had no jurisdiction in law to declare Makhan Singh as elected to the office of Sarpanch. Mr. S.C Sibal, learned counsel for Makhan Singh contends that purposely he had filed a separate petition because the petition could not declare Makhan Singh as having been elected and that this Court has ample power to do so in exercise of its extraordinary powers under Article 226 of the Constitution. For this proposition he has placed reliance on Sohan Singh v. The State of Punjab and others, 1973 PunLJ 387. In that case the learned Single Judge of this Court had quashed the election of Kartar Singh and declared Sohan Singh as elected in his place. In that case, six persons contested election for the offices of Panch and four persons were to be elected. Two persons, namely, Joginder Singh and Sohan Singh secured equal number of votes., i.e. 41 each and the Presiding Officer drew a lot and declared Joginder Singh elected. Kartar Singh who obtained four votes only was declared as having been elected under clause (c) of proviso to sub-section (4) of Section 6 of the Punjab Gram Panchayat Act, 1952 . Sohan Singh in that situation filed straightaway a writ petition challenging the election of Kartar Singh, wherein his main contention was that already one Gajan Singh, a Schedule Caste candidate, had been declared as elected who obtained the second highest number of votes and thus Kartar Singh, another Scheduled Caste candidate, could not be elected. In that situation, the learned Single Judge upheld the contention of Sohan Singh, set aside the election of Kartar Singh and declared Sohan Singh elected as he secured fourth position and four persons were to be elected as Panches. No enquiry was required in that case and it was only an interpretation of clause (c) of proviso to sub-section (4) of Section 6 of the Punjab Gram Panchayat Act was involved. Since the Returning Officer had wrongly interpreted it, the learned Single Judge correctly rectified that error on the writ side. The facts of the present case are entirely different. Here, no declaration can be given in favour of Makhan Singh as having been elected as Sarpanch as no interpretation of any provision of the Act or the Rules is involved and his allegations were to be proved or disproved in an enquiry.

(3.) The grounds for setting aside an election are given in Section 13-O of the Act. Under sub-section (1) of Section 13-O, the Prescribed Authority can set aside the election of the elected person and under sub-section (2) of Section 13-O, it can order fresh election after an election has been set aside by it. As for the scope of decision of the Prescribed Authority under Section 13-N(1) of the Act makes provision as under -