PREM SINGH Vs. ADDL DISTRICT JUDGE

JUDGEMENT

(1.) Kartar Singh was a sitting Sarpanch when fresh election for that office took place on 21st June, 1983. In that election Prem Singh was declared elected defeating Kartar Singh. On 20.7.1983 Kartar Singh filed election petition and one of the grounds raised was that the elected candidate was in un-authorised possession of Gram Panchayat land measuring 2 Marlas, comprised in Khewat No. 290 min Khatoni No. 458 min. Rect. No. 674 and he had constructed boundary walls on it. On 26.7.1983 the election petition filed an application before the Prescribed Authority, who is the Executive Magistrate, for appointment of a Local Commissioner on the plea that the elected candidate was wanting to remove the wall so as to destroy the evidence of illegal occupation of the Gram Panchayat land. The Tehsildar was appointed the Local Commissioner. On 9th August, 1983 he gave notice to the parties intimating them about his visit on 11.8.1983, to make the demarcation and find out the encroachments, if any. The Local Commissioner reported that at the time of his visit, there was no encroachment but their existed a wall, which seemed to have been removed about 3 months prior thereto. The elected candidate denied having encroached upon any Gram Panchayat land or having raised a wall. The Prescribed Authority gave opportunity to both the sides to lead evidence. Petitioner appeared as PW 1, produced Phul Chand, another resident of the village as PW 2 besides examining Narinder Singh, Tehsildar, who was the Local Commissioner, as PW 3. The documentary evidence produced on behalf of the election petitioner is as follows :-

(2.) Two main arguments have been advanced. One that the evidence of the elected candidate and his other witness has not been referred to by the Prescribed Authority and without considering the same, the matter could not be decided and, two, that there was no evidence on the record on the basis of which finding of encroachment could be recorded. Before, I proceed to consider the two points, it would be useful to notice the scope of jurisdiction of this Court under Articles 226/227 of the Constitution of India. In Syed Yakoob v. K.S. Radhakrishnan, 1964 AIR(SC) 477 the following dictum was laid :-

(3.) Adverting to the first point, a reading of the order of the Prescribed Authority shows that while in the resume of facts it was noticed that the elected candidate had appeared as RW 1 and Desa Singh had appeared as RW 2 but while discussing the matter under the issue framed in the case, their statements were not at all adverted to. This Court would have the jurisdiction to interfere if the Prescribed Authority had erroneously refused to examine RW 1 and RW 2. But if they are allowed to be examined, their statements are not adverted to while discussing evidence it would amount to as if their evidence was not considered admissible. Otherwise, their statements had also to be evaluated in arriving at a decision on question of fact. On all fours, we have a decision of this Court in Joginder Singh v. The Prescribed Authority under the Gram Panchayat Act (Executive Magistrate 1st Class), Bhatinda and others, 1966 68 PunLR 169. That was also a case of writ arising out of election petition where the statement of an elected candidate's witness was noticed in the judgment by the Prescribed Authority but his evidence was completely ignored while discussing the matter. The relevant passage may be quoted with advantage :-