NAND LAL Vs. STATE OF PUNJAB

JUDGEMENT

(1.) NAND Lal and three others through present writ petition filed by them under Article 226 of the Constitution of India, seeks issuance of a writ so as to declare the election of respondents 4 to 11 as Sarpanch/panches of Gram Panchayat Simrianwala as illegal, unconstitutional and against the provisions of law. Before the case might proceed any further it requires to be mentioned that petition in so far as Atma Ram petitioner No. 2 is concerned, was dismissed vide order dated December 17,1993.

(2.) BROAD facts on which the relief asked for is sought to rest reveal that the petitioners are permanent residents and registered voters of village Simrianwala and village Bahmanianwala and village Simrianwala had a joint panchayat which had 11 Panches including 3 Panches belonging to scheduled castes. With a view to have a separate and distinct gram Panchayat for the village Simrianwala the residents of the said village approached the State Government to constitute a New Sabha Area of the village since it has a separate distinct abadi having a population of more than 200. This request of the respondents was acceded to and it was decided to have a separate gram panchayat for Simrianwala village. The Government issued notification dated December 31, 1992, constituting a separate gram sabha area in village Simrianwala which was to have 5 Panches besides Sarpanch and two lady Panches to be elected by the voters of Villages Simrianwala. The petitioners were candidates for election of Sarpanch/panches for village Simrianwala. The election was to be held on January 19, 1993. The date for filing the nomination was fixed as 17. 1. 1993 between 12 noon and 5. 00 P. M. The scrutiny of nomination papers and disposal of objections was to be completed between 1. 00 P. M. and 3. 00 P. M. on January 17, 1993 whereas withdrawal of nomination papers was to be permitted between 3. 00 P. M. and 4. 00 P. M. on that day. After this, declaration of validly nominated candidates and assigning of symbols was to be made at 4. 00 P. M. on January 17, 1993. The persons mentioned in paragraph 10 of the petition filed nomination papers for election of Sarpanch/panches. It is the case of the petitioners that besides the persons named in paragraph 10 other persons belonging to Dhanis which were not included in the gram sabha area in the notification had also filed their nomination papers for the election of Sarpanch/panches. At the time of scrutiny of nomination papers, the nomination papers of the persons belonging to Dhanis/abadis not included in the constitution of sabha area of village Simrianwala were rejected whereas the nomination papers filed by all other contestants except those mentioned in para 10 were withdrawn. It is further the case of the petitioners that after rejection of nomination papers and withdrawal as mentioned above, the petitioners number commensurated with Sarpanch and Panches who were to be elected and therefore, there was no question of any voting. As such, the petitioners ought to have been declared elected. However this was not done and the election was postponed. It is so averred in the petition that after scrutiny was over the Returning Officer was to declare the persons as elected as Sarpanch and Panches, the Presiding Officer neither formally declared the aforesaid persons an unanimously elected as Sarpanch/panches of gram Panchayat Simrianwala nor allotted symbols to the candidates. He was requested to formally declare the aforesaid persons as elected as Sarpanch/panches. An application in that regard was also submitted to the Presiding Officer on January 17, 1993. However, no action was taken by the Presiding Officer. The application filed by elected candidates was kept by the Presiding Officer who on the following day recorded its receipt and cancelled the election under political pressure of sitting member of Parliament Mohan Singh Dhallianwala from Ferozepur Lok Sabha constituency. S. D. O. (Civil) Fazilka sent wireless message on January 17, 1993, to Deputy Commissioner, Ferozepur. According to S. D. O. (Civil) no Abadi area has been mentioned with regard to the panchayat of village Simrianwala in the notification, as such, voters within the periphery of Simrianwala village, could contest and cast their votes. The petitioners it appears from the pleadings thereafter sought relief from various authorities including some politicians but when nothing was done in the matter, they approached this Court through present civil writ petition. The writ came up for hearing on January 15, 1993. Notice of motion was issued but the election that was to take place after some clarification was made, was subject to the decision of the writ petition. It appears that thereafter election was held wherein petitioner did not participate at all. Those who were elected have been arrayed as party respondents and the petition has been amended accordingly.

(3.) THE cause of the petitioner has been opposed by two sets of identical written statements one filed by the official respondents and the other by elected candidates. There is no need to mention in detail the averments made in the written statement filed on behalf of the elected candidates. In the written statement filed on behalf of respondents 1 and 2, it has been pleaded that the petitioners have attempted to mislead this Court by suppressing the material facts which go to the root of the case. It is pleaded that the petitioners had the knowledge that election to Gram Panchayat Bahamaniwala and Simrianwala was postponed vide order dated January 17, 1993 and as such there was no question of accepting. nomination papers by the presiding officer. Even otherwise, on the postponement of the election on the first date, the process of election from filing of nomination papers to the polling of votes and declaration of result had to be undertaken de novo. Since, in the present case, there was no filing of nomination papers for gram panchayat Bahamaniwala or Simrianwala the petitioners have deliberately withheld this material fact from the Court. Copy of the order dated January 17, 1993 postponing the election has been annexed as Annexure R-1. It has further been pleaded that there is on panchayat of village Bahamniwala having population of 9000 out of which gram panchayat consisting of population titled Simrianwala was carved out. None mentioning of Dhanis/abadis could be of no consequence for the simple reason that the Dhanis/abadis do not find mention in the revenue record of village Bahamaniwala. The Dhanis are in the nature of Deras. The Dhani Simrianwala has total number of 111 votes and there was no sense of carving out a Gram Panchayat of the Dhani having ill votes out of the village having approximately 2300 votes. The distance between Simrianwala and Bahmaniwala is about 5 kms. and the Dhanis/abadis/deras surround Simrianwala. The newly carved out gram Panchayat Simrianwala was required to elect 5 Panches besides one Sarpanch and if the Government intended to have a separate Panchayat comprising 111 votes the number of Panches and Sarpanch could not be more than four. It is further the case so pleaded in the written statement that there were some representations filed by the inhabitants of Simrianwala and Abadis around it seeking clarification regarding the boundary areas of the newly carved out gram panchayat. On the basis of the report from Tehsildar (Election) Ferozepur, S. D. O. (C)Fazilka exercising the powers of the Deputy Commissioner, Ferozepur gave clarification that Gram Panchayat Simrianwala will be including the votes of Dhanis/abadies/deras surrounding Simrianwala because the proposal of carving out the new gram panchayat out of village Bahmaniwala had included the Abadies and Dhanis surrounding Simrianwala which would have a population of 2000. Gram Panchayat Simrianwala had total number of 776 voted when election was held on 14. 3. 1993, 767 voters cast their votes and the persons mentioned in paragraph 7 of the written statement were elected as Sarpanch and Panches. It has further been pleaded that as election of gram panchayat Simrianwala was postponed by the S. D. O. exercising the powers of Deputy Commissioner, Ferozepur under Section 48 of the Punjab Gram Panchayat Election Rules, 1960 before 12. 00 P. M. (afternoon) on January 17, 1993 which was the time fixed for filing of the nomination papers the same would be within the purview of the rules permitting postponement of an election.