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Bhagirath Singh Vs. the State of Punjab and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 1233 of 1964
Judge
Reported inAIR1965P& H170
ActsPunjab Panchayat Samitis and Zilla Parishads Act - Sections 6; Representation of the People Act, 1951 - Sections 90(6); Punjab Panchayat Samitis and Zilla Parishads (Elections Petition) Rules - Rule 4
AppellantBhagirath Singh
RespondentThe State of Punjab and ors.
Cases ReferredPuran Chand Gopal Chand v. State of Punjab
Excerpt:
.....order which has as a last resort been urged is that since in january 1964 the petitioner's nomination paper from election tot he gramsabha was rejected on the ground of his being a lessee of the panchayat land, he must be held to be disqualified for being elected as member of the panchayat samiti in the present election as well. if an election petition in a case like the present is to serve the purpose of being an effective alternative remedy then it is desirable to make a provision for its speedy disposal and such provision must be effectively enforced. the authorities concerned in this state might also with advantage consider the question of making some effective provision for speedy disposal of election petitions like the present one, for other wise an unscrupulous party may..........an objection against the petitioner's nomination paper on the ground that the latter's nomination paper for election as member of gramsabha has already been rejected and that he was also in arrears of rent. after going through the affidavits of hari singh and bhagirath singh petitioner, the returning officer came to the conclusion that bhagirath singh has been disqualified for being elected as a member of the gramsabha because his nomination paper has been rejected. it was on the basis of this conclusion that the petitioner's nomination paper has been rejected. it was basis of the conclusion that the petitioner's of the block samiti representing the co-operative societies was rejected. before us the respondents learned counsel have attempted to support the impugned order by reference to.....
Judgment:

I.D. Dua J.

(1) The facts giving rise to this petition and the reasons for reference to a larger Bench are stated in my referring order and need not be repeated. The referring order (omitted in these report--Ed). may accordingly be treated as a part of this order.

(2) Before dealing with the petition on the merits, I may first dispose of the preliminary objection on which great reliance has been placed on behalf of the respondents. It is urged with force that the petitioner challenge the impugned order rejecting his nomination paper by an election petition and that this Court should for this reason decline relief to the petitioner on the writ side. According to the submission the alternative remedy provide by proceedings for election petition is equally adequate and efficacious and the petitioner should therefore not be permitted to invoke the extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution. In support of this preliminary objection reliance has been placed on the following among other, decided case: Tek Chand v. Banwari Lal, AIR 1956 Raj 185 ; Daulat Ram v. State of Rajasthan, AIR 1960 Raj 86; Rattan Singh v. Deputy Commr. Bohtak, ILR (1962) 2 Punj 533; m/s Avtar Singh Ranjit Singh v. Assessing Authority, 65 Pun LR 422: Thansingh Nathamal v. Supdt. of taxes AIR 1964 SC 1419 ; Ponnuswami v. Returning Officer, Namakkal, AIR 1952 SC 64 and Lakshman Lal v. Rameshwar Ram 1963 BLJR 710.

It is unnecessary to refer in detail to these decisions because in my view the position is now settled beyond the controversy by the Supreme Court in more cases that none and then ration of the Supreme Court decisions and the decisions of the Court cited on behalf of the respondents does not militate against that position. It is true that in Tek Chand's case AIR 1956 Raj 185 in head-note (a) we find the following observations:

'* * * * * *

* * * * * *

The petitioner has a remedy to question the validity of the election by a n election petition on the ground that his nomination paper was wrongly rejected by the Returning Officer. The High Court should never interfere before the remedy by way of election petition is exhausted.'

It is on this observations that the respondent has placed his principal reliance. I regret my inability to read these sentences to mean that the learned Judges intended to lay down any rigid and absolute rule prohibiting the High Court from interfering in a fit case with an order improperly rejecting a nomination appear without exhausting remedy by a nomination paper without exhausting remedy by way of election petition. The question of interference by this Court on its writ side is a matter of judicial discretion which must from the very nature of things call for determination after considering all the facts and circumstances of a given case. In the reported case the Court was influenced by more consideration than one in declining interference on the writ side and one of the important factors which weighed with Court was the under S. 19 of the Rajasthan Town Municipalities act an appeal is provide to the High Court from the decision of the District Judge hearing the election petition were the decision is challenged on a point of law. Some of the decided cases cited on behalf of the respondents relate to taxation matter and one of them is concerned with election to a State Legislature Art 329 of the Constitution operates as a constitutional bar in challenge to the elections by any mode other than an election petition. In respect of taxation matters also. I am aware of decided cases in which the approach of the Courts of writ has been somewhat more rigid against interference with orders of assessment though even in taxation cases where challenge is clear-cut and is based on attract on the vires of the imposition or on jurisdictional or grave legal infirmity manifest on the face of the record which does not require probe into conflicting or disputed facts, the Writ Courts have not hesitated form investing into the grievance and they have not infrequently granted relief on proper case being made out to further the cause of justice. Even the Supreme Court has on more occasions than one granted relief under Article 32 of the Constitution on the view that a thereat by the State to realise without authority of law tax from a citizen by using coercive machinery of an impugned Act is an infringement of guaranteed fundamental rights and has also upheld High Court's interference under the Article 226: see Tata Iron and Steel Co. Ltd v. S. R. Sarakar, AIR 1961 SC 65 and cases noticed therein.

(3) that the existence of an alternative remedy does not per se operate as an absolute legal bar to the exercise of jurisdiction of the High Court to issue a writ of certiorari etc. under Article 226 of the Constitution or to 7 such relief being granted on its writ side and that this factor has only self-created relevance in the exercise of the Court's judicial discretion is not disputed and indeed is no longer open to question is in face of repeated unequivocal decision of the Supreme Court to which it is no longer necessary to refer. In so far however as interference on writ side with grievances relating to elections to Municipal Committees or to the Panchayats etc. is concerned this Court has recently considered the legal position in more cases that one. A Division Bench in Devi Ram v. State of Punjab, Civil Writ No. 1408 of 1964 (Punj) has very recently observed:

'* * * * that the existence of an alternative remedy though an extremely important factor and more particularly so in those elections contest in which the Legislature has provided remedy by way of election petition does by no means per se affect, curtail or impinge upon the jurisdiction of this Court under Article 226 which can legitimately be invoked by an aggrieved party in a fit case, when the true dictates of justices so demands. One of the basics and fundamental considerations which largely influence the judicial mind of the writ Court inducing it to interfere is when manifest injustice resulting from jurisdictional or grave and material legal infirmity, patent on the face of the record, is plainly discernible without requiring deep probe into conflicting facts, and the alternative remedy, if any is not equally effective. The matter being pre-eminently one of judicial discretion, no inflexible and rigid rule can or should be formulated to serve as a straight jacket in all cases. Each case would accordingly have to be dealt with in its own peculiar setting and circumstances and the mere existence of an alternative remedy does not of itself impose an obligation on this Court to relegate the aggrieved party to such remedy.'

The fact that bar on the basis of the existence of alternative remedy has again been pressed by the respondents' learned counsel in all seriousness, though without controverting that such bar does not go to the jurisdiction of the writ Court, impels me briefly to re-emphasise the legal position on the point. The jurisdiction conferred on this by the Article 226 is not appellate and this Court is accordingly not empowered to act as the Court of appeal. What is conferred by this Article is supervisory jurisdiction which reserves to the writ Court power to remedy failure of justice caused inter alia, by violation of Rule of law. Justice, it may be remembered, as enshrined in the Preamble of our Constitution, occupies the first place on the list of cherished human values which have been sought to be secured to be secured to all citizens of this Republic. Article 226 seems to me to have its roots in this purpose and is apparently designed to assure to the citizen justice denied to him by the subordinate Tribunals. Consistently with this superior status the writ Court does ordinarily compete or come into conflict with the subordinate Tribunals in their normal functioning, nor is it intend to serve as a substitute for them. It is for this, among other reasons, that if a citizen can have justice elsewhere the extraordinary jurisdiction of the writ Court is ordinarily not allowed to be invoked and the citizen is expected first to seek redress of his grievances from the subordinate Tribunals. But this is not a constitutional bar; it is merely a self-imposed restriction dictated by considerations of practical working, with the result that if the alternative remedy is not equally adequate, efficacious and speedy, this self-imposed restriction must give way in favour of interference to facilitates the cause of substantial justice and further its ends. Very recently, a Bench of this Court, of which my learned brother Grover J was a member, speaking through the learned Chief justice, in Fateh Singh v. K. C. Grover, Civil writ No. 927 of 1964 (Punj) reaffirmed the legal position in these words:

'It may, however, be safely said that the existence of an alternative remedy is not by itself a bar to a petition under Article 226 and that whether Court should interfere or not would depend entirely on the facts and circumstances of the particular case in which the point arises.'

Shri Sarin for the respondents has submitted that the decision cited by him were not considered by that Bench, inferentially suggesting thereby that the question requires re-examination. I am not impressed by this submission. The legal position is settled beyond controversy and it was wholly unnecessary for that Bench to notice various authorities in this judgment. I must say that I am in complete and respectful agreement with the view taken in the unreported decision and indeed sitting with the learned Chief Justice, I myself took the same view in Puran Chand Gopal Chand v. State of Punjab, AIR 1963 Punj 28.

(4) The question as to whether or not the alternative remedy in a given case is equally adequate efficacious and speedy also depends on its peculiar facts and circumstances and no rigid and inflexible rule can be formulated to cover every case. Any attempt to do so would in my view be futile. The Court of writ has strictly speaking to apply to judicial mind to all the facts and circumstances before it and then come to a judicial it should exercise its jurisdiction or relegate the aggrieved party to the alternative remedy. In case in hand, the petitioner's nominations papers were rejected on 18-6-1964 and within four days he presented the writ petition in this Court in which ad interim prayer for staying the election fixed for 22-6-1964 was also made. Bedi J. who was acting as vacation Judge on 22-6-1964 granted stay of declaration of result of the election up to 13-7-1964 the date fixed for preliminary hearing. The state order was to be communicated telegraphically. On 13-7-1964 the Motion Bench issued notice on their behalf on 3-8-1964 and also continued the stay till the said date. It is noteworthy that Shri M. R. sharma the learned counsel appearing for respondents Nos. 1 to 3 and accepting notice on their behalf an 3-8-1964 and also continued the stay till the said date. It is noteworthy that Shri M. R. Sharma, the learned counsel appearing for respondents Nos. 1 to 3 and accepting notice on their behalf on 3-8-1964 did not opposed the order continuing the stay on the ground that the result and already been announced on 22-6-1964. It has been stated at the bar by the learned counsel that he was not aware of this fact but I have not least doubt that his client must have received the intimation pursuant to the order of Bedi J. Dated 22-6-1964 and it was persumably peared on 13-7-1964 and accepted notice. as a matter of act, even in the return it has nowhere been explained as to in what circumstances the result of the election was announced on 22-6-1964 in face of the state order of which telegraphic information was ordered to be given. An election petition can under Rule 4 of the Punjab Panchayat Samitis and Zilla Parishads (Elections Petition) rules announcement of the result of the election. This would mean that the election petition by the present petitioner could be presented within 20 days from 22-6-1964 and such a petition would clearly be now barred by time. It is not suggested that of election petition after the prescribed period by showing sufficient cause for the delay except Rule 4(2) which does not concern us. In this connection it may not be out of place to observe that the earlier election petition filed by the petitioner questioning the election held on 5-1-1946 is still in the were being made to secure attendance of the parties. Such delays in the disposal of the election petitions do seem to me to detract from the efficaciousness of this alternative remedy on the facts and determine whether or not a given alternative remedy is equally adequate and quick so as to merit refusal by this Court to go into the controversy, it is necessary to consider the nature of the challenge to the impugned order as also the conduct of the writ petitioner. In the case in hand, the challenge is based on a clear-cut legal argument urging grave error of law on the face of the record with does not require enquiry into disputed facts. The petitioner's conduct is also free from blame and the writ petition was presented with the utmost expedition. I am therefore clearly of the view that on the facts and circumstances brought to our notice on the facts and circumstances brought to our notice in this case the existence of alternative remedy cannot and should not deprive the petitioner of his right of claim adjudication of his grievance from this Curt on the writ side.

(5) This brings me to the merits of the legal infirmity. The impugned order dated 18-6-1964 does not specifically mention the clause of section 6 of the Punjab Panchayat Samitis and Zilla Parishads Act

(Act No. 3 of 1961)(hereinafter called the Act) under which the ptitioner's nomination paper was rejected. All that this order shows is that Hari Singh had raised an objection against the petitioner's nomination paper on the ground that the latter's nomination paper for election as member of Gramsabha has already been rejected and that he was also in arrears of rent. After going through the affidavits of Hari Singh and Bhagirath Singh petitioner, the Returning Officer came to the conclusion that Bhagirath Singh has been disqualified for being elected as a member of the Gramsabha because his nomination paper has been rejected. It was on the basis of this conclusion that the petitioner's nomination paper has been rejected. It was basis of the conclusion that the petitioner's of the Block Samiti representing the Co-operative Societies was rejected. Before us the respondents learned counsel have attempted to support the impugned order by reference to clauses (f), (j) and (k) of section 6 of the Act. These clauses are on the following terms:

'Disqualifications of candidates for election as Primary Members:

6. No person shall be eligible for election as a Primary Member if such person--

* * * * * *

(f) is so disqualified by or under any law made by the Legislature of the Punjab State; or

* * * * * *

(j) is disqualified from membership of a Municipal Committee, Gram Panchayat, Panchayat Samiti, Zilla Parishad or any other local authorities as a result of his election having been set aside under rules made under this Act or any other enactment for the time being in force relating to Municipalities, Panchayats or other local authorities; or

(k) is disqualified for being elected or coopted as member ; or

* * * * * * *.'

None of these clauses seems to me to apply to the petitioner. It has not been shown under which laws made by the Legislature of the Punjab State the petitioner is disqualified for being elected a as Primary Member of the Panchayat Samiti. That the expression ' so disqualified' in clause (f) refers to disqualification in regard to eligibility for election as a Primary Member appears to me to be clear on the language of this clause read with S 5 in that light of the definition of the word 'member' contained in section 2(9) of the Act. Similarly there is noting on the record to show that the petitioner is disqualified a s a result of his election having been set aside within the contemplation of clause (j). For bringing the petitioner's case under clause (k), it has been argued that as the petitioner was held to be disqualified for being elected as a member of the Gramsabha on 5-1-1964 when his nomination paper for that election was rejected, he must be considered to be disqualified for being elected or co-opted as a member within this clause. It may be pointed out that it was on this identical reasoning that the impugned order was apparently passed. The fallacy underlying this argument appears to me to be based on failure to apply the definition of the word 'member ' means a member of the Panchayat Samiti or Zilla Parishad as the case may be. The submission that this definition is not intended to be rigid and if the context otherwise requires, the Court can depart from it is of no avail to the respondents and indeed their counsel are unable to pint out any cogent reason which in the context would justify such departure. As a matter of fact, the respondents contention seems to me to be almost circular in that it is first assumed without urging any cogent reason that the word 'member' as used in clause (k) is wide enough to include member of a Gramsabha and then it is sought on the basis of this assumption to induce the Court to depart from the statutory definition and to give this word a wider meaning so as to justify the assumption. The bald submission is thus unsupported by any cogent or convincing reason. I have accordingly no hesitation in repelling it. I may point out that when the Legislature has intended a wider meaning of the word 'member ', it has expressed its intention specifically as is clear from clause (j).

The position, therefore, boils down to this ; that there is absolutely no material on the record establishing disqualification of the petitioner from being eligible for election as a Primary Member of the Panchayat Samiti on the dates when his nomination paper was either filed or rejected. The ground in support of the impugned order which has as a last resort been urged is that since in January 1964 the petitioner's nomination paper from election tot he Gramsabha was rejected on the ground of his being a lessee of the Panchayat land, he must be held to be disqualified for being elected as member of the Panchayat Samiti in the present election as well. It is not denied that an election petition in regard to the earlier election to the Gransabha is still pending in which the correctness of the order rejecting the petitioner's nomination paper is in issue.

(6) Now, in the first instance, merely because on 5-1-1964 the petitioner was considered to be lessee of Panchayat land it does not necessarily follow that he was also one in June 1964, Secondly non-eligibility for being elected as a member of the Gramsabha need not necessarily mean non-eligibility for being elected as a Primary Member of Panchayat Samiti. Our attention has not been drawn to any provision of law which would suggest that a lessee of Panchayat land would be ineligible for election as a Primary Member of a Panchayat Samiti. Clause (j) of section 6 only speaks of disqualification as a result of the candidate's election having been set aside; this would obviously by different from initial ineligibility for election which does not arise out of an order setting aside the candidate's election ; the context of this clause seems to me to clear on this point. Clause (k) is also inapplicable as no disqualification of the petitioner has been brought to our notice; the word 'member' in this clause, I may repeat is intended to bear the in this clause, I may repeated is intended to bear the defined meaning no cogent or convincing reason having been urged for adopting a wider meaning and even if the meaning is to be somewhat wider, there is nothing to suggest as to how wide it should be ; in other words what kind of membership and of which local body should be deemed to have been intended by the Legislature. It is worth-noting that except for the earlier order of rejection of the petitioner nomination paper on 5-1-1964 there is no other material to which our attention has been drawn which would establish the petitioner's disqualification justifying the impugned order. I have therefore little hesitation in holding that the impugned order is wholly unsupportable and contrary to law and therefore, liable to be quashed in these proceedings.

(7) There is one aspect to which I am inclined to advert before concluding. If an election petition in a case like the present is to serve the purpose of being an effective alternative remedy then it is desirable to make a provision for its speedy disposal and such provision must be effectively enforced. The Parliament has in its wisdom made such a provision in section 90(6) in the Representation of the People Act, 1951. It is true that in some cases parties have managed to defeat the purpose of this provision by unduly prolonging the proceedings. but by and large this provision has promoted the cause of speedy disposal of elections petition. The authorities concerned in this State might also with advantage consider the question of making some effective provision for speedy disposal of election petitions like the present one, for other wise an unscrupulous party may be adopting delaying tactics easily render an election petition futile for all practical purposes. Another aspect which is no less necessary to emphasise is that the Returning Officer must not only be properly posted with the relevant law on the subject of elections but they must also be properly triad and disciplined so as to be able to discharge their duties with detachment objective detachment of a judicial mind, completely free and insulated from administrative political or personal considerations and influences. In the absence of this essential pre-requisite, or representative institutions may no be able to inspire confidence and our democratic set-up founded on the principle of people's representation would seem to rest on weak foundations. If our experiment in Panchayat Raj in villages is to succeed and if we except effectively to train rural India in the democratic way of life as envisaged by our Constitution then the election process must be worked strictly in accordance with law wholly uninfluenced by collateral considerations. It may be remembered that detailed and high democratic principles enshrined written constitutions do not automatically establish democracy; it is the way these principles are acted upon in principles are acted upon in practice and enforced and the way the citizens adopt the democratic way of life, both in public and private which determine whether or not a country is a true democracy. The most inspiring modern democracy, it may be pointed out has not written Constitution and another great democracy has, comparatively speaking a brief written Constitution.

(8) As a result of the foregoing discussion, this writ petition succeeds and allowing the same I quash the impugned order dated 18-6-1964 by which the petitioner 's nomination paper was rejected. The election held on 22-6-1964 must also automatically be se aside and I order accordingly. The election in question would, therefore have to be held again in which the petitioner would be entitled to contest. The petitioner must get his costs.

A.N. Grover, J.

(9) I agree.

LH/VKU/V. B. B.

(10) Petition allowed.


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