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PUNJAB & HARYANA HIGH COURT
G.S.Singhvi and M.L.Singhal JJ.
Sham Lal
Versus
State Election Commission, Chandigarh
Civil Writ Petition No. 9800 of 1996,
Decided On : JULY 12, 1996
ELECTION TRIBUNAL - POWER TO RESTRAIN ELECTED REPRESENTATIVES - STAY OF ELECTION RESULT - ELECTION TRIBUNAL LACKS JURISDICTION TO RESTRAIN ELECTED REPRESENTATIVES FROM ASSUMING OFFICE OR TO STAY ELECTION RESULTS.
Fact of the Case:
Petitioner, an elected Sarpanch, challenged an order passed by the Election Tribunal restraining him from assuming office. The Tribunal had passed the order while adjudicating an election petition filed by the respondent, who had lost the election.
Finding of the Court:
The Court held that the Election Tribunal lacked the jurisdiction to pass any order that would prevent an elected representative from assuming office or to stay the result of an election. The Court reasoned that the provisions of the Punjab State Election Commission Act, 1994, which governed the functioning of the Election Tribunal, did not confer any such power on the Tribunal.
Issues: 1. Whether the Election Tribunal has the power to restrain elected representatives from assuming office? 2. Whether the Election Tribunal can stay the result of an election?
Ratio Decidendi: The Court relied on the provisions of the Punjab State Election Commission Act, 1994, and the Constitution of India to arrive at its decision. The Court noted that the Act did not confer any power on the Election Tribunal to pass injunctions or stay orders, and that the Constitution barred judicial interference in election matters.
Final Decision: The Court allowed the petition, quashed the order passed by the Election Tribunal, and directed the petitioner to be allowed to take oath and function as Sarpanch.
G.S.SINGHVI and J JJ.
1. A short but important question which arises for adjudication in this petition is whether the Election Tribunal constituted under the Punjab State Election Commission Act, 1994 (hereafter referred to as 1994 Act) has power to restrain elected representatives from assuming office.
2. Shri Nanak Singh was declared elected as Sarpanch of Gram Panchayat, Bhudha Theh, Tehsil Baba Bakala, Block Raiya, District Amritsar in the election held in the year 1992. Sometime in the year 1995 Shri Nanak Singh resigned from the office of Sarpanch. Election to fill the casual vacancy caused in the office of the Sarpanch due to the resignation of Nanak Singh was held on 20th June, 1996 and as per election result declared by the Returning Officer the petitioner has been shown as elected. Annexure P-I is a copy of the report sent by the Returning Officer to the Election Commission. According to this report the petitioner secured 1511 votes against 955 votes of respondent No. 4 and 60 votes of respondent No. 5 and thus the petitioner defeated respondent No. 4 by over 550 votes.
3. Respondent No. 4 filed an election petition before the Election Tribunal on 24-6l996 challenging the election of the petitioner. Respondent No. 4 also prayed for grant of stay. Respondent No. 1 entertained the election petition and admitted the same. He issued notice to the respondents including the petitioner for 8-7-1996 and passed the order of status quo. It is given out that on 8-7-1996 the proceedings of the election petition were adjourned to 30th July, 1996 and now these are fixed for 13th August, 1996.
4. Petitioner has challenged the order of status quo passed by the Election Tribunal on the ground that the Tribunal has no jurisdiction to pass any order which has the effect of preventing the elected representative from assuming the office. His case is that 1994,Act does not vest any power in the Election Tribunal to stay the result of election or frustrate the democratic will of the people by preventing the elected representative from taking oath of office. Respondent No. 4 has contested the writ petition by alleging that the declaration of election made in favour of the petitioner is arbitrary and without jurisdiction because polling, which was scheduled to take place between 7.00 a.m. to 3.00 p.m., was adjourned due to obstruction and violence. According to the respondent No. 4 the poll had been adjourned by the Returning Officer at about 11.00 a.m. and, therefore, no notice was issued for holding the polls and the people were not given opportunity to cast their votes and, therefore, the petitioner cannot be treated as duly elected Sarpanch.
5. Part IX which contains Articles 243 to 243-O has been added in the Constitution by the Constitution (73rd Amendment) Act, 1992. Article 243-B mandates constitution of Panchayats at the village, intermediate and district levels. Articles 243-C and 243-D relate to composition of Panchayats and reservation of seats. Article 243-E specifies the tenure of Panchayats. Article 243-F enumerates the disqualifications. Article 243-G specifies powers, authority and responsibilities of Panchayats. Article 243-H empowers the Legislature of a State to enact laws for conferring powers to impost taxes and to create funds of the Panchayats. Article 243-I envisages constitution of Finance Commission to review financial position of the Panchayats. Article 243-J deals with audit of accounts of Panchayats. Article 243-K relates to elections. By Article 243-L provisions of Part IX of the Constitution have been made applicable to Union Territories. Article 243-M declares that subject to certain exceptions the provisions of Part IX shall not apply to the scheduled areas and tribal areas. Article 243-N saves the existing Panchayat Laws. Article 243-O contains bar against interference by Courts in electoral matters.
6. In exercise of powers under Articles 243-A, 243-B, 243-C, 243-D, 243-G, 243-H and other provision
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