The right to dispute an election to the Panchayat can be exercised only in accordance with the provisions of the Panchayat Act, and the remedy provided by the Act is effective and efficacious.

JAWAHAR LAL GUPTA, J.

1. Is Rule 42 of the Gram Panchayat Election Rules 1960, which provides that the election petition under the Act shall be preferred to the Executive Magistrate within whose jurisdiction the Sabha area is situate ultra vires the Constitution of India? This is the short question that has been raised in these five writ petitions viz. CWP 2854, 3563, 3734, 504 and 593 of 1993. A few facts, as mentioned in C.W.P. No. 2854 of 1993, may be noticed.

2. Election to the Gram Panchayat of Village Mohadian, Tehsil and Distt. Fatehgarh Sahib was held on 22/01/1993. The petitioner and respondent No. .3, who were duly registered as voters in the said constituency, contested the election. The petitioner lost and respondent No. 3 was elected to the office of the Sarpanch of the said village. The petitioner alleges that respondent No. 3 was elected because he committed various illegalities and improprieties and also because "the Government machinery went out of its way to help him in manipulating his results. It is averred that respondent No. 3 was in actual physical cultivating possession of the Gram Panchayat land for the last many years. In accordance with the provisions of the Act he is not entitled to remain Panch or Sarpanch in the village as occupation of the Gram Panchayat land disentitled a person from being a member of the Panchayat. According to the petitioner, he had objected to the acceptance of the nomination papers of respondent No. 3 by making a written application. In spite of the documentary evidence produced by the petitioner, the objection was not accepted by the Returning Officer (respondent No. 2). The petitioner avers that the election of respondent No. 3 to the office of Panch and Sarpanch is prima facie illegal and avoid as he was not qualified to be elected.

3. The Punjab Gram Panchayat Act, 1952 (hereinafter referred to as the Panchayat Act) provides for the filing of an election petition before the Prescribed Authority. The aggrieved party has the remedy of appeal as well. The petitioner avers that the remedy by way of election petition is superfluous the election petitions are decided by the Sub Divisional Magistrate, who is an executive authority and under the influence of the Government. The petitioner maintains that deciding of an election petition is judicial work, till 24/07/1972 the election petitions had to be decided by a judicial authority, viz. Magistrate of the First Class, However, by an amendment, it was provided that the election petition shall be presented to the Prescribed Authority. This authority has been prescribed under the rules and the petition has to be presented to the Executive Magistrate. The provision for this purpose has been made in Rule 42. This provision of Rule 42 has been challenged as being ultra vires of the Constitution of India and its basic structure on different grounds. It has been averred that the Executive Magistrates actively participate in the elections at all levels and they are charged with the duty to judge the fairness of their own conduct. It has been further averred that in accordance with the mandate of Article 50 of the Constitution of India, Judiciary has been separated from the Executive in the State of Punjab and the Punjab Separation of Judicial and Executive Functions Act, 1964 (Punjab Act No. 25 of 1964) (hereinafter referred to as the 1964 Act) was enacted by the Legislature to achieve the object enshrined in Article 50 of the Constitution of India. Once that has been done, the petitioner has a right that the election dispute be tried by a Judicial Tribunal and not by an executive authority. On these premises, the provisions of Rule 42 have been challenged and it has been prayed that it be declared as ultra vires and unenforceable. A further prayer for the issue of a direction entitling the petitioner to file an election petition before the Judicial Magistrate of his area has also been made.

4. A written- statement has been file