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PUNJAB AND HARYANA HIGH COURT
G.S. Singhvi and M.L. Singhal, JJ.
Sham Lal - Petitioner
Versus
State Election Commission, Punjab - Respondents
C.W.P. No. 9800 of 1996.
Decided On : 12 August, 1996
ELECTION TRIBUNAL - POWER TO RESTRAIN ELECTED REPRESENTATIVES - PUNJAB STATE ELECTION COMMISSION ACT, 1994 - SECTIONS 73, 75, 81, 87, 88, 89, 94, 101 - INTERPRETATION - NO POWER TO RESTRAIN ELECTED REPRESENTATIVES FROM ASSUMING OFFICE.
Fact of the Case:
Petitioner, elected as Sarpanch, challenged the order of the Election Tribunal restraining him from assuming office. Respondent No. 4, who lost the election, filed an election petition alleging irregularities in the election process.
Finding of the Court:
The Election Tribunal constituted under the Punjab State Election Commission Act, 1994 (1994 Act) has no power to restrain elected representatives from assuming office.
Issues: Whether the Election Tribunal has the power to restrain elected representatives from assuming office.
Ratio Decidendi: 1. Article 243-O of the Constitution of India bars judicial interference in electoral matters. 2. 1994 Act, which governs the election of Panchayats in Punjab, does not confer any power on the Election Tribunal to pass injunctions or stay orders. 3. The only provisions for stay orders are found in Section 101 of the 1994 Act, which allows the Election Tribunal and the High Court to stay the operation of orders made under Sections 87 or 88 of the Act. 4. The purpose of these provisions is to prevent obstruction in the election process and to implement the will of the people reflected in the election results.
Final Decision: The order of the Election Tribunal restraining the petitioner from assuming office was quashed. The petitioner was allowed to take oath and function as Sarpanch.
G.S. Singhvi, J. - 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 (hereinafter 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. Some time in the year 1995 Shri Nanak Singh resigned from the office of Sarpanch. Election to fill the causal 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-1 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 24.6.1996 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. Articles 243-H empowers the legislature of a State to enact laws for conferring powers to impose 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 provisio
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