- (1.) The election of the office of the Sarpanch Gram Panchayat of village Rajpura, tehsil Nabha, district Patiala, was held on 30.6.1972. Ram Singh petitioner and Sukhdev Singh respondent No. 3 contested that election. Ram Singh was declared elected as Sarpanch. Sukhdev Singh filed an election petition before respondent No. 1, the Prescribed Authority, under the Punjab Gram Panchayat Act, 1952 (Punjab Act No. IV of 1953) (hereinafter referred to as the Act) to hear the election petition. Respondent No. 1 on 28th August, 1975, accepted the election petition, set aside the election of the petitioner and declared Sukhdev Singh respondent No. 3 elected as Sarpanch. The relief given by the Prescribed Authority against issue No. 8, is relevant and is reproduced below :- "From the arguments given on issue Nos. 1 to 7, it is clear that the petitioner secured 162 votes for the office of Sarpanch and Shri Ram Singh, respondent, got 161 votes but one vote of the petitioner was rejected by illegal way and toss was held but no record as to the toss and of the rejected vote was produced by the presiding officer nor he has mentioned it in the diary nor the rejected ballot paper or papers for toss were produced. The statement of the Presiding Officer dated 26.3.1973 regarding rejected ballot paper is not on the record. From this it is clear that the petitioner got more votes than the respondent. Therefore, the election petition is accepted and the election of Shri Ram Singh as Sarpanch is held void and Shri Sukhdev Singh Sarpanch is declared as having elected."
(2.) Ram Singh petitioner has filed this petition on the ground that the Prescribed Authority had no authority to declare respondent No. 3 as elected. According to the petitioner, it could not order a re-election under sections 13-N(1) and 13-O(2) of the Act. He, therefore, prayed for the issuance of a writ of certiorari for quashing the order of the Prescribed Authority dated 28.8.1975 declaring respondent No. 3 elected as Sarpanch. Sukhdev Singh respondent contested the petition and pleaded that his one vote was illegally rejected by the Presiding Officer and that toss was never held. He defended the observations of the Prescribed Authority declaring him elected.
(3.) The only question which requires determination in this petition is whether the Prescribed Authority under the Act could declare a candidate elected who has not been (may be due to any reason) declared elected at the time of election. Section 13-N(1) of the Act gives the scope of the enquiry to be made and orders to be passed by the Prescribed Authority called upon to decide an election petition arising out of the elections of the Gram Panchayat. Section 13-N(1) of the Act is as under :- "Where an election petition has not been dismissed under section 13-E, the prescribed authority shall inquire into the election petition and at the conclusion of the inquiry shall make an order - (a) dismissing the election petition; or (b) setting aside the election." Section 13-O of the Act gives the powers to the Prescribed Authority to set aside the election and also the effect of such an order. Section 13-O of the Act is as under :- "(1) If the prescribed authority is of the opinion, - (a) that on the date of his election the elected person was not qualified, or was disqualified, to be elected under this Act; or (b) that any corrupt practice has been committed by the elected person or his agent or by any other person with the consent of the elected person or his agent; or (c) that any nomination has been improperly rejected; or (d) that the result of the election in so far as it concerns the elected person, has been materially affected - (i) by the improper acceptance of the nomination; or (ii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void; or (iii) by any non-compliance with the provisions of this Act or of any rules made under th is Act; the prescribed authority shall set aside the election of the elected person. (2) When an election has been set aside under sub-section (1), a fresh election shall be held.";