- (1.) Kartar Singh was a sitting Sarpanch when fresh election for that office took place on 21st June, 1983. In that election Prem Singh was declared elected defeating Kartar Singh. On 20.7.1983 Kartar Singh filed election petition and one of the grounds raised was that the elected candidate was in un-authorised possession of Gram Panchayat land measuring 2 Marlas, comprised in Khewat No. 290 min Khatoni No. 458 min. Rect. No. 674 and he had constructed boundary walls on it. On 26.7.1983 the election petition filed an application before the Prescribed Authority, who is the Executive Magistrate, for appointment of a Local Commissioner on the plea that the elected candidate was wanting to remove the wall so as to destroy the evidence of illegal occupation of the Gram Panchayat land. The Tehsildar was appointed the Local Commissioner. On 9th August, 1983 he gave notice to the parties intimating them about his visit on 11.8.1983, to make the demarcation and find out the encroachments, if any. The Local Commissioner reported that at the time of his visit, there was no encroachment but their existed a wall, which seemed to have been removed about 3 months prior thereto. The elected candidate denied having encroached upon any Gram Panchayat land or having raised a wall. The Prescribed Authority gave opportunity to both the sides to lead evidence. Petitioner appeared as PW 1, produced Phul Chand, another resident of the village as PW 2 besides examining Narinder Singh, Tehsildar, who was the Local Commissioner, as PW 3. The documentary evidence produced on behalf of the election petitioner is as follows :- Exhibit No., Nature and contents of the document. A-1, Jamabandi for the year 1977-78 showing Khewat No. 290-min Khatoni No. 458 min, Khasra No. 706 measuring 2 Marlas, gair mumkin rasta in the ownership of the Gram Panchayat and in the occupation of share-aam (public street). A-2, Deposit voucher of Rs. 100/- by the election petitioner. A-3, Jamabandi for the year 1977-78 of the same Khewat and Khatoni, but in regard to Khasra No. 674 showing 16 Marlas to be gair mumkin rasta in the ownership of the Panchayat and in occupation of share-aam (public street). P-4, Notice issued by the Local Commissioner to the parties on 9th August, 1983 to appear on 11.8.1983 at the spot to carry out measurements. P-5, Report of the Local Commissioner. P-6, Plan prepared by the Local Commissioner, annexed with the report, showing that out of the street having the width of 2 Karam covered by Khasra No. 674, 3/4th thereof had been encroached upon. As against the above, the elected candidate appeared as RW 1 and produced Desa as RW 2 in support of his statement. The Prescribed Authority by order dated 9th May, 1985 (Annexure P-3) set aside the election under Section 5(5)(m) of the Punjab Gram Panchayat Act , 1952 (for short 'the Act'), as amended by Haryana Amendments, after recording finding that the elected candidate was in illegal possession of the street owned by the Panchayat, on the date of filing of the nomination paper and a year prior thereto. The elected candidate went up in appeal. The learned Additional District Judge dismissed the appeal on 22.8.1985 by order Annexure P.5. This is a petition under Articles 226/227 of the Constitution of India by the elected candidate against the aforesaid orders.
(2.) Two main arguments have been advanced. One that the evidence of the elected candidate and his other witness has not been referred to by the Prescribed Authority and without considering the same, the matter could not be decided and, two, that there was no evidence on the record on the basis of which finding of encroachment could be recorded. Before, I proceed to consider the two points, it would be useful to notice the scope of jurisdiction of this Court under Articles 226/227 of the Constitution of India. In Syed Yakoob v. K.S. Radhakrishnan, 1964 AIR(SC) 477 the following dictum was laid :- "...An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however, grave it may appear to be. In regard to a finding of fact recorded by the Tribunal a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. A finding of fact recorded by the Tribunal cannot, however, be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or efficiency of evidence led on the point and the inference of fact to be drawn from the said finding being within the exclusive jurisdiction of the Tribunal, the points cannot be agitated before a writ Court." Keeping the aforesaid dictum in view, I would proceed to decide to two points raised before me.
(3.) Adverting to the first point, a reading of the order of the Prescribed Authority shows that while in the resume of facts it was noticed that the elected candidate had appeared as RW 1 and Desa Singh had appeared as RW 2 but while discussing the matter under the issue framed in the case, their statements were not at all adverted to. This Court would have the jurisdiction to interfere if the Prescribed Authority had erroneously refused to examine RW 1 and RW 2. But if they are allowed to be examined, their statements are not adverted to while discussing evidence it would amount to as if their evidence was not considered admissible. Otherwise, their statements had also to be evaluated in arriving at a decision on question of fact. On all fours, we have a decision of this Court in Joginder Singh v. The Prescribed Authority under the Gram Panchayat Act (Executive Magistrate 1st Class), Bhatinda and others, 1966 68 PunLR 169. That was also a case of writ arising out of election petition where the statement of an elected candidate's witness was noticed in the judgment by the Prescribed Authority but his evidence was completely ignored while discussing the matter. The relevant passage may be quoted with advantage :- "...It is, however, unfortunate that the learned Executive Magistrate who decided the election petition has somehow completely ignored his important piece of evidence and has not discussed it all after mentioning the fact that Jagnandan Singh appeared as a witness before him. It is impossible to sustain any judgment or order given in quasi-judicial proceeding which is either based on no evidence or is given in complete disregard of the evidence on the record. The finding of the Prescribed Authority is wholly inconsistent with the statement of R.W. 2 Jagnandan Singh..." Therefore, it is clear that the order of the Prescribed Authority cannot be sustained. It would have to be seen whether the matter should be remitted to the Prescribed Authority to decide the same afresh or the matter should be concluded here, which would be dealt with in the later part of the judgment after the second point is considered.;