IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.13939 of 2008 DATE OF DECISION: OCTOBER 20, 2008 Shamsher Singh and others .....PETITIONERS Versus Deputy Commissioner, Ferozepur and others ....RESPONDENTS CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JASWANT SINGH --- Present: Mr.C.M.Munjal, Advocate, for the petitioners. Mr.M.S.Sindhu, Addl.A.G., Punjab, for respondents No.1 to 4. Mr.Charanjit Sharma, Advocate, for respondent No.5. None for respondents No.6 and 7. .. SATISH KUMAR MITTAL, J. The petitioners, who are five out of nine Members of Gram Panchayat of Village Mullianwali, Block and Tehsil Fazilka, District Ferozepur, have filed this petition under Articles 226/227 of the Constitution of India for setting aside the election of respondent No.6 as Sarpanch of the Village Gram Panchayat and the Certificate dated 24.7.2008 (Annexure P5) issued by respondent No.4 in favour of respondent No.6 being illegal, arbitrary without holding the election for the post of Sarpanch of the Village Gram Panchayat. In nutshell, the case of the petitioners is that after the notification of the elected Members of the Panchayat and administering of oath to them, the first meeting of the elected Members of the Gram C.W.P. No.13939 of 2008 -2- Panchayat was convened for 22.7.2008 by Shri Jagdev Singh, Assistant Director, Horticulture, who was authorized to convene the said meeting under Section 13-A of the Punjab Panchayati Raj Act, 1994. However, the said meeting was adjourned due to lack of quorum for 24.7.2008. It is the case of the petitioners that on 24.7.2008, the petitioners came present at the venue of the meeting and remained there, but neither the Returning Officer nor the Panchayat Secretary came present to conduct the proceedings of the meeting. It has been further stated that the remaining four Members were also present. At about 3.15 PM, Sub Divisional Magistrate, Fazilka also came present, but no meeting was held because the Presiding Officer and the Panchayat Secretary did not come present. It has been further stated that in this regard on the same day the Sub Divisional Magistrate submitted his report Annexure P1 to the District Election Officer, but subsequently the petitioners came to know that the Presiding Officer and the Panchayat Secretary illegally conducted the meeting on the same day at a secret place in which respondent No.6 was illegally elected as Sarpanch, therefore, the election of said respondent is liable to be set aside. A written statement by way of affidavit of Jatinder Pal Singh, Election Officer-cum-Presiding Officer has been filed in which it has been stated that earlier Shri Jagdev Singh was appointed the Returning Officer to conduct the meeting, but due to illness the deponent was appointed as Returning Officer for conducting the election to the newly elected Gram Panchayat of Village Mullianwali. The deponent called the said meeting for the election of Sarpanch of the newly elected Members Panchayat on 24.7.2008 at 2.00 PM in Government Middle School, Mullianwali and C.W.P. No.13939 of 2008 -3- notices were duly served to all the elected Members of the Panchayat. Thereafter, at the fixed time, the meeting was held in Government Middle School, Mullianwali, which was attended by five Panches, including Jagir Singh-petitioner No.4. In the said meeting, respondent No.6 was unanimously elected as Sarpanch of the Gram Panchayat. With the written statement, the proceedings of the meeting held on 24.7.2008 have been annexed. During the course of hearing, learned counsel for the petitioners submitted that Jagir Singh-petitioner No.4 had not attended the meeting on 24.7.2008 and his signatures are forged one. We have perused the Vernacular copy of the Proceeding Book and apparently the signatures of Jagir Singh on the Proceeding Book and on the Vakalatnama appear to be the same. In nutshell, it is the case of the petitioners that on 24.7.2008 no meeting was held and all the petitioners, including Jagir Singh- petitioner No.4 remained present at the fixed venue. In this regard, the petitioners rely upon the report Annexure P1 given by the Sub Divisional Magistrate, Fazilka. On the other hand, counsel for the respondents submits that the meeting was duly conducted by the Presiding Officer on 24.7.2008 at the fixed time and venue which was duly attended by five Panches, including Jagir Singh-petitioner No.4, in which respondent No.6 was duly elected as Sarpanch of the Gram Panchayat. After hearing the counsel for the parties and in view of the contradictory stand taken by both the parties, we are of the opinion that in this case disputed questions of facts have been raised which require evidence and the same cannot be gone into in the writ jurisdiction of this C.W.P. No.13939 of 2008 -4- Court. In view of the disputed questions of facts raised in this writ petition and further in view of the decision of this Court in Baljit Singh v. State of Punjab and others (CWP No.13643 of 2008, decided on August 22, 2008), wherein it has been held that in view of Clause (b) of Article 243- O of the Constitution of India and Section 74 of the Act, election of Sarpanch is to be challenged by filing an election petition under Section 76 on the grounds mentioned in Section 89 of the Act, we are not inclined to entertain this petition under Article 226 of the Constitution of India, and we give liberty to the petitioners to avail the remedy of election petition. Since the present petition was filed on 6.8.2008, i.e., within 45 days from the date of election of the office of Sarpanch, therefore (in view of decision of the Hon'ble Supreme Court in Danda Rajeshwari v. Bodavula Hanumayamma and others, (1996) 6 SCC 199), the petitioners are permitted to file election petition within three weeks from today, and in case election petition is filed within three weeks from today, the Election Tribunal is directed to entertain and decide the same on merits expeditiously. Dismissed with the aforesaid liberty. (SATISH KUMAR MITTAL) JUDGE October 20, 2008 ( JASWANT SINGH ) vkg JUDGE