C.W.P. No.13702 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.13702 of 2008 Date of Decision: 12.7.2010 Jasvir Kaur and others ……Petitioners VERSUS State of Punjab and others ……Respondents CORAM: HON'BLE MR. JUSTICE ALOK SINGH -.- Present: Mr. Atul Lakhanpal, Sr. Advocate with Mr. Jasmeet Singh, Advocate for the petitioner. Mr. Satish Bhanot, Addl. A.G., Punjab. 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporters or not? Yes 3. Whether the judgment should be reported in the Digest? Yes ALOK SINGH, J. (ORAL) 1. Petitioners have invoked writ jurisdiction of this Court under Articles 226 of the Constitution of India assailing order dated 1.8.2008 (Annexure P-7) passed by the Deputy Commissioner, Muktsar. 2. Brief facts of the present case are that on 31.7.2008 election of Sarpanch of Village Mann, District Muktsar was held in which peti- tioner was declared elected. On 1.8.2008, learned Deputy Commis- C.W.P. No.13702 of 2008 -2- sioner, Muktsar – respondent No.3 pleased to pass impugned order which reads as under:- “Additional Deputy Commissioner (Development) Muktsar brought to my notice that the election of Sarpanch which was held on 31.7.2008 is not held in proper and independent manner. This election is held under the threat of some pan- chayat members. In this connection an FIR No.100 dated 31.7.2008 got registered in Police Station, Lambi. Taking into account above mentioned rea- sons, the election of Sarpanch of village Pan- chayat Mann held on 31.7.2008 declared as null and void and you are directed to hold election of Sarpanch of village Panchayat Mann within two days in proper and independent manner.” 3. Mr. Jasmeet Singh, learned Counsel for the petitioners ar- gued that election could have been challenged by way of filing the elec- tion petition and Deputy Commissioner, Muktsar has absolutely no juris- diction under the Punjab Panchayati Raj Act, 1994 or under State Elec- tion Commission Act, 1994 to quash/set aside the election. Learned Counsel for the petitioners further argued that an elected candidate can not be removed without adopting due procedure of law. 4. On being asked, learned Additional Advocate General, Pun- jab is not able to tell that under what provision of law, impugned order (Annexure P-7) is passed. 5. Sections 74, 75 and 78 of the Punjab State Election Commis- sion Act, 1994 (for brevity ‘the Act’) are being reproduced here under:- C.W.P. No.13702 of 2008 -3- “74. Election petitions:- No election shall be called in question except by an election petition presented in accordance with the provisions of this Chapter. 75. Election Tribunal to try election petitions:- (1) Only the Election Tribunal having jurisdiction shall have the power to adjudicate upon the elec- tion petitions. (2) The Election Tribunal in its discretion may, in the interests of justice or convenience, try an election petition wholly or partly, at a place other than its specified headquarters. 78. Contents of petition:- (1) As election peti- tion shall:- (a) contain a concise statement of the material facts on which the petitioner relies; (b) set forth full particulars of any corrupt prac- tice that the petitioner alleges, including a state- ment as possible, of the names of the parties al- leged to have committed such corrupt practice or practices and the date and place of the commis- sion of such practice; and (c) be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908, (Central Act 5 of 1908) for the verification of pleadings: Provided that where the petitioner alleges any corrupt practice, the petition shall be accom- panied by an affidavit in the prescribed form in C.W.P. No.13702 of 2008 -4- support of the allegation of such corrupt practice and the relevant particulars thereof. (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.” 6. Having perused the Sections 74, 75 and 78, this Court is of the opinion that election can only be challenged by way of an Election Petition presented in accordance with the provision of the Punjab State Election Commission Act, 1994. Corrupt practice is one of the grounds to challenge the election of Sarpanch. 7. Election in question was set aside by the Deputy Commis- sioner on the ground that election was held under the threat of some panchayat members. This is also one of the grounds to prove corrupt practice, however, fact remains, no election petition was filed and learned Deputy Commissioner had exercised the jurisdiction of the Elec- tion Tribunal which can not be said to be legal. 8. In view of this, present petition is allowed. Impugned order dated 1.8.2008 (Annexure P-7) passed by the Deputy Commissioner, Muktsar is quashed. ( ALOK SINGH ) 12th July, 2010 JUDGE ashish