FAO No.5679 of 2009 (O&M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** FAO No.5679 of 2009 (O&M) Decided on:13.7.2010 **** Suresh Kumar . . . .Appellant Versus Sham Lal and others . . . .Respondents **** CORAM: HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: - Mr.Ajay Pal Singh, Advocate for the appellant. Mr.Manish K. Singla, Advocate for respondents No.1 to 3. **** RAKESH KUMAR JAIN, J. (ORAL) This appeal is directed against order passed by the Election Tribunal, Sangrur (for short ‘the Tribunal’) whereby the election petition filed by Ram Singh (respondent No.6 herein) challenging the election of Sham Lal (respondent No.1 herein) has been dismissed. The appellant has filed this appeal along with an application, namely, CM No.28449-CII-2009 under Section 5 of the Limitation Act, 1963 read with Section 151 of the Code of Civil Procedure, 1908 (for short ‘CPC’) for condonation of delay of 2 days in filing of the appeal. Notice in the application for condonation of delay was issued pursuant to which Mr.Manish K. Singla, Advocate has put FAO No.5679 of 2009 (O&M) - 2 - in appearance on behalf of respondents No.1 to 3 and has stated that they are the contesting respondents. He has also submitted that he has no objection if the delay is condoned but has submitted that election petition by itself was not maintainable before the Tribunal as the same was barred by limitation. In view thereof, CM No.28449-CII- 2009 is allowed and delay of 2 days in filing the appeal is hereby condoned. Learned counsel for the parties are ad idem that election for the post of Sarpanch of Gram Panchayat, Sullar Gharat was held on 20.7.2008 in which respondent No.1 Sham Lal son of Bachan Ram was elected. The election of respondent No.1 was challenged by the present appellant along with Jaspinder Pal, Ram Singh and Jaspreet Kaur by filing CWP No.13527 of 2008. The said writ petition was disposed of by the Division Bench of this Court on 01.08.2008 with following order: - “This petition is disposed of in view of order dated July 23, 2008 passed in CWP No.12694 of 2008 entitled Gurmeet Singh and others Vs. State of Punjab and others. Copy dasti on payment of usual charges.” However, in Civil Writ Petition No.12694 of 2008, interim directions issued on 23.7.2009 are as under: - “Notice of motion. On the asking of the Court Mr.Anmol Rattan Singh, Addl. A.G. Punjab accepts notice. FAO No.5679 of 2009 (O&M) - 3 - After the elections to the Gram Panchayats in Punjab and the Panches have been administered oath, the next stage is to call the first meeting of the Gram Panchayats in terms of Section 13-A of the Punjab Panchayati Raj Act, 1994. This provision is as under: - “13-A First meeting of the Gram Panchayat: - The Deputy Commissioner or any officer or official of the State Government, authorized by him in this behalf, shall call the first meeting of the Gram Panchayat in the manner, as may be prescribed, as soon as, the election of all Panches is notified, to elect the Sarpanch from amongst them. In exercise of powers conferred under the Punjab State Election Commission Act and all other powers, the Government of Punjab had amended the Punjab Election Rules 1994 on June 4, 2008 to include election of Sarpanch of Gram Panchayat in the election procedure given in Rule 45 of the Punjab Panchayat Election Rules, 1994. The first meeting of the Gram Panchayat in which the Sarpanch is to be elected is to be conducted in terms of the amended Rule 45. FAO No.5679 of 2009 (O&M) - 4 - We have been receiving a large number of petitions in which the petitioners have been complaining about different types of acts of the Presiding Officers designed to help one party or one group of Panches and block the Sarpanch from the other group. It is a hard fact that in Gram Panchayats there are often two groups of Panches. The most common complaint is that the petitioners are in majority in the Panchayat but the meeting is not being held or when the meeting is held, they are not allowed to participate or criminal cases are registered against one or two of the members of the majority group to stop them going to the meeting and thereby reducing their number. We also felt that Presiding officers are sometimes not taking proper interest in carrying out their duties and are often siding with one or the other group or party. Presiding Officers are expected to be fair and impartial in holding the first meeting of the Panchayat, so that a peaceful election of the Sarpanch can be held, and the members of the Gram Panchayat feel that a free and fair election has taken place, in which they have been given all opportunities to cast their votes in favour of the candidate to their choice for the office of Sarpanch. FAO No.5679 of 2009 (O&M) - 5 - Instructions have been issued on July 22, 2008 by Chief Secretary, Punjab to all Deputy Commissioners and Senior Superintendents of Police in the State to the following terms: “It has been brought to the notice of the Government that at some places members of the Panchayats were obstructed from casting their vote for election of village Sarpanches Government has taken a very serious note of this as it violates the fundamental right of the elected representatives. Please ensure that the election of village Sarpanches are conducted in a free and fair manner. If any instance of obstruction/stopping of the Panches is reported, immediate required legal action should be taken against the guilty individuals, whether Government officials or public. A suitable mechanism to monitor the conduct of election should be put in place and supervisory officer may be appointed, wherever necessary.” We would like to add a few more instructions/directions to supplement what has already been conveyed by the State Government through the Deputy Commissioners to all the Presiding Officers. Out further directions are as follows: FAO No.5679 of 2009 (O&M) - 6 - 1. The police shall not arrest any Panch until the first meeting of the Gram Panchayat has been held and the Sarpanch has been elected. 2. In case any Panch demands security or complains of harassment by the opposite group, his complaint should be recorded in the Daily Diary at the police station and full security should be provided to him; 3. If any Panch at the meeting demands that the election of Sarpanch should be conducted by a secret ballot, then a procedure for election through secret ballot shall be adopted. 4. Presiding Officers should not change the date, time and venue of the first meeting once these have been notified to all the members of the Panchayat. If the first meeting of the Gram Panchayat concludes without electing the Sarpanch or is adjourned for lack of quorum, in such an event, the notice of the adjourned meeting should be sufficient notice of say 2 or 3 days. 5. Presiding Officers should ensure the presence of the Panchayat Secretary in the meeting; 6. Presiding Officers should maintain an attendance register to show the names of Panchs who attended the meeting; 7. The Deputy Commissioners of each district shall act as Observers to ensure that first meetings of the Gram Panchayats and the election of Sarpanches takes place in a free and impartial manner, without any Panch facing any kind of threat, pressure or inducement. A register should be maintained by Deputy Commissioners to receive and decided complaints. In the same manner as Election Observers in the FAO No.5679 of 2009 (O&M) - 7 - State Assembly elections. In order words, the mechanism for redressal of complaints should be an effective one, in order to instill confidence in the members of Gram Panchayats. Adjourned to August 20, 2008. Copy of our instructions/directions 1 to 7 shall also be circulated to all Deputy Commissioners and Senior Superintendents of Police. Copy of order Dasti under the signature of Bench Special Secretary.” The said writ petition was ultimately disposed of on 20.8.2008. Learned counsel for the respondents has submitted that election petitioner was not granted any extension of time by the Writ Court for the purpose of filing the election petition. It is also not disputed that the election petition has been filed by the appellant on 29.9.2008. The question, thus, arises as to whether the election petition filed by the appellant is within limitation in terms of Section 76 of the Punjab State Election Commission Act, 1994 (for short ‘the Act’). Learned counsel for the respondents has submitted that as per Section 76 of the Act, limitation to file an election petition is 45 days from the date of election. In this case, the election took place on 20.7.2008 and 45 days were over on 3.9.2008 whereas the election petition has been filed on 29.9.2008. On the other hand, learned counsel for the appellant has submitted that the election petition was filed by four petitioners, who FAO No.5679 of 2009 (O&M) - 8 - had filed the writ petition out of which one of the election petitioner namely Jaspreet Kaur had filed an application before the Election Tribunal to withdraw her name. The said application was allowed by the Election Tribunal. Learned counsel for the appellant has further submitted that respondent No.1 has been illegally appointed as Sarpanch as he was not enjoying the majority. It is submitted that the first meeting was held on 18.7.2008 in which out of seven members four Panches were present but the group of respondent No.1, who was in minority, were not present, therefore, due to lack of quorum the meeting was postponed to 20.7.2008 and on that date the appellant with his supporting Panches were not allowed to enter the premises where the election took place, consequently, as per Rule 45 (a) of the Punjab State Election Commission Rules, 1994 (for short ‘the Rules), respondent No.1 was declared elected as a Sarpanch despite in minority. I have heard both the learned counsel for the parties and have perused the available record with their assistance. In order to appreciate the controversy in this case, a look at the relevant provisions of the Act is necessary and for that purpose, Section 76 of the Act is reproduced below : - “76. Presentation of petition. - (1) An election petition may be presented on one or more of the grounds specified in sub- section (1) of section 89 to the Election Tribunal by any candidate to such election or by any elector within a period of forty five days from the date of election of the returned candidate or if there are more than one returned candidates at the election and FAO No.5679 of 2009 (O&M) - 9 - there are different dates of their election, then the later of these dates shall be taken into account for this purpose. (2) Every election petition shall be accompanied by as many copies thereof, as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signatures to be a true copy of the petition. Insofar as the agitation of the learned counsel for the appellant is concerned, the second date of meeting has been manoeuvred by the respondents, who were not having majority to elect the Sarpanch but it is a fact that the election petition has been filed after the expiry of period of limitation, which cannot be extended in any manner. This Court cannot grant any relief to the appellant. In this case, since the election had taken place on 20.7.2008 and there is no extension of time granted by the Writ Court and the election petition which was required to be filed within 45 days i.e. upto 3.9.2008 has been, admittedly, filed on 29.9.2008, therefore, the election petition is clearly barred by limitation and Section 80 of the Act provides that an election petition not complying with the provisions of Section 76 of the Act has to be dismissed. Learned counsel for the respondent has relied upon decision of this Court in FAO No.1381 of 2010 titled as “Gurvinder Singh Vs. Presiding Officer, Election Tribunal (SDM), Dhuri, District Sangrur and others” decided on 14.5.2010 and another decision of this Court in FAO No.297 of 2009 titled as “Major Singh FAO No.5679 of 2009 (O&M) - 10 - Vs. Presiding Officer, Election Tribunal (Additonal Deputy Commissioner), Sangrur, District Sangrur and others” decided on 24.05.2010, in which even a delay of one day has not been condoned. In view thereof, I do not find any merit in the present appeal as the election petition was clearly barred by limitation and as such the same is hereby dismissed, though, without any order as to costs. (RAKESH KUMAR JAIN) 13.07.2010 JUDGE Vivek