FAO No. 2606 of 2011 (1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 2606 of 2011 (O&M) Date of decision: 5.5.2011 Parkash Singh ..Appellant vs Amar Singh and others ..Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. J. S. Brar, Advocate, for the appellant. Mr. R. S. Rangpuri, Advocate, for caveator/ respondent no. 1 to 7. Rajesh Bindal, J. Election of the appellant as Sarpanch of Gram Panchayat of village Bhagsar, District Sri Muktsar Sahib having been set aside by the Presiding Officer, Election Tribunal, Sri Muktsar Sahib (for short, 'the Tribunal'), vide impugned award dated 15.2.2011, he is in appeal before this court Briefly the facts available on record are that the election to the Gram Panchayat of village Bhagsar, District Sri Muktsar Sahib was held in the year 2008. The Gram Panchayat consisted of 11 panches. The post of Sarpanch was reserved for Scheduled Caste category. The election for the post of Sarpanch was scheduled for 15.7.2008. However, in the absence of quorum, the meeting was adjourned for 5.8.2008, when the appellant was elected as Sarpanch, supported by three other panches out of eleven panches. Respondent nos. 1 to 7 challenged his election as Sarpanch before the Tribunal. The same having been set aside, the order is impugned in the present appeal. FAO No. 2606 of 2011 (2) Learned counsel for the appellant submitted that the election petition filed by respondent nos. 1 to 7 was not maintainable as such considering the fact that it was not presented by the petitioners therein in person. It has been so specifically recorded by the Tribunal in its order that the same was presented by the counsel. On account of this defect, the election petition was required to be dismissed. He further submitted that though the learned Tribunal has framed as many as seven issues in the election petition but there was no specific finding recorded in the impugned award issue wise. Learned counsel for the appellant further submitted that it is a case where the appellant has led evidence in the form of official witnesses who stated before the Tribunal that the election of the Sarpanch was carried out strictly in terms of the provisions of the Act and Rules applicable. Respondent nos. 1 to 7 being not present when the second meeting was held on 5.8.2008, the appellant was rightly elected as Sarpanch therein. In fact, respondent nos. 1 to 7, who were the petitioners before the Tribunal were not together initially but when the election for Sarpanch was held, they joined together after seeing that the appellant has been elected as Sarpanch. He further submitted that there is no complaint made to any authority regarding manipulation of record by the Returning Officer. On the other hand, learned counsel for respondent nos. 1 to 7 submitted that the election petition was, in fact, presented by the petitioners in person. They were also present when the same was submitted before the Presiding Officer. Nothing as such has been recorded on the petition as to who presented the same. Mentioning of this fact in the order is not supported by anything on record. Hence, the argument of learned counsel for the appellant that the petition should be rejected on this technical defect is totally misconceived. Learned counsel for respondent nos. 1 to 7 further submitted that the contention of the appellant that respondent no. 1 to 7 were not together has no force. It was submitted that respondent nos. 1 to 7, who were seven in number, as against four on the side of appellant, were together from the very beginning for the purpose of selection of Sarpanch. FAO No. 2606 of 2011 (3) It was on account of manipulation by the Returning officer, that the appellant party managed to elect the appellant as Sarpanch. The election of Sarpanch was held on 5.8.2008. On the very next day all the seven panches who were deprived of their right to cast votes for election of Sarpanch, filed Civil Writ Petition No. 13971 of 2008 Amar Singh and others vs State of Punjab and others. After the disposal thereof, immediately the election petition was filed by all the seven together. Under these circumstances to state that they were not together and unanimous for election of Sarpanch, is neither here nor there. Otherwise, there is no good reason for respondent nos. 1 to 7 to be not present either at the time of first meeting or the adjourned meeting for the when they were in majority. Even though this court while disposing of Civil Writ Petition No. 13971 of 2008, on 20.11.2008, filed by respondent nos. 1 to 7, the Election Tribunal was directed to decide the election petition within a period of six months from the date of filing thereof, the same having been filed on 26.12.2008, was decided only on 15.2.2011. It is clearly in violation of the direction issued by this court. This all had resulted in a person in minority to remain Sarpanch. The official witnesses are bound to say what was on record. Had they gone beyond the record, they would be in difficulty. As against this, sufficient evidence has been brought on record by the respondents. In fact, the meeting was not held at the scheduled place and respondent nos. 1 to 7 were deprived of their right to cast votes for the purpose of election of Sarpanch. In fact, the election of Sarpanch on 5.8.2008 was held at their back. Otherwise, there was no reason for them to be not present at the time of election on 5.8.2008 when they were in majority. The appellant was elected as Sarpanch merely with the support of three panches whereas on the other side they were seven panches. Accordingly no illegality was committed by the Tribunal in directing holding of fresh election after setting aside election of the appellant. FAO No. 2606 of 2011 (4) Heard learned counsel for the parties and perused the relevant referred record. As far as presentation of the petition is concerned, a perusal of the record shows that there is no endorsement on the file by the Presiding Officer of the Tribunal showing as to who had presented the same. It merely marked it to the Reader 'to examine and put up'. It further shows that election petitioners signed and thumb marked each and every page of the election petition and that too when it had already been prepared. Since the endorsement of the Presiding officer on the election petition as such does not show as to who was present at the time of filing of the election petition. Merely recording a fact in the order that it was presented by the counsel can certainly be held to be perverse especially when substantial rights are dependent on that. If a petition is required to be dismissed on account of technical defect, there should be positive material available on record for the purpose. Merely on assumptions taking such a drastic action would not be reasonable. As far as contention of the learned counsel for the appellant that all the issues have not been decided in detail is concerned, the same is also merely to be noticed and rejected for the reason that the Tribunal though had framed various issues but the relevant was as to whether the election of Parkash Singh as Sarpanch was valid or not? For that entire evidence led on record has been discussed and the findings recorded. Once the issues in substance have already been discussed merely because the discussion is not there by writing the issues para wise especially when none of the other issues had any substance, will not have any bearing on the merits of the controversy. Facts which are not in dispute and are relevant for the determination of the issues raised by the parties are that meeting for holding of election of Sarpanch scheduled on 15.7.2008 was adjourned on account of lack of quorum and in that six panches, who are respondent nos.1 to 5 and 7 were present. On 5.8.2008, it is claimed that the appellant was elected as Sarpanch with the support of three other panches whereas seven panches, respondent nos.1 to 7 who were other side did not attend the meeting. The fact remains that the aforesaid seven panches had FAO No. 2606 of 2011 (5) approached this court immediately after the election of appellant as Sarpanch in clandestine manner on 5.8.2008, challenging his election. The writ petition was withdrawn to enable respondent nos.1 to 7 (petitioners therein) to file election petition within three weeks challenging election of appellant Parkash Singh. Election Tribunal was directed to decide the election petition within a period of six months from the date of filing thereof. From the aforesaid facts, it can very well be opined that all the aforesaid seven panches, who are respondent nos.1 to 7 in the present appeal were together whereas four panches were on the other side. If the seven out of total eleven were on one side, it is difficult to assume that they will not attend the meeting fixed for the election of Sarpanch when they can very well elect any one of them as Sarpanch. They were present on the first date fixed for election of Sarpanch, when none of the panches from the appellant's side was present. In fact, the flaw in the election of the appellant as Sarpanch is evident from the fact that none of the panches, who had allegedly made themselves present in the adjourned meeting, not given any reason for not attending the first meeting. The adverse inference can be drawn against the appellant and three others, who have supported the candidature of the appellant, as they very well knew that if they made themselves present in the first meeting, the quorum would have been complete and they could not elect their person as Sarpanch. Intentionally, they decided to abstain from the first meeting. With the help of the official machinery, which is in power in the State, they held the adjourned meeting in a clandestine manner and elected the appellant as Sarpanch. As far as statement of Returning officer Jeevan Jindal is concerned, he has merely stated what was available on record as he had no personal knowledge that how many members were present in the meeting. It was under these circumstances that the Tribunal directed for holding of fresh election of Sarpanch which cannot be faulted with. FAO No. 2606 of 2011 (6) In view of my above discussions, the present appeal fails and is dismissed. Consequently, the application for condonation of delay is also dismissed. 5.5.2011 (Rajesh Bindal) vs Judge