FAO No. 6891 of 2010 (1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 6891 of 2010 (O&M) Date of decision: 28.01.2011 Harjit Singh ..Appellant vs Balkar Singh and others ..Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Ms. G. K. Mann, Advocate, for the appellant. Mr. Deepak Arora, Advocate, for respondent no. 1. Rajesh Bindal, J. Election of the appellant as Sarpanch of Gram Panchayat of village Bhopar Saidan, Tehsil and District Gurdaspur having been set aside by the Presiding Officer, Election Tribunal, Gurdaspur (for short, 'the Tribunal'), he is in appeal before this court Briefly the facts available on record are that the election to the Gram Panchayat of village Bhopar Saidan, Tehsil and District Gurdaspur was held on 26.5.2008. The Gram Panchayat consisted of ten panches. Surinder Singh was elected as Sarpanch on 16.7.2008. However, unfortunately he expired on 18.7.2008. Thereafter the election for the post of Sarpanch was scheduled for 26.9.2009. However, in the absence of coram, the meeting was adjourned for 29.9.2009, when the appellant was elected as Sarpanch, supported by three other panches out of nine panches. Respondent nos. 1 to 5 challenged his election as Sarpanch before the Tribunal. The same having been set aside, the order is impugned in the present appeal. Learned counsel for the appellant submitted that there are patent illegality in the order passed by the Tribunal, namely, that only one of the petitioners before the Tribunal had appeared in witness box. None of the other panches, who were petitioners, presented themselves before the Tribunal to get their statements recorded and also to face cross-examination. FAO No. 6891 of 2010 (2) She further submitted that the observations made by the Tribunal that respondent Surinder Singh appeared in the witness box and admitted certain facts in the cross-examination are totally extraneous to record as respondent no. 6 Surinder Singh never appeared in the witness box. It was one Surinder Kumar who appeared as PW1. She further referred to evidence of Jaswinder Kaur who appeared and supported the case of the respondent nos.1 to 5 petitioners before the Tribunal, whereas she was one of the panches who had initially supported the election of the appellant as sarpanch and was one of the respondents in the election petition. In fact, she was won over by the respondent nos.1 to 5, petitioners. The submission was that there was no illegality or irregularity in the election of the Sarpanch held on 29.9.2009, when the respondent nos.1 to 5 petitioners, who may be five in number, chose not to participate in the meeting and as a result thereof, the appellant was elected as Sarpanch. On the other hand, learned counsel for the respondent submitted that after the death of Surinder Singh Sarpanch on 18.7.2008, representations were made to the Deputy Commissioner for filling up the vacancy of Sarpanch. Number of meetings were convened which were attended by the respondent nos.1 to 5- petitioners but the election was not held on one pretext or the other. In these circumstances, the respondents did not have any choice but to file Civil Writ Petition No. 15748 of 2008 – Balkar Singh vs State of Punjab and others seeking a direction for holding election of Sarpanch of village Bhopar Saidan. The aforesaid writ petition was got dismissed as withdrawn on 5.9.2008 with liberty to pursue the representation pending before the Deputy Commissioner. In terms thereof, the Returning Officer was appointed, by whom the meeting was convened for 26.9.2009, where all the five respondent nos.1 to 5- petitioners were present at the appointed place but the Returning officer did not come and in fact, no proceedings were conducted. It was further submitted by learned counsel for respondent no.1 that when the appellant started claiming himself to be the Sarpanch of village, after enquiry it was found that certain proceedings were held at their back on 29.9.2009, in which the appellant was appointed as Sarpanch, all the aforesaid five panches immediately filed Civil Writ Petition No. 15926 FAO No. 6891 of 2010 (3) of 2009 Balkar Singh and others vs State of Punjab and others in this court challenging the election of appellant as Sarpanch. However, the same was got dismissed as withdrawn on 15.10.2009 with liberty to avail of alternative remedy of filing of election petition. It was thereafter that the election petition was filed. Taking his contention further, learned counsel for respondent no. 1 submitted that all the five panches out of nine panches were together at every stage. They attended the meeting for election of the Sarpanch held on 26.9.2009 and were even present at the place and time on 29.9.2009. They were together even when the subsequent writ petition was filed in this court. In fact, the election of Sarpanch on 29.9.2009 was held at their back. Otherwise, there was no reason for them to be present at the time of election on 29.9.2009 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 five panches. Learned counsel for respondent no. 1 further argued that in the evidence before the Tribunal, one of the panches, who earlier supported the appellant in the election for Sarpanch, had stated that she never attended the meeting. In fact, her signatures were taken at home. The election of Sarpanch was never held. From this material on record, it can very well be opined that fair election for the post of Sarpanch was not held on 29.9.2009 and accordingly no illegality was committed by the Tribunal in directing holding of fresh election after setting aside election of the appellant. Heard learned counsel for the parties and perused the relevant referred record. 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 26.9.2009 was adjourned on account of lack of coram and in that five panches, who are respondent nos.1 to 5 were present. On 29.9.2009, it is claimed that the appellant was elected as Sarpanch with the support of three other panches whereas five panches, respondent nos.1 to 5 who were other side did not attend the meeting. The fact remains that the aforesaid five panches had approached this court twice i.e. firstly when election for filling up the post of Sarpanch not being held which arose on account of death of earlier elected Sarpanch. Secondly, FAO No. 6891 of 2010 (4) immediately after the election of appellant as Sarpanch in clandestine manner on 29.9.2009, challenging his election. The writ petition was withdrawn to enable respondent nos.1 to 5 to avail of alternative remedy, all five of them filed election petition before the Tribunal challenging the election of the appellant as Sarpanch. From the aforesaid facts, it can very well be opined that all the aforesaid five panches, who are respondent nos.1 to 5 in the present appeal were together whereas four panches were on the other side. If the five out of total nine were on one side, it is difficult to assum that they will not attend the meeting fixed for the election of Sarpanch when they can very well elect one of them as Sarpanch. In fact, the flaw in the election of the appellant as Sarpanch is evident from the facts that one of the panches, who had initially supported him stated before the Tribunal that, she never attended any meeting and her signatures were taken at home. Meeting for holding election of Sarpanch on 29.9.2009 was also not held at the scheduled place. It was under these circumstances that the Tribunal directed for holding of fresh election of Sarpanch which cannot be faulted with. In view of the above, the present appeal fails and dismissed as such. 28.1.2011 (Rajesh Bindal) vs Judge