FAO No. 486 of 2011 (1) IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH FAO No. 486 of 2011 (O&M) Date of decision: 24.3.2011 Balwinder Singh and others ...Appellants vs Angrej Singh and others ..Respondents quorum: Hon'ble Mr. Justice Rajesh Bindal Present: Mr. D. S. Pheruman, Advocate for the appellants. Mr. C. L. Premi, Advocate, for the applicant in CM No. 4900/CII of 2011. Mr. Sukhbir Singh, Advocate, for respondent nos. 1 to 4. Mr. Yatinder Sharma, Deputy Advocate General, Punjab. ... Rajesh Bindal, J. The election of Balwinder Singh as Sarpanch of the Gram Panchayat of Village Khilchian, Tehsil Baba Bakala, Block Rayya, District Amritsar, having been set aside vide order dated 10.1.2011 by the Election Tribunal-cum-Commissioner, Municipal Corporation Amritsar (for short, the Tribunal), the order is impugned before this court. Briefly the facts of the case are that after the election for the Gram Panchayat of Village Khilchian, a meeting for election of Sarpanch was scheduled for 16.7.2008 at 3.00 p.m. All the nine panches were present at the time of meeting. The name of Balwinder Singh for the post of Sarpanch was proposed by Kashmir Kaur and seconded by Jaswinder Singh Panch. He had the support of two other panches. However, the meeting was adjourned by the Presiding Officer under the misconception that quorum was not complete for the election of the Sarpanch. Immediately, the Presiding Officer having found that there were error in the understanding of law and the quorum for the meeting was complete as all the nine panches were present, the meeting could not be adjourned. As far as the election of Sarpanch is concerned, only simple majority was required and not 2/3rd FAO No. 486 of 2011 (2) majority, he immediately passed the resolution on the same day declaring Balwinder Singh as Sarpanch. His election was challenged by respondent nos. 1 to 4 before the Tribunal by way of filing the election petition, the same having been accepted, Balwinder Singh and three other panches are before this court. Learned counsel for the appellants submitted that the election petition filed by respondent nos. 1 to 4 was required to be dismissed by the Tribunal as such considering the fact that the same was not presented by the election petitioners in person. It had been filed through a counsel, which is in violation of provisions of Section 76 of the Punjab State Election Commission Act, 1994 (for short, 'the Act'). The consequence of non presentation of the election petition by the election petitioners in person has been provided under Section 80 of the Act, in terms of which the same was to be dismissed. In support of his contention, reliance was placed on Gurlal Singh vs Presiding Officer, Election Tribunal, Block Lehra, District Sangrur and others 2010 (5) R. C. R. (Civil) 474 and Major Singh vs Presiding Officer, Election Tribunal (A. D. C.) Sangrur and others 2010 (5) R. C. R. (Civil) 934. The second submission was that the election petition filed by respondent nos. 1 to 4 was not verified in terms of provisions of Code of Civil Procedure. It was mentioned that contents of the paras contained in the election petition were true and correct to the knowledge and belief of the petitioners. As the election petition had not been verified properly, the same was required to be dismissed. In support of the contentions, reliance was placed upon Manjit Kaur vs Deputy Commissioner-cum- Election Tribunal, Fatehgarh Sahib, and others 2010 (4) R. C. R. (Civil) 784. Besides raising two preliminary submissions pertaining to the maintainability of the election petition itself, as far as merit of the controversy is concerned, learned counsel for the appellants submitted that on 16.7.2008 when the election for the post of Sarpanch was to be held all the nine panches were present. It is so evident from the proceedings as their presence had been marked there. Thereafter, it is specifically recorded that name of Balwinder Singh was proposed by Kashmir Kaur and seconded by Jaswinder Singh for the post of Sarpanch. Two other panches, namely Surinder Kaur and Jagir Singh also signed in support thereof. However, still FAO No. 486 of 2011 (3) the Presiding Officer under pressure from certain quarters adjourned the meeting on the plea that the quorum was not complete. When he was convinced with reference to Rule 45 of the Punjab State Election Commission Rules, 1994 (for short, 'the Rules') that the quorum required for holding a meeting for the election of Sarpanch was merely 2/3rd and in the case in hand all the elected panches were present, there was no reason for adjourning the meeting, realising his mistake, the Presiding Officer immediately passed the resolution declaring Balwinder Singh as the elected Sarpanch. He further submitted that name of any other panch was not proposed for the post of Sarpanch. Even if the same would have been proposed, it was meaningless considering the fact that five of the panches were on the side of appellant no. 1 Balwinder Singh and for the purpose of election of Sarpanch only simple majority was required. Reliance was placed upon Tej Kaur vs State of Punjab and others 2009 (2) R. C. R. (Civil) 607. In support of his contention that all the nine Panches were present when the meeting was initially held, he referred to the statements of PW-1 Angrej Singh respondent no. 1, PW-3 Amarjit Kaur, and PW4 Rachhpal Singh. They all stated that they had been told about the election of Sarpanch which was scheduled for 16.7.2008 and on that day all were present and had signed the proceedings book to record their presence. In view of his aforesaid submissions, it was prayed by him that the impugned order passed by the Tribunal accepting the election petition filed by respondent nos. 1 to 4 be set aside and the election petition be dismissed. On the other hand, while referring to the statement of the appellants before the Tribunal, learned counsel for respondent nos. 1 to 4 submitted that it was nowhere pleaded by them before the Tribunal that the petition had not been properly presented or had not been properly verified. Had this objection been taken before the Tribunal, respondent nos. 1 to 4 would have proved that the petitioners before the Tribunal were also accompanying their counsel at the time of presentation of the election petition. The presumption on the basis of noting on the election petition could very well be rebutted. Respondent nos. 1 to 4 were required to be given an opportunity to lead evidence in that regard. He further submitted that a wrong verification in the election petition is not fatal as it is curable FAO No. 486 of 2011 (4) defect. Had this objection been taken before the Tribunal, respondent nos. 1 to 4 would have cured the defect. In support of his contention, he referred to Balwan Singh vs Prakash Chand and others AIR 1976 Supreme Court 1187, F. A. Sapa Etc. Etc. vs Singora and others AIR 1991 Supreme Court 1557, H. D. Revanna vs G. Puttaswamy Gowda and others AIR 1999 Supreme Court 768, G. Mallikarjunappa vs Shamanur Shivashankarappa 2001 (3) R. C. R. (Civil) 643, and Bhikaji Keshao Joshi and another vs Brijlal Nandlal Biyani and others AIR 1955 Supreme Court 610. As far as the merit of the controversy is concerned, it was submitted by him that one of the panches, namely, Jagir Singh, who according to the appellants had supported the candidature of Balwinder Singh for Sarpanchship stated before the Tribunal that his signatures were taken on the Register giving him an impression that the meeting is required to be postponed otherwise he is not supporting the candidature of Balwinder Singh. He further referred to the cross-examination of appellant no. 1 Balwinder Singh and Jaswinder Singh to state that the name of Angrej Singh was also proposed for the post of Sarpanch, however, this fact has not been mentioned in the meeting book. As to from whom, the legal advice was taken by the Presiding Officer is not evident from the record. Referring to Rule 45-A (7) of the Rules, it was submitted that if there were two candidates, the Presiding Officer was required to hold election. In fact, after the meeting was adjourned on account of lack of quorum, respondent nos. 1 to 4 had left the venue. There was no question of holding a fresh meeting without serving fresh notice on all the panches. He further submitted that out of nine panches, respondents no. 1 to 4 are having support of majority of panches. In the circumstances of the case, no illegality has been committed by the Tribunal in directing fresh election for the post of Sarpanch. Rebutting the contention raised by learned counsel for respondent nos. 1 to 4, learned counsel for the appellants submitted that there is nothing in the petition filed by Angrej Singh regarding his candidature for Sarpanchship. Any evidence led by him in this regard or anything stated by the appellants in their cross-examination will be beyond pleadings and liable to be ignored. He further submitted that respondent nos. 1 to 4 had been able to achieve their ill design by not letting appellant no. 1 Balwinder Singh function as Sarpanch. As initially the meeting was FAO No. 486 of 2011 (5) got adjourned even though the quorum was complete and later on there was horse trading. Jagir Singh panch who had earlier supported Balwinder Singh for Sarpanchship changed his stand and stated before the Tribunal that he had signed only for the purpose of adjournment of the meeting. Further at the time of filing of appeal before this court, he was again with the appellants and later on he sought to withdraw the appeal on his behalf. This clearly shows that respondent nos. 1 to 4 are playing a dirty game to grab the power. Heard learned counsels for the parties and perused the relevant referred record. Though learned counsel for the appellants had raised two preliminary submissions which according to him were sufficient to dismiss the election petition filed by respondent nos. 1 to 4, namely non- presentation of election petition by the election petitioners in person and defect in the verification. However, before proceeding to discuss the aforesaid two issues, if need arises, this court would like to deal with the case on merits first. A perusal of the proceeding book produced before this court shows that on 16.7.2008 at 3.00 p.m. when the meeting for election of Sarpanch was held, all the nine panches were present. They also marked their presence by signing the proceeding book. It is even admitted by all the panches. Thereafter, it has been recorded as under:- “Today i.e. 16-7-08, the first meeting of Gram Panchayat, Khilchian, was convened under the supervision of Shri Jaswinder Pal Singh, J.E. Mandi Board, who was appointed as the Presiding officer in reference to letter No. G. P.2008 3356-3367 dated 11.07.08 of learned Deputy Commissioner, Amritsar, in the Government Elementary School at 3'O clock, for the election of Sarpanch. In this meeting, the following members were present:- Sr. No. Name of Panches present Category signature 1. Balwinder Singh Gen Sd/- 2. Angrej Singh Gen Sd/- 3. Jaswinder Singh Gen Sd/- 4. Kashmir Kaur Gen (W) Sd/- FAO No. 486 of 2011 (6) 5. Amarjit Kaur Gen (w) Sd/- 6. Dial Singh S.C. Sd/- 7. Rachhpal Singh S.C. Sd/- 8. Jagir Singh S.C. Sd/- 9. Surinder Kaur S.C.(W) Sd/- Sd/- Jaswinder Pal Singh After marking the presence of these elected panches, it was told to them that as per Government notification the election of Sarpanch of General Category for the Gram Panchayat Khilchian is to be held. For the office of Sarpanch, the name of Balwinder Singh Panch has been proposed by Kashmir Kaur Panch and Jaswinder Singh Panch seconded it. Sd/- Kashmir Kaur Sd/- Surinder Kaur Sd/- Jaswinder Singh Sd/- Balwinder Singh As there has been five members with Balwinder Singh and could not complete the quorum so this meeting is to be held tomorrow at 5.00 at Government Elementary School, Khilchian. Sd/ Pardeep Kumar, Sd/- Jaswinder Pal Singh Pachayat Secretary 16/7/08 The legal advice was sought regarding the aforesaid circumstances, according to which the quorum is complete as such the proceeding which was earlier taken, is correct so Balwinder Singh is elected as Sarpanch. The proceedings of the meeting which was to be held again, the same is to be treated as cancelled. Sd/ Pardeep Kumar, Sd/- Jaswinder Pal Singh Pachayat Secretary 16/7/08 Sd/- Jagir Singh Presiding officer Sd/- Surinder Kaur Sd/- Kashmir Kaur Sd/- Jaswinder Singh Sd/- Balwinder Singh” FAO No. 486 of 2011 (7) Rule 45-A (2) of the Rules provides that two-third of the total number of Panches shall constitute a quorum. Sub Rule (4) thereof provides that if, at the first meeting, there is no quorum as specified in sub-rule (2), the Presiding Officer shall adjourn the meeting. Whereas Sub-rule (6) thereof provides that no quorum shall be necessary for the second meeting. A perusal of the contents of the proceeding book as have been extracted above shows that when the first meeting of the panches was held for the purpose of election of Sarpanch, all the nine panches were present. Section 54 of the Act provides for procedure in contested and uncontested elections. It envisages that if the number of contesting candidates is more than the number of seats to be filled, a poll shall be taken. In case the number is equal to the seats to be filled, the Returning Officer shall forthwith declare all such candidates to be duly elected. In the present case on the date when the first meeting was held, name of Balwinder Singh was proposed by Kashmir Kaur and seconded by Jaswinder Singh. Two other panches, namely Surinder Kaur and Jagir Singh supported his candidature. All had duly signed the proceeding book endorsing the aforesaid resolution. At that stage, there was no occasion for the Presiding officer to adjourn the meeting on the ground that the quorum was not complete when all the elected panches were present. Five out of nine panches were on the one side, they were in majority and could very well elect any one of them as Sarpanch, even if the stand sought to be taken by the respondents is that they had opposed the election of Balwinder Singh as Sarpanch. Even at the time of filing of election petition only four of the panches belonging to other group were the petitioners. However, a stand was sought to be taken that Jagir Singh, one of the panches, who had earlier supported the candidature of Balwinder Singh as Sarpanch had, in fact, opposed the same, however, the Presiding officer in connivance with the appellants had obtained his signatures on the plea that the same were required for postponing the meeting and holding meeting on the next day. At this stage, conduct of Jagir Singh is required to be discussed. Initially, he had supported the candidature of Balwinder Singh as Sarpanch. When the election petition was filed, he though did not join the other group as petitioner, but sought to file reply supporting their case taking the plea that he had opposed the election of Balwinder Singh as Sarpanch and his FAO No. 486 of 2011 (8) signatures were obtained by the Presiding Officer on the plea that the same were required for postponing the meeting and holding the same on the next day. After the passing of the order by the Tribunal on 10.1.2011, in the appeal filed before this court by Balwinder Singh and other panches of his group, Jagir Singh again joined them as one of the appellants impugning the order passed by the Tribunal setting aside the election of Balwinder Singh as Sarpanch. During the pendency of the appeal, Civil Misc. No. 4900/CII of 2011 was filed by Jagir Singh praying for withdrawal of his name as appellant, as he did not want to proceed with the appeal. The aforesaid series of events clearly show that it was nothing but a case of horse trading which is quite prevalent in politics. Jagir Singh had been changing his stand as Pendulum. This court cannot attach any credibility to the statement of such a person. Even otherwise in the opinion of this court, prima-facie, a panch who states that some body mislead him for signing the proceeding book without his even realising where he was signing, is not a person to be fit to be a panch, as the power/authority cannot be given to a person who even does not know what he is doing. It was not merely at one place where the name of Balwinder Singh was proposed for Sarpanchship, where Jagir Singh had signed. Even subsequently on the same day, later on when a resolution was passed declaring Balwinder Singh as Sarpanch, Jagir Singh had again signed the proceeding book. The manner in which the respondents had tried to won over Jagir Singh is not just and fair. The contention raised by learned counsel for the appellants that in the cross-examination Balwinder Singh and other panches who supported his candidature had admitted that Angrej Singh was also one of the candidates for Sarpanchship, is merely for being noticed and rejected as this was not the stand of Angrej Singh in the election petition filed. His only stand was that on 16.7.2008 on account of quorum being not complete in favour of Balwinder Singh, the meeting was postponed. At that time Jagir Singh opposed the election of Balwinder Singh. What is stated in the election petition runs contrary to the record as per proceeding book. In para 8 of the election petition it was stated by Angrej Singh that after postponing the meeting for the election of Sarpanch, the petitioners therein and Jagir Singh left the premises of school and went to their houses. To come back on FAO No. 486 of 2011 (9) 17.7.2008 at 5.00 P.M. Whereas the proceeding book shows that at the time of passing of resolution again Jagir Singh had signed the proceedings as he was present there. From the facts of the case, it is evident that the respondents were in a position to manipulate the election. It is further corroborated from the statement of their counsel made in the court on 20.1.2011 when notice of motion was issued. It was stated by their counsel while accepting the notice that on 17.1.2011, Angrej Singh had been given charge of the post of Sarpanch by the Block Development and Panchayat Officer. However, the counsel was unable to explain as to under what provisions of law, the Block Development and Panchayat Officer could give charge to any of the panches, there was no answer available. In view of my aforesaid discussion, the impugned order passed by the Tribunal is set aside. The election petition filed respondent nos. 1 to 4 is dismissed. 24.3.2011 (Rajesh Bindal) vs Judge (Refer to reporter)