FAO No. 3843 of 2010 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. FAO No. 3843 of 2010 Date of decision: 16.8.2010 Surjit Singh ... Appellant versus Presiding Officer and others ... Respondents CORAM: HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.M.S.Bedi, Advocate, for the appellant. Mr.G.S.Jaswal, Advocate, for respondents No.3 to 7. ... JORA SINGH, J. Appellant Surjit Singh son of Inder Singh was declared elected as Sarpanch of Gram Panchayat of Village Dholan. Ravinder Singh and others filed election petition under Section 76 read with Section 89 of Punjab State Election Commission Act (for short `the Act') for declaring election of respondent No.1 Surjit Singh (petitioner herein) as Sarpanch of Gram Panchayat of Village Dholan, as illegal and void. Vide order dated 31.5.2010 by the Presiding Officer, Election Tribunal-cum-Additional Deputy Commissioner, Ludhiana, election of Surjit Singh as Sarpanch, Gram Panchayat of Village Dholan, was declared as void and was set aside. BDPO, Block Jagraon, District Ludhiana, was directed to hold fresh election of Sarpanch of Gram Panchayat of Village Dholan. Surjit Singh filed this appeal to impugn the order dated 31.5.2010 on the allegation that 9 Panches, including the appellant, of Gram FAO No. 3843 of 2010 2 Panchayat Dholan were elected on 26.5.2008 and after oath ceremony, Presiding Officer issued notices to all the Panches for 20.7.2008 to further hold indirect election of Sarpanch of Gram Panchayat Dholan. Coram was not complete on 20.7.2008 and the meeting was adjourned to 21.7.2008. All the Panches were present in the meeting dated 21.7.2008 and their presence was recorded by the Panchayat Secretary. All the Panches had signed proceedings book at the time of meeting held in Government Primary School, Dholan, under the Chairmanship of Kuldip Singh, Presiding Officer. On 21.7.2008, name of the appellant was proposed by Nirmal Singh, Panch, and seconded by Major Singh, Panch, whereas name of Ravinder Singh was proposed by Balbir Singh, Panch, and seconded by Lachhman Singh, Panch, for the post of Sarpanch,. There was a contest amongst Surjit Singh, appellant, and Ravinder Singh. Then Presiding Officer decided to hold election by ballot paper, but Ravinder Singh, Balbir Singh, Darshan Kaur, Surinder Pal Kaur and Lachhman Singh did not agree on the allegation that Ravinder Singh had support of 4 Panches and refused to cast their votes to elect Sarpanch and walked out from the election room. Presiding Officer had no alternative except to conduct election of Sarpanch from amongst 4 Panches, who supported the candidature of the appellant and the appellant was elected as Sarpanch of Gram Panchayat of Village Dholan. Ravinder Singh and others filed election petition and election of the appellant was wrongly set aside vide impugned order. Impugned order is liable to be set aside. Respondents filed caveat petition on the allegation that impugned order dated 31.5.2010 ordering fresh election of Sarpanch of Gram Panchayat of Village Dholan was passed strictly in accordance with FAO No. 3843 of 2010 3 law, directing BDPO, Block Jagraon, to hold fresh election of Sarpanch of Gram Panchayat, Dholan,, following the provisions under the law as prescribed under sub Rule 7 of Rule 45 of Punjab Panchayat Election Rules, 1994. I have heard learned counsel for the appellant, contesting respondents and gone through the file. Learned counsel for the appellant argued that on 26.5.2008, 9 Panches, including the appellant, were elected as Panches of Gram Panchayat of Village Dholan, and after oath ceremony, Presiding Officer had issued notices to all the Panches for 20.7.2008, to hold indirect election of Sarpanch, but on 20.7.2008, coram was not complete and meeting was adjourned to 21.7.2008. All the Panches were present in the meeting on 21.7.2008 and their presence was recorded by Panchayat Secretary. All the Panches had signed the proceedings book. 3 Panches were supporting the appellant, whereas 4 Panches were supporting Ravinder Singh, who was the opposite candidate for the post of Sarpanch. When there was contest, then Presiding Officer decided to hold election by ballot paper. Allegation of Ravinder Singh was that he had the support of 4 Panches. All gave affidavits in his favour. So, no need to conduct election by way of ballot paper. Contesting respondents were requested to cast their votes to elect Sarpanch, then they had walked out from the election room. After that, Presiding Officer had no alternative except to conduct election of Sarpanch. Panches present in the election room had elected the appellant as Sarpanch of Gram Panchayat of Village Dholan, but election of the appellant was wrongly set aside by the Presiding Officer, Election Tribunal, Ludhiana. While setting aside the election of the appellant, direction was given to the FAO No. 3843 of 2010 4 BDPO, Block Jagraon, to hold fresh election of Sarpanch of Gram Panchayat of Village Dholan. Presiding Officer, Election Tribunal, has no power to direct the BDPO to hold fresh election of Sarpanch of Gram Panchayat of Village Dholan. Reliance was placed on 2010(3) RCR (Civil), 7, Sulakhan Kaur vs. Sohan Singh and others. Learned counsel for contesting respondents argued that undisputedly 9 Panches of Gram Panchayat Dholan were elected on 26.5.2008 and after oath ceremony, Presiding Officer had issued notices to all the Panches for 20.7.2008 to elect Sarpanch, but on 20.7.2008, coram was not complete and the meeting was adjourned to 21.7.2008. There were two candidates for the post of Sarpanch. Appellant was opposing Ravinder Singh, respondent No.3. When there was a contest amongst the Panches, then Presiding Officer rightly decided to hold election by ballot paper. 4 Panches were supporting Ravinder Singh, respondent No.3. Only 3 Panches were supporting the appellant. Ravinder Singh was in majority. He was to be elected as Sarpanch, but without any reason, appellant was declared elected as Sarpanch of Gram Panchayat of Village Dholan. That the contesting respondents had filed writ petition and the same was disposed of vide order dated 22.7.2008 with direction to respondents in that writ to ensure free and fair election to the post of Sarpanch and all Panches were permitted to exercise their right of franchise. Appellant was declared as Sarpanch against the provisions of law. Election of the appellant was illegal and void because election symbol was not issued to the appellant or Ravinder Singh. No ballot paper was prepared or issued. After the appellant and proforma respondents came to know about the order dated 22.7.2008 passed by the Hon'ble High Court, then resolution dated 21.7.2008 was FAO No. 3843 of 2010 5 forged by the appellant and proforma respondents. Appellant appeared as RW-1 before the Presiding Officer, Election Tribunal, and in cross- examination admitted that 20.7.2008 was the first date for the election of Sarpanch. He, Major Singh, Nirmal Singh and Jit Kaur were present. No one was present from the opposite side and due to lack of coram on 20.7.2008, meeting was adjourned to 21.7.2008. On 21.7.2008, contesting respondents were present and signed the proceedings book. Further admitted that it is correct that in the meeting held on 20.7.2008, contesting respondents were present and not the opposite party. Lastly admitted that 4 Panches were supporting Ravinder Singh and 3 Panches were supporting him. In the meeting, there was no ballot box. Election symbol was not allotted to any one and there was no voting. Opposite party had left the place after signing the proceedings book. Opposite party had boycotted the meeting dated 21.7.2008. Further admitted that Hon'ble Punjab and Haryana High Court vide order dated 22.7.2008 directed to conduct fair and impartial election by including all the Panches in the election. On 22.7.2008, meeting was held. No notice to opposite 5 Panches of the meeting dated 22.7.2008. In the meeting dated 22.7.2008, he was declared elected as Sarpanch of Gram Panchayat of Village Dholan. Argued that appellant is not clear whether he was elected as Sarpanch in the meeting held on 21.7.2008 or in the meeting held on 22.7.2008. On 22.7.2008, contesting respondents were not present. When there was a contest amongst the appellant and Ravinder Singh, then election for the post of Sarpanch was by way of ballot paper, but against law, appellant was elected as Sarpanch of Gram Panchayat of Village Dholan. FAO No. 3843 of 2010 6 Admittedly, appellant was elected as Sarpanch of Gram Panchayat of Village Dholan. Contesting respondents No.3 to 7 and proforma respondents No.8 to 10 were also elected as Panches of Gram Panchayat of Village Dholan. Amongst Panches, Sarpanch was to be elected. Meeting for election of Sarpanch was convened on 20.7.2008 but on that day, coram was not complete and meeting was adjourned to 21.7.2008. On 21.7.2008, as per appellant, contesting respondents and proforma respondents were present. Name of appellant was proposed by Nirmal Singh, Panch, whereas name of Ravinder Singh, one of the contesting respondents, was proposed by Balbir Singh. There was a contest amongst the appellant and Ravinder Singh. 4 Panches were supporting Ravinder Singh and 3 Panches were supporting the appellant. Proceedings book was signed by all the Panches but Presiding Officer directed to elect Sarpanch by ballot paper. Then contesting respondents did not agree and had walked out. Appellant and proforma respondents were present, then the appellant was rightly elected as Sarpanch, whereas allegation of the contesting respondents is that election of appellant is illegal because no symbol was allotted. Ballot papers were also not issued. When contesting respondents were in majority, then no question of electing the appellant as Sarpanch of Gram Panchayat of Village Dholan. Appellant is not clear whether he was elected as Sarpanch on 20.7.2008 or 21.7.2008. Question is whether election of appellant as Sarpanch Gram Panchayat of Village Dholan was rightly set aside or not. In order to appreciate the controversy amongst the parties, relevant provisions of Act No.9 of 1994 and Act No.19 of 1994 are FAO No. 3843 of 2010 7 reproduced as under:- “Provisions of Act No.9 of 1994 Section 2 (m) “casual vacancy” means a vacancy occurring otherwise than by efflux of time. XX XX XX “Section 10” vide Punjab Act No.12 of 2008] of the this Act; Section 13-A. First meeting of the Gram Panchayat- The Deputy Commissioner or any officer or official of the State Government, authorised 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.] [Substituted for Section 13 vide Punjab Act No.12 of 2008. Prior to its substitution section 13 was read as : “13. Oath of Panches and Sarpanches – After having been elected and before entering upon the duties of his office, a Panch as well as a Sarpanch shall take an oath as specified in Schedule I and in the manner prescribed.”] Section 22 : Filling of casual vacancies of Sarpanches and Panches – (1) Whenever a vacancy occurs by death, resignation, removal or otherwise of a Sarpanch or of a Panch the vacancy shall be filled up by way of election: Provided that if the vacancy relates to the Scheduled Castes, Backward Classes or to Women, the vacancy shall be filled up out of the persons belonging to the category to which category FAO No. 3843 of 2010 8 of person the vacancy relates. Provisions of Act No.19 of 1994 Section 56: Casual vacancies in the Panchayats and Municipalities – (1) When the seat of a member elected to the panchayat or Municipality becomes vacant or is declared vacant or his election to the Panchayat or Municipality as the case may be, is declared void, the Election Commission shall subject to the provisions of sub-section (2), by a notification in the Official Gazette, call upon the concerned Panchayat or Municipality to elect a person for the purpose of filling the vacancy so caused before such date as may be specified in the notification, and the provisions of this Act and of the rules and orders made thereunder shall apply, as far as may be, in relation to the election of a member to fill such vacancy. (2) If the vacancy so caused be a vacancy in a seat reserved in any such constituency for the Scheduled Castes, Backward Classes or the Women, as the case may be, the notification issued under sub-section (1), shall specify that the person to fill that vacancy shall belong to the category of persons to which the vacancy relates. Section 87: Decision of the Election Tribunal – At the conclusion of the trial of an election petition, the Election Tribunal may make an order for - (a) dismissing the election petition; or (b) declaring the election of all or any of the returned candidates to be void; or FAO No. 3843 of 2010 9 (c) declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected. Section 88: Other orders to be made by the Election Tribunal - (1) Where any charge is made in the petition of any corrupt practice having been committed at the election, the Election Tribunal shall also make an order at the time of making an order under Section 87 indicating - (i) whether any corrupt practice has or has not been proved to have been committed at the election, and the nature of that corrupt practice; (ii) the names of all persons, who have been proved at the trial to have been guilty of any corrupt practice; and (iii) the total amount of costs payable and specifying the persons by whom these costs shall be paid and the persons to whom these costs shall be paid: Provided that a person who is not a party to the petition, shall not be named in the order under sub-clause (ii) unless - (a) he has been given notice to appear before the Election Tribunal and to show cause why he should not be so named; and (b) if he appears in pursuance of the notice, he has been given an opportunity of cross-examining any witness, who has already been examined by the Election Tribunal and has given evidence against him, of calling evidence in his defence and of being heard. FAO No. 3843 of 2010 10 Section 92: Communication of orders of the Tribunal – The Election Tribunal shall, as soon as may be, after the conclusion of the trial of an election petition, intimate the substance of the decision to the Election Commission and as soon as may be thereafter, shall forward to the Election Commission, an authenticated copy of the decision. Section 93: Transmission of order to the prescribed authority etc. and its publication – As soon as may be, after the receipt of any order made by the Election Tribunal under section 87 or section 88, the Election Commission shall forward copies of the order to the prescribed authority and shall cause the order to be published in the Official Gazette. Section 100: Appeal to High Court – (1) Notwithstanding anything contained in any other law for the time being in force, an appeal shall lie to the High Court on any question whether it pertains to law or fact from every order made by an Election Tribunal under section 87 or section 88. (2) An appeal under this Chapter shall be preferred, within a period of thirty days from the date of the order of the Election Tribunal passed under section 87 or section 88 : Provided that the High court may entertain an appeal after the expiry of the said period of thirty days, if it is satisfied that the appellant had sufficient cause for not preferring the appeal FAO No. 3843 of 2010 11 within such period.” Learned counsel for the appellant argued that no dispute about the different provisions of Act No.9 of 1994 and Act No.19 of 1994, but when contesting respondents had left the meeting after signing the proceedings book, then Presiding Officer had no alternative except to declare the appellant as Sarpanch of Gram Panchayat of Village Dholan, but contention of learned counsel for the appellant seems not to be reasonable one. Appellant while appearing before the Election Tribunal, then in examination-in-chef stated that date of election of Sarpanch was fixed for 20.7.2008 but due to lack of coram, meeting was adjourned to 21.7.2008. 4 Panches were supporting Ravinder Singh and only 3 Panches were supporting the appellant. There was no ballot box. Election symbol was also not allotted to any one and no voting was held. Ex.P12 is the copy of resolution dated 20.7.2008 showing this fact that only contesting respondents No.3 to 7 were present. Appellant and profirma respondents were not present. Ex.P13 is the copy of resolution dated 21.7.2008 showing this fact that appellant, contesting respondent Nos.3 to 7 and proforma respondents No.8 to 10 were present to elect Sarpanch. Ex.P13 further shows that contesting respondents did not agree to elect Sarpanch by way of voting. But there no question of voting when election symbol was not allotted to any one and there was no ballot box. According to the resolution, appellant was elected as Sarpanch on 21.7.2008. whereas appellant while appearing before Election Tribunal stated that third page of resolution (Ex.P13) bears his signatures and signatures of other members and this resolution is the same resolution which was passed in the meeting FAO No. 3843 of 2010 12 dated 20.7.2008. File shows that contesting respondents had approached Hon'ble High Court and while disposing of the writ petition, order dated 22.7.2008 was passed with direction to conduct free and fair election to the post of Sarpanch by including all the Panches. Appellant admitted that meeting was held on 22.7.2008. Presiding Officer declared him elected as Sarpanch on 22.7.2008. That means, on 22.7.2008, 5 Panches, i.e., contesting respondents were not present. Appellant was in minority. Appellant had the support of only 3 Panches, but on 20.7.2008, appellant and his supporters did not attend the meeting. From 20.7.2008, meeting was adjourned to 21.7.2008. On 21.7.2008, contesting respondents were in majority. When contesting respondents were in majority and Ravinder Singh had the affidavits of his 4 supporters, then there was no idea to walk out. In the absence of election symbol or ballot box, there was no idea to elect Sarpanch by way of voting. In the resolution dated 21.7.2008, Presiding Officer wrote that contesting respondents did not agree to elect Sarpanch by way of voting and had left the meeting. Contesting respondents approached Hon'ble High Court and there was a direction by the Hon'ble High Court to the Returning Officer vide order dated 22.7.2008 to conduct free and impartial election by allowing all the Panches to participate in the election. Resolution dated 21.7.2008 shows that Sarpanch was elected, whereas while appearing before the Election Tribunal, appellant stated that he was elected as Sarpanch on 22.7.2008, but no resolution dated 22.7.2008 on the file. Affidavits of 4 Panches (Ex.P1 to Ex.P4) supporting Ravinder Singh are on the file, but despite support of 4 Panches, appellant was declared Sarpanch when he had the support of only 3 Panches. On the one hand, contesting respondents had approached the FAO No. 3843 of 2010 13 Hon'ble High Court by filing writ petition with a direction to ensure free and fair election of Sarpanch by allowing all the Panches to exercise their franchise, whereas on the other hand, resolution, copy of which is Ex.P13, is to the effect that Ravinder Singh having support of 4 Panches, had walked out. In case, appellant was in majority, then there was no idea to remain absent when election was to be held on 20.7.2008. When contesting respondents had signed the resolution dated 21.7.2008 and agreed to participate in the election of Sarpanch, then there was no question to sign second and third page of resolution dated 21.7.2008. First page of resolution (Ex.P13) shows that all the panches, 9 in number, were present and signed the resolution, but second and third page of the resolution show that when Ravinder Singh had the support of 4 Panches and was in majority, then walked out by saying that he was not ready to participate in the election to elect Sarpanch by way of ballot paper. When Ravinder Singh had the support of 4 Panches, then there was no reason to walk out by saying that they were not ready to elect Sarpanch by exercising their right of franchise by secret ballot. Resolution (Ex.P13) shows that on the first page, signatures of all the Panches were obtained. Second and third pages were changed later on simply to help the appellant because appellant had the support of only 3 Panches, whereas Ravinder Singh had the support of 4 Panches. Ravinder Singh had approached the Hon'ble High Court with a request that they were not allowed to exercise their right of franchise. In the present case, casual vacancy has occurred after the election of appellant was set aside. Act No.9 of 1994 came into force in terms of Constitution (73rd Amendment) Act, 1992, replacing Punjab Gram Panchayat Act, 1952, to establish a three tier Panchayati Raj System in the State of Punjab. Act FAO No. 3843 of 2010 14 No.9 came into force w.e.f. 21.4.1994, whereas Act No.19 of 1994 came into force w.e.f. 7.9.1994. As per Act No.19, State Election Commission has a power of superintendence, direction and control of the preparation of electoral rolls and to conduct all elections to the Panchayats and Municipalities in the State of Punjab. Act No.19 is a complete Code in itself providing for guidance in almost all contingencies. It provides the reliefs under Section 87. Under Section 87, Election Tribunal has the power to declare the election of any Panch or Sarpanch illegal after conclusion of the trial of election petition. Once, election petition declaring election of any Panch or Sarpanch as illegal, then under Section 92 of Act No.19 of 1994, Election Tribunal is to intimate the decision of election petition to the Election Commission. Once election petition is accepted, then Election Tribunal is bound to communicate its order to the Election Commission. Copy of the order is to be sent at the earliest for publication in the official Gazette to make it public by way of publication to elect a person after casual vacancy has arisen by way of setting aside an election of Panch or Sarpanch but Election Tribunal has no power to direct any authority to hold fresh election of Panch or Sarpanch. In the present case, election of appellant was set aside but a direction was given to the BDPO, Block Jagraon, District Ludhiana, to hold fresh election of Sarpanch by following the provisions under law. But as discussed earlier, as per Section 13 A of Act No.12 of 2008, election to the post of Sarpanch has become indirect. Sarpanch is to be elected from the elected Panches. Same procedure is to be followed as followed in the initial stage by way of first meeting. When no provision under Act No.19 of 1994 FAO No. 3843 of 2010 15 for the purpose of electing a Sarpanch and election of a Sarpanch is only as per Section 13A of Act 9 of 1994, so direction issued to the BDPO, Block Jagraon, District Ludhiana, to hold fresh election of Sarpanch is not correct one. For the reasons recorded above, appeal is partly allowed qua direction of Election Tribunal to the BDPO, Block Jagraon, District Ludhiana, to hold fresh election of Sarpanch of Gram Panchayat of Village Dholan. .8.2010 ( JORA SINGH ) pk JUDGE