IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP. No. 13926 of 2008 Date of Decision: 21.1.2010 Satnam Singh and others --Petitioners Versus D.C. Ferozepur and others --Respondents CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI. Present:- Mr. C.M. Munjal, Sr. Advocate with Mr. Vikas Kumar, Advocate for the petitioners. Mr. N.D.S. Mann, Addl. A.G., Punjab. Mr. A.K. Khunger, Advocate. Mr. Rajeshwar Singh, Advocate. Mr. I.S. Brar, Advocate. *** PERMOD KOHLI.J (ORAL) Petitioners and respondent no.5 are the elected members of the Gram Panchayat of village Chanan Khera, Block Abohar, District Ferozepur. Election of nine members Panchayat was held on 26.5.2008, wherein the petitioners, respondent no.5 and three more panches were elected from various notified categories as detailed in para 3 of the writ petition. The post of Sarpanch was reserved for general category. Allegations have been made in the writ petition against respondent no.6, who is a local M.L.A of the area. It is stated that the said M.L.A was interested in the election of respondent no.5 as the Sarpanch and for this purpose he threatened the petitioner no.5-Kamla Devi of dire consequences for which representations were made to the S.S.P., Ferozepur. A copy of the representation dated 17.7.2008 (Annexure P-1) is placed on record. CWP. No. 13926 of 2008 -2- The petitioners claim to be five out of nine elected panches constituting majority in the Panchayat. With a view to conduct the election of the Sarpanch a notice dated 17.8.2008 was issued by respondent no.3 for a special meeting of the Panchayat to be held at Panchayat Ghar on 22.7.2008 at 10 A.M for electing a new Sarpanch. Petitioners have admitted the receipt of this notice for the election. It is also the admitted case of the parties that on 22.7.2008, the date notified for holding the election of Sarpanch the petitioners were present, whereas the elected members of the Panchayat did not attend the meeting forcing its adjournment for want of quorum. A copy of the minutes of the meeting held on 22.7.2008 is placed on record. Besides adjourning the meeting for want of quorum, it is specified in the minutes that information for the next meeting will be given at least 24 hours prior to the meeting. Another notice dated 23.7.2008 was issued for holding the special meeting for the same purpose to be held on 24.7.2008 at 10 A.M. Petitioners admit the receipt of this notice. According to averments made in the writ petition all the petitioners reached the venue of meeting at 9 A.M., however neither respondent no.3, the Presiding Officer appointed to hold the election nor the Panchayat Secretary were present. It is stated that after waiting for 1 ½ hours Ajit Singh petitioner received a call from Panchayat Secretary on his mobile regarding adjournment of meeting due to illness of the Returning Officer and similar message was received by Gurnam Singh brother of petitioner no.1. It is stated that the petitioners waited up to lunch time but nobody came present. The petitioners submitted a written representation on 25.7.2008 (Annexure P-5) to the Deputy Commissioner, Ferozepur. CWP. No. 13926 of 2008 -3- It is alleged that on 27/28.7.2008 respondent no.5 was found distributing sweets and using crackers in the village for his election as the Sarpanch. It is further stated that on inquiry from the office of S.D.M., Abohar, it was found that Deputy Commissioner vide order No.3220-21 dated 24.7.2008 changed the Presiding Officer for the conduct of the election of the Sarpanch and appointed respondent no.4 as the Presiding Officer and directed him to complete the process of election of Sarpanch within four days. It is further alleged that respondent no.4 never visited the Gram Panchayat nor held any meeting and declared respondent no.5 as Sarpanch at the instance of respondent no.6 at his residence. Respondent no.4 issued certificate of election in favour of respondent no.5 in Form XI as per Rule 45 of the Gram Panchayat Election Rules, 2008. The petitioners have, accordingly, challenged the election of respondent no.5 as Sarpanch in the present writ petition. Besides alleging that respondent no.5 has been elected without holding any meeting the petitioners have relied upon the general directions issued by this Court in CWP No. 12694 of 2008 decided on 23.7.2008. It is, accordingly, pleaded that in view of the directions in the aforesaid writ petition minimum 2-3 days notice is to be given for holding the elections and this direction has been violated by the respondents. Besides challenging the election of respondent no.5 petitioners have also sought a direction for holding a fresh election. This petition is opposed by the respondents. A joint written statement has been filed by respondents no.2 and 4, supported with the affidavit of respondent no.4. It is stated that the said respondent was appointed as Returning Officer for conducting the election of Sarpanch for CWP. No. 13926 of 2008 -4- village Chanan Khera vide order dated 24.7.2008. A meeting of the Gram Panchayat was called on 25.7.2008 at 4 P.M in the Panchayat Ghar. This was an adjourned meeting. Five elected members attended the meeting including petitioner no.5 and since it was an adjourned meeting 2/3rd quorum was not required. During the meeting Gurdas Singh panch proposed the name of Mehman Singh for the post of Sarpanch, which was seconded by Om Parkash panch. Respondent no.5 expressed his willingness and since no other name was proposed, he was unanimously declared as elected Sarpanch. It is alleged that the election was held in accordance with Rule 45. Regarding service of notice in the meeting, it is stated that a notice was served to all the newly elected members of the Gram Panchayat but petitioners no.1 to 4 after reading the notice returned the same. Only five elected members including respondent.5 attended the meeting. It is also stated that after the election respondent no.4 submitted his report in Form No. IX about the election of respondent no.5 as Sarpanch to the respondent no.1 and handed over all the record of election to the Panchayat Secretary. However, later, it was learnt by respondent no.4 that the record has been stolen from the possession of the Panchayat Secretary. DDR No. 23 dated 20.8.2008 has been registered in Police Station City, Malout in this regard. The Deputy Commissioner i.e. Respondent no.1 in a separate reply has mentioned about the change of Presiding Officer on account of illness of respondent no.3 Mukhtiar Singh, who was initially appointed as the Returning Officer for holding the election of Sarpanch. It is stated that respondent no.4 was appointed as the Presiding Officer on 24.7.2008 and the said respondent conducted the election. He has also mentioned about the non-availability of record which was said to be stolen CWP. No. 13926 of 2008 -5- as per the DDR, referred to above. Respondent no.3 in his separate reply admitted the convening of meeting dated 22.7.2008 for the election and its adjournment due to want of 2/3rd quorum. He also admitted a second notice dated 23.7.2008 for holding the meeting on 24.7.2008. It is, however, stated that during the intervening night of 23/24.7.2008 respondent no.3 suddenly fell ill. He suffered from dehyderation and chest pain and was taken initially to Nagpal Nursing Home and then to the Civil Hospital, Abohar. He intimated the factum of his illness to the S.D.M (Civil), Ferozepur and he was accordingly replaced by respondent no.4 for holding the election vide order dated 24.7.2008. He has expressed his ignorance regarding the holding of the election and the non-availability of the record later. Vide order dated 4.12.2008 a direction was issued to the Deputy Commissioner, Ferozepur to file a detailed affidavit regarding the circumstances for replacing the earlier Presiding Officer vide order dated 24.7.2008 as also to the Panchayat Secretary in respect to handing over of the record to him. The Panchayat Secretary as also the Deputy Commissioner filed their respective affidavits. The Deputy Commissioner in his fresh affidavit dated 9.1.2009 has mentioned that earlier Sh. Mukhtiar Singh Rana was appointed as the Returning Officer to conduct the election of the Sarpanch but the said officer fell ill and was admitted in hospital. Due to his illness and on his request the Returning Officer for conducting the election was changed and Sh. Mukhtiar Singh Rana was appointed as Returning Officer. He has also placed on record a certificate issued from the Nagpal Nursing Home in respect to the illness of respondent no.3. He has also mentioned about the loss of the record from the Panchayat Secretary and placed on record a copy of the communication from the CWP. No. 13926 of 2008 -6- S.H.O., Malout to the Deputy Commissioner, Ferozepur dated 10.12.2008 communicating that neither the bag nor the papers have been traced till date. The Panchayat Secretary in his separate affidavit dated 15.12.2008 has mentioned about the holding of election for the post of Sarpanch on 25.7.2008 and the unanimous election of Sh. Mehman Singh by five of the panches present in the meeting including petitioner no.5. He has further stated that after the election he was handed over the election record comprising of proceeding book, which was in his custody. He has mentioned that he was asked by the BDO Office, Abohar to bring the record as some persons had applied for copies. The affidavit further reads that the deponent took the record to the BDO Office on 22.8.2008 but no one turned up to take the copies. He came back to the village. On his way at Malout one of his friend met him and both stopped for a refreshment at Ajanta Juice Bar. The record was kept in a bag on the side of the motorcycle bearing registeration no. PB-53A-0921 and after taking juice at about 6 P.M, he found the bag missing and a DDR No. 23 dated 20.8.2008 was lodged in Police Station City, Malout. A copy of the DDR is also placed on record. I have heard learned counsel for the parties. The petitioners have alleged that there is total fraud in the election of respondent no.5. The holding of election and loss of record is said to be a manipulation on the part of the respondents. It is, accordingly, argued that the election of respondent no.5 be set aside and a fresh election be ordered. To the contrary the respondents have argued that once the election process is complete and election is notified the only remedy available is by way of an election petition. The respondents have placed CWP. No. 13926 of 2008 -7- reliance upon various judgements of this Court which include 2003 (2) PLJ 489, judgement dated 20.11.2008 passed in CWP No. 13971 of 2008 and judgement dated 23.12.2008 passed in CWP No. 15789 of 2008. In all these judgements, it has been held that the remedy available under law is by way of election petition, where the result of the candidate has been declared by the Returning Officer. Mr. Munjal, learned counsel for the petitioners has vehemently argued that since the fraud is apparent, it would be more appropriate for this Court to intervene and set aside the election in the interest of justice. It is further contended that the petitioners who constitute the majority i.e. five out of nine elected members should not be relegated to an expensive and lengthy remedy of election petition which takes years to decide the controversy. From the pleadings of the parties and the documents referred herein above there is definitely a cloud on the election of respondent no.5. The manner in which the Presiding Officer was replaced and the election was allegedly held and notified on 25.7.2008 do create doubts about the fairness or even the factum of election. But even if, the allegations of fraud are to be examined, it needs evidence. Keeping in view the dictum of judgements, referred to herein above, it is not deemed appropriate to interfere in the duly notified election in exercise of jurisdiction under Article 226 of the Constitution. The petitioners are, thus, relegated to the remedy of election petition. Keeping in view the pendency of this writ petition, the petitioners are permitted to file election petition within a period of four weeks from today. They are at liberty to raise all the permissible pleas. Keeping in view the seriousness of the allegations the election CWP. No. 13926 of 2008 -8- authorities are directed to decide the election petition as expeditiously as possible, preferably within a period of six months, if, the same is filed within the time specified above. Under the given circumstances, the bar of limitation will not come in the way of petitioners, if they choose to file the election petition within the stipulated period. It is further directed that if on conclusion of election petition any fraud or misconduct of any official is found, action shall be initiated against the concerned by way of criminal/disciplinary proceedings. (PERMOD KOHLI) JUDGE 21.1.2010. lucky