FAO No.494 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** FAO No.494 of 2010(O&M) Decided on:12.07.2010 **** Massa Singh and others . . . .Appellants Versus Election Tribunal and others . . . .Respondents **** CORAM: HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: - Mr.H.S. Sethi, Advocate for the appellants. Mr.S.S. Khaira, Advocate for respondents No.2 & 4. **** RAKESH KUMAR JAIN, J.(ORAL) This appeal is directed against the order of Deputy Commissioner-cum-Presiding Officer, Election Tribunal, Gurdaspur (for short ‘the Tribunal) dated 12.10.2009 by which election petition filed by the appellants, challenging the election of respondent No.1- Paramjit Kaur to the post of Sarpanch of Village Lakhanpal, Block Gurdaspur, Tehsil & Distt. Gurdaspur, has been dismissed. Shorn of unnecessary details, the facts of the case are that election for the post of Sarpanch of Gram Panchayat Lakhanpal, Block Gurdaspur, Tehsil & Distt. Gurdaspur,was held on 26.5.2008. In terms of Section 13-A of the Punjab Panchayati Raj Act , 1994 (for short ‘Act No.9 of 1994) first meeting was held for election of Sarpanch on 18.7.2008. All the elected Panches were FAO No.494 of 2010 (O&M) -2- notified the date, time and place of the meeting. The said meeting could not be carried out as only the appellants came present in the meeting, therefore due to lack of quorum, it was adjourned to 19.7.2008. Again all the Panches were notified the date, time and place of the second meeting. In the said meeting, the appellants were allegedly absent, therefore, in terms of Rule 45-A of the Punjab Panchayati Raj Election Rules, 1994 (for short ‘the Rules) meeting was carried out in which Paramjit Kaur-respondent No.1 was declared elected as Sarpanch. The said election was challenged by the appellants by way of CWP No.13224 of 2008 in which following order was passed: “The petitioners, who are three out of 5 Members of Gram Panchayat of Village Lakhanpal, District Gurdaspur, have filed this petition under Articles 226/227 of the Constitution of India for setting aside the election of respondent No.6 as Sarpanch of the Gram Panchayat, in the meeting held on 19.7.2008. Written statement on behalf of respondent No.6 has been filed in Court today. The same is taken on record and its copy has been handed over to counsel for the petitioners. Counsel for respondent No.6 has pointed out that after filing of this writ petition, the petitioners have filed an election petition before the Election Tribunal, Gurdaspur, challenging the FAO No.494 of 2010 (O&M) -3- election of respondent No.6 as Sarpanch of the Gram Panchayat, and the same is pending. This fact has not been controverted by counsel for the petitioners. He states that the petitioners may be permitted to withdraw this writ petition with liberty to pursue the election petition, already filed by them and the Election Tribunal be directed to decide the election petition, expeditiously. Dismissed as withdrawn with the aforesaid liberty. The Election Tribunal, Gurdaspur, is directed to decide the aforesaid election petition, expeditiously, preferably within a period of six months.” Appellants then filed the present election petition under the provisions of Act No.9 of 1994 and Punjab State Election Commission Act, 1994 (for short ‘Act No.19 of 1994’) in which it was, inter alia, alleged that the returning officer/respondent No.3 under the influence of the local MLA has changed the venue of second meeting and when the appellants reached at the changed venue, they were not allowed to enter by the police, therefore, they could not participate in the election, though, they were in majority. It is also alleged that on the asking of Local MLA, who is stated to be the Chairman of the Milkfed, the returning officer/respondent No.3 was changed at the last moment with one of his confident, who is stated to be the General Manager of the Milk Plant, Gurdaspur. FAO No.494 of 2010 (O&M) -4- Respondent No.1 denied all the allegations made in the election petition whereas respondent no.3/Returning Officer has categorically admitted the change of the Returning Officer and alleged that the change was effected because of the non-availability of the earlier Returning Officer, who was to attend some other official work. On the pleadings of the parties, following issues were framed by the Tribunal: - “1. Whether the election of Respondent No.1 for the office of Sarpanch of Gram Panchayat of Lakhanpal is liable to be declared as illegal, null and void and set aside on the grounds mentioned in the petition? OPP 2. Whether the petition is not maintainable? OPR 3. Relief.” Both the parties led their respective evidence. Since, issue No.1 was the material issue, therefore, the Tribunal had decided the said issue observing thus: - “The main contention of the petitioners is that the Presiding Officer elected respondent No.1 as Sarpanch by changing the venue on 19.7.2008. However, the petitioners were fully aware about this change but they did not FAO No.494 of 2010 (O&M) -5- appear in the first meeting as well as in the second meeting.” The Election Tribunal dismissed the election petition on the ground that the absence of the appellants was deliberate as they did not want to participate in the election process. Opening his argument, learned counsel for the appellants has submitted that non-appearance of respondents No.1 and 2 in the first meeting dated 18.7.2008 was a deliberate attempt in order to frustrate that meeting because the respondents were in minority and knew that the first meeting would fail if quorum is not complete whereas in the second meeting quorum is not required, therefore, in the second meeting they would be having chance of electing their Sarpanch. It is submitted that notice of the first meeting dated 18.7.2008 was given to them and were apprised of the time and place. Learned counsel for the appellants has further submitted that in the first meeting the date, place and time were all mentioned by the Presiding Officer, who was subsequently superseded by respondent No.3. In the second meeting, though, notice was served upon them for holding the meeting at 4.30 PM in the office of Market Committee, Gurdaspur but the said meeting was not held at the said venue rather it was shifted to the Milk Plant, Gurdaspur without any written notice to the appellants. It is submitted that if the Returning Officer could have given the notice of the adjourned meeting, which includes the date, place and time then it was incumbent upon him to give the notice of the changed venue as well in writing. However, learned counsel for the FAO No.494 of 2010 (O&M) -6- appellants states that the appellants were in majority and quite vigilant, therefore, when they came to know about the changed venue they reached there but they were not allowed to enter the premises and in the meantime, they were shown absent and respondent No.1 was declared elected as Sarpanch. He also read over the statement of RW2-Bhajan Kaur, who has stated that “it is correct that local MLA had put pressure and got Paramjit Kaur as a Sarpanch. Election to the post of Sarpanch was held in a school. I never came in Milk Plant, Gurdaspur with regard to the election of Sarpanch. I had gone to Dana Mandi Gurdaspur for two days. It is correct that the petitioner belong to one party. Who had casted the votes had attended the meeting of Sarpanch. The votes were polled in the village itself. In the village itself, Paramjit Kaur was elected as a Sarpanch. It is correct that the MLA had told the elected Paramjit Kaur of she was elected on his saying. It is correct that the majority with regard to election of Sarpanch is with Massa Singh.” Insofar as the statement of other witness RW1-Paramjit Kaur is concerned, she has evaded all the questions put to her. Learned counsel for the appellants has, thus, submitted that meeting was held in violation of the principles of natural justice as the appellants have not been given fair chance for their presence in the election of Sarpanch as the venue was changed on the last moment without there being any written notice. He has also drawn the attention of the Court to the Statement of Paramjit Kaur wherein she has stated that “it is correct that all the petitioners are together since the election”. FAO No.494 of 2010 (O&M) -7- In reply, learned counsel for the respondents has vehemently argued that the appellants cannot blame the Presiding Officer or the authorities, who conducted the election because despite having knowledge of the adjourned meeting, as per notice Ex.P4 to P6 by which they were informed about the date, place and time of the adjourned meeting and according to the appellants they came to know about the changed venue but they did not reach the place and participate in the meeting, therefore, in their absence, no alternative was left with the Presiding Officer but to declare respondent No.1 as the Sarpanch. I have heard both the learned counsel for the parties and perused the available record with their assistance. The resume of the aforesaid pleadings and arguments raised by learned counsel for the parties is that the appellant Massa Singh was enjoying the majority of all the Panches i.e. out of five Panches three Panches were with him. They were with him when they attended meeting on 18.7.2008. They have filed writ petition together and also filed election petition. The matter has to be decided on the preponderance of evidence and this Court feels that after the admission of both respondents No.1 and 2 that the appellant No.1 was enjoying majority, there is no question for the appellant not to attend adjourned meeting on 19.7.2008. There is one legal infirmity in the election process on the part of the Presiding Officer for not giving any written notice to the appellants about the change of venue and also not disclosing as to why the venue was changed because as per notice Ex.P4 to P6, the meeting was scheduled to be held at 4.30 PM in Market Committee. There is FAO No.494 of 2010 (O&M) -8- some force in the arguments raised by learned counsel for the appellants that the present respondent No.3 was elected at the instance of the man in power that is why the meeting was held in the premises of Milkfed Plant of which he was General Manager. In view of the totality of circumstances, I am of the view that election held on 19.7.2008 was not in accordance with law, therefore, election petition is allowed and impugned order is set aside. The Deputy Commissioner-cum-Presiding Officer, Election Tribunal, Gurdaspur is directed to hold fresh meeting for the purpose of election of Sarpanch of Gram Panchayat, Village Lakhanpal, Gurdaspur within one month from the date of receipt of certified copy of this order. No costs. (RAKESH KUMAR JAIN) 12.07.2010 JUDGE Vivek