FAO No. 4799 of 2010 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 4799 of 2010 (O&M) Date of decision: December 09, 2010 Surinder Kumar .. Appellant v. Presiding Officer Election Tribunal and others .. Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. O. P. Kamboj, Advocate for the appellant. Mr. C. M. Munjal, Advocate for respondents No. 2 to 5. ... Rajesh Bindal J. The appellant, who was elected as Sarpanch of village Beganwali, Tehsil Fazilka, District Ferozepur, in the elections held in July, 2008, is in appeal before this court against order dated 17.6.2010, passed by Sub Divisional Magistrate-cum- Election Tribunal, Zira setting aside his election and directing for holding of fresh election for Sarpanch of the Gram Panchayat. Briefly, the facts are that the appellant along with six other persons were declared elected as Members Panchayat of Gram Panchayat, Beganwali in the elections held in May, 2008. After the declaration of result, a meeting was scheduled for 21.7.2008 for election of Sarpanch. However, no one could be elected as Sarpanch due to lack of quorum. It is pleaded by the appellant that the adjourned meeting was scheduled for 22.7.2008 and on that day, the appellant along with two other Panches were present and four others elected Panches were not present. As in the adjourned meeting for election of Sarpanch, the quorum was not required, the appellant was elected as Sarpanch. The other group of Panches, which were four in number, being aggrieved of the action of the Returning Officer, whereby allegedly in a clandestine manner he declared the appellant as the elected Sarpanch of the Gram Panchayat, filed election petition which was accepted by the Election Tribunal vide impugned order. The Election Tribunal has directed for FAO No. 4799 of 2010 [2] fresh election for the post of Sarpanch. It is against this order that the appellant, the elected Sarpanch, is in appeal before this Court. Learned counsel for the appellant submitted that in the first meeting scheduled for holding election of Sarpanch on 21.7.2008, though all the seven Panches were present, however, the group of other four Panches refused to mark their presence. As the quorum was not complete, the Returning Officer had to adjourn the meeting. After due notice to all the Panches, the adjourned meeting was held on 22.7.2008 when the appellant along with two other Panches were present and the group of other four Panches was not present. As there was no quorum required for holding the adjourned meeting for the purpose of election of Sarpanch, the appellant was duly elected as Sarpanch and there was no illegality or irregularity committed by the Returning Officer in the process of election. He further submitted that the resolution by which the appellant was elected as Sarpanch is not under challenge. There is no finding recorded by the Election Tribunal that service of notice of the adjourned meeting was not effected on all the Panches. He further submitted that in fact, even when the first meeting was held on 21.7.2008, the other four Panches were present, however, they did not sign the minutes. The reason therefor was that they were not unanimous in electing any one of them as Sarpanch. Similar was the position even when the meeting was held on the next day. The challenge to the election was made on flimsy grounds and the same was set aside by the Election Tribunal by passing the impugned order. The reasons therefor are totally unsustainable in law. On the other hand, learned counsel for respondents No. 2 to 5 submitted that when the first meeting for the purpose of election of Sarpanch was held on 21.7.2008, the majority, i.e., four Panches were present there. The minority, namely, three other Panches were not present at that time. The group of four persons were asked to sign on blank papers by the Returning Officer to which they refused. Smelling some hanky panky, immediately a letter was faxed to the Deputy Commissioner and a writ petition was also filed in this court. For the next meeting, which was scheduled for 22.7.2008, no notice was served upon the group of four Panches. Even otherwise, the same did not comply with the statutory requirements. It has been admitted by one of the Member Panchayat, namely, Vinod Kumar that proceedings for the meeting of 21.7.2008 were recorded at 4.00 P.M., whereas the meeting on 22.7.2008 was scheduled at 2.30 P.M. In terms of the provisions of Rule 45-A of the Punjab Panchayat Election Rules, 1994, minimum notice of 24 hours is required. Citing the order passed by this court in C.W.P. No. 12694 of 2008 –Gurmeet Singh v. State of Punjab and others, decided FAO No. 4799 of 2010 [3] on 23.7.2008, it was submitted that this court had directed that a reasonable notice of 2-3 days should be given to the Panches before election of the Sarpanch is held. In his cross-examination, even the Returning Officer admitted that had the group of four Panches, who were on the other side, participated in the meeting, they being in majority, would have elected their Sarpanch. The submission was that the aforesaid facts clearly establish that election of the Sarpanch was held in clandestine manner just with a view to favour the candidate of the ruling party, who otherwise was in minority. It was not a case in isolation where this typeof modus operandi was applied, as in large number of cases, where the elected Panches of the ruling party were in minority, similar process was followed to declare them elected as Sarpanch. After hearing learned counsel for the parties and perusing the relevant referred record, in my opinion, the impugned order does not call for any interference by this court. The learned Tribunal has recorded a definite finding that the appellant, who had been elected as Sarpanch had support of only two other Panches, whereas on the other side, there were four Panches in the Panchayat consisting of seven Panches. From the record, it is evident that meeting for 21.7.2008 was called at 1.30 P.M., whereas meeting on 22.7.2008 was scheduled at 2.30 P.M. It has come in the evidence of Vinod Kumar, Member Panchayat that minutes for meeting of 21.7.2008 were recorded at 4.00 P.M., meaning thereby before recording of the minutes itself, it is shown that notice for adjourned meeting was issued at 1.30 P.M. In the adjourned meeting, three of the Panches belonging to the minority group were present, whereas four Panches belonging to the majority group were not present. It has been reported that they refused to receive the summons. Once they were litigating from day one, when the election of the Sarpanch was held on 21.7.2008, apparently it cannot be believed that they will not participate in the adjourned meeting. Even Makhan Singh, Returning Officer, admitted in his cross-examination that had the group of four persons participated in the election process, candidate from their group would have been elected. From the totality of circumstances of the case, I do not find any illegality has been committed by the Tribunal in setting aside election of Sarpanch. Fair election is the backbone of democracy. The appeal is accordingly dismissed. ( Rajesh Bindal ) Judge December 09, 2010 mk