FAO No.1544 of 2009 -1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.1544 of 2009 (O&M) Date of Decision: 01.7.2009 Sarwan Singh and others ...Appellants. Vs. Lakhwinder Singh and others ...Respondents. CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.H.S.Baath, Advocate for the appellants. Mr.N.S.Sidhu, Advocate for the respondents. RAKESH KUMAR JAIN, J. Challenge in this appeal is to the order passed by Deputy Commissioner-cum-Election Tribunal, Tarn Taran whereby Election Petition filed by the appellants under Section 76 read with Sections 50 and 51 of Punjab State Election Commission Act, 1994 (for short `the Act') has been dismissed. In brief, the facts of the case are that election for seven posts of Panches of Gram Panchayat village Kirtowal Khurd, Tehsil Patti, District, Tarn Taran was held as per notification dated 26.5.2008. The appellants as well as respondents No.1 to 3 were elected as Panches. In order to elect a Sarpanch, the Presiding Officer-cum-Junior Engineer Panchayati Raj Block Patti, District Tarn Taran served a notice dated 31.7.2008 to all the seven elected Panches for a special meeting fixed for 5.8.2008 at 1 p.m. at Government Elementary School Kirtowal Khurd. FAO No.1544 of 2009 -2 - The said notice could not be served upon two Panches namely, Smt.Chhindo and Smt.Mindo. On 5.8.2008 all the four appellants came present to attend the special meeting convened for the election of Sarpanch. The Presiding Officer, in his minutes, recorded that notice could not be served upon Smt.Chhindo & Smt.Mindo whereas Lakhwinder Singh did not attend the meeting despite receiving notice. However, meeting dated 5.8.2008 was postponed due to lack of requisite quorum. Again a notice dated 5.8.2008 was issued by the Presiding Officer for convening special meeting at the same place on 7.8.2008 at 3 P.M. The notice dated 5.8.2008 was also served upon three Panches namely Smt.Mindo, Smt.Chhindo and Lakhwinder. On 7.8.2008 again all the four appellants namely Sarwan Singh, Karamjit Singh, Swaran Kaur and Swaran Singh were present in the meeting but due to the non arrival of the Presiding Officer, the meeting was postponed. On 8.8.2008 again a notice was issued for convening a special meeting on 13.8.2008 at the same place at 3 p.m. and as per the endorsement on the notices, all the seven panches were served. In this meeting, Lakhwinder Singh, Smt.Mindo and Smt.Chhindo came present but the present appellants did not participate in the meeting though according to the minutes which have been recorded, Gulzar Singh, Chowkidar and Sukhpal Singh, Panchayat Secretary were sent to call all the four members for the purpose of attending the meeting but on return, they informed that the appellants were not found present at their house. Thus, meeting was carried out on 13.8.2008 in which Lakhwinder Singh was elected to the post of Sarpanch. After the election of respondent No.1 (Lakhwinder Singh), the appellants filed a Civil Writ Petition No.14337 of 2008 in this Court titled as Sarwan Singh and others Vs. State of Punjab and others seeking a writ in FAO No.1544 of 2009 -3 - the nature of mandamus directing the respondents (State Authorities) to hold the election of Sarpanch, Gram Panchayat Kirtowal Khurd, Tehsil Patti, District Tarn Taran by way of secret ballot and to allow petitioner No.1 to contest for the post of Sarpanch as petitioner No.1 (appellant No.1) has majority of Panches i.e. petitioner No.2 to 4 (appellants No.2 to 4) on her side. In the said writ petition, an order dated 14.8.2008 was passed, in which notice of motion was issued, which is reproduced as under: “Counsel for the petitioners contends that after constitution of the Gram Panchayat of village Kirtowal Khurd, Tehsil Patti, District Tarn Taran, Deputy Commissioner authorised respondent No.6 under Section 13-A of the Punjab Panchayati Raj Act, 1994 to convene a meeting on 5.8.2008 for conducting the election of Sarpanch. On that date, due to lack of coram, the meeting was adjourned for 7.8.2008. It is further contended that on 7.8.2008, second time the meeting was adjourned without mentioning any date, and thereafter, till date neither any meeting has been convened nor election of Sarpanch has been held. Notice of motion to respondents No.1 to 6 for 28.8.2008. Dasti as well.” It transpires from the aforesaid order that it has been canvassed before this Court on 14.8.2008 that after the meeting dated 7.8.2008, no date has been given for the purpose of subsequent meeting to be convened for the election of Sarpanch. During the pendency of the writ petition, the Presiding Officer moved an application to B.D.P.O Patti and a letter dated 22.8.2008 to the Additional Deputy Commissioner (Development) Tarn FAO No.1544 of 2009 -4 - Taran alleging therein that in the election which took place on 13.8.2008, out of seven Panches only three Panches had participated and as elected Sarpanch is not having majority then why fresh elections be not conducted so that a Panch commanding majority may be elected as Sarpanch. In the meantime, the proceedings were going on in the High Court in CWP No.14337 of 2008 which was disposed of on 1.9.2008. The order of the High Court dated 1.9.2008 is reproduced as under : “Petitioners, who are Panches of the Gram Panchayat of Village Khurd, Tehsil Patti, District Tarn Taran have filed this petition under Article 226 and 227 of the Constitution of India for issuance of directions to the respondent authorities to hold the elections of the Sarpanch of the aforesaid Gram Panchayat and to allow petitioner No.1 to contest the election for the post of Sarpanch. In pursuance of the notice issued by this Court, an affidavit has been filed by the Presiding Officer-cum-JE, Panchayati Raj, Block Patti, District Tarn Taran, in which, it has been stated that the first meeting for the election of the Sarpanch was convened on 5.8.2008, as per the directions of the Deputy Commissioner under Section 13-A of the Punjab Panchayati Raj Act, 1994. On that date, due to lack of coram, the meeting was adjourned. Thereafter, on 8.8.2008, the answering respondent joined the duty as his leave was not sanctioned and he issued notice to the panches of the Gram Panchayat of Village Kirtowal Khurd and called the meeting for 13.8.2008 for the election of Sarpanch. All the members FAO No.1544 of 2009 -5 - including the petitioners received the notices and put their sign/thumb impression on the notices. Copy of the notices duly served to the members is annexed with the written statement as Annexure R.3. Thereafter, on 13.8.2008, meeting was held at the fixed venue in which Lakhwinder Singh, Panch was declared elected as Sarpanch of Gram Panchayat of village Kirtowal Khurd. However, counsel for the petitioners does not dispute the fact that the petitioners had received the notices of the said meeting held on 13.8.2008 but the contention of counsel for the petitioners is that the petitioners, who were four in number, were not permitted to attend the said meeting and in their absence, the election of Sarpanch was illegally conducted and Lakhwinder Singh Panch was declared elected as Sarpanch. Learned counsel for the petitioners states that by way of representations, the petitioners have approached respondent No.4 and has requested that free and fair election for the post of Sarpanch be got conducted but no action has been taken by respondent No.4 on the said representation. It is further submitted that petitioner No.1 is an eligible candidate for the post of Sarpanch and is having majority of members/panches with him. It is submitted that the Returning Officer-respondent No.6 and respondent No.4 are under the pressure of local M.L.A of the ruling Akali Party, who wanted Lakhwinder Singh to become the Sarpanch. After hearing counsel for the parties and going through FAO No.1544 of 2009 -6 - the contents of this petition, we are of the opinion that in this petition, the disputed questions of facts have been raised, which cannot be gone into in the writ jurisdiction of this Court. This Court in Baljit Singh Vs. State of Punjab and others (CWP No.13643 of 2008, decided on August 22, 2008), has held that in view of Clause (b) of Article 243-O of the Constitution of India and Section 74 of the Punjab State Election Commission Act, 1994 (hereinafter referred to as “the Act”), election of Sarpanch is to be challenged by filing an election petition under Section 76 on the grounds mentioned in Section 89 of the Act. In the facts and circumstances of the case, no exceptional case is made out to invoke the extra ordinary powers of this Court under Article 226 of the Constitution of India for setting aside the election of Sarpanch. Thus, we do not find any ground to entertain this petition. Dismissed. However, it will be open for the petitioners to avail the remedy of election petition under Section 76 read with Section 89 of the Act. If the election petition is filed by the petitioners in accordance with law, the Election Tribunal is directed to decide the same expeditiously.” It transpires from the aforesaid order of the High Court that an affidavit was filed by the Presiding Officer in which it was stated that all the members of Panchayat including the appellants had received the notice for the meeting held on 13.8.2008. This fact was not disputed by the counsel for the appellants (petitioners therein) that the appellants had received notice of FAO No.1544 of 2009 -7 - the meeting held on 13.8.2008 but it was contended that four petitioners (appellants) were not permitted to attend the said meeting and in their absence election of Sarpanch was held illegally in which Lakhwinder Singh was elected as Sarpanch. Pursuant to the order dated 1.9.2008 passed by the High Court, the appellants filed an Election Petition dated 25.9.2008 to challenge the election of the Sarpanch only on the ground that meeting dated 13.8.2008 was conducted by the Presiding Officer without information to the appellants. Election petition was contested and after appreciating evidence, the Tribunal vide its impugned order dismissed the election petition holding that there was no illegality in the election held on 13.8.2008. Aggrieved against the order of the Tribunal dated 16.2.2009, the appellants have approached this Court. On 31.3.2009 notice of motion was issued and registry was directed to summon the record of the election. After the receipt of the record and completion of service, case was fixed for arguments. Learned counsel for the appellants filed an application bearing CM No.10557-CII of 2009 in order to place on record certain Annexures A- 8 to A-12 i.e. proceeding dated 5.8.2008, 7.8.2008 and 13.8.2008, letters dated 21.8.2008 and 22.8.2008. The application was allowed and documents were taken on record. The entire thrust in the arguments raised by the counsel for the appellants is on the issue that there was no notice to the appellants for the meeting held on 13.8.2008. He tried to persuade the Court by referring to vernacular document Annexure A-4 (notice dated 8.8.2008) that there is a cutting in the date mentioned in the notice dated 8.8.2008. On these FAO No.1544 of 2009 -8 - premises, it is contended by him that notice dated 5.8.2008 is in fact has been converted into notice dated 8.8.2008 and since there was no notice for the date of election which was held on 13.8.2008, therefore, the election is apparently illegal and cannot be sustained. On the contrary, learned counsel for respondents No.1 to 3 has vehemently contended that notices dated 5.8.2008 and 8.8.2008 are altogether different because in the notice dated 5.8.2008 only three Panches Smt.Chhindo, Smt.Mindo and Lakhwinder Singh had put their thumb impression/signatures whereas in the notice dated 8.8.2008 all the seven members have put their thumb impression/signatures. It has been argued that notice dated 5.8.2008 has not been converted into notice dated 8.8.2008 because in the notice dated 8.8.2008 the date of meeting to be held was correctly entered as 13.8.2008. Counsel for respondents No.1 to 3 has further argued that in the writ petition which has been disposed of by this Court on 1.9.2008, it has been categorically recorded that the petitioners (appellants) had received notice of the said meeting held on 13.8.2008 and the only argument raised in the writ petition was that the petitioners (appellants) were not permitted by the Presiding Officer to attend the meeting. Thus, at this stage, the appellants should not be permitted to take a somersault and change their stand taken in the writ petition after a finding of fact has been arrived at by the Division Bench of this Court that appellants had received notice of the special meeting held on 13.8.2008 which has not been further challenged or got clarified by the appellants. I have heard both the learned counsel for the parties and have perused the record with their assistance. From the pleadings of the parties, evidence and order of FAO No.1544 of 2009 -9 - Division Bench of this Court dated 1.9.2008, it is apparent that the appellants had received notice of the meeting held on 13.8.2008. If that being so, the appellants had no legal right to file election petition to challenge the election held on 13.8.2008 on the ground that they had not received the notice of the special meeting. In fact the appellants cannot approbate and reprobate in the same breath. In the High Court they had taken the stand that they were not permitted to attend the meeting by the Presiding Officer whereas in the election petition they had taken the stand that they were not informed about the date of meeting. Insofar as the affidavit of Gulzar Singh, Chowkidar is concerned that appears to be a procured one because he nowhere says that he did not serve the notice dated 8.8.2008. Keeping in view the totality of circumstances, especially the fact that main ground raised in the election petition for the purpose of challenging the election of the successful candidate (respondent No.1) that election had taken place without information given to the appellants is found to be false in view of the finding of Division Bench of this Court in Writ Petition No.14337 of 2008, order dated 1.9.2008, I do not find any merit in the present appeal and the same is hereby dismissed. No costs. (Rakesh Kumar Jain) 01.7.2009 Judge Meenu