FAO No. 5834 of 2009 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 5834 of 2009 (O&M) Date of decision: 23.12.2009 Rattan Singh and another .. Appellants v. Rattan Kaur and others .. Respondent CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Onkar Singh, Advocate for the appellants. Mr. A. S. Manaise, Advocate for the respondents. ... Rajesh Bindal J. Challenge in the present appeal is to the order dated 22.9.2009, passed by the Deputy Commissioner-cum-Presiding Officer, Election Tribunal, Gurdaspur (for short, `the Election Tribunal'), whereby the petition filed by respondents No. 1 to 3 challenging the election of Rattan Singh as Sarpanch of Gram Panchayat, Naranwali, Tehsil and District Gurdaspur, was accepted. Briefly, the facts are that after the election of Panches for Gram Panchayat, Naranwali, which were five in number, the election for Sarpanch was to be held. It was scheduled for 18.7.2008, however, the same was adjourned on account of coram, for which it is claimed that notice was issued for the meeting scheduled for 19.7.2008 and respondents No. 1 to 3 having not attended the meeting on the adjourned date, Rattan Singh was elected as Sarpanch. Only two Panches were present in the meeting in which Rattan Singh was elected as Sarpanch. Respondents No. 1 to 3 feeling aggrieved against the election of Sarpanch filed the election petition, which was accepted and after setting aside the election of Rattan Singh as Sarpanch, fresh election was directed. It is this order, which is impugned in the present appeal. Heard learned counsel for the appellants and also the election petitioners-respondents No. 1 to 3, as they were before the court in caveat. Learned counsel for the appellants submitted that the Election Tribunal failed to record a finding as to how the procedural defect, if any, in FAO No. 5834 of 2009 [2] service of notice to the other Panches had materially affected the result of election and in the absence thereof, there was no reason for the Election Tribunal to have set aside the election. The petitioners-respondents No. 1 to 3 in the election petition were, in fact, served with the notice of meeting scheduled for 18.7.2008, but they failed to appear. The meeting was adjourned to 19.7.2008. Notice thereof was sent to them, which the election petitioners refused to receive. In such a situation, there was no option with the Presiding Officer but to hold election of the Sarpanch out of the Panches present. In that process, Rattan Singh was rightly elected as Sarpanch and no defect can be pointed out. Merely because there are three Panches on the other side, it cannot be inferred that they would have cast their votes jointly in favour of one candidate. On the other hand, learned counsel for the election petitioners/ caveators submitted that Rule 45(5) of the Punjab Panchayat Election Rules, 1994 (for short, `the Rules') has been clearly violated. Admittedly, the meeting which was held on 18.7.2008 was at 3.00 P.M. and the meeting, which was held on 19.7.2008, was at 12.00 noon, whereas mandatorily 24 hours' notice is required. There was no question of the election petitioners refusing to receive the notice of the meeting. In fact, Sunil Bharti, one of the Panches, had been threatened before the election of the Sarpanch for which a complaint was also made to the police. The election was initially scheduled at Market Committee's office in Kalanaur at 4.00 P.M., however, without any notice to the election-petitioners, the venue was shifted to B.D.P. Office and time was also changed. Seeing the conduct of the appellants and the Presiding Officer of the Election Tribunal, the election- petitioners filed C.W.P. No. 12614 of 2008 in this Court, which was disposed of on 22.7.2008 with a direction to the Deputy Commissioner to hold free and fair election of the Sarpanch. Even on that date, the election petitioners were not in knowledge of the fact that election had already been held at their back. Further, it was submitted that there are three Panches on one side and two on other side. Once all the Panches had not been permitted to participate in the election, rather, the majority thereof was kept outside, the result has certainly been affected. The Sarpanch was elected only in the meeting of two Panches out of the Panchayat consisting of five Panches. The Election Tribunal has merely directed for fresh election of Sarpanch, which cannot be faulted with. After hearing learned counsel for the parties, I do not find any merit in the present petition. As far as the claim of the appellants that for the meeting scheduled on 19.7.2008, the election-petitioners had refused to receive the summons, the procedure followed by the authorities for service of summons does FAO No. 5834 of 2009 [3] not inspire confidence. It is merely a report of the Chowkidar. There is no independent witness. Once the election-petitioners were approaching this Court by filing writ petition, as mentioned aforesaid, seeking fair election of the Sarpanch with the allegations that other two Panches have affiliation with the ruling party in the State, it cannot prima facie be believed that they will refuse service of notice in the meeting and will not attend the meeting. Further, it is an admitted fact on record that there is violation of Rule 45(5) of the Rules, as the meeting of 18.7.2008 was held at 3.00 P.M. Even if the date and venue is ignored, the meeting on 19.7.2008 was held at 12.00 noon, the gap was less than 24 hours. Once three out of five Panches had not participated in the meeting and the Sarpanch was elected only by two members present and all the three Panches, who were not present in the meeting, filed writ petition in this Court and then filed the election petition, it can very well be opined that their presence in the meeting would have materially affected the result of the election. In view of my aforesaid discussion, I do not find any merit in the present appeal. Accordingly, the same is dismissed. (Rajesh Bindal) Judge 23.12.2009 mk