FAO No.5784 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.5784 of 2009 (O&M) Date of Decision: 25.3.2010 Anil Kumar and others ..Appellants. Vs. Surinder Kumar and others ..Respondents. CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.C.M.Munjal, Advocate for the appellants. Ms.Anju Arora, Advocate for respondents No.1 to 3. Mr.Rajinder Singla, Advocate for respondent No.4. RAKESH KUMAR JAIN, J. This appeal is directed against the order of SDM-cum-Election Tribunal, Zira dated 2.12.2009 whereby an election petition filed by the appellants has been dismissed on the ground that “Since the Hon'ble High Court, in the above order, has held that Shri Surinder Kumar stands elected as Sarpanch, so the present election petition is dismissed.” In order to appreciate the controversy involved in this case, a few skeletal facts to unfold the controversy are required to be noticed. Gram Panchayat Beganwali District Fazilka comprises of seven Panches. A meeting was convened by the Returning Officer for the purpose of electing Sarpanch on 21.7.2008 in which, according to the appellants, no proceedings were carried out and the meeting was not even adjourned. They FAO No.5784 of 2009 (O&M) -2- were asked to sign blank papers by the Returning Officer which they refused. Out of panic, the appellants filed a Civil Writ petition No.12903 of 2008 titled as Anil Kumar and others Vs. State of Punjab and others in which it was alleged that a meeting was convened on 21.7.2008. The Returning Officer also came present but other three Panches did not come present. The Returning Officer asked them to sign at the blank spaces in the register. They refused to sign it having suspicion that the Returning Officer will not declare one of them as a Sarpanch. They filed a representation to the Election Commissioner praying for the change of Returning Officer. In the said writ petition, it was averred that though they are in majority yet they have come to know that Returning Officer has illegally elected Surinder Kumar Billu (respondent No.7) as Sarpanch of the Gram Panchayat Beganwali. In this writ petition, notice of motion was issued on 24.7.2008 for 27.8.2008. However, an application was filed by the appellants i.e. CM No.14235 of 2008 alleging that the writ petition was filed with bonafide belief that respondent No.7 therein has been declared as Sarpanch whereas they have come to know that no election was infact held for the post of Sarpanch. In this background, they prayed for withdrawal of the petition. CM No.14235 of 2008 came up for hearing before Division Bench of this Court on 30.7.2008 in which following order was passed : “CM is allowed. Writ petition is dismissed as withdrawn.” The appellant again knocked the door of this Court by way of CWP No.13459 of 2008 in the nature of mandamus seeking direction to the official respondents to hold the election of Sarpanch. The writ petition came up for preliminary hearing before this Court on 31.7.2008 in which following order was passed: FAO No.5784 of 2009 (O&M) -3- “This petition is disposed of in view of order dated July 23, 2008 passed in CWP No.12694 of 2008 entitled Gurmeet Singh & others Vs. State of Punjab and others. Furthermore, the Returning/Presiding Officer is directed to convene the meeting within a week from today for the purpose of election of Sarpanch.” According to the appellants, despite the aforesaid direction, election was not held, therefore, the appellants had to file COCP No.1255 of 2008 in which reply was filed by Deputy Commissioner, Ferozepur who had alleged that Surinder Kumar Billu has already been elected as a Sarpanch in the meeting held on 22.7.2008. He attached proceedings dated 21.7.2008 and dated 22.7.2008. In view of the above reply, during the pendency of the contempt petition, applications bearing CM Nos.14818 and 14819 of 2008 in CWP No.13459 of 2008 were filed by Surinder Kumar (elected Sarpanch) first to be impleaded as respondent No.8 and second for recalling of the order dated 31.7.2008, notice of which were issued for 22.8.2008. Ultimately, on 30.1.2009, CM No.14819 of 2008 was allowed in which the following order was passed : “Present : None for the petitioner. Mr.S.K.Yadav, Advocate for respondent No.5. Mr.Sandeep Khungar, Advocate for respondent No.8. Counsel for Surinder Kumar, newly added respondent No.8, states that as a matter of fact the meeting to elect the Sarpanch was convened on July 22, 2008. The meeting was held and Surinder Kumar was elected Sarpanch on that day. The proceedings in respect of this meeting are Annexure R-1 to the application. In view of the above, since Surinder Kumar stands elected as Sarpanch, the order passed by us on July 31, 2008 in CWP No.13459 of 2008 directing the Presiding Officer to FAO No.5784 of 2009 (O&M) -4- convene the meeting within a week from that day for the purpose of election of Sarpanch, should not have been passed. The correct facts had been concealed from the Bench at that time. The order dated July 31, 2008 is hereby recalled. CWP No.13459 of 2008 is dismissed as infructuous.” It is worthwhile to mention that an election petition was already filed by the appellants on 19.8.2008 i.e. sometime when the contempt proceedings were pending. Insofar as CWP No.1343 of 2009 is concerned that was got withdrawn by the appellants by filing CM No.17078 of 2009 which was allowed on 23.10.2009 with the following order : “Application is allowed. Main writ petition is dismissed as withdrawn.” Similarly, the contempt petition was disposed of by this Court on 10.12.2008 with the following order: “Application allowed. Copy of FIR taken on record. COCP Nos.1250, 1251 and 1255 of 2008 This order will dispose of COCP Nos.1250, 1251 and 1255 of 2008 as the law and facts are identical in all these petitions. The petitioners have alleged fabrication of record by the concerned officials who are entrusted with the job of conducting the election of the Sarpanch. It has been brought on record that an FIR has been registered by the police on the basis of the allegations of tampering with the record. It is not deemed appropriate to continue with the contempt proceedings as the investigation has already been initiated and it is only after the investigation is completed, any order can be passed by the competent authority. In this view of the matter, these contempt proceedings are dropped. However, the petitioners are at liberty to seek any other appropriate remedy available under law. Disposed of. Copy of this order be placed on record on each concerned file.” FAO No.5784 of 2009 (O&M) -5- The resume of the aforesaid facts is that there has been a keen contest in between the two groups for the post of Sarpanch. The appellants have been repeatedly coming to this Court may be under bonafide mistake or otherwise for the purpose of claiming their rights inasmuch as the writ petition was filed having bonafide belief that in the meeting dated 21.7.2008 the person elected as Sarpanch has been illegally elected though he was supported by minority group. In the second writ petition, they came to this Court seeking direction that election may be held because they are having the impression that minority group is being supported by the Ruling party of the State and the third writ petition was filed for challenging the election of the returned candidate which though, was not maintainable. In between they had also filed contempt petition for the purpose of compliance of order dated 31.7.2008 whereby a direction was given to the Deputy Commissioner for the purpose of convening the meeting to hold election for the post of Sarpanch. Though all the petitions have been either withdrawn or dismissed by this Court but the fact remains that allegations contained in the election petition have not been decided on merits by the Election Tribunal. The Election Tribunal though, has made a reference to the litigation which has taken place before this Court yet it has not referred to the pleadings before it nor has followed Section 81 of the Punjab State Election Commission Act, 1994 (for short `the Act') which provides that the election petition has to be decided, as nearly as may be, in accordance with the provision of the Code of Civil Procedure, 1908 (for short CPC') which provides that in case of pleadings presented before the Court, the Court is enjoined upon to frame necessary issues and allow the parties to lead evidence and decide the lis between them after appreciating the same. It is submitted by learned counsel FAO No.5784 of 2009 (O&M) -6- for the appellants that evidence has already been led by both the parties. Thus, the question arises that the learned Tribunal should have taken into consideration the evidence which has been led before it and should not have discussed on the basis of order dated 30.1.2009 whereby this Court had dismissed Civil Writ Petition No.13459 of 2008 on the ground of concealment of facts. Counsel for the respondents has argued that the appellants do not deserve any concession by this Court as they have been filing frivolous litigation before this Court from time to time which has either been dismissed or withdrawn by them. It is also submitted that High Court has already held that they have not come to the Court with clean hands. I have heard learned counsel for the parties and I am of the view that approach of the learned Tribunal in deciding the lis between the parties is not in accordance with law. Once pleadings are there and parties are alive to the issues, which are involved though not framed but have led their evidence both oral as well as documentary, the Tribunal should have decided the dispute between the parties on the basis of evidence which has been led and not on the basis of the litigation, which has been decided by this Court. For these reasons, the present appeal is allowed and the case is remanded back to the Tribunal for the purposes of its decision after taking into consideration the entire evidence available on record including the matters which have been decided by this Court. The parties are directed to appear before the Tribunal on 19.4.2010. It is further directed that the learned Tribunal shall decide the election petition as expeditiously as possible preferably within a period of two months from the date of FAO No.5784 of 2009 (O&M) -7- appearance of the parties before it. (Rakesh Kumar Jain) 25.3.2010 Judge Meenu