IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No. 16782 of 2008 DATE OF DECISION : 19.11.2008 Makhan Singh .... PETITIONER Versus State of Punjab and others ..... RESPONDENTS CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. K.S. Sidhu, Advocate, for the petitioner. Mr. N.D.S. Mann, Addl. A.G., Punjab, for respondents No.1 to 3. Mr. Sukhdev Raj Kamboj, Advocate, for respondent No.4. * * * SATISH KUMAR MITTAL , J. The petitioner, who was elected as Panch of Gram Panchayat, Village Holanwali, Tehsil Zira, District Ferozepur, in the elections held on 26.5.2008, has filed this petition under Articles 226/227 of the Constitution of India for setting aside the interim order dated 18.7.2008, passed by the Election Tribunal, Ferozepur, whereby the petitioner has been restrained from working as Panch of the aforesaid Gram Panchayat during the pendency of the election petition. A direction has also been sought to allow the petitioner to work and discharge the duties of Panch of the Gram CWP No. 16782 of 2008 -2- Panchayat. The brief facts of the case are that in the elections held on 26.5.2008, the petitioner was elected as a Panch of the Gram Panchayat against the seat, meant for General category. His name was notified as elected Panch of the Gram Panchayat and he was also administered the oath of allegiance under Section 13 of the Punjab Panchayati Raj Act, 1994 (hereinafter referred to as `the Act'). On 25.7.2008, Jatinder Pal Singh (respondent No.4 herein) filed an election petition under Section 76 of the Punjab State Election Commission Act, 1994 (hereinafter referred to as `the State Election Commission Act') before the Additional Deputy Commissioner, exercising the powers of the Election Tribunal, challenging the election of the petitioner as Panch of the Gram Panchayat, on the ground that he was disqualified under provisions of the Act to contest the election, as he was working as Security Guard (Contractual) with BSNL. After filing of the said election petition, respondent No.4 filed CWP No. 11827 of 2008 in this Court for directing the Punjab State Election Commission not to allow the petitioner to participate in the election of Sarpanch of the Gram Panchayat, as the election petition challenging his election as Panch is pending before the Election Tribunal. This Court, vide order dated 11.7.2008, disposed of the said writ petition with a direction to the Election Tribunal to decide the election petition expeditiously within three months, with a further liberty to respondent No.4 to move an application before the Election Tribunal to obtain an interim CWP No. 16782 of 2008 -3- relief for restraining the petitioner from functioning as a Panch. Consequently, respondent No.4 filed the application for restraining the petitioner from performing his duties as Panch. The Election Tribunal vide its order dated 18.7.2008 stayed the working of the petitioner as Panch of the Gram Panchayat. Prior to that, Bachittar Singh and Kulwant Kaur Panches filed CWP No. 12400 of 2008 in this Court to the effect that they along with petitioner Makhan Singh constitute majority of 3 out of 5 Panches in the Gram Panchayat, therefore, they be permitted to elect the Sarpanch of their choice. However, the said petition was dismissed on the statement of counsel representing the other group of Panches that Makhan Singh has been debarred by the Election Tribunal from working as Panch, with the observation that as long as the said order stands, those petitioners do not enjoy majority. Thereafter, petitioner Makhan Singh filed CWP No. 12733 of 2008 for quashing the interim order dated 18.7.2008 and the said petition was dismissed by this Court on 24.7.2008, by passing the following order : “In an earlier petition filed by Bachittar Singh and another, C.W.P. No. 12400 of 2008, petitioners had claimed that they along with Makhan Singh (present petitioner) constituted a majority of three out of five Panches in the Gram Panchayat. However, counsel had put in appearance on behalf of Amarjit Singh and Gurmeet Kaur and stated that Makhan Singh had been debarred by the Election Tribunal from working as Panch. On this basis, the petition was dismissed and CWP No. 16782 of 2008 -4- it was recorded that as long as the above order stands debarring Makhan Singh from participating in the elections, he does not enjoy a majority. In view of the above, this petition is without any merit and the same is dismissed accordingly.” After passing of the aforesaid order, on 8.8.2008, the petitioner moved an application before the Election Tribunal for vacation of the interim order dated 18.7.2008. However, the said application was dismissed by the Election Tribunal on 5.9.2008, by passing the following order : “File presented. Counsel for petitioner present. After hearing arguments application dated 8.8.2008 filed by respondent is dismissed. For framing of issue next date is fixed as 12.9.2008 and record of nomination papers is summoned from concerned BDPO. File be put up on 12.9.2008.” Hence, the petitioner has filed the instant petition for quashing the orders dated 18.7.2008 and 5.9.2008. In the written statement, respondent No.4 has taken the preliminary objection that the present petition filed by the petitioner is not maintainable on the principle of res judicata, as the earlier writ petition (CWP No. 12733 of 2008) filed by the petitioner, challenging the interim order dated 18.7.2008 was dismissed by this Court vide order dated 24.7.2008. It has been further submitted that the Election Tribunal has granted the interim stay in pursuance of the observations made by this Court, while disposing of CWP No. 11827 of 2008. Therefore, there is no illegality in the interim order passed by the Election Tribunal and the writ CWP No. 16782 of 2008 -5- petition is liable to be dismissed. We have heard counsel for the parties. Undisputedly, in the instant case, the petitioner was elected as Panch of Gram Panchayat, Village Holanwali, against the seat meant for General category. His election was duly notified. After the notification, under Section 13 of the Act, he was administered the oath of allegiance on 11.7.2008. After the oath, the petitioner has entered upon his duties as a Panch of the Gram Panchayat. As per the scheme of the Act, election of a returned candidate can be set aside by the Election Tribunal on an election petition filed under Section 76 read with Section 89 of the State Election Commission Act. As per provision of Section 89, the election of an elected Panch can be set aside on the ground that he was disqualified to contest the election of the Panch at the time of filing his nomination paper. Respondent No.4 has filed the election petition challenging the election of the petitioner. The said petition is still pending. It is a settled legal position that until and unless, election of the returned candidate is set aside, he cannot be stopped from functioning and discharging his duties as a member of the Gram Panchayat, merely on the ground of pendency of an election petition against him. A Division Bench of this Court in Sham Lal v. State Election Commission, Punjab, 1997 (1) RCR (Civil) 82, has already decided the issue while holding that no power has been conferred upon the Election Tribunal to pass an injunction or stay order during the pendency of an election petition. In this regard, the following observations have been made: CWP No. 16782 of 2008 -6- “7. Perusal of the provisions contained in Part IX of the Constitution generally and Article 243-K in particular shows that the Legislature of State has been vested with the power to make laws with respect to all matters relating to or in connection with elections to the Panchayats. ... At the same time it has been made clear that no election to any Panchayat shall be challenged except by way of an election petition presented to an authority which is constituted by or under any law made by the State Legislature. In order to provide a forum for adjudication of election disputes, comprehensive provisions have been made in chapter XII of 1994 Act. Provisions of that chapter deal with the constitution of Election Tribunal, presentation of election petitions, contents thereof and the relief, trial of election petitions, the procedure to be followed by the Election Tribunal, the manner of recording of evidence, the decision of the Tribunal, the grounds for setting aside the election and appeal etc. It is thus clear that the entire gamut of challenge to the election is regulated by the statutory provisions contained in Sections 73 to 107. None of these provisions confer power upon the Election Tribunal to pass injunction/ stay order during the pendency of the election petition. Sections 87 and 88 refer to the nature of orders which can be passed by the Election Tribunal. Section 87 provides that at the conclusion of trial of election petition, the Tribunal may dismiss the election petition or declare the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected. In cases where an election petition is filed on the ground of any corrupt practice, the Tribunal is required to make further order whether any corrupt practice has or has not been proved to have been CWP No. 16782 of 2008 -7- committed and also to indicate the nature of such corrupt practice, the name of persons who have been found guilty of corrupt practice and the costs payable. This shows that only at the time of final adjudication, the Election Tribunal can make appropriate order. But it has no power to pass injunction/stay order. The only provisions under which an order of injunction or stay order can be passed is to be found in Section 101 which authorises the Election Tribunal and the High Court to stay the operation of the order made under Section 87 or 88 of 1994 Act. The Election Tribunal can suo motu stay an order passed by it under Section 87 or 88. Likewise, in an appeal filed under Section 100 against the order of the Election Tribunal, the High Court can stay the operation of the order passed by the Election Tribunal. 8. Prohibitive provisions contained in Article 243-O and absence of any provision in Part IX of the Constitution or Chapter XII of 1994 Act except Section 101 empowering the Election Tribunal to pass an injunction stay order in an election petition gives a clear indication to the legislative intendment, namely, not to allow any obstruction in the process of elections or the implementation of the will of the people which is reflected in the result of the elections. If the Legislature had so desired nothing prevented it from conferring statutory power upon the Election Tribunal to grant interim stay or injunction or restraint order during the pendency of the election petition. However, for obvious reasons the legislature did not consider it appropriate to permit an Election Tribunal to obstruct execution of people's will which is manifested in the result of the ballot. We, therefore, hold that the Election Tribunal constituted under 1994 Act has no power to pass any injunction or stay order or CWP No. 16782 of 2008 -8- any other order which may impede the implementation of the result of elections. We are also of the opinion that once a person has been elected as Panch or Sarpanch, he cannot be prevented from assuming office by taking oath as envisaged in Section 13 and the only mechanism by which an elected Sarpanch or Panch can be divested of his office is final verdict of the Election Tribunal or no confidence motion.” Following the said decision, this Bench in Sukhdev Singh and others v. State of Punjab and others, (CWP No. 13116 of 2008, decided on 12.9.2008), while setting aside the order dated 21.7.2008, passed by the Election Tribunal, restraining a Panch from exercising his right, has held that the Election Tribunal has no jurisdiction to pass an interim order restraining the elected Panch from discharging his duties and further participating in the election of the Sarpanch. Therefore, in our view, in the instant case, the interim order dated 18.7.2008, passed by the Election Tribunal, restraining the petitioner from working as member of the Gram Panchayat is wholly without jurisdiction. We do not find any substance in the argument of learned counsel for respondent No.4 that in view of the earlier order dated 24.7.2008, passed by this Court in CWP No. 12733 of 2008, the present writ petition is not maintainable. A perusal of the aforesaid order reveals that the aforesaid writ petition of the petitioner was not dismissed on merits. It was dismissed only on the ground that the earlier petition i.e. CWP No. 12400 of 2008, filed by Bachittar Singh and Kulwant Kaur, Panches, claiming that CWP No. 16782 of 2008 -9- they along with present petitioner Makhan Singh constituted a majority of three out of five Panches was dismissed on the statement made by the counsel appearing on behalf of Amarjit Singh and Gurmeet Kaur Panches, who had stated that petitioner Makhan Singh had been debarred by the Election Tribunal from working as Panch. Thus, the controversy as to whether the Election Tribunal is competent to pass the interim order restraining the returned candidate from discharging his duties after taking oath by him, was not considered at all. In that order, it was observed that till the order of debarring the petitioner from working as Panch stands, the group of the petitioner will not enjoy the majority. In view of the said observation, the petitioner filed an application before the Election Tribunal for vacation of the interim order. The said application was dismissed vide order dated 5.9.2008 by passing a wholly non-speaking order. In our opinion, the dismissal of the said application on 5.9.2008 gave a fresh cause of action to the petitioner. Therefore, the instant petition filed by the petitioner on the said fresh cause of action cannot be said to be not maintainable on the ground of dismissal of his earlier petition. Even otherwise, it is well settled that when an earlier writ petition was not decided on merits, the said decision will not debar this Court from exercising the jurisdiction under Article 226 of the Constitution of India for setting aside an order, which is wholly without jurisdiction. Thus, in view of the law laid down by a Division Bench of this Court in Sham Lal's case (supra) the interim order dated 18.7.2008 restraining the petitioner from CWP No. 16782 of 2008 -10- discharging his duties as Panch during the pendency of the election petition is wholly illegal and without jurisdiction and liable to be set aside. In view of the above, the instant writ petition is allowed and the impugned order dated 18.7.2008 as well as the interim order dated 5.9.2008, passed by the Election Tribunal, Ferozepur, are hereby set aside, being without jurisdiction. However, the Election Tribunal is directed to decide the election petition expeditiously in terms of the earlier order, passed by this Court. ( SATISH KUMAR MITTAL ) JUDGE November 19, 2008 ( JASWANT SINGH ) ndj JUDGE