IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No. 15042 of 2008 DATE OF DECISION : 12.11.2008 Tej Kaur .... PETITIONER Versus State of Punjab and others ..... RESPONDENTS CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. R.S. Dhaliwal, Advocate, for the petitioner. Mr. M.S. Sindhu, Addl. A.G., Punjab, for respondents No.1 to 6. Mr. Harpreet Singh Gharuan, Advocate, for respondent No.7. * * * SATISH KUMAR MITTAL , J. The petitioner, who contested the election of the office of Sarpanch of Gram Panchayat, Village Gaga, Tehsil Lehra, District Sangrur, and was declared elected, having secured 5 votes out of 9, has filed the instant petition for issuing direction to the respondents to notify her name as elected Sarpanch of the Gram Panchayat and further for issuing direction to the respondents not to convene another meeting for re-conducting the election of the Sarpanch. In the present case, the Gram Panchayat, Village Gaga consists CWP No. 15042 of 2008 -2- of 9 Panches. As per Section 11 of the Punjab Panchayati Raj Act, 1994 (hereinafter referred to as `the Act'), vide the notification, 9 seats of Panches have been reserved for different categories. As per notification issued under Section 12 of the Act, the office of Sarpanch of the Gram Panchayat has been reserved for women. The election of the Panches of the Gram Panchayat was held on 26.5.2008, in which the petitioner and respondent No.7 were also elected as Panches. After the election of the Panches, their names were duly notified and oath of allegiance was administered to them. Thereafter, under Section 13-A of the Act, the Deputy Commissioner authorised respondent No.4 to convene the first meeting of the Gram Panchayat to conduct the election of the Sarpanch from amongst the Panches of the Gram Panchayat. Accordingly, the first meeting of the Gram Panchayat was convened by the Presiding Officer on 20.7.2008. Out of 9 Panches, only 5 came present in the said meeting. Therefore, due to lack of quorum, the meeting was postponed. Thereafter, the said meeting was again held on 29.7.2008, which was attended by all the 9 Panches of the Gram Panchayat. Names of the petitioner and respondent No.7 were proposed and seconded by different Panches for the office of Sarpanch. After nominating two names, the Presiding Officer decided to elect Sarpanch by casting votes through ballot papers and consequently, the ballot papers containing names of both the candidates were circulated to all the Panches. All the 9 Panches casted their votes and thereafter, in the presence of the Presiding Officer and Shri CWP No. 15042 of 2008 -3- Jaswinder Singh Khaira, Naib Tehsildar, Lehra, who was observer, the votes were counted. The petitioner secured 5 votes, whereas respondent No.7 secured 4 votes. The petitioner was duly declared elected as Sarpanch of the Gram Panchayat. Her declaration as Sarpanch has been duly recorded in the proceeding book of the meeting, copy of which has been annexed with the petition as Annexure P-1. After the election, a note was added in the proceeding book by the Presiding Officer that due to weak eye sight of one Panch, one vote has been wrongly casted. Therefore, it has become necessary to postpone the election. After the aforesaid proceedings dated 29.7.208, respondent No.7 and others filed CWP No. 13863 of 2008 for issuing direction to the respondents to hold the meeting of Panches to conduct the election of the Sarpanch, by alleging therein that the meeting which was held on 20.7.208 for conducting the election of Sarpanch was adjourned to 29.7.2008, and thereafter, no meeting was called for the election of the Sarpanch. In the said petition, the factum of holding the election of Sarpanch in the meeting held on 29.7.2008 was not disclosed. The said petition was disposed of by this Court vide order dated 6.8.2008, with a direction to respondent No.2, the Deputy Commissioner, Sangrur, that if the election of Sarpanch of Gram Panchayat, village Gaga has not been held so far, the same be conducted within a period of seven days, after giving three days' prior notice to all the Panches. It is pertinent to mention here that the Presiding Officer did not CWP No. 15042 of 2008 -4- record as to who has casted vote in whose favour. In these circumstances, the petitioner has filed the instant petition. In the reply, filed on behalf of respondents No.1 to 3, the aforesaid factual position has not been controverted. However, it has been stated that after the election of the office of Sarpanch, 5 Panches requested for re-election. Therefore, on their request, the meeting for the election of the office of Sarpanch was adjourned by the Presiding Officer on the ground that due to weak eye sight, one Panch wrongly polled the vote in favour of the petitioner, though the Presiding Officer has said nothing that one Panch wrongly polled the vote due to weak eye sight. Respondent No.4 has also filed separate reply, in which he has admitted that on 29.7.2008, petitioner and respondent No.7 were nominated for the office of Sarpanch of the Gram Panchayat. Thereafter, it was decided to hold election by giving ballot papers to all the Panches. In reply to para 16 of the petition, it has also been admitted by respondent No.4 that all the 9 elected Panches participated in the election and used their right to franchise by using the ballot papers, where the petitioner had secured 5 votes and respondent No.4 had secured 4 votes, as mentioned in the resolution dated 29.7.2008. Accordingly, the petitioner was declared elected. However, it has been stated that after polling of the votes and declaration of the result, 5 Panches went to respondent No.5 and stated that they were 5 in number and wanted to choose respondent No.7 as Sarpanch. However, due to weak eye sight of one of those 5 Panches, she was not able to poll in favour of CWP No. 15042 of 2008 -5- respondent No.7. The said 5 Panches then approached respondent No.4. Thereupon, a note was appended in the proceeding register. Thereafter, the proceeding register was submitted to the Block Development and Panchayat Officer, Lehra for getting final decision regarding the election from District Development and Panchayat Officer, Sangrur, but no such decision has been conveyed to respondent No.4. After hearing counsel for the parties, we are of the opinion that the present writ petition, filed by the petitioner, deserves to be allowed with a direction to the respondents to notify the name of petitioner as elected Sarpanch of the Gram Panchayat. Undisputedly, in this case, the meeting to conduct the election of the office of Sarpanch was duly convened and held on 29.7.2008. All the 9 Panches attended the said meeting. Since the office of Sarpanch was reserved for women category, therefore, names of 2 women were nominated by 2 different groups for contesting the election of the office of Sarpanch. As per the written statement, filed by the Presiding Officer – respondent No.4, he decided to hold the election of the office of Sarpanch by giving ballot papers to all the elected Panches. Thereafter, the ballot papers were given to all the 9 Panches, who exercised their right to franchise and casted votes in favour of the candidates of their choice. Admittedly, thereafter, the counting of the votes was done in presence of all the members of the Panchayat as well as the observer. The petitioner secured 5 votes and respondent No.7 secured 4 votes. Accordingly, the petitioner was declared CWP No. 15042 of 2008 -6- elected as Sarpanch. These facts have been duly recorded in the proceeding register and have also been admitted in the written statement filed by respondent No.4. It is also admitted position that after the declaration of result and recording of the result in the proceeding book, 5 Panches went to the observer and made a complaint that actually, 5 Panches were supporting respondent No.7, but due to weak eye sight, one of them wrongly casted her vote in favour of the petitioner. Therefore, the election be set aside and a fresh meeting be convened for re-election of the office of Sarpanch. In our opinion, when after the counting of votes, result was declared, then the said declaration of result has to be notified and the election of the returned candidate can only be set aside by filing an election petition under the Punjab State Election Commission Act, 1994 (hereinafter referred to as `the Election Commission Act'). Section 69 of this Act provides as under : “When the counting of the votes has been completed, the Returning Officer shall, in the absence of any direction by the Election Commission to the contrary, forthwith declare the result of the election in the manner provided by this Act or the rules made thereunder.” Section 71 of the Election Commission Act further requires that every election shall be notified by the Election Commission in the Official Gazette, as soon as may be, after the result of the elections are declared. In the instant case, after the declaration of the result, if respondent No.7, the defeated candidate, wanted to question the election of CWP No. 15042 of 2008 -7- the petitioner as Sarpanch on the ground that actually one Panch wanted to caste vote in her favour, but by mistake she has casted vote in favour of the petitioner, she has the remedy to challenge the election of the petitioner by filing an election petition. We are having doubt that even on such plea, election of the returned candidate can be set aside, because casting of vote by mistake in favour of another candidate, though voluntarily, may be due to weak eye sight, cannot be construed as illegality or corrupt practice. In our opinion, the Returning Officer has no jurisdiction to postpone the meeting or to declare a result as invalid, after the declaration of the result. Since Section 69 of the Election Commission Act clearly postulates that when the counting of the votes has been completed, the Returning Officer shall forthwith declare the result of the election. Therefore, in our opinion, in the present case, the petitioner was duly elected as Sarpanch of the Gram Panchayat in the meeting held on 29.7.2008. Thereafter, respondent No.4 cannot be permitted to convene any meeting for re-conducting the election of the office of Sarpanch on the ground that one Panch, by mistake due to weak eye sight, had casted vote in favour of the petitioner. Learned counsel for respondent No.7 put much reliance on the order dated 6.8.2008, passed by this Court in CWP No. 13863 of 2008, whereby a direction was issued to convene the meeting for conducting the elections. The said order, in our opinion, will not give any support to the contention of learned counsel for respondent No.7, because in that order, it was specifically mentioned that if the election of Sarpanch of Gram CWP No. 15042 of 2008 -8- Panchayat, village Gaga has not been held so far, the same be conducted within a period of seven days, after giving three days' prior notice to all the Panches. Admittedly, prior to date of the said order, the petitioner was already elected as Sarpanch in the meeting held on 29.7.2008. In view of the above, the instant writ petition is allowed and the respondents are directed to forthwith notify the name of the petitioner as the elected Sarpanch of Gram Panchayat, village Gaga, District Sangrur. ( SATISH KUMAR MITTAL ) JUDGE November 12, 2008 ( JASWANT SINGH ) ndj JUDGE