IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.15260 of 2008 DATE OF DECISION: AUGUST 29, 2008 Harchand 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. S.S.Swaich, Advocate, for the petitioner. .. SATISH KUMAR MITTAL, J. The petitioner, who is a resident of Ward No.16, Nasrali, Mandi, Gobindgarh, has filed this petition under Articles 226 and 227 of the Constitution of India for issuing a writ in the nature of Quo Warranto for removing respondent No.6 from the office of Municipal Councillor, Ward No.15, on the ground that he was disqualified for contesting the election of the Municipal Council as he was holding the post of Lambardar, which was an office of profit. In nutshell, in the present petition, the petitioner has prayed for setting aside the election of respondent No.6 to the post of Municipal Councillor on the ground that he he was not eligible to contest the election and his nomination paper was wrongly accepted. Therefore, his election is liable to be set aside. C.W.P. No.15260 of 2008 -2- Undisputedly, the election of the Municipal Council, Mandi Gobindgarh was held on 30.6.2008. Ward No.15 was reserved for Scheduled Castes category. Respondent No.6 was declared elected from the said Ward as he secured 497 votes by defeating other six candidates. The petitioner, who is a resident of Ward No.16, is not the voter of Ward No.15. If respondent No.6 was not eligible to contest the election and his nomination paper was wrongly accepted, his election could have been set aside on an election petition filed by the defeated candidate/s or the voters of Ward No.15 under Section 76 read with Section 89 of the Punjab State Election Commission Act, 1994 (hereinafter referred to as `the Act'). As per Section 76 of the Act, an election petition could have been filed within a period of forty five days from the date of election of the returned candidate. Now the instant petition has been filed for setting aside the election after expiry of the period of limitation for filing the election petition. The case of the petitioner is that respondent No.6 was not eligible to contest the election, being Lambardar holding an office of profit, and his nomination paper was wrongly accepted. It is pertinent to mention here that at the time of scrutiny no objection in this regard was raised. In our opinion, the writ petition filed by the petitioner is not maintainable and the election of respondent No.6 on the aforesaid ground could be set aside only by filing an election petition under Section 76 read with Section 89 of the Act. Counsel for the petitioner contends that since a controversy whether Lambardar is deemed to be holding an office of profit is pending consideration in this court, therefore, the instant writ petition can be C.W.P. No.15260 of 2008 -3- entertained for setting aside the election of respondent No.6. In our opinion, this contention of the learned counsel is not tenable because those petitions have been filed by the Lambardars before filing their nomination papers challenging the Circular dated 20.4.2008 issued by the Punjab Government disqualifying the Lambardars to contest the election. Learned counsel for the petitioner while referring to the decisions of this Court in Nitya Nand Kul Bhushan Lal v. Khalil Ahmed Ali Ahmad and others, AIR 1961 Punjab 105, Piara Singh Sardar Dasaundha Singh v. The Punjab State and others, AIR 1962 Punjab 498 and a decision of the Supreme Court in K.Venkatachalam v. A.Swamickan and another, AIR 1999 SC 1723, submitted that election of a Municipal Councillor can be set aside in the writ jurisdiction. This contention of the counsel for the petitioner cannot be accepted in view of the decision of the Constitutional Bench of this Court in Prithvi Raj v. State Election Commission, Punjab & others, 2007 (3) RCR (Civil) 817 and a Division Bench decision of this Court in Baljit Singh v. State of Punjab and others, (CWP No.13643 of 2008, decided on 22.08.2008). In our opinion, redress to any such grievance is to file an election petition under Section 76 read with Section 89 of the Act. In view of the above, we do not find any ground to entertain this petition and the same is hereby dismissed in limine. (SATISH KUMAR MITTAL) JUDGE August 29, 2008 ( JASWANT SINGH ) vkg JUDGE