IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No. 12654 of 2008 DATE OF DECISION : 17.11.2008 Surjeet Kaur .... PETITIONER Versus State of Punjab and others ..... RESPONDENTS CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JASWANT SINGH Present: Ms. Jagdeep Bains, Advocate, for the petitioner. Mr. M.S. Sindhu, Addl. A.G., Punjab, for respondents No.1 to 6. Mr. A.S. Klar, Advocate, for respondent No.7. * * * SATISH KUMAR MITTAL , J. The petitioner has filed this petition under Articles 226/227 of the Constitution of India for setting aside the election of respondent No.7 Gurpreet Singh as Panch of Gram Panchayat, Village Shutrana, Tehsil Samana, District Patiala. This is the second petition filed by the petitioner. Earlier, when the result of the elections of Panches of the aforesaid Gram Panchayat held on 26.5.2008 was not declared, the petitioner had filed CWP No. 10136 of CWP No. 12654 of 2008 -2- 2008 seeking direction to the respondents to declare the aforesaid results. The said petition was disposed of by this Court on 30.5.2008 with a direction to the Returning Officer to carefully examine the result and take necessary action in accordance with law. Thereafter, the instant petition has been filed challenging the election of respondent No.7 as Panch of the Gram Panchayat. In nutshell, the case of the petitioner is that in the elections of Panches of the Gram Panchayat, held on 26.5.2008, she had secured 74 votes, whereas respondent No.7, who has been declared elected, had secured only 35 votes. It is the further case of the petitioner that even though she had filed her nomination paper for the seat reserved for `women' category, but if she is not elected in the said category, her candidature should have also been considered against the seat meant for General category. On the other hand, the case of the respondents is that since the petitioner had applied against the seat reserved for `women' category, therefore, she was to be considered only in that category and she could not have been declared elected against the seat meant for General category. Even otherwise, the respondents have raised a preliminary objection that if the petitioner wants to question the election of respondent No.7 with a prayer that in his place, she should have been declared elected, then she has the only remedy of filing the election petition and the instant petition, filed by her is not maintainable. After hearing counsel for the parties regarding the preliminary CWP No. 12654 of 2008 -3- objection raised by the respondents, we are of the opinion that in nutshell, the petitioner has challenged the election of respondent No.7 as a Panch of the Gram Panchayat on the ground that in stead of the petitioner, he has been wrongly declared elected. Therefore, the petitioner could have challenge the election of respondent No.7 only by way of filing the election petition under Section 76 read with Section 89 of the Punjab State Election Commission Act, 1994 (hereinafter referred to as `the Act') and the present petition is not maintainable. Faced with this situation, learned counsel for the petitioner states that the petitioner may be permitted to withdraw this petition with liberty to file the election petition with liberty to avail the remedy of election petition. However, counsel for the petitioner further submits that since immediately after the election of the Panches held on 26.5.2008, the petitioner had filed the earlier petition i.e. CWP No. 10136 of 2008, within the limitation prescribed for filing election petition, therefore, in view of decision of the Hon'ble Supreme Court in Danda Rajeshwari v. Bodavula Hanumayamma and others, (1996) 6 SCC 199, she may be permitted to file election petition within three weeks from today and in case election petition is filed within three weeks, the same may be directed to be heard on merits by the Election Tribunal. In view of above, we permit the petitioner to withdraw this writ petition with liberty to file an election petition under Section 76 read with Section 89 of the Act, within a period of three weeks from today, CWP No. 12654 of 2008 -4- challenging the election of respondent No.7. Dismissed as withdrawn with the aforesaid liberty. If the election petition is filed by the petitioner within a period of three weeks from today, the Election Tribunal is directed to entertain and decide the same on merits, expeditiously. ( SATISH KUMAR MITTAL ) JUDGE November 17, 2008 ( JASWANT SINGH ) ndj JUDGE