FAO No.4719 of 2009 -1- ****** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.4719 of 2009 Date of decision:21.09.2010. Smt. Nasib Kaur and others ...Appellants Versus The Deputy Commissioner-cum- Election Tribunal, Hoshiarpur and others ...Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. G.P.Vashisht, Advocate, for the appellants. Mr. Ram Lal Gupta, Addl. A.G., Punjab, for respondent No.1. Mr. Harsh Bunger, Advocate, for respondent Nos.2, 3 and 4. Mr. Ram Kumar Chauhan, Advocate, for respondent No.5. ***** RAKESH KUMAR JAIN, J. This appeal is directed against the order of Deputy Commissioner-cum-Election Tribunal, Hoshiarpur [for short “Election Tribunal”] dated 30.07.2009 by which the election petition filed by the appellants herein, has been dismissed. The Gram Panchayat Fatehgarh Niara comprises of 7 Panches namely; i) Harbinder Singh; ii) Hans Raj; iii) Harjinder Kaur; iv) Kamaljeet Singh; v) Nasib Kaur; vi) Babli Rani @ Babli and vii) Jaswinder Singh. All the 7 members of Panchayat took oath on 11.07.2008. In order to elect Sarpanch, a meeting was convened on 14.07.2008 in the Government Elementary School, Hargarh at 12.30 p.m.. FAO No.4719 of 2009 -2- ****** In this meeting, 4 members of the Panchayat, namely, Harbinder Singh, Hans Raj, Babli Rani @ Babli and Nasib Kaur came present. Since, in the first meeting 2/3 members are required to carry out the resolution, therefore, the meeting had failed due to incomplete quorum, because out of 7 members, 2/3 strength would come to 5 members. However, the meeting was adjourned to 15.07.2008 at 12.30 p.m. at the same venue, namely, the Government Elementary School, Hargarh. In the adjourned meeting dated 15.07.2008, the following members were present: - 1. Harbinder Singh, 2. Jaswinder Singh, 3. Babli Rani @ Babli 4. Harjinder Kaur 5. Hans Raj 6. Nasib Kaur The 7th member, namely, Kanwaljeet Singh, did not come present. The Presiding Officer of the meeting started the process of election of Sarpanch. Panch Hans Raj proposed the name of Harbinder Singh for the post of Sarpanch which was seconded by Panch Harjinder Kaur. According to the proceedings recorded on 15.07.2008, the other 3 Panches, namely, Jaswinder Singh, Babli Rani @ Babli and Nasib Kaur silently left the venue, without signing the proceedings. However, in terms of Rule 45(6) of the Punjab Panchayati Raj Election Rules, 1994 [for short “Rules”], as in the second meeting no quorum is necessary, the Presiding Officer declared Harbinder Singh as Sarpanch of the Gram Panchayat Fatehgarh Niara in exercise of his powers under Section 13-A of the Punjab Panchayati Raj Act, 1994 [for short “Act No.9 of 1994”]. Aggrieved against the election of Harbinder Singh as Sarpanch, the election petition was filed by Nasib Kaur, Babli Rani @ Babli and Jaswinder Singh, who alleged to have left the meeting dated 15.07.2008 without signing the proceedings. The election petition, however, has been dismissed by the Election Tribunal, inter alia, on the ground that out of the appellants, nobody had contested the election for the FAO No.4719 of 2009 -3- ****** post of Sarpanch as there was no proposal for the name of Nasib Kaur by the other two Panches who had left the venue with her and also that there was an affidavit filed by Harjinder Kaur, Hans Raj and Nasib Kaur on 11.06.2008 showing their pleasure in the election of Harbinder Singh as Sarpanch. Shri G.P.Vashisht, learned counsel appearing on behalf of the appellants, has vehemently argued that the affidavit dated 11.06.2008, allegedly being used against Nasib Kaur (appellant No.1) is of no consequence because as per Section 13 of the Act No.9 of 1994, a Panch would have right to vote for the purpose of election of Sarpanch only after his name is notified as a Panch when he takes oath or affirmation. In this regard, he has relied upon a Division Bench decision of this Court in the case of Kulwant Singh Vs. State of Punjab and others, 2009(4) RCR (Civil) 498. On the other hand, learned counsel for the respondents has submitted that even if the affidavit dated 11.06.2008, which was allegedly sworn by Nasib Kaur before taking oath on 11.07.2008, is taken out of consideration, the case of the appellants would not improve specifically because of the reason that the election petition has not been filed by the appellants rather it is filed through an Advocate and secondly, the appellants cannot make a complaint about the election of Harbinder Singh when they themselves had left the meeting dated 15.07.2008 without signing the proceedings. It is also submitted that in terms of Rule 45(6) of the Rules, in the second meeting no quorum is required and as such the Presiding Officer of the meeting dated 15.07.2008 had rightly declared Harbinder Singh as elected Sarpanch of the Gram Panchayat Fatehgarh Niara. In support of his first submission about the presentation of election petition, he has relied upon a judgment of this Court in the case of Gurlal Singh Vs. Presiding Officer, Election Tribunal, Block Lehra, District Sangrur and others, 2010(5) RCR (Civil) 474. I have heard learned counsel for the parties and have perused the record with their able assistance. In so far as the affidavit dated 11.06.2008 is concerned, the FAO No.4719 of 2009 -4- ****** same was sworn in by three Panches, namely, Harjinder Kaur, Hans Raj and Nasib Kaur. Harjinder Kaur and Hans Raj are still with Harbinder Singh as Hans Raj had proposed the name of Harbinder Singh in the meeting dated 15.07.2008 and Harjinder Kaur had seconded his name. The 3rd Panch (Nasib Kaur), who had sworn the affidavit dated 11.06.2008, seems to have been drifted from the group. However, in the light of the fact that oath was taken by the Panches on 11.07.2008, the right to vote to them would accrue only after their election is notified and taking of oath in terms of Section 13 of the Act No.9 of 1994 and in this regard, the judgment relied upon by learned counsel for the appellants in the case of Kulwant Singh (supra) is fully applicable, but the question arises as to “whether this fact alone is sufficient to set aside the election of Harbinder Singh as Sarpanch specially when in the meeting dated 15.07.2008 he has been proposed by one Panch and seconded by the other Panch and the appellants had left the meeting without signing the proceedings”. To my mind, in the adjourned meeting dated 15.07.2008, as per Rule 45(6) of the Rules, no quorum is required and if Nasib Kaur (appellant No.1) is neither proposed nor seconded by the other two Panches, there was no error in the proceedings which had been carried out at that time in which Harbinder Singh has been proposed by Hans Raj and seconded by Harjinder Kaur and has been elected accordingly. I am also in agreement with the judgment relied upon by learned counsel for the respondents in the case of Gurlal Singh (supra) that if the election petition is not filed by a candidate and is filed through the Advocate, it would offend provisions of Section 76 and Section 80 of the Act No.9 of 1994 and as such, the election petition by itself is liable to dismissed. In view of the aforesaid discussion, I do not find any merit in the present appeal and as such, the same is hereby dismissed. Both the parties are left to bear their own costs. September 21, 2010. (RAKESH KUMAR JAIN) vinod* JUDGE