FAO No.1325 of 2010 (O&M) 1 In the High Court for the States of Punjab and Haryana at Chandigarh. FAO No.1325 of 2010 (O&M) Decided on Sept 16,2010. Harbans Singh --Appellant vs. Election Tribunal-cum Addl. Deputy Commissioner/ Presiding Officer,Bathinda and others -- Respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Ms.Naiya Gill,Advocate,for the appellant Mr.R.L.Gupta,Addl.A.G.Punjab,for respondents Nos.1 and 2. Mr.R.S.Pandher,Advocate,for respondent No.3. Rakesh Kumar Jain, J,(Oral) This appeal is directed against the order passed by Election Tribunal, Bathinda dated 06.1.2010, by which the election petition filed by Daljit Kaur (respondent No.3) challenging the election of respondent Nos.1 and 2 has been allowed. In brief, election to constitute Gram Panchayat Bangi Rughu, Tehsil Talwandi Sabbo, District Bathinda, was held on 26.5.2008 There were 10 candidates in fray for five posts of Panches which were further bifurcated, namely, three from General Category, one was meant for women, one for Scheduled Caste and one for Scheduled Caste (Women). FAO No.1325 of 2010 (O&M) 2 In this election, respondent No.3 had polled 163 votes but was not elected, therefore, she filed the election petition under Sections 76,89, 90 of the Punjab State Election Commission Act,1994 (for short,'the Act') read with Punjab Gram Panchayat Election Rules (for short, 'the Rules'). The petitioner had filed her nomination papers as General Category but had not made preference to contest the election as a General Category (Woman) Candidate. During the pendency of the election petition, Nachhattar Singh (respondent No.1. in the election petition) died on 11.5.2009. The Election Tribunal relied upon letter No. SEC-2008/2294/-2313 dated 15.3.2008 issued by the State Election Commission, Chandigarh, in which it is provided that “in case of any individual seeking election against reserve category, a candidate needs to indicate it clearly in column No.2 of Nomination papers”. It was presumed that being individual who is contesting in the reserve category is required to indicate his choice in column No.2 of the Nomination papers and if no choice is indicated, then it shall be presumed that individual is contesting in the General Category. Admittedly, respondent No.3/election petitioner did not record her choice in column No.2 of the Nomination papers, rather she had only mentioned General Category. The learned Tribunal thus came to a conclusion that the election petitioner has been wrongly put in the category of General (Woman) and has been defeated. Accordingly, she was declared elected and election of respondent No.1. Nachhatar Singh (who has since expired) against General Category was declared to be null and void. It is also pertinent to mention here that on 9.1.2010, the FAO No.1325 of 2010 (O&M) 3 Returning Officer-cum- Sub Divisional Magistrate, Talwandi Saboo, passed an order that vacancy of Panch (General Category) in village Bangi Raghu which fell vacant due to the death of Nachhatar Singh, is not required to be filled up by way of election as the said seat has to be filled up in view of the order passed in the election petition filed by respondent No.3/election petitioner. In this appeal, learned counsel for the appellant has submitted that the Tribunal has committed a patent error of law in allowing the election petition and not ordering for re-election in terms of Section 22 of the Punjab Panchati Raj Act,1994 (for short, Act No.9 of 1994). It is submitted that whenever a vacancy occurs by death, the same has to be filled up by way of election and not otherwise. On the contrary, learned counsel for the respondents has submitted that Section 22 of the Act, will come into play only in case where Member of Panchayat expires, resigns or is removed , otherwise, in case where the Tribunal comes to the conclusion that the said member has been unseated in the election petition, no fresh election is required to be held. I have heard learned counsel for the parties and perused the record with their assistance. Before adverting to the rival contentions of the learned counsel for the parties, it would be relevant to refer to the provisions of Section 22 of Act No.9 of 1994 which reads as under: “Filling of casual vacancies of Sarpanches and Panches.-(1)Whenever a vacancy occurs by death, resignation, removal FAO No.1325 of 2010 (O&M) 4 or otherwise of a Sarpanch or of a Panch the vacancy shall be filled up by way of election; Provided that if the vacancy relates to the Scheduled Castes, Backward Classes or to Women, the vacancy shall be filled up out of the persons belonging to the category to which category of person the vacancy relates. (2)Any person elected to fill a casual vacancy under sub-section (1) shall be elected for the remainder of his predecessor's term of office. (3)Provided that where the remainder of a period for which a Panch or Sarpanch is to be elected is less than six months, it shall not be necessary to hold any election under this section to fill such a vacancy” The facts of this case are not in dispute. Finding of fact which has been recorded by the Tribunal that the election/petitioner/respondent No.3 has contested the election for the post of Panch in the General Category and not in the General Category ( Women), is not even challenged by the learned counsel for the appellant. The only argument raised is that election of Nachhatar Singh (since deceased) has been held to be null and void and in his place, election petitioner/respondent No.3. has been declared to be elected, is patently FAO No.1325 of 2010 (O&M) 5 illegal because in case of death of Nachhatar Singh, there should have been re-election. In the normal circumstances, this argument could be accepted if there had been no election petition pending against the returned candidate who has expired. However, in the peculiar facts and circumstances of the case, where the returned candidate has expired during the pendency of the election petition which is ultimately allowed by the Election Tribunal, the provisions of Section 22 of Act No.9 of 1994 would not be of any help to the appellant because Section 22 envisages a situation where a vacancy occurs of a seat due to death, resignation or removal, the said vacancy is required to be filled up by way of election and not by a person who has been elected. As a matter of fact, there is no procedure of any waiting list in the election process that if an elected person is removed or resigns, then the person who has secured second highest votes should replace him. Section 22 of the Act provides that in such circumstance, only way is to fill up the vacancy by way of election . In view of the above, I do not find any merit in the arguments raised by learned counsel for the appellant and as such the present appeal is hereby dismissed. Sept 16,2010 (Rakesh Kumar Jain) RR Judge