IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.13418 of 2008 DATE OF DECISION: SEPTEMBER 22, 2008 Jagtar 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. Raj Kumar Garg, Advocate, for the petitioner. Mr.N.D.S.Mann, Addl.A.G., Punjab, for respondents No.1 to 4. Mr.A.S.Manaise, Advocate, for respondents No.5. .. SATISH KUMAR MITTAL, J. The petitioner, who was elected as Panch of Gram Panchayat of Village Naraingarh from General Category, has filed this petition under Articles 226/227 of the Constitution of India for setting aside the election of respondent No.5 as Sarpanch of the Gram Panchayat, which had taken place in the meeting of the Gram Panchayat held on 22.7.2008 on two grounds. Firstly, the office of Sarpanch of Gram Panchayat of Village Naraingarh was reserved for `Woman' and since respondent No.5, who has been elected as Sarpanch, was elected as a Panch from the reserved seat of S.C.(Woman), therefore, she was not eligible to contest the election of Sarpanch. Secondly, that out of seven Panches of the Gram Panchayat, only six have been elected, hence, the Gram Panchayat was not validly constituted, therefore, the election of the Sarpanch held in the meeting on 22.7.2008 was illegal, null and void. C.W.P. No.13418 of 2008 -2- Separate replies have been filed on behalf of respondents No.4 and 5. The same are taken on record. Undisputedly, in the present case, as per the notification issued under Section 10 of the Punjab Panchayati Raj Act, 1994 (hereinafter referred to as `the Act'), Gram Panchayat of Village Naraingarh consists of seven members. Out of seven seats of Panches, under Section 11 of the Act, three seats of Panches were reserved for General Category, one for Women, two for Scheduled Castes and one for Scheduled Caste (Woman). In General Category, three persons, namely, Gurmeet Singh, Jagtar Singh and Netar Singh were elected whereas in reserved category of Scheduled Castes, two persons were got elected. Respondent No.5 got elected against the reserved post of Scheduled Caste (Woman). However, no person was elected from the category of `Woman'. In the written statement filed on behalf of respondent No.4, it has been averred that no woman candidate filed the nomination paper against the seat reserved for Woman category. After the election, the names of six elected Panches were duly notified and they were also given oath or affirmation in accordance with Section 13 of the Act. Thereafter, the Deputy Commissioner authorized Shri Gurinder Singh Sodhi, Presiding Officer (respondent No.4 herein) under Section 13-A of the Act to convene the first meeting of the elected members of the Gram Panchayat for the election of Sarpanch of the Gram Panchayat. Accordingly, Shri Gurinder Singh Sodhi, Presiding Officer, who was authorized by the Deputy Commissioner, conducted the meeting of the elected members of the Gram Panchayat on 22.7.2008, which was attended by five members in which respondent No.5 was elected as C.W.P. No.13418 of 2008 -3- Sarpanch of the Gram Panchayat being the only candidate for the office of Sarpanch. Hence the petitioner has filed the instant petition. As far as the first contention of the learned counsel for the petitioner is concerned, in a similar case, this court in CWP No.13738 of 2008, titled as “Sukhjit Kaur vs. State of Punjab and others”, decided on August 05, 2008 has held that a woman, who has been elected to the office of Panch against the reserved category of Scheduled Caste (Woman), is fully eligible to contest the election of the office of Sarpanch, which is reserved for `women', being a woman, and neither under the Punjab Panchayati Raj Act, 1994 nor under the rules made thereunder, there is any bar that such a woman, who has been elected to the reserved seat of SC (Woman), would not be eligible to contest the election for the office of Sarpanch, reserved for `women'. Thus, we do not find any force in this contention of the learned counsel. As regards the second contention, learned counsel for the petitioner while referring to the provisions of Section 13-A of the Act submitted that `the Deputy Commissioner or any officer or official authorized by him in this behalf shall call the first meeting of the Gram Panchayat in the manner as prescribed, as soon as, the election of all Panches is notified, to elect the Sarpanch of the Gram Panchayat.' While putting much stress on the words `all Panches is notified', learned counsel submits that first meeting of the Panches could not have been convened until and unless the election of all the Panches is held and notified. Learned counsel submits that till all the posts of Panches are filled up by election and notified, the election of the Sarpanch is to be kept in abeyance and the same could be held only after filling up all the seats of Panches. C.W.P. No.13418 of 2008 -4- Learned counsel further submitted that after filling up all seats of Panches, a Gram Panchayat is deemed to be validly constituted. He submits that when out of seven only six Panches have been elected, then there was no proper constitution of the Gram Panchayat, and the election held for the office of Sarpanch without proper constitution of the Gram Panchayat was illegal and invalid. In support of his contention, learned counsel for the petitioner placed reliance upon the decision of this Court in Mehar Chand and another v. Shri T.D.Sharma and others, 1980 PLJ 671. On the other hand, learned counsel for the respondents submitted that once the election of elected Panches has been notified and oath or affirmation has been administered to them in terms of Section 13 of the Act, then the Deputy Commissioner is duty bound to convene the first meeting of the Gram Panchayat under Section 13-A of the Act either by himself or through his authorized person for the election of the Sarpanch of the Gram Panchayat. He submitted that the said meeting is to be convened as soon as the election of all the Panches is notified. He further submitted that the words `election of all the Panches is notified' mean only those Panches whose election has been held. If for any reason, one seat of Panch of the Gram Panchayat remained vacant, that itself will not prevent the State Government from notifying the names of the elected Panches whose election has been held and to give them oath or affirmation. Learned counsel submitted that there may be many circumstances where one post of Panch of a Village Gram Panchayat could not be filled up because of non-availability of any candidate or because of rejection of nomination papers of all candidates in the said category. In that situation, the functions of the Gram Panchayat cannot be kept in abeyance and the C.W.P. No.13418 of 2008 -5- names of the elected Panches are to be notified and the oath is required to be administered to them. He further submitted that once the election of the Panches has been notified and oath has been administered, then the Deputy Commissioner has to convene the first meeting of the Gram Panchayat under Section 13-A of the Act for the election of the Sarpanch of the Gram Panchayat. For facility of reference, Sections 13 and 13-A of the Act are reproduced below:- “13. Notification of election and oath of allegiance by Panches.- (1) Every election of a Panch shall be notified by the State Government in the Official Gazette and no member shall enter upon his duties until his election has been so notified and he has taken an oath or affirmation as specified in Schedule 1. (2) If a person refuses to take an oath or affirmation, referred to in sub-section (1), his election shall be deemed to be invalid and a fresh election shall be got conducted. (3) No person, whose election is deemed to be invalid under sub-section (2), shall be eligible for election to any Gram Panchayat for a period of two years from the date of such invalidation. “13-A. First meeting of the Gram Panchayat.-The Deputy Commissioner or any officer or official of the State Government, authorised by him in this behalf, shall call the first meeting of the Gram Panchayat in the manner, as may be prescribed, as soon as, the election of all Panches is notified, to elect the Sarpanch from amongst them.” After hearing the arguments of the learned counsel for the parties, we are of the opinion that keeping in view the entire scheme of the Act and the Rules framed thereunder, the election of the Sarpanch of the Gram Panchayat cannot be kept in abeyance merely on the ground that out C.W.P. No.13418 of 2008 -6- of seven Panches of the Gram Panchayat, one post of Panch remained vacant due to non-availability of a candidate. Section 10 of the Act provides that every Gram Sabha shall elect from amongst its members a Gram Panchayat for the Gram Sabha area bearing the name of its Gram Sabha and consisting of such number of Panches as notified in the Official Gazette. In the instant case, according to the notification issued under Section 10 of the Act, the Gram Sabha of Village Naraingarh is to elect seven members of the Gram Panchayat. Undisputedly, out of seven members, only six have been elected and one post of Panch belonging to reserved category of `Woman' could not be filled up because of non- availability of a candidate. Section 13 of the Act further provides that “every election of a Panch shall be notified by the State Government in the Official Gazette and no member shall enter upon his duties until his election has been so notified and he has taken an oath or affirmation as specified in Schedule 1”. This Section clearly mandates that every election of a Panch shall be notified by the State Government. Therefore, if one seat of Panch out of seven could not be filled up due to non-availability of a candidate or any other reason, the notification of the names of elected Panches cannot be kept in abeyance. As soon as the election takes place, the State Government is duty bound to notify the names of the elected Panches. Section 13-A of the Act further provides that the Deputy Commissioner or any officer authorized by him in this behalf, shall call the first meeting of the Gram Panchayat in the manner, as may be prescribed, `as soon as, the election of all Panches is notified, to elect the Sarpanch from amongst them'. In our opinion, the words `all Panches' provided in Section 13-A refer to `every election of a Panch' which has been notified. C.W.P. No.13418 of 2008 -7- If the election of one seat of Panch could not be held for any reason, it will be deemed that there is no election against the said seat. Therefore, once there was no election for the said seat, then the said seat cannot be taken into consideration under the words `election of all Panches is notified'. This interpretation of the words `all Panches' is flowing from the wording in Section 13 of the Act, which provides that “every election of a Panch shall be notified by the State Government”. Section 13-A provides that first meeting of the Gram Panchayat shall be convened in the manner as prescribed for the election of Sarpanch of the Gram Panchayat. Rule 45(1) of the Punjab Panchayat Election (First Amendment) Rules, 2008 provides as under:- “45. Election of Chairman, Vice-Chairman of Panchayat Samiti and Zila Parishad and Sarpanch of Gram Panchayat.-(1) After the election of directly elected members is notified by the Government and the elected members have taken oath or affirmation under section 13, 104 or 167 of the Punjab Panchayati Raj Act, 1994, as the case may be, in the case of Chairman and Vice-Chairman of Panchayat Samiti and Zila Parishad, the Deputy Commissioner or any other officer, appointed by him in this behalf, but not below the rank of an Extra Assistant Commissioner, and in the case of Sarpanch, any officer or official, authorized by the Deputy Commissioner, shall call a meeting, as laid down under section 13-A, 105 or 168 of the aforesaid Act, after giving a notice of a minimum period of twenty four hours in Form `X' to such members to elect Chairman, Vice-Chairman of Panchayat Samiti and Zila Parishad and Sarpanch of Gram Panchayat, as the case may be, in separate meetings in accordance with the provisions of these rules.” A reading of the aforesaid provisions indicates that after the C.W.P. No.13418 of 2008 -8- election of directly elected members is notified by the Government and the elected members have taken oath or affirmation under Section 13 of the Act, the Deputy Commissioner or any officer appointed by him in this behalf, shall call a meeting as laid down under Section 13-A of the Act, after giving a notice of a minimum period of twenty four hours in Form `X' to such members to elect Sarpanch of the Gram Panchayat. In the said Rule also, there is no requirement that until and unless the election of all the members of the Gram Panchayat has been held and declared, the meeting for the election of the Sarpanch under Section 13-A of the Act could not have been convened. The aforesaid interpretation given by us of the provisions of the Act, in our opinion, makes the provisions of the Act effective and workable. The election of all the Panches, who have been elected, cannot be kept pending for notification until the all seats of the Panches are filled up as it may result into non-functioning of the Gram Panchayat. Further, if the election of the Panches, who have been elected in the election, has been notified and they have been administered oath or affirmation, the election of Sarpanch of the Gram Panchayat also cannot be kept in abeyance only on the ground that one seat of Panch of the Gram Panchayat is yet to be filled up. It will also again result into stalling the functions of the Gram Panchayat. The Sarpanch of the Gram Panchayat is to discharge multifarious functions. He has to convene and preside over the meetings of the Gram Sabha at least twice in a year and also has to convene and preside over the meetings of the Gram Panchayat for taking all financial and executive decisions of the Gram Panchayat. No Gram Panchayat can be permitted to remain headless for a long time. That is why Section 13-A C.W.P. No.13418 of 2008 -9- of the Act provides that as soon as the election of all Panches is notified, the Deputy Commissioner is required to convene the first meeting of the Gram Panchayat for the election of Sarpanch. The object is that immediately after the election of the members of the Gram Panchayat the election of the Sarpanch should have been held. It is well settled principle of interpretation that a statute or any enacting provision therein must be so construed as to make it effective and operative on the principle expressed in the maxim: ut res magis valeat quam pereat. To make a statute or a provision workable, the Court is to reject the constructions which will defeat the plain intention of the Legislature and to avoid cadaveric consequences. Thus, in our opinion, the contention raised by the learned counsel for the petitioner that till all the posts of Panches are filled up by election and notified, the election of the Sarpanch is to be kept in abeyance and the same could be held only after filling up all the posts of Panches and their notification, cannot be accepted; and the action of respondents cannot be declared as illegal and void merely on the ground that out of seven members, only six had participated in the meeting held on 22.7.2008. The judgment cited by the learned counsel for the petitioner in Mehar Chand's case (supra) does not at all support the contention of the counsel for the petitioner. In view of the aforesaid discussion, we do not find any merit in this petition and the same is hereby dismissed. (SATISH KUMAR MITTAL) JUDGE September 22, 2008 ( JASWANT SINGH ) vkg JUDGE Refer to Reporter