FAO No.496 of 2010 (O&M) - 1 - **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.496 of 2010 (O&M) Date of decision:05.08.2010. Joginder Kaur and others ...Appellants Versus Election Tribunal, Gurdaspur and others ...Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. H.S.Sethi, Advocate, for the appellants. Mr. Vipin Mahajan, Advocate, for respondent Nos.2 to 4. Mr. K.S.Kahlon, Advocate, for respondent No.5. ***** RAKESH KUMAR JAIN, J. (ORAL) This appeal is directed against order dated 09.09.2009 passed by the Deputy Commissioner-cum-Presiding Officer, Election Tribunal, Gurdaspur by which the election petition filed by four election petitioners, who are appellants before this Court challenging the election of respondent No.2 (Joga Singh) as Sarpanch, has been dismissed. The brief facts of the case are that Gram Panchayat Purana Shalla comprises of seven members. In order to elect Sarpanch in terms of Section 13A of the Punjab Panchayati Raj Act, FAO No.496 of 2010 (O&M) - 2 - **** 1994 [for short “Act of 1994”], the Presiding Officer/respondent No.5 convened a meeting on 18.07.2008. In the said meeting, all the four election petitioners/appellants came present, but the meeting failed due to lack of quorum. The meeting was adjourned to 19.07.2008 to be held at 4.30 p.m. in the office of Sub Divisional Officer, PWD, Public Health Branch, Gurdaspur (respondent No.5). The appellants came present for the meeting on 19.07.2008 at the prescribed time and place, but there was no one including the Presiding Officer. Respondent No.5 was contacted on his mobile from one of appellants' mobile and the conversation was recorded. According to the appellants, respondent No.5 had inquired as to which party they belong to. When they told him that they belong to the Congress Party, then respondent No.5 told them that even if they are in majority, their candidate could not be elected as Sarpanch. He also told that he will not be coming to the office for conducting the election. It is alleged that the appellants prepared a C.D. (Compact Disk) of the said mobile phone conversation and also took photographs of the office of the Presiding Officer which was vacant. They had also taken their photographs for the purpose of attendance and showing their majority at the time and place of the election meeting. They remained there up to 7.00 pm but nobody from the office of respondent No.5 turned up. Ultimately, they came to know that respondent No.5 had clandestinely held some meeting and declared respondent No.2 Joga Singh as FAO No.496 of 2010 (O&M) - 3 - **** Sarpanch though he was not having the support of majority and was apparently in minority. Respondent No.2 was declared as Sarpanch only with the aid of Rule 45 of the Punjab Panchayati Raj Election Rules, 1994 (for short “the Rules”). It is submitted that the appellants had initially challenged the election of respondent No.2 by way of filing CWP No.12503 of 2008 which was disposed of by this Court on 18.09.2008 by observing that the appropriate remedy would be an election petition, therefore, they were given liberty to file election petition within three weeks from the date of the order. The appellants then filed the election petition within three weeks in which the aforesaid facts were mentioned categorically. Respondent No.5 filed his reply independently in which he had denied the facts as alleged in the election petition including his absence from the office at the time when the election was to be held and also denied the conversation recorded in the CD alleging it to be an act of forgery or manipulation on the part of the appellants. In their evidence, all the four appellants filed their affidavits and made themselves available for cross – examination. They had averred in unison about their presence in the first meeting dated 18.07.2008 as well as in the second meeting dated 19.07.2008, the absence of respondent No.5, recording of mobile phone conversation in the C.D. in which they told the Presiding Officer that they belong to the Congress Party and he did not come present for the purpose of conducting the election meeting. FAO No.496 of 2010 (O&M) - 4 - **** Learned counsel for the appellants submits that despite the availability of voluminous evidence on record, the Election Tribunal, while deciding issue No.1, observed only as under: - “The main contention of the petitioners is that the Presiding Officer elected respondent No.1 as Sarpanch on the back of the petitioners and without coming to the venue of the meeting for the election. However, the reply of the Presiding Officer is very clear on this issue. The meeting held on 18.07.2008 was adjourned to 19.07.2008 due to lack of quorum since the respondents did not appear in that meeting. However, on 19.07.2008 the petitioners did not attend the meeting. Accordingly, the Presiding Officer elected the Sarpanch from amongst the members who were present in the meeting on 19.07.2008. The petitioners could not bring any evidence on the record about this presence in the meeting of 19.07.2008. Therefore, this issue is decided against the petitioners.” It is submitted that the aforesaid findings have been recorded in a perfunctory manner inasmuch as not even a single evidence available on the record has been discussed. Learned counsel for the appellant has rather submitted that the Election FAO No.496 of 2010 (O&M) - 5 - **** Tribunal has not been impartial in the decision of this case. On the other hand, learned counsel for the respondents has submitted that there is no error of law in the impugned order as the appellants failed to prove their presence at the time and place when the election was held. However, he could not deny the fact that the allegations have been made in the election petition about partisan behaviour of respondent No.5 and the evidence led by the appellants has not been discussed in the impugned order. As a matter of fact, the appellants are together since the date the election took place as they were present in majority in the first meeting held on 18.07.2008, they were present together for the second meeting, they all filed their affidavits in support of their case, filed the writ petition together, election petition and also this appeal. Meaning thereby they are together uptill now. Learned counsel for the appellants has also submitted that respondent No.2 has admitted in his cross – examination that the four members were on one side and three members were on the other side. Therefore, it is proved that there was a clear majority of the appellants who claimed themselves to be the supporters of the Congress Party. I have heard both the learned counsels for the parties and perused the record with their assistance. In this case the evidence led by the appellants in support of the election petition, has not been touched at all by the learned Election Tribunal while deciding issue No.1. The approach of the FAO No.496 of 2010 (O&M) - 6 - **** learned Election Tribunal projects a sorry state of affairs as it was not expected of an officer of the rank of Deputy Commissioner to ignore the evidence on record while discharging his jurisdiction as an independent person much-less an Election Tribunal. This Court is totally dismayed with the ways and means adopted by respondent Nos.2 to 4 in connivance with respondent No.5 who, though is an officer in the government of Punjab and was apparently working at the instance of some influential person. In any case, the impugned order is totally non-speaking and without any reason, therefore, the same is hereby set aside. The matter is remanded back to the Election Tribunal, Gurdaspur to decide the election petition afresh after taking into account the entire evidence on record and if it is found that respondent No.5 has tried to mislead the Court and is guilty of suppresso veri and suggesto falsi, the Election Tribunal is free to suggest appropriate action against respondent No.5. The Election Tribunal is further directed to decide the election petition afresh as early as possible, preferably within a period of six months. The parties, through their learned counsels, are directed to appear before the learned Election Tribunal, Gurdaspur on 18.08.2010. August 02, 2010. (RAKESH KUMAR JAIN) vinod JUDGE