IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.13391 of 2008 DATE OF DECISION: OCTOBER 03, 2008 Kulwant Singh .....PETITIONER Versus State of Punjab and others ....RESPONDENTS Present: Mr. Navdeep Singh, Advocate, for the petitioner. Mr.M.S.Sindhu, Addl.A.G., Punjab, for respondents No.1 to 4. Mr.K.S.Dadwal, Advocate, for respondents No.5 to 7. C.W.P. No.13938 of 2008 Tehal Singh and others .....PETITIONERS Versus State of Punjab and others ....RESPONDENTS CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JASWANT SINGH --- Present: Mr. C.L.Sharma, Advocate, for the petitioners. Mr.M.S.Sindhu, Addl.A.G., Punjab, for respondents No.1 to 4. Mr.K.S.Dadwal, Advocate, for respondent No.5. Mr.Navdeep Singh, Advocate, for respondent No.6. ... SATISH KUMAR MITTAL, J. This order shall dispose of CWP Nos.13391 of 2008 and C.W.P. No.13391 of 2008 and another -2- 13938 of 2008. CWP No.13391 of 2008 has been filed by Kulwant Singh, who has been elected as Panch of Gram Panchayat of Village Sandhra, Tehsil and District Hoshiarpur, but at present is confined in District Jail, Hoshiarpur in case FIR No.41 dated 4.6.2008 under Sections 323/324/452/427/34 IPC registered at Police Station Bullowal. CWP No.13938 of 2008 has been filed by three elected Panches of the Gram Panchayat out of seven members Panchayat. 2. In both the petitions, a prayer has been made for setting aside the election of respondent-Ranjit Singh, who was elected as Sarpanch of the Village Gram Panchayat in the meeting of Panches held on 16.7.2008. In the writ petition filed by Kulwant Singh, an additional prayer has been made for issuing direction to respondents No.1 to 4 to administer the oath of Panch to him. 3. In this case, Gram Panchayat of Village Sandhra consists of seven members (Panches). In the Panchayat election held on 26.5.2007, petitioner Kulwant Singh in CWP No.13391 of 2008 and three petitioners in CWP No.13938 of 2008 were elected as Panches of the Gram Panchayat. Immediately after the election and before administering the oath to the elected members, a criminal case was registered against petitioner Kulwant Singh under Sections 323/324/452/427/34 IPC (FIR No.41 dated 4.6.2008 registered at Police Station Bullowal) in which the petitioner was arrested on 8.6.2008. All the elected Panches were administered oath or affirmation on 11.7.2008 by the authorised person, as specified in Schedule 1 of the Punjab Panchayati Raj Act, 1994 (hereinafter referred to as `the Act'). Since the petitioner was in judicial custody in the aforesaid criminal case, he could not take the oath as C.W.P. No.13391 of 2008 and another -3- required under Section 13(1) of the Act. Subsequently, after the notification and oath of elected members of the Gram Panchayat, the Deputy Commissioner authorized Shri Harbans Singh, Presiding officer to convene the meeting of the elected Panches under Section 13-A of the Act for electing the Sarpanch of the Village Gram Panchayat. A notice of the said meeting was also served upon the petitioner as required under Rule 45 (1) of the Punjab Panchayat Election Rules, 1994 (hereinafter referred to as `the Rules'). On receipt of the said notice, petitioner Kulwant Singh moved an application before the Sessions Court for interim bail or for directing the jail authorities to produce the petitioner in custody at the venue to attend the aforesaid meeting and to exercise his right to vote to elect the Sarpanch of the village. The Incharge Sessions Judge, Hoshiarpur vide his order dated 15.7.2008 though dismissed the prayer of the petitioner for interim bail, however, he directed the jail authorities to take the petitioner to GES Hargarh Sandhra on 16.7.2008 at 3 PM under proper security to enable him to attend the said meeting and to exercise his right to vote. It is pertinent to mention here that no direction was issued by the Incharge Sessions Judge, Hoshiarpur to administer oath to the petitioner. 4. In compliance with the aforesaid order, when the petitioner was taken to the venue of the meeting, the Presiding Officer did not permit him to attend the meeting and to cast his vote for the election of Sarpanch on the ground that he had not taken the oath or affirmation in terms of Section 13(1) of the Act as he had received the intimation to this effect from the District Development and Panchayat Officer, Hoshiarpur. The said meeting was attended by the remaining six Panches and in the meeting respondent-Ranjit Singh was elected as Sarpanch of the Gram Panchayat C.W.P. No.13391 of 2008 and another -4- as he was the only candidate. It is mentioned here that all the three petitioners did not propose the name of anybody and they had gone outside the meeting after signing the proceedings. Hence this petition. 5. Counsel for the petitioner submitted that respondent No.2- Harbans Singh, Presiding Officer has acted illegally while not permitting petitioner Kulwant Singh to attend the meeting and cast his vote in the election of Sarpanch. He submitted that no notice of administering oath or affirmation on 11.7.2008 was ever served upon petitioner Kulwant Singh and merely because of registration of a criminal case against him, he could not have been deprived from participating in the meeting convened and held for the election of Sarpanch only on the ground that he had not taken the oath or affirmation. Counsel contends that the Presiding Officer intentionally and under the political pressure had not permitted the petitioner to attend the said meeting because petitioner Kulwant Singh was going to vote in favour of petitioner No.1 in CWP No.13938 of 2008. Learned counsel further submitted that the District Development and Panchayat Officer, Hoshiarpur has further acted illegally while directing the Block Development and Panchayat Officer, Hoshiarpur not to permit petitioner Kulwant singh to attend the meeting of the Gram panchayat for the election of Sarpanch on the ground that he had not taken the oath as Member, Gram Panchayat. Therefore, the action of the Presiding Officer in not allowing the petitioner to attend the meeting and cast his vote in the election of Sarpanch was illegal and the same vitiates the proceedings of the meeting held on 16.7.2008 in which respondent-Ranjit Singh was elected as Sarpanch of the Gram Panchayat. Hence, the election of respondent No.7-Ranjit Singh as Sarpanch is liable to be set aside. C.W.P. No.13391 of 2008 and another -5- 6. It is further the case of the petitioners in CWP No.13938 of 2008 that in the meeting held on 16.7.2008, respondent No.5-Ranjit Singh was illegally declared elected as Sarpanch of the Gram Panchayat. It is alleged that the signatures of the petitiones were taken by the Presiding Officer on blank papers on the pretext of marking their presence in the above-said meeting and by mis-utilizing their signatures, the Presiding Officer illegally declared elected respondent-Ranjit Singh as Sarpanch of the Gram Panchayat. On this ground also, his election is liable to be set aside. 7. On the other hand, learned counsel for the respondents while referring to Section 13 of the Act contends that no member of the Gram Panchayat 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. He submitted that without taking the oath or affirmation of the office of Panch, the elected member cannot discharge the functions of Panch and, thus, cannot be permitted to cast his vote in the election of Sarpanch. Learned counsel further submitted that in the instant case petitioner Kulwant Singh did not take the oath not because of any negligence or fault of the official respondents, but because of the alleged crime committed by him. He further submitted that notice of the oath taking ceremony was given to petitioner Kulwant Singh, but the petitioner could not attend the oath ceremony on 11.7.2008 because he was in judicial custody. He did not file any application for interim bail or for issuing direction to the jail authorities to take him at the venue for taking the oath. In view of these facts, petitioner Kulwant Singh was rightly not permitted by the Presiding Officer to attend the meeting held on 16.7.2008 and to C.W.P. No.13391 of 2008 and another -6- participate in the election of Sarpanch. Learned counsel submitted that in the meeting held on 16.7.2008, respondent-Ranjit Singh was rightly elected as Sarpanch as only one name was proposed and seconded for the post of Sarpanch and there was no contest. He submits that in view of these facts, both the petitions are liable to be dismissed. 8. After hearing the learned counsel for the parties, we do not find any merit in these petitions. Section 13 of the Act 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. Sub-section (2) further provides that 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. Section 104 of the Act provides for notification of election and oath of allegiance by members of Panchayat Samitis. Section 167 of the Act provides for notification of election and oath of allegiance by Member of Zila Parishad. Rule 40 of the Rules provides that the oath required to be taken under sections 13, 104 and 167 of the Act, shall be administered by a person authorised by the Government. Rule 45 provides for election of Chairman and Vice-Chairman of Panchayat Samiti and Zila Parishad and Sarpanch of the Gram Panchayat. Sub-rule (1) of Rule 45 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 C.W.P. No.13391 of 2008 and another -7- 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.” 9. A perusal of the aforesaid provisions reveals that before entering upon his duties, the elected Panch is required to take an oath or affirmation as specified in Schedule 1. A meeting for the election of Sarpanch as required under Section 13-A of the Act is to be convened after the election of the directly elected members is notified and elected members have taken the oath or affirmation under Section 13 of the Act. Undisputedly, in the instant case, the election of all the elected Panches has been notified. Out of seven members, six had already taken the oath. Petitioner Kulwant Singh did not take the oath on 11.7.2008 in spite of having knowledge and information of the oath ceremony because he was in judicial custody in the aforesaid criminal case. The contention of the petitioner that he was falsely implicated in the aforesaid criminal case at the instance of the local MLA and was illegally prevented from taking oath by getting him arrested, cannot be gone into and accepted at this stage in this writ petition. When the petitioner was taken at the venue of the meeting in terms of the interim order dated 15.7.2008 passed by the C.W.P. No.13391 of 2008 and another -8- Incharge Sessions Judge, Hoshiarpur, the Presiding Officer did not permit him to to cast his vote in the election of Sarpanch because he had not taken the oath or affirmation of the office of Panch. The contention of the counsel for the petitioner that the Presiding Officer himself should have given the oath to the petitioner and thereafter should have permitted him to attend the meeting and cast his vote, also cannot be accepted. The Presiding Officer was not the authorized person by the Government under Rule 40 of the Rules to administer the oath to the elected Panches. Since petitioner Kulwant Singh did not appear before the authorized person for taking the oath on 11.7.2008 and subsequently he never made any prayer to the said authorized officer to administer the oath or affirmation to him, the District Development and Panchayat Officer has rightly intimated to the Block Development and Panchayat Officer not to permit the petitioner to participate in the meeting and cast his vote in the election of Sarpanch as he had not taken the oath on 11.7.2008. It was only an intimation of a fact to the Block Development and Panchayat Officer. Therefore, it cannot be termed that the said letter was mala fidely written only with an object to prevent the petitioner from participating in the meeting and exercise his right to vote for the election of Sarpanch. It is well settled that without taking an oath of an office, the person cannot discharge the functions and duties of the said office. The right of a Panch to participate in the meeting convened for the election of Sarpanch only arises after notifying his name as Panch and taking oath or affirmation of the office of Panch under Section 13 of the Act. Undisputedly, since petitioner Kulwant Singh did not take the oath as Panch, therefore, he was not permitted to participate in the meeting held on 16.7.2008 for election of Sarpanch. C.W.P. No.13391 of 2008 and another -9- 10. As far as election of respondent-Ranjit Singh in the meeting held on 16.7.2008 is concerned, a perusal of the proceedings of the meeting reveals that out of seven Panches, six members of the Panchayat had attended the said meeting in which only the name of Ranjit Singh was proposed and seconded. No other candidate came forward to contest the election of Sarpanch. Therefore, he was rightly declared elected as Sarpanch of the Gram Panchayat. 11. As far as the contention of the counsel for the petitioners in CWP No.13938 of 2008 that in the said meeting, the signature of the petitioners were taken on blank papers is concerned, this is a disputed question of fact which cannot be gone into in this petition. In our opinion, the petitioners can question the election of respondent-Ranjit Singh as Sarpanch on the said ground by filing an election petition under Section 76 on the grounds mentioned in Section 89 of the Act, as has been held by this Court in Baljit Singh v. State of Punjab and others (CWP No.13643 of 2008, decided on August 22, 2008). 12. In view of the aforesaid, we do not find any merit in these petitions and the same are hereby dismissed. 13. However, it will be open for the petitioners to challenge the election of respondent-Ranjit Singh on the grounds that he was declared elected as Sarpanch illegally without there being any majority. (SATISH KUMAR MITTAL) JUDGE October 03, 2008 ( JASWANT SINGH ) vkg JUDGE Refer to Reporter