FAO No.5823 of 2009 - 1 - ****** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.5823 of 2009 (O&M) Date of decision:20.09.2010. Rajwinder Kaur and others ...Appellants Versus Balwinder Singh and others ...Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Arun Palli, Senior Advocate, with Mr. Sunil Garg, Advocate and Mr. Kanwal Goyal, Advocate, for the appellants. Mr. NPS Mann, Advocate, and Mr. RPS Mann, Advocate, for the respondents. ***** RAKESH KUMAR JAIN, J. As many as 5 Panches had challenged the election of Balwinder Singh as Sarpanch by way of Election Petition No.11/88 of 12.03.2009 which has been dismissed by the Deputy Commissioner-cum- Presiding Officer, Election Tribunal, Tarn Taran [for short “Election Tribunal”] vide his impugned order dated 17.09.2009. All the 5 Panches are appellants before this Court and have alleged that Gram Panchayat Marhana, Block Chohla Sahib, Tehsil and District Tarn Taran comprises of 9 members, which includes all the 5 appellants and respondent Nos.1 to 4 herein. In order to fill up the post of Sarpanch reserved for General category, a meeting was convened on 17.07.2008, which was presided over by Guriqbal Singh. In the said meeting, 4 Panches from the side of appellants attended the meeting, but none from the side of respondent Nos.1 to 4 came present, therefore, in FAO No.5823 of 2009 - 2 - ****** terms of Rule 45(2) of the Punjab Panchayat Election (First Amendment) Rules, 2008 [for short “Rules”], the said meeting failed due to lack of quorum as in the Panchayat comprising of 9 members, the quorum to carry out resolution in the first meeting is required of 6 Panches. The Presiding Officer, thus, adjourned the meeting to 22.07.2008 at the same time and place, but on that day, Presiding Officer Guriqbal Singh fell ill and consequently the meeting was not held and proceedings were also not recorded. However, as per the appellants, all 5 of them were present in the said meeting. Be that as it may, the meeting was re-scheduled for 25.07.2008 at 1.00 p.m. at Government Elementary School, Marhana. In the said meeting, the Presiding Officer was Sewak Singh. According to the case of the appellants, they were present at the time and place of the meeting dated 25.07.2008 but no meeting was held as scheduled. The appellants, in this regard, submitted their affidavits dated 25.07.2008 to the Deputy Commissioner, Tarn Taran and lateron came to know that respondent Nos.1 to 4, in connivance with respondent Nos.5 and 6, clandestinely elected Balwinder Singh as Sarpanch on an undisclosed place wherein it has been shown that the appellants were absent. It is also alleged that the appellants brought this fact to the notice of the Deputy Commissioner, Tarn Taran who marked an inquiry to the SDM, Tarn Taran. In his inquiry report dated 06.08.2008 (Mark `A'), SDM, Tarn Taran opined that the meeting was not held on 25.07.2008 at the given time and place. The Deputy Commissioner, Tarn Taran again asked SDM, Tarn Taran to hold inquiry. In pursuance thereof, he submitted his report dated 26.08.2008 (Mark `B') that no meeting was held on 25.07.2008. However, the said inquiry report was not accepted by DDPO, Tarn Taran vide his order dated 28.08.2008 and he asked the appellants to file election petition, if they so choose. All the appellants then filed CWP No.15879 of 2008 titled as `Rajwinder Kaur and others Vs. The State of Punjab and others' which was dismissed by this Court on the ground that ordinary remedy available to the appellants is filing of election petition under Section 76 of the Punjab State Election Commission Act, 1994 [for short FAO No.5823 of 2009 - 3 - ****** “the Act”] on the grounds mentioned in Section 89 of the Act and since the appellants had filed the Writ Petition within 45 days of the election, therefore, in terms of the order of the Supreme Court in the case of Danda Rajeshwari Vs. Bodavula Hanumayamma and others, (1996) 6 SCC 199, the appellants were permitted to file an election petition, within a period of three weeks from the date of that order i.e. 03.11.2008. Aggrieved against the order of the Division Bench of this Court, the appellants filed SLP (C) No.29341 of 2008 which was dismissed by the Supreme Court on 23.02.2009. However, time to file election petition was extended by three weeks from the date of the order of the Supreme Court i.e. dated 23.02.2009 and the Apex Court directed the Election Tribunal to decide the election petition within six months. At last, all the 5 appellants had filed Election Petition No.11/88 on 12.03.2009, in which it was, inter alia, alleged that respondent No.1 has been illegally elected as Sarpanch of the Gram Panchayat as there was no meeting held on 25.07.2008. In reply, various objections were taken by respondent Nos.1 to 4 that the election of respondent No.1 has already been notified; election petition was not filed within the period of limitation and on merits, it was asserted that on 25.07.2008, Presiding Officer Sewak Singh and Panchayat Secretary Sarabjit Singh were present at the time and place of the meeting where the appellants did not come present despite the receipt of notices, therefore, after waiting up to 4.00 p.m., the proceedings for election of Sarpanch were started, in which, in terms of Rule 45(6) of the Rules, respondent No.1 was elected as Sarpanch. The appellants then filed replication to the written statement and on the basis of the pleadings of the parties, following issues were framed by the Election Tribunal: - 1) Whether the election result of respondent No.1 Balwinder Singh as Sarpanch dated 25.07.2008 is liable to be cancelled being against the law and rules?OPP. 2) Whether the petitioner No.1 Rajwinder Kaur Panch is liable to be declared as FAO No.5823 of 2009 - 4 - ****** elected Sarpanch on the basis of clear majority?OPP. 3. Whether the election of the Sarpanch of village Gram Panchayat Marhana is liable to be conducted afresh?OPP. 4. Whether the instant election petition is maintainable according to the law or not?OPR. 5. Whether the petitioner No.1 is entitled to participate for becoming Sarpanch through an affidavit without participating in the election process?OPR. 6. Relief.” Both the parties led their respective evidence. All the appellants stepped into witness box and filed their respective affidavits as Ex.PW1/A, Ex.PW2/A, Ex.PW3/A, Ex.PW4/A and Ex.PW5/A. They also proved their respective affidavits dated 25.07.2008 as Ex.P2, Ex.P3, Ex.P4, Ex.P5 and Ex.P6. They also produced order of the Supreme Court dated 23.02.2009 as Ex.P1, copy of the complaint addressed to Deputy Commissioner, Tarn Taran as Mark P2, report of SDM, Tarn Taran dated 06.08.2008 as Mark `A', report of SDM, Tarn Taran dated 26.08.2008 as Mark `B', copy of Rapat No.14 dated 25.07.2008 as Mark P1 and copy of proceedings dated 17.07.2008 as Ex.P7. On the other hand, respondent Nos.1 to 4 had examined their witnesses Balwinder Singh as RW1, Hardip Singh as RW2, Lal Singh as RW3, Kabal Singh as RW4, Jaspal Singh as RW5, Gurwinder Singh as RW6 and also proved their respective affidavits as Ex.RW1/A, Ex.RW2/B, Ex.RW3/C, Ex.RW4/D, Ex.RW5/A and Ex.RW6/A and produced copy of the proceedings dated 17.07.2008 as Ex.R1, copy of notification dated 04.09.2008 as Ex.R2 and copies of notices dated 24.07.2008 as Ex.R3 to Ex.R11. Besides these documents, they also produced inquiry report dated 28.08.2008 of DDPO, Tarn Taran FAO No.5823 of 2009 - 5 - ****** as Mark `R' which had been agreed upon by the Deputy Commissioner, Tarn Taran to the effect that the election of Sarpanch of the village may not be cancelled/rejected in view of any report of the SDM, Tarn Taran. The learned Election Tribunal, after appreciating the evidence on record, recorded a finding that “but these documents also do not support the case of the petitioners in any way because of the fact that despite receipt of notice, they did not bother to attend the meeting at 1.00 p.m. on 25.07.2008 in Government Elementary School for the election of Sarpanch.” It is also observed that “petitioner No.1 Rajwinder Kaur has also given her affidavit Ex.P6 deposing therein her consent to choose/elect herself as Sarpanch.” It is further observed that her affidavit by itself is sufficient to hold the hollowness in the case of the appellants and as such the election petition was dismissed. Shri Arun Palli, learned Senior Counsel appearing on behalf of the appellants, has strenuously argued that the finding recorded by the Election Tribunal to dislodge the case of the appellants is patently illegal because of the misreading of the evidence available on record. To begin with, in order to prove that no meeting was held on 25.07.2008, he has referred to Rapat No.14 dated 25.07.2008 (Annexure A-6) recorded by Gurmej Singh SI/A/SHO, which reads as under: - “Time 4.30 P.M. is recorded. I, SI/A/SHO along with other colleagues had gone vide my Rapat No.5 for election duty in village Marhana, from where I have come back. No election for the post of Sarpanch of village Marhana could take place as nobody from the election staff turned up.” Secondly, it is submitted that except for the first meeting dated 17.07.2008 in which 4 out of the 5 appellants were present, all the 5 appellants (Panches) are together whether it is the meeting of the election of Sarpanch, filing of the Writ Petition in this Court, filing of the SLP in the Supreme Court, filing of the affidavits and the evidence and even the election petition or the present appeal. Thus, it is submitted that the FAO No.5823 of 2009 - 6 - ****** appellants are in majority and there is no question that the persons in majority would not attend the meeting after having received notice of the same. Thirdly, it is submitted that there were two reports on record of SDM, Tarn Taran dated 06.08.2008 and 26.08.2008 in which he has categorically held that the election staff was not present at the time and place of the meeting dated 25.07.2008, which also get support from the Rapat No.14 dated 25.07.2008 (Mark P1) in which SI/A/SHO Gurmej Singh has mentioned that the meeting could not be held as the election staff did not come. Finally and above all, he has challenged the finding recorded by the Election Tribunal wherein it has been recorded that the appellants remained absent from the meeting. In this regard, he has rightly referred to the statement of RW3 Lal Singh (Panch) who has stated on oath in his cross-examination that “on 25.07.2008, Panches, namely, Balwinder Singh, Hardip Singh, Kabal Singh (respondent Nos.1 to 3) reached my home before 1 O'clock for election of Sarpanch, and we all four Panches i.e. respondent Nos.1 to 4 together left for school from my home. We all went by foot to school. We reached school 4-5 minutes prior to 1 O'clock. Before we reached the school, Panches Rajwinder Kaur, Dhir Singh, Dilbagh Singh, Balbir Kaur and Piar Kaur were present in the school.” It is submitted that once there is an admission on the part of the respondents' witness, who himself is a party, that before 4-5 minutes of the scheduled meeting, all the 5 Panches were present at the time and place of the meeting dated 25.07.2008, it cannot be believed that they would not have participated in the election process. In reply, learned counsel for the respondents has argued that the Election Tribunal has not committed any error in passing the impugned order because the affidavit of Rajwinder Kaur (Ex.P6) cannot be believed as she herself cannot say that she should be chosen as Sarpanch. It is submitted that Rapat Roznamcha (Mark `P1') which has been relied upon by learned counsel for the appellants is not believable as SHO Gurmej Singh was not on duty. I have heard learned counsel for the parties in detail and have FAO No.5823 of 2009 - 7 - ****** perused the record carefully. There is no dispute that except for the meeting dated 17.07.2008, in all the proceedings, whether it is subsequent meeting dated 22.07.2008, meeting dated 25.07.2008, complaints made to the Deputy Commissioner by way of affidavits, Writ Petition before this Court, SLP before the Supreme Court, election petition before the Election Tribunal or appeal before this Court, all the five appellants are together and are in majority and there is no reply given by learned counsel for the respondents to the argument of the learned counsel for the appellants when he referred to the statement of RW3 Lal Singh, wherein he has categorically admitted the presence of all the 5 Panches at the time and place of the meeting dated 25.07.2008. Concurrent report of SDM, Tarn Taran is to the effect that the election staff, namely, the Panchayat Secretary and the Presiding Officer did not come present to hold the meeting on 25.07.2008. The SHO Gurmej Singh has also recorded in his Rapat Roznamcha that election could not be held because nobody from the election staff had turned up. Thus, the voluminous evidence available on record indicates only to the fact that no meeting was held on 25.07.2008 at the time and place given to the appellants and if any meeting was held at some other place in the absence of the appellants and without their notice, the said meeting cannot be held to be legal and any election of respondent No.1 in that meeting cannot be sustained. In view of the above discussion, I have found the present appeal meritorious and as such, the same is hereby allowed and the impugned order passed by the Election Tribunal is hereby set aside. September 20, 2010. (RAKESH KUMAR JAIN) vinod* JUDGE