In the High Court of Punjab and Haryana at Chandigarh ...... F.A.O. No.2779 of 2010 ..... Date of decision:17.11.2011 Beant Singh and others .....Appellants v. Dilbagh Singh and others .....Respondents .... CORAM : HON'BLE MR. JUSTICE MOHINDER PAL ..... 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the reporters or not? 3. Whether the judgment should be reported in the digest? ...... Present: Mr. Ashok Singla, Advocate with Mr. Ravish Bansal, Advocate for the appellant. Mr. Rajesh Bhatheja, Advocate for respondents No.1 to 7. None for respondent No.8. ..... Mohinder Pal, J. This is an appeal against the order passed by the Deputy Commissioner (exercising the powers of Election Tribunal), Faridkot vide which the petition filed by the election petitioners (appellants herein) wherein election of Sarpanch of Gram Panchayat Village Hari Nau was challenged has been dismissed. It is case of the petitioners that Gram Panchayat of Village Har F.A.O. No.2779 of 2010 [2] Nau consisted of 11 Panches including four appellant Panches and out of which the presence of two-third Panches was mandatory to constitute quorum for the election of Sarpanch. It is further case of the appellants that the quorum as required under Rule 45(2) of the Punjab Panchayat Election Rules, 1994 as amended by the Punjab Panchayat Election (First Amendment) Rules, 2008 (hereinafter referred to as `the Rules') was not complete hence the act of the respondents in electing respondent No.1, namely, Dilbagh Singh as Sarpanch of the Village was null and void and was liable to be set aside. I have heard learned counsel for the parties and have gone through the record. Learned counsel for the appellants has submitted that under Rule 45 of the Rules after the elections, Deputy Commissioner himself or an officer appointed by him has to call a meeting as laid down under Section 13-A, 105 or 168 of the aforesaid Act after giving a notice of minimum period of 24 hours in the Form `X' to the members to elect Sarpanch of the Gram Panchayat in accordance with the provisions of the Rules. It is further submitted that two-third of the total Members constitute a quorum. It is submitted that to complete the quorum two-third of the 11 member Panches comes out to 7.33. Therefore, two-third cannot be 7 number of Panches and only 8 Panches could have completed the quorum as 7.33 was less than 7.5 as such the act of the respondents was against the provisions of law and the election was liable to be set aside. In support of his arguments, he has referred to decisions of this Court in Ram Narain Sharma and another v. The State of Haryana and others, 1973 P.L.J. 550; Vijay Kumar Saluja v. Deputy F.A.O. No.2779 of 2010 [3] Commissioner Karnal, 1991 P.L.J. 635; Pritam Singh and others v. State of Punjab and others, 1995 P.L.J. 359; Dharampal Jindal v. State of Haryana, 2001 (2) R.C.R. (Civil) 741; the decision of Allahabad High Court in Smt. Meera Devi v. State of U.P. and others, 1998 AIR (Allahabad) 157 and the decision of Rajasthan High Court in Chimna Ram v. State of Rajasthan and others, 1999 AIR (Raj.) 93. On the other hand, learned counsel representing the respondents first of all raised the point that the provisions contained in Rule 45 of the Rules were not applicable in this case as it relates to the election of Chairman and Vice-chairman of Panchayat Samiti and Zila Parishad only and not to the election of Sarpanch of the Gram Panchayat. He further disputed the contention of the counsel for the appellants that two-third majority was required to be followed strictly. It has been submitted that the two-third majority can be relaxed. In support of his contention, he has referred to the decision of the Supreme Court in State of U.P. and another v. Pawan Kumar Tiwari and others, (2005) 2 SCC 10. He also raised the point regarding presentation of election petition through a lawyer and not by the candidate himself and further regarding verification of the election petition and has submitted that the election petition was not verified as per provisions of Civil Procedure Code. The Punjab Government vide gazette notification dated June 4, 2008 has amended the rules under the Punjab Panchayati Raj Act, 1994. As per first amendment carried on June 4, 2008, Rule 45 has been amended and the amended provisions are reproduced as under:- “45. Election of Chairman, Vice-Chairman of Panchayat Samiti and Zila Parishad and Sarpanch of Gram F.A.O. No.2779 of 2010 [4] 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. Provided that where the seat of Chairman or Vice- Chairman of Panchayat Samiti or Zila Parishad or Sarpanch of a Gram Panchayat, as the case may be, is reserved for Scheduled Castes or women, the proposer or seconder shall propose or second the name of the persons belonging to such reserved categories only. (2) Two-third of the total number of members shall constitute a quorum. (3) to (7) xx xx xx xx” F.A.O. No.2779 of 2010 [5] Thereafter, new Rules the Punjab Panchayat Election (Second Amendment) Rules, 2008 have come into existence wherein the elections of the Sarpanch of Gram Panchayat seems to have been separated from the election of Chairman and Vice-Chairman of the Panchayat Samiti and Zila Parishad etc. In this amendment also the necessary quorum for completing the election of the Sarpanch has been kept as two-third of the total number of Panches. In Ram Narain Sharma and another v. The State of Haryana and others (supra) (DB), this Court has held that a Panchayat Samiti constituted of 19 members, the quorum under sub-rule (1) of Rule 4 comes to 14¼, there is no justification for holding that the intention of the Legislature was to fix the number at 14 unless that intention had been made absolutely clear, therefore, the quorum at the first meeting has to be of more than 14 persons. The word “quorum” clearly indicates the minimum number of members who have to be present at the a particular meeting before the members are entitled to transact any business. In Dharampal Jindal v. State of Haryana (supra) (DB), this Court held that no confidence motion against President required to be carried by not less than two-third members. 15 elected members of Municipal Committee besides M.P. and M.L.A. nominated under Section 9(3)(ii) and (iii) which means 17 members competent to participate in the meeting for considering question of no confidence motion against President. Only 15 members attended the meeting out of which 11 members voted in favour of no confidence motion. Two-third of 17 members would come to 11.33. Fraction would be taken as a whole and as such at least 12 members required for passing a no confidence motion. Motion of no confidence passed by 11 members out of 17 cannot be said to F.A.O. No.2779 of 2010 [6] be not less than two-third members of the Committee. On the other hand in the case of State of U.P. and another v. Pawan Kumar Tiwari and others (supra), relied upon by the learned counsel for the respondents, the Supreme Court held that application prescribed percentage to general and reserved categories, the treatment of fraction of a vacancy – fraction if one-half or more, held, should be treated as one and if less than one-half it should be ignored. The judgment referred to by the learned counsel relate to the reservation in the posts for the members of Scheduled Castes and Scheduled Tribes. When the judgments directly on the point of election are available, the judgment relied upon by learned counsel for the respondents cannot be taken into account. In view of these provisions and amendment in the Rules, the arguments of learned counsel for the appellants seem to be convincing and that of the respondents devoid of any force. The second argument raised by learned counsel for the respondents was regarding the presentation of the petition by a lawyer and not by the appellants themselves. Perusal of the written statement and the issues framed by the Election Tribunal shows that there is no such pleading regarding presentation of the plaint. No issue in this regard has been framed by the Election Tribunal. And no evidence has been recorded. No doubt challenge to an election is a serious matter. The object of presenting an election petition by a candidate or elector is to ensure the genuineness and to curtail vexatious litigation. If one goes through sub-section (1) along with the other provisions in Chapters-II and III, the object and intention of the Legislature is that this provision i.e. Section 81(1) of the Representation of the People Act, 1951 is to be strictly F.A.O. No.2779 of 2010 [7] adhered to and complied with. However, before applying this provision one has to rule out the possibility of doubt in presentation of petition. There is no evidence to prove the fact that Advocate alone had gone to present the petition or that the appellants were not present at the time of presentation. During the course of arguments, learned counsel representing the respondents contended that it was a legal proposition which could be pressed into service at any time in the proceedings. I am of the view that the presentation of petition is not merely a law point. It is a mixed question of law and fact and can only be ascertained after appreciating evidence in this regard. When the point is neither pleaded nor discussed at any stage before filing of the appeal in High Court, the arguments of learned counsel for the respondents in this regard cannot be given due weightage. Learned counsel referred to case in G.V. Sreerama Reddy and another v. Returning Officer and others, 2009 (3) R.C.R. (Civil) 937 in which the Supreme Court held that election petition was presented by Advocate of the petitioner and not the petitioner personally, hence the petition was dismissed. The petition is required to be presented by the petitioner personally. The proposition of law contained in this situation cannot be disputed. However, in absence of any evidence to prove the point this case can be distinguished. Learned counsel for the respondents also referred to the verification part of the petition and has contended that the petition was not verified as per provisions of Civil Procedure Code. This Court is of the view that the arguments regarding presentation of petition by the petitioner and not by the counsel and then finding fault in the verification are self-contradictory. The ground realities cannot be lost sight of. On the one hand we are F.A.O. No.2779 of 2010 [8] expecting elected Panches to remain away from counsel while presentation of a petition and on the other hand we are trying to stick to technicalities by saying that the petition should be properly verified as to which of the paras are true to the best of knowledge and belief of the petitioners and which have been verified as per advice of the lawyer. It will also be relevant to mention here that in G.V. Sreerama Reddy and another v. Returning Officer and others (supra) apart from petition being defective having been filed by the Advocate, it was also found to be beyond limitation as delay could not be condoned by applying the Limitation Act which is not the case here. For the aforementioned reasons, this election petition is allowed. Resultantly, the order under appeal is set aside. The Deputy Commissioner, Faridkot will hold fresh election of Sarpanch by summoning the elected Panches and after complying with the provisions contained in the Act. The necessary exercise will be completed by 15th December, 2011. November 17, 2011. (Mohinder Pal) Judge *hsp*