IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No. 15789 of 2008 DATE OF DECISION : 23.12.2008 Jarnail Singh .... PETITIONER Versus Deputy Commissioner -cum- District Electoral Officer, Sangrur and others ..... RESPONDENTS CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. G.S. Punia and Mr. T.P.S. Tung, Advocates, for the petitioner. Mr. N.D.S. Mann, Addl. A.G., Punjab, for respondents No.1 to 3. None for respondent No.4. Mr. Kanwaljit Singh, Senior Advocate, with Mr. Rohan Chaudhary, Advocate, for respondents No.5 to 8. * * * SATISH KUMAR MITTAL , J. Petitioner – Jarnail Singh has filed this petition under Articles 226/227 of the Constitution of India for quashing the order dated 30.8.2008, passed by the Deputy Commissioner -cum- District Electoral Officer, Sangrur, respondent No.1 herein, whereby after setting aside the election of the petitioner as Sarpanch of Gram Panchayat, Village Momnabad, District Sangrur, which was held in the meeting of the Gram Panchayat held on 30.7.2008, he has ordered for convening of fresh meeting of the Gram CWP No. 15789 of 2008 -2- Panchayat for electing the Sarpanch; and further for quashing the proceedings of the meeting held on 6.9.2008, which was held in pursuance of the aforesaid order dated 30.8.2008, wherein respondent No.5 was elected as Sarpanch of the Gram Panchayat. In the present case, Gram Panchayat, Village Momnabad, consists of 7 members (Panches), out of whom one seat of Panch was reserved for women, one for Scheduled Caste category and one for Scheduled Caste (Women). The remaining 4 seats were meant for General category. In the general elections of Panchayats held on 26.5.2008, 7 persons, including the petitioner and respondent No.5, were elected as Panches and their names were duly notified as elected members of the Gram Panchayat, Momnabad. After the notification of the election of the Panches and administering of oath of affirmation to them, respondent No.1 authorised Jasbir Singh, Assistant Registrar, Cooperative Societies, Moonak, as the Presiding Officer to convene the first meeting of the members of the Gram Panchayat and to hold the election of the Sarpanch. Shri Rajinder Singh, Assistant Registrar, Cooperative Societies was appointed as Observer. The office of Sarpanch was meant for General category. For the purpose of election of the Sarpanch, the first meeting of all the 7 Panches was called on 30.7.2008. In the said meeting, petitioner and respondent No.5 contested the election for the office of Sarpanch. The election was held by secret ballots. The counting of the secret ballots was done in front of both the candidates, in which petitioner secured 4 votes CWP No. 15789 of 2008 -3- against respondent No.5 who secured 3 votes. Accordingly, the Presiding Officer declared the petitioner as elected Sarpanch of the Gram Panchayat. A copy of the proceedings held on 30.7.2008 has been annexed with the petition as Annexure P-3. After the declaration of result, respondent No.6 and three other Panches made an application to respondent No.1 alleging that election of the Sarpanch on 30.7.2008 was not held in a fair manner and one vote, which was polled in favour of respondent No.5 was wrongly shown to have been polled in favour of the petitioner, therefore, an enquiry be conducted and election of the Sarpanch be set aside. On that application, after conducting the enquiry, respondent No.1 set aside the election vide the impugned order and ordered for a fresh election of Sarpanch of the Gram Panchayat. In the written statement, filed on behalf of respondents No.1 and 2, the factum of holding of the meeting of the members of the Gram Panchayat on 30.7.2008 has not been denied. It has also not been denied that the said meeting was attended by all the 7 Panches, in which petitioner was declared elected by securing 4 votes. However, it has been stated that after the election of the Sarpanch of the Gram Panchayat was conducted in the meeting held on 30.7.2008, respondent No.6 and 3 other Panches made a complaint to respondent No.1. After conducting enquiry of the said complaint, the election was set aside. It has been admitted that after the passing of the said order, fresh election was held on 6.9.2008, in which CWP No. 15789 of 2008 -4- respondent No.5 was elected as Sarpanch of the Gram Panchayat. In the written statement, filed on behalf of respondent No.4, it has been stated that in fact, the first meeting was convened for 17.7.2008 and since the meeting was attended by only 4 Panches, therefore, the same was postponed to 21.7.2008. On that day, the meeting was not held. On the request of three Panches that they were unable to attend the meeting, the meeting was postponed to 23.7.2008 and on that day, due to the Punjab Bandh, the meeting could not be held. Thereafter, the Presiding Officer was changed and Jasbir Singh was appointed as the new Presiding Officer. In the written statement, filed on behalf of respondents No.5 to 8, the factum of holding the election of Sarpanch on 30.7.2008 has not been disputed. However, it has been stated that the Presiding Officer in an illegal and arbitrary manner declared the petitioner to be elected as Sarpanch, in spite of the fact that he was not having the majority and that is why, respondent No.1 has rightly set aside the said election after holding enquiry and thereafter, fresh election was validly held, in which respondent No.5 was declared as Sarpanch. We have heard counsel for the parties and gone through the impugned order. Learned counsel for the petitioner submitted that under the provisions of the Punjab State Election Commission Act, 1994 (hereinafter referred to as `the Act'), respondent No.1 has no power to set aside the election of the Sarpanch, held in a meeting convened for that purpose and to CWP No. 15789 of 2008 -5- further order for fresh election, where election has already been held and result has been declared. He submitted that after the election is held and the result has been declared, the only remedy available to the defeated candidate is to file an election petition under Section 76 read with Section 89 of the Act and the Election Tribunal, constituted under the Act, has the jurisdiction to set aside the election of the returned candidate, on filing of such an election petition. Learned counsel submitted that respondent No.1 has acted illegally and without jurisdiction, while entertaining a complaint from the defeated candidate and setting aside the election on the said complaint, even after conducting the enquiry. On the other hand, learned counsel for the respondents submitted that election of the petitioner as Sarpanch of the Gram Panchayat in the meeting held on 30.7.2008 was no election at all, as the petitioner was having no majority and he in connivance with the Presiding Officer got himself declared as Sarpanch in an illegal manner. Therefore, respondent No.1, who had authorised the Presiding Officer to conduct the meeting in accordance with the Rules was fully competent to entertain a complaint, hold an enquiry and set aside the election, while coming to the conclusion that election of the Sarpanch in the meeting held on 30.7.2008 was not validly held. Learned counsel for the respondents further submitted that respondents No.5 to 8 had earlier filed CWP No. 15789 of 2008 for setting aside the election of the petitioner, which was held in the meeting of the Gram Panchayat held on 30.7.2008, but subsequently, the said writ petition CWP No. 15789 of 2008 -6- was dismissed as not pressed, because respondent No.1 had set aside the said election and ordered for fresh election, which was conducted on 6.9.2008, in which respondent No.5 was elected as Sarpanch. Learned counsel submitted that respondent No.1, who is functioning as District Electoral Officer, remained on deputation with the Election Commission and being an Officer of the Election Commission on deputation, he was fully competent to set aside the proceedings of the meeting conducted by his authorised person, if he finds that the same was illegally conducted. Therefore, the order dated 30.8.2008, passed by respondent No.1 setting aside the election of the petitioner and ordering for fresh election was perfectly legal and valid. Learned counsel further submitted that in the meeting held on 6.9.2008, respondent No.5 was unanimously elected as Sarpanch by 4 members out of 7, who attending the said meeting. Therefore, respondent No.5 is representing majority of the members and his election has also been notified. Learned counsel submitted that in such a situation, the petitioner has the remedy of election petition to challenge the election of respondent No.5. The question for consideration in the present case is as to whether after declaration of the result, the Deputy Commissioner – cum – District Electoral Officer, Sangrur – respondent No.1 has any power under the Act to set aside the election of the Sarpanch, on a complaint made by respondent No.5, the defeated candidate, on the ground that the Presiding Officer illegally declared the petitioner as Sarpanch of the Gram Panchayat. CWP No. 15789 of 2008 -7- A perusal of the proceedings of the meeting of the Panches held on 30.7.2008 reveals that the said meeting was attended by all the 7 members (Panches) of the Gram Panchayat. In the said meeting, name of the petitioner was proposed by two Panches for the office of Sarpanch. Similarly, the name of respondent No.5 was proposed by the other group. Thereafter, election of the office of Sarpanch was held by secret ballots, as required by Rule 45 of the Punjab Panchayat Election Rules, 1994. All the seven members casted their votes by secret ballots. It has been recorded that both the candidates were satisfied with regard to the secret voting. They put their signatures on the said satisfaction note. Thereafter, the counting of votes was done in front of both the candidates. The petitioner secured 4 votes against respondent No.5, who secured 3 votes. The petitioner was declared elected as Sarpanch of the Gram Panchayat. The Assistant Collector, who was appointed as Observer, also put his signatures on the proceeding book. Undisputedly, after the aforesaid election, on the next day, a complaint was made by the defeated candidate, alleging some irregularity in the conduct of elections. It was alleged that at the time of counting, the Presiding Officer took out one vote and folded it. Thereafter, he put one ballot paper, which was kept by him duly crossed in favour of the petitioner and thereafter, declared him elected as Sarpanch. On the said complaint, respondent No.1 set aside the election of the Sarpanch and ordered for fresh election. We are of the opinion that under the Act, respondent No.1 was not authorised to hold an enquiry on such a complaint after declaration of the CWP No. 15789 of 2008 -8- result and to set aside the election of the returned candidate. The said power has been given only to the Election Tribunal, duly constituted under the provisions of the Act. The contention of learned counsel for the respondents that respondent No.1 being on deputation with the Election Commission and being appointee of the Presiding Officer to conduct the meeting of the members of the Gram Panchayat to hold the election of Sarpanch, is empowered to set aside the election of the Sarpanch, if he comes to the conclusion that election was not properly conducted in the meeting held by the Presiding Officer, cannot be accepted. The Scheme of the Act is very much clear. After the declaration of the result of Sarpanch, election of the returned candidate can be set aside only by the Election Tribunal on an election petition filed under the provisions of the Act. The similar question has already been decided by a Division Bench of this Court in Kashmir Kaur v. State of Punjab, 2003 (2) PLJ 489 and by this Bench in CWP No. 11199 of 2008, titled Jasmail Kaur Versus Punjab State Election Commission and others, decided on 5.12.2008, wherein it was held that once a candidate has been declared elected by the Returning Officer/ Presiding Officer, thereafter, the election of the returned candidate can be set aside only by the Election Tribunal on an election petition filed under the Act. In view of the above, the impugned order dated 30.8.2008 and the subsequent election held on 6.9.2008 are hereby quashed and respondent CWP No. 15789 of 2008 -9- No.3 is directed to notify the name of petitioner as elected Sarpanch of Gram Panchayat, Village Momnabad, District Sangrur. However, it is made clear that it will be open for respondent No.5 to challenge the election of the petitioner by filing an election petition under Section 76 read with Section 89 of the Act, within a period of 45 days from today, on the alleged ground of illegality committed during the elections held on 30.7.2008. Consequently, the writ petition is allowed. ( SATISH KUMAR MITTAL ) JUDGE December 23, 2008 ( JASWANT SINGH ) ndj JUDGE