IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No. 13643 of 2008 DATE OF DECISION : 22.08.2008 Baljit Singh .... PETITIONER Versus State of Punjab and others ..... RESPONDENTS CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present: Mr. Kanwaljit Singh, Senior Advocate, Mr. M.L. Saggar, Senior Advocate, with Mr. Mansur Ali, Advocate, for the petitioner. Mr. Amol Rattan Singh, Addl. A.G., Punjab, Mr. N.S. Virk, Addl. A.G., Punjab, and Mr. Parveen Goyal, Senior DAG, Punjab. * * * SATISH KUMAR MITTAL , J. The petitioner, who is a sitting Panch and was the candidate for the office of Sarpanch of Gram Panchayat, Village Bhamian Khurd, Block Ludhiana-2, Tehsil and District Ludhiana, has filed this petition under Article 226/227 of the Constitution of India for quashing the election of respondent No.5 as Sarpanch of the aforesaid Gram Panchayat, being illegal, arbitrary and contrary to the provisions of the Punjab Panchayati Raj Act, 1994 (hereinafter referred to as `the Panchayati Raj Act'); and for CWP No. 13643 of 2008 -2- issuing a direction to the respondents to hold fresh election by way of secret ballot, as so observed by this Court in order dated July 16, 2008 (Annexure P-2), passed in CWP No. 12006 of 2008. 2. In the present case, after the election of the Panches of Gram Panchayat, Village Bhamian Khurd was duly notified by the Government and after the taking of oath or affirmation under Section 13 of the Panchayati Raj Act, the Deputy Commissioner, Ludhiana authorised respondent No.4 to call the meeting of the Members of the Gram Panchayat, as laid down under Section 13-A of the Panchayati Raj Act and to hold the election of Sarpanch of the Gram Panchayat. Respondent No.4 called the said meeting on 19.7.2008. However, since the quorum of the meeting was not complete, as provided under Rule 45 (2) of the Punjab Panchayat Election Rules, 1994 (hereinafter referred to as `the Panchayat Election Rules'), the said meeting was postponed. Thereafter, the meeting for the aforesaid purpose was again called for 25.7.2008, in which respondent No.5 was declared elected as Sarpanch of the Gram Panchayat. In this petition, the grouse of the petitioner is that no notice of the second meeting held on 25.7.2008 was issued to him and other Panches of the Gram Panchayat, namely Kulwinder Kaur and Tribhuwan Prashad. Without any notice to these Panches, election of the office of Sarpanch was conducted by respondent No.4 in a clandestine manner. It is also alleged that even the election of the office of Sarpanch was conducted without secret ballot, as directed by this Court in order dated July 16, 2008 (Annexure P-2), passed CWP No. 13643 of 2008 -3- in CWP No. 12006 of 2008. It has also been alleged that respondent No.4 had postponed the meeting on 19.7.2008 on the ground that quorum of the Gram Panchayat was not complete. In this regard, it is alleged that amendment to Rule 45 of the Panchayat Election Rules, authorising the Presiding Officer to adjourn the meeting, on the ground of quorum, made by the Government, is illegal and contrary to the provisions of the Panchayati Raj Act. Therefore, the election of respondent No.5 is alleged to be illegal, null and void and is liable to be quashed. 3. At the time of motion hearing, on a question asked by the Bench regarding the maintainability of the writ petition, in view of the availability of alternative remedy of election petition, Shri Mansur Ali, Advocate, learned counsel for the petitioner, and Shri Kanwaljit Singh, Senior Advocate as well as Shri M.L. Saggar, Senior Advocate, who are counsel in the connected petitions, submitted that as far as election to the office of Sarpanch is concerned, under the Panchayati Raj Act and the Punjab State Election Commission Act, 1994 (hereinafter referred to as `the Election Commission Act') as well as the Rules made thereunder, no remedy of election petition has been provided. On this aspect, we sought the assistance of Shri Amol Rattan Singh, Shri N.S. Virk, Additional Advocates General, Punjab, and Shri Parveen Goyal, Senior Deputy Advocate General, Punjab, who were present in the Court, on behalf of the Government. They submitted that even for the election to the office of Sarpanch of the village Gram Panchayat, a remedy of election petition has been provided under CWP No. 13643 of 2008 -4- Section 76 of the Election Commission Act on the grounds mentioned in Section 89 of the said Act. Therefore, according to them, in view of the availability of the remedy of election petition, the instant writ petition, filed by the petitioner, in which disputed questions of facts have been raised, challenging the election of respondent No.5 as Sarpanch of Gram Panchayat, village Bhamian Khurd, is not maintainable. 4. We have heard the arguments of learned counsel for the parties on this preliminary issue. 5. Shri Kanwaljit Singh, Senior Advocate, Shri M.L. Saggar, Senior Advocate and Shri Mansur Ali, Advocate, on behalf of the petitioner submitted that the provision of Section 76 of the Election Commission Act, providing a remedy of election petition, does not apply to the election for the office of Sarpanch of the Village Gram Panchayat. This provision is applicable only to the election of Panches, who are to be elected by a direct election. Since the Sarpanch is nominated/elected by the elected Panches in the meeting, which is convened by the Deputy Commissioner and not by the State Election Commission, therefore, the provision of Section 76 of the Election Commission Act does not apply to the nomination/election to the office of Sarpanch. Learned counsel further submitted that earlier under clause (zt) of Section 2 of the Panchayati Raj Act, “Sarpanch” means Sarpanch of the Gram Panchayat elected under Section 10 of this Act, and Section 10 provides the constitution of Gram Panchayat, including the Sarpanch. But now, by the Punjab Panchayati Raj (Amendment) Act, 2008, CWP No. 13643 of 2008 -5- an amendment has been made in clause (zt) of Section 2 as well as Section 10 of the Panchayati Raj Act. According to this amendment, in Section 2, in clause (zt), for the word and figure “section 10”, the word, figure and letter “section 13-A” has been substituted. Correspondingly, in sub-section (1) of Section 10, the words “a Sarpanch and” have been omitted. According to the learned counsel, the net effect of this amendment is that now, the election of the Member Gram Panchayat, which is a direct election, can only be challenged by election petition, and election to the office of Sarpanch, which is an indirect election, cannot be challenged by way of election petition. Learned counsel submitted that so far as the provisions of the Election Commission Act are concerned, the same are applicable only to the elections conducted by the Punjab State Election Commission and not to the elections conducted by the Deputy Commissioner or any other officer of the State Government authorized by him. Learned counsel submitted that the Punjab State Election Commission only conducts the election of the Member Gram Panchayat under Section 10 of the Panchayati Raj Act, whereas the elections to the office of Sarpanch are being conducted by the Deputy Commissioner under Section 13-A of the Panchayati Raj Act. Therefore, against the election to the office of Sarpanch, no election petition is maintainable. It is further submitted that as per Section 71 of the Election Commission Act, the language used is `general election' of the Panchayats and the same would mean direct elections, presently which are only of Panches in the year 2008. Therefore, the indirect election of Sarpanch CWP No. 13643 of 2008 -6- cannot be made subject matter of the election petition before the Election Tribunals. Learned counsel further submitted that as per clause (zj) of Section 2 of the Panchayati Raj Act “Panchayat” means a Gram Panchayat, Panchayat Samiti and Zila Parishad constituted under the Act. Learned counsel submitted that the Panchayat only constitutes the elected Panches, whose election has been notified under Section 10 of the Panchayati Raj Act, and not the Sarpanch, who is elected under Section 13-A of this Act. It is further argued that Section 71 of the Election Commission Act is to be read in conjunction with the definition of “Panchayat”. If it is so read, then it would mean a candidate whose result has been declared by the Election Commission under Sections 69 and 70 of the Election Commission Act, which are only the Panches, who fall under the definition of “returned candidate” as per section 2 (s) of this Act. In view of this, it is submitted that election of the Sarpanches would not be amenable to the jurisdiction of the Tribunal, because in the definition of “Panchayat”, the word `Sarpanch' has been excluded. It is further submitted that the Election Tribunal has been constituted under Section 73 of the Election Commission Act in consultation with the Election Commission. Therefore, only those elections can be challenged before the Tribunal, which were got conducted by the Election Commission and not the ones, which have been got conducted by the Deputy Commissioners of the State Government under Section 13-A of the Panchayati Raj Act. 6. Learned counsel further submitted that even if this Court comes CWP No. 13643 of 2008 -7- to the conclusion that a remedy of election petition to challenge the election to the office of Sarpanch is available to the petitioner, even then in an exceptional case, this Court can entertain the writ petition under Article 226 of the Constitution of India, which is an extra ordinary remedy, and clause (b) of Article 243-O of the Constitution of India as well as Section 74 of the Election Commission Act may not bar the extra ordinary writ jurisdiction of the High Court under Article 226 of the Constitution of India. In support of their contentions, learned counsel for the petitioner relied upon K. Venkatachalam v. A. Swamickan, AIR 1999 Supreme Court 1723, Lal Chand v. State of Haryana and others, 1998 (2) PLR 640 (FB), Sudesh Kumar Aggarwal v. Sate of Punjab, AIR 2001 Punjab & Haryana 197 and S. Fakruddin and others v. The Govt. of A.P. and others, AIR 1996 Andhra Pradesh 37. 7. On the other hand, Shri Amol Rattan Singh, Shri N.S. Virk, Additional Advocates General, Punjab, and Shri Parveen Goyal, Senior Deputy Advocate General, Punjab, while referring to the various provisions of the Panchayati Raj Act, the Election Commission Act and the Panchayat Election Rules, submitted that even against the election to the office of Sarpanch, held in the meeting of the Members of the Gram Panchayat, convened by the Deputy Commissioner under section 13-A of the Panchayati Raj Act read with Rule 45 (1) of the Panchayat Election Rules, an election petition is maintainable. The election of Sarpanch cannot be questioned, except by an election petition under Section 76 of the Election CWP No. 13643 of 2008 -8- Commission Act presented to the Election Tribunal in such manner, as is provided under the Election Commission Act on the grounds mentioned in Section 89 of this Act. Learned counsel, after having instructions from the Director, Panchayats, Punjab, who was present in the Court, stated that election petition against the election to the office of Sarpanch is maintainable and if any such petition is presented, the same will be entertained. Learned counsel submitted that as per clause (zg) of section 2 of the Panchayati Raj Act “member” means a member of a Gram Panchayat, and includes Sarpanch of a Gram Panchayat. They also referred to clause (zi), which defines “Panch” means a member of the Gram Panchayat elected under this Act and includes a Sarpanch. Reference to clause (zt) was also made, which defines “Sarpanch” means Sarpanch of the Gram Panchayat elected under Section 13-A of this Act. Learned counsel further referred to clause (d) of Section 2 of the Panchayat Election Rules, which defines “Election” means election of a Panch, Sarpanch of a Gram Panchayat. They further referred to Section 74 of the Election Commission Act, which provides that “No election shall be called in question except by an election petition presented in accordance with the provisions of this Chapter.” Learned counsel for the respondents-State further submitted that under Section 76 of the Election Commission Act, an election petition can be filed, challenging the election of the Panch as well as Sarpanch on the grounds mentioned in Section 89 of the said Act. Learned counsel, while referring to the decision of the Supreme Court in N. P. Punnuswami v. CWP No. 13643 of 2008 -9- Returning Officer, Namakhal Constituency, Namakhal, Salem Distt., AIR 1952 SC 64, Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others, AIR 1978 SC 851, Krishna Ballabh Prasad Singh v. Sub Divisional Officer, Hilsa-cum-Returning Officer, AIR 1985 SC 1746, Election Commission of India v. Shivaji, AIR 1988 SC 61 and a Constitutional Bench decision of this Court in Prithvi Raj v. State Election Commission, Punjab & others, 2007 (3) RCR (Civil) 817, submitted that the petitioner cannot invoke the jurisdiction of this Court under Article 226 of the Constitution of India, in view of Article 243-O (b) of the Constitution and section 74 of the Election Commission Act, and the only remedy available to the petitioner is to file an election petition under Section 76 on the grounds mentioned in Section 89 of the Election Commission Act. Learned counsel further submitted that though exclusion of the jurisdiction of the Court provided under Article 243-O of the Constitution of India read with Section 74 of the Election Commission Act does not exclude the extra ordinary writ jurisdiction of the High Court under Article 226 of the Constitution of India, but the High Court, in an exceptional circumstance, can entertain a petition, challenging the election of the Panchayat. Learned counsel appearing on behalf of the State submitted that the instant case is not a case, where this Court should exercise the extra ordinary writ jurisdiction under Article 226 of the Constitution of India for setting aside the election of respondent No.5, in view of the availability of the remedy of election petition. CWP No. 13643 of 2008 -10- 8. After hearing learned counsel for the parties and considering their rival submissions and the various provisions of the Panchayati Raj Act, the Election Commission Act and the Panchayat Election Rules, we are of the opinion that a remedy of election petition is available to the petitioner to challenge the election of a Sarpanch of the village Gram Panchayat on the grounds mentioned in Section 89 of the Election Commission Act. To strengthen the self Government system, certain amendments were introduced in Part IX of the Constitution by the Constitution (Seventy-third Amendment) Act, 1992, for the constitution of Panchayats. In Article 243 (b), a body consisting of persons registered in the electoral rolls relating to a village comprised within the area of Panchayat at the village level is defined as `Gram Sabha'. Clause (d) of Article 243 defines `Panchayat' means an institution (by whatever name called)of self-government constituted under Article 243B, for the rural areas. Article 243B (1) provides that “There shall be constituted in every State, Panchayats at the village, intermediate and district levels in accordance with the provisions of this Part.” Article 243C further provides for composition of Panchayats. Sub-clause (3) (a) provides for the representation of the Chairpersons of the Panchayats at the village level. Sub-clause (4) further provides that the Chairperson of a Panchayat and other members of a Panchayat whether or not chosen by direct election from territorial constituencies in the Panchayat area shall have the right to vote in the meetings of the Panchayats. It is left to the Legislature to provide by law the powers and functions to be exercised by the Gram Sabha. Article CWP No. 13643 of 2008 -11- 243K of the Constitution provides for the elections to the Panchayats. It provides that the superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor. Article 243-O (b) of the Constitution of India provides that `Notwithstanding anything in this Constitution' no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any Law made by the Legislature of a State. 9. In pursuance of the aforesaid amendment made, the State of Punjab enacted the Panchayati Raj Act and formulated Rules thereunder to establish a three-tier Panchayati Raj system in the State of Punjab with elected bodies at the village, Block and District levels, for greater participation of the people and more effective implementation of the Panchayati Raj system; and has also enacted the Election Commission Act for constitution of the State Election Commission and for vesting the superintendence, direction and control of the preparation of electoral rolls for, and the conduct of all elections to the Panchayats and Muncipalities in the State of Punjab. 10. Section 10 (1) of the Panchayati Raj Act provides for constitution of the Gram Panchayat. It provides that every Gram Sabha shall elect from amongst its members a Gram Panchayat for the Gram Sabha area bearing the name of its Gram Sabha. Sub-section (2) further provides that CWP No. 13643 of 2008 -12- every Gram Panchayat constituted under this section shall be notified by its name in the Official Gazette. Section 13 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 I. Section 13-A further provides that the Deputy Commissioner or any officer or official of the State Government, authorized by him in this behalf, shall call the first meeting of the Gram Panchayat in such manner, as may be prescribed, as soon as, the election of all Panches is notified, to elect the Sarpanch from amongst them. Section 2, Clause (zj) defines “Panchayat” means a Gram Panchayat constituted under this Act. Clause (zg) defines “member” means a member of a Gram Panchayat and includes Sarpanch of a Gram Panchayat. Clause (zi) defines “Panch” means a member of the Gram Panchayat elected under this Act and includes a Sarpanch. Clause (zt) defines “Sarpanch” means Sarpanch of the Gram Panchayat elected under Section 13-A of this Act. 11. Section 2, Clause (d) of the Panchayat Election Rules defines “Election” means election of a Panch, Sarpanch of a Gram Panchayat. Section 74 of the Election Commission Act provides that no election shall be called in question except by an election petition presented in accordance with the provisions of this Chapter. Section 76 provides the procedure for presentation of election petition and Section 89 provides for the grounds, on which an election petition can be filed before the Election Tribunal CWP No. 13643 of 2008 -13- constituted under the Act. Section 89 is re-produced below :- 89. Grounds for declaring election to be void – (1) Subject to the provisions of sub-section (2), if the Election Tribunal is of the opinion, - (a) that on the date of his election, a returned candidate was not qualified, or was disqualified to be chosen to fill the seat under the Constitution of India or under this Act; or (b) that any corrupt practice has been committed by a returned candidate or his election agent or by other person with the consent of a returned candidate or his election agent; or (c) that any nomination has been improperly rejected; or (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected, - (i) by the improper acceptance of any nomination; or (ii) by any corrupt practice committed in the interest of the returned candidate by an agent other than his election agent; or (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void; or (iv) by any non-compliance with the provisions of the Constitution of India or of this Act or of any rules or orders made under this Act; the Election Tribunal shall declare the election of the returned candidate to be void. (2) If in the opinion of the Election Tribunal, a returned candidate has been guilty by an agent, other than his election agent, of any corrupt practice but the Election Tribunal is satisfied, - (a) that no such corrupt practice was committed at the CWP No. 13643 of 2008 -14- election by the candidate or his election agent, and every such corrupt practice as committed contrary to the orders, and without the consent, of the candidate or his election agent; (b) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and (c) that in all other respects, the election was free from any corrupt practice on the part of the candidate or any of his agent; then the Election Tribunal may decide that the election of the returned candidate is not void. (3) In this section, the expression `agent' has the same meaning as assigned to it in Explanation (1) given under clause (9) of section 108, but does not include election agent.” 12. After analysing the aforesaid various provisions, we are of the opinion that the Sarpanch is also a part of the Panchayat, who is to be elected under Section 13-A of the Panchayati Raj Act by the Members of the Gram Panchayat in a meeting to be convened by the Deputy Commissioner, after the election of all the Panches is notified. As per Rule 45 (7) of the Panchayat Election Rules, if there are two or more candidates for a seat of Sarpanch, the votes of the members, present at the meeting, shall be taken by ballot and thereafter, a copy of the result of election, so held, shall immediately, be sent by the concerned officer, conducting election to the District Electoral Officer, the Election Commission and the State Government. Sub rule (2) further provides that quorum of the first meeting to be held to elect the Sarpanch of the Gram Panchayat shall be CWP No. 13643 of 2008 -15- two-third of the total members of the Gram Panchayat and if at the first meeting, there is no quorum as specified in sub-rule (2), the Presiding Officer shall adjourn the meeting. But there will be no quorum for the second meeting. A candidate for the seat of Sarpanch will be declared elected if he seeks majority of votes of the members present in the meeting and after the election, name of the elected Sarpanch is to be notified. After his election, the Sarpanch shall take an oath. Section 14 of the Panchayati Raj Act provides that term of the offices of Sarpanch and Panch of a Gram Panchayat shall co-terminate with the term of the Gram Panchayat. Section 19 provides for no confidence motion against Sarpanch. Section 20 provides for suspension and removal of Panch and Sarpanch on the grounds mentioned therein. From reading of all these provisions, it emerges that if a Sarpanch is elected under the Panchayati Raj Act by the Panches, he can only be removed by passing no confidence motion against him under Section 19 or by the Director under Section 20 on the grounds mentioned therein. 13. The Election Commission Act has been enacted by the State Legislature for establishing a State Election Commission who is to supervise, direct and control the conduct of all elections to the Panchayats and Municipalities, in the State of Punjab, and also to provide all matters relating to, or ancillary or in