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2008 DIGILAW 1991 (PNJ)

Kripal Singh And Etc v. State Of Punjab

2008-11-28

JASWANT SINGH, SATISH KUMAR MITTAL

body2008
Judgment SATISH KUMAR MITTAL, J. 1. This order shall dispose of CWP Nos.20204 and 20188 of 2008 as they are arising out of the same impugned notification dated 11.11.2008. In both the petitions, the petitioners have challenged the Punjab panchayat Election (Second Amendment)Rules, 2008, notified vide notification dated 11.11.2008. The petitioners are aggrieved basically by two amendments made by the impugned notification. 2. Firstly, under the amended rule, no proposer or seconder is required for a candidate for the office of Sarpanch of the Gram panchayat. Earlier, as per the Proviso to Rule 45 (1) of the Punjab Panchayat Election rules, 1994 (hereinafter referred to as the rules), if the office of Sarpanch of a Gram panchayat was reserved for Scheduled castes or Women, then the proposer or seconder shall propose or second the name of persons belonging to such reserved categories only. Now as per the amended rule, there is ho requirement to propose or second the name of a candidate. The candidates propose themselves for the election of Sarpanch of the Gram Panchayat, ,if they so desire. 3. Secondly, a new Rule 45-A has been added. Sub-rule (8) to this Rule provides that the election of the Sarpanch shall be made from the category for which it is reserved. It is further provided that if there is only one candidate available for the office of Sarpanch of that particular reserved category, then he/ she shall be deemed to have been elected unopposed for the office of Sarpanch. 4. We have heard the counsel for the petitioners. 5. In CWP No.20204 of 2008, the Gram panchayat of Village Malo Daud consists of only five members. Out of five, only one seat of Panch was reserved for Scheduled Caste (Woman) under Sec.11 of the Punjab panchayati Raj Act, 1994 (hereinafter referred to as the Act ). Under Sec.12 of the Act, the office of Sarpanch of this village has been reserved for Scheduled Caste (Woman ). Respondent No.5 is the only candidate, who is eligible to contest the election for the office of Sarpanch of the Gram panchayat, which is reserved for Scheduled caste (Woman), being the only elected scheduled Caste (Woman) in the entire panchayat. Under Sec.12 of the Act, the office of Sarpanch of this village has been reserved for Scheduled Caste (Woman ). Respondent No.5 is the only candidate, who is eligible to contest the election for the office of Sarpanch of the Gram panchayat, which is reserved for Scheduled caste (Woman), being the only elected scheduled Caste (Woman) in the entire panchayat. In this case, the Presiding Officer, authorised by the Deputy Commissioner under Sec.13-A of the Act, called a meeting of the members of the Gram panchayat for election of Sarpanch three times i. e.14.7.2008, 19.7.2008 and 25.7.2008. Respondent No.5 was the only candidate eligible for the office of Sarpanch, none of the other Panches belonging to General Category did propose or second the name of respondent No.5 because it appears that they did not want to elect a Scheduled caste (Woman) as the Sarpanch of the Gram panchayat. In view of their narrow, undemocratic and anti-reservation attitude, the sarpanch of the Village Gram Panchayat could not be elected for the last five months and as such the Village Gram Panchayat has not been able to function, in absence of any elected Sarpanch of the Village Gram panchayat. 6. In CWP No.20188 of 2008, all the four petitioners are belonging to General Category. In this case also, the office of sarpanch of Village Gram Panchayat Ram nagar (Naushera) was/is reserved for Scheduled Caste (Woman)and Smt. Kamaljit Kaur-respondent No.4 is the only available Scheduled Caste (Woman)elected Panch, who can contest and be elected as Sarpanch. In this case also, the meeting was called several times by the Presiding Officer, but due to the similar attitude of Panches as in the case of the aforesaid Gram Panchayat of Village malo Daud, the Sarpanch of the Village gram Panchayat could not be elected and as such the Village Gram Panchayat has not been able to function. 7. We have noticed, that several cases of similar nature have come up for consideration before this Court, where in similar situations, the election of the office of Sarpanch could not be held. More than hundreds of village Gram Panchayats remained without sarpanches, where the offices of Sarpanches have been reserved for weaker sections of the Society. 7. We have noticed, that several cases of similar nature have come up for consideration before this Court, where in similar situations, the election of the office of Sarpanch could not be held. More than hundreds of village Gram Panchayats remained without sarpanches, where the offices of Sarpanches have been reserved for weaker sections of the Society. In these circumstances, the government has amended the Rules and done away with the requirement of proposer or seconder, particularly in the election of sarpanch of the Panchayat by further introducing Rule 45-A and Schedule to the effect that if there is only one candidate available for the office of Sarpanch of the reserved category of Scheduled Caste or scheduled Caste (Woman), then he/she shall be deemed to have been elected unopposed for the office of Sarpanch. 8. Learned counsel for the petitioners argued that the aforesaid amendments are contrary to the provisions of the Act and the rules made thereunder. Learned counsel submits that the requirement of one proposer and seconder for the purpose of contesting the election of Sarpanch is necessary in the interest of democratic set up to ensure that at least he has the support of two persons. Learned counsel further submits that sub-rule (8) of Rule 45-A of the amended Rules is ultra vires to Sec.13-A of the Act as in case a seat is reserved for a particular class and that candidate does not have a proposer or a seconder, then the said person will be elected as a Sarpanch without having support of any other member of the Gram Panchayat. 9. After hearing the counsel for the petitioners, we do not find any ground to hold that the aforesaid amendments are illegal, arbitrary and violative of the provisions of the Act and the Rules made thereunder. Most of the Panchayats consists of 5,7 or 9 members. Further in many Panchayats, either one or two seats have been reserved for scheduled Castes or Scheduled Caste (Woman) candidates. As per Sec.12 of the Act read with Punjab Reservation for the offices of Sarpanches of Gram Panchayats and Chairmen and Vice-Chairmen of panchayat Samitis and Zila Parishad Rules, 1994, which were amended by notification dated 10.4.2008, the reservation of the office of Sarpanch is to be made block-wise. As per Sec.12 of the Act read with Punjab Reservation for the offices of Sarpanches of Gram Panchayats and Chairmen and Vice-Chairmen of panchayat Samitis and Zila Parishad Rules, 1994, which were amended by notification dated 10.4.2008, the reservation of the office of Sarpanch is to be made block-wise. The reservation for the Scheduled Caste and backward Class is to be made on the basis of population in the said category in the block, whereas l/3rd offices of the sarpanches are to be reserved for Woman. Accordingly, the offices of Sarpanches of many Gram Panchayats have been reserved for scheduled Castes or scheduled Caste (Woman) or woman. In some of those Gram panchayats, there is only one elected Panch from the said category who is eligible and can be elected as Sarpanch of the Gram panchayat and in most of those Gram panchayats, the majority of the members, who belong to different castes and categories, did not permit the said reserved candidate to become Sarpanch of the Gram panchayat due to their prejudices towards the reserved category. In these compelling circumstances, the Government has been constrained to formulate the aforesaid rules. In our view, when the total number of members of a Panchayat are 5 or 7, then the requirement of proposer or seconder and particularly from that category is impracticable. If there is a five members Panchayat and two persons want to contest the election of the Sarpanch, they cannot contest the election because there will be no proposer or seconder for both the candidates as proposer or seconder must be different members. Therefore, the Government in exercise of its power conferred by Sec.139 of the punjab State Election Commission Act, 1994, have rightly amended the Rules in order to make the reservation in the election of Sarpanches more effective and meaningful. We do not find any illegality in the same. 10. As far as sub-rule (8) of Rule 45-A of the Amended Rules is concerned, we are of the opinion that the same is in consonance with Sec.54 of the Punjab State Election Commission Act, which provides as under:- "54. Procedure in contested and uncontested elections.- (1) If the number of contesting candidates is more than the number of seats to be filled, a poll shall be taken. Procedure in contested and uncontested elections.- (1) If the number of contesting candidates is more than the number of seats to be filled, a poll shall be taken. (2) If the number of such candidates is, equal to the number of seats to be filled, the returning Officer shall forthwith declare all such candidates "to be duly elected to fill those seats. (3) If the number of such candidates is less than the number of seats to be filled, the Returning officer shall forthwith declare all such candidates to be elected and the election Commission shall, by notification in the Official Gazette, call upon the constituency or the elected members, to elect a person or persons to fill the remaining seat or seats, as the case may be. Provided that where the constituency or the elected members having already been called upon under this sub-section, has or have failed to elect a person or the requisite number of persons, as the case may be, to fill the vacancy or vacancies, the Election commission shall not be bound to call again upon the constituency, or such members to elect a person or persons until it is satisfied that it called upon again, there will be no such failure on the part of the constituency of such members. " 11. Once there is only one candidate and when there is no contest, then the said candidate is deemed to have been elected because in that situation no voting is required. The voting or polling is required only when there are two or more candidates. When in a Panchayat, there is only one candidate, who can be elected as Sarpanch against the reserved seat meant for a category and when there is no election, the said candidate has to be declared elected. Therefore, by introducing this Rule, the provisions of the Act have not been violated. Thus, we do not find any ground to quash the impugned notification. 12. Hence, both the petitions are dismissed. Petitions dismissed.