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2010 DIGILAW 2013 (PNJ)

Jasvir Kaur v. State Of Punjab

2010-07-12

ALOK SINGH

body2010
Judgment Alok Singh, J. 1. Petitioners have invoked writ jurisdiction of this Court under Articles 226 of the Constitution of India assailing order dated 1.8.2008 (Annexure P-7) passed by the Deputy Commissioner, Muktsar. 2. Brief facts of the present case are that on 31.7.2008 election of Sarpanch of Village Mann, District Muktsar was held in which petitioner was declared elected. On 1.8.2008, learned Deputy Commissioner, Muktsar - respondent No. 3 pleased to pass impugned order which reads as under :- "Additional Deputy Commissioner (Development) Muktsar brought to my notice that the election of Sarpanch which was held on 31.7.2008 is not held in proper and independent manner. This election is held under the threat of some panchayat members. In this connection an FIR No. 100 dated 31.7.2008 got registered in Police Station, Lambi. Taking into account above mentioned reasons, the election of Sarpanch of village Panchayat Mann held on 31.7.2008 declared as null and void and you are directed to hold election of Sarpanch of village Panchayat Mann within two days in proper and independent manner." 3. Mr. Jasmeet Singh, learned Counsel for the petitioners argued that election could have been challenged by way of filing the election petition and Deputy Commissioner, Muktsar has absolutely no jurisdiction under the Punjab Panchayati Raj Act, 1994 or under State Election Commission Act, 1994 to quash/set aside the election. Learned Counsel for the petitioners further argued that an elected candidate can not be removed without adopting due procedure of law. 4. On being asked, learned Additional Advocate General, Punjab is not able to tell that under what provision of law, impugned order (Annexure P-7) is passed. 5. Sections 74, 75 and 78 of the Punjab State Election Commission Act, 1994 (for brevity `the Act) are being reproduced here under :- "74. Election petitions :- No election shall be called in question except by an election petition presented in accordance with the provisions of this Chapter. 75. Election Tribunal to try election petitions :- (1) Only the Election Tribunal having jurisdiction shall have the power to adjudicate upon the election petitions. (2) The Election Tribunal in its discretion may, in the interests of justice or convenience, try an election petition wholly or partly, at a place other than its specified headquarters. 78. 75. Election Tribunal to try election petitions :- (1) Only the Election Tribunal having jurisdiction shall have the power to adjudicate upon the election petitions. (2) The Election Tribunal in its discretion may, in the interests of justice or convenience, try an election petition wholly or partly, at a place other than its specified headquarters. 78. Contents of petition :- (1) As election petition shall :- (a) contain a concise statement of the material facts on which the petitioner relies; (b) set forth full particulars of any corrupt practice that the petitioner alleges, including a statement as possible, of the names of the parties alleged to have committed such corrupt practice or practices and the date and place of the commission of such practice; and (c) be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908, (Central Act 5 of 1908) for the verification of pleadings : Provided that where the petitioner alleges any corrupt practice, the petition shall be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the relevant particulars thereof. (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition." 6. Having perused the Sections 74, 75 and 78, this Court is of the opinion that election can only be challenged by way of an Election Petition presented in accordance with the provision of the Punjab State Election Commission Act, 1994 . Corrupt practice is one of the grounds to challenge the election of Sarpanch. 7. Election in question was set aside by the Deputy Commissioner on the ground that election was held under the threat of some panchayat members. This is also one of the grounds to prove corrupt practice, however, fact remains, no election petition was filed and learned Deputy Commissioner had exercised the jurisdiction of the Election Tribunal which can not be said to be legal. 8. In view of this, present petition is allowed. Impugned order dated 1.8.2008 (Annexure P-7) passed by the Deputy Commissioner, Muktsar is quashed.