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2010 DIGILAW 2843 (PNJ)

Jaswinder Kaur v. Kanwaljit Kaur

2010-10-06

JORA SINGH

body2010
Judgment Jora Singh, J. 1. Jaswinder Kaur filed this appeal to challenge the order dated 30.7.2010 passed by Additional Deputy Commissioner-cum-Presiding Officer, Election Tribunal, Amritsar. By the said order, election petition filed by Kanwaljit Kaur wife of Balwinder Singh, resident of Village Attalgarh was accepted. Election of Jaswinder Kaur as Sarpanch was set aside and post of Sarpanch of Gram Panchayat, Attalgarh, was ordered to be kept reserved for SC (female). Direction was given to Additional Deputy Commissioner (Development), Afnritsar, to conduct the election. 2. Kanwaljit Kaur filed election petition under Section 76 of the Punjab State Election Commission Act, 1994, and Rules 50 and 51 of Punjab Election Rules, 1994, on the allegation that Jaswinder Kaur, respondent, was elected as Sarpanch. Petitioner was the voter of Gram Panchayat of Village Attalgarh. As per instructions/notification of Punjab Government, office of Sarpanch of Gram Panchayat of Village Attalgarh, was kept reserved for SC (Female). Jaswinder Kaur is the daughter of Hardev Singh Sodhi, r/o H.No. 191, Ward No.5, near Pehalwan Adda, Dhuri. Hardev Singh Sodhi belonged to Sodhi caste (General Category). Jaswinder Kaur belonged to Sodhi caste by birth and was married to Harjit Singh, who belonged to SC. Certificate of SC issued by the Tehsildar, Amritsar (II) was not correct one. As per instructions of Punjab State, certificate of SC is to issued to the person who belongs to SC by birth. Election of Panches of Gram Panchayat of Village Attalgarh was held on 26.5.2008, whereas Jaswinder Kaur got SC certificate on 3.6.2008. Certificate was got issued by concealing true facts with the connivance of officials. Jaswinder Kaur was declared Sarpanch on the basis of wrong and illegal certificate. 3. Upon notice, reply was filed by Jaswinder Kaur and election petition was contested, inter-alia, on the ground that petitioner contested the election for the post of Panch as SC (Women) category. Respondent also contested election for the post of Panch in General Category (Women) but respondent belonged to SC (Majhbi Sikh). Respondent being SC (Women) was competent to contest election of Panch reserved for general category (women). Respondent was rightly declared as elected Panch of Village Attalgarh. Mukhtiar Singh and Darbara Singh had supported the respondent and respondent was rightly declared as Sarpanch on 19.7.2008. Respondent was married to Harjit Singh, SC. Respondent belonged to Majhbi Sikh caste, which is SC. SC certificate was rightly issued by the competent authority. Respondent was rightly declared as elected Panch of Village Attalgarh. Mukhtiar Singh and Darbara Singh had supported the respondent and respondent was rightly declared as Sarpanch on 19.7.2008. Respondent was married to Harjit Singh, SC. Respondent belonged to Majhbi Sikh caste, which is SC. SC certificate was rightly issued by the competent authority. Brother of the respondent was not running a medical store at Dhuri under the name and style of Sodhi Medical Store. Fathers name of respondent is not Hardev Singh Sodhi. Fathers name of respondent is Hardev Singh only and denied all other allegations. 4. From the pleadings of the parties, following issues were framed:- "1. Whether the election in question is liable to be set aside and the petitioner is entitled to the relief as claimed? OPP. 2. Whether the petition is not maintainable? OPR 3. Relief." 5. After hearing learned counsel for the parties, issues No.1 and 2 were decided in favour of petitioner Kanwaljit Kaur and election petition was accepted vide impugned order. 6. Feeling aggrieved against the order dated 30.7.2010, this appeal was preferred by Jaswinder Kaur. 7. I have heard learned counsel for the appellant, learned counsel for the respondent and have gone through the evidence on the file. 8. Learned counsel for the appellant argued that appellant belonged to Majhbi caste. Fathers name of the appellant is Hardev Singh and not Hardev Singh Sodhi. Brother of the appellant is not carrying on business in the name and style of Sodhi Medical Store at Dhuri. Appellant was married to Harjit Singh, who is Majhbi by caste. There were five posts of Panches. Two posts were reserved for SC (Male), one post was reserved for SC (Female), one post was reserved for general category (Female) and one post was reserved for general category (Male). Appellant contested being SC against general post. Certificate was rightly issued by the competent authority. Certificate was ignored simply on the ground that there is no report of Patwari or Kanungo. If applicant is personally known to the competent authority, then without getting report from the Kanungo or Patwari or Namberdar, certificate could easily be issued. Second allegation to set aside the election petition of the appellant was that her fathers name is Hardev Singh Sodhi. Hardev Singh Sodhi is not SC but this fact is not correct one. Fathers name of appellant is Hardev Singh. Second allegation to set aside the election petition of the appellant was that her fathers name is Hardev Singh Sodhi. Hardev Singh Sodhi is not SC but this fact is not correct one. Fathers name of appellant is Hardev Singh. No documentary proof on the file that Hardev Singh resident of H.No. 191, Ward No.5, near Pehalwan Adda, Dhuri, belongs to general category. 9. Learned counsel for the respondent argued that certificate (Ex.RW1/2) was procured by the appellant with the connivance of officials of the department. In fact, appellant is daughter of Hardev Singh Sodhi and Hardev Singh Sodhi is not SC. Brother of appellant was running a medical store in the name and style of M/s. Sodhi Medical Store, Dhuri. By birth, appellant belongs to general category. After marriage with Harjit Singh, who is Majhbi by caste, appellant was not competent to contest the post of Sarpanch reserved for SC (Female). Election petition was rightly decided. 10. Admittedly, there were five posts of Panches in Gram Panchayat of Village Attalgarh. Two posts were reserved for SC (Male), one post was reserved for SC (Female), one post was reserved for general category (Female) and one post was reserved for general category (Male). Appellant contested election against general post. Election was held and appellant had won the election of Panch as general candidate. 11. This fact is also an admitted one that appellant was married to Harjit Singh, who belongs to Majhbi Sikh by caste. Fathers name of appellant is Hardev Singh. 12. Electipn of Sarpanch was held on 19.7.2008. Certificate in question (Ex.RW1/2) is dated 3.6.2008. As per this certificate appellant belongs to SC. SC candidate can contest the election as general candidate but general candidate cannot contest election of Panch against the post reserved for SC or BC. 13. SC candidate when contested election against the post reserved for general category, then he/she can contest the election of Sarpanch as SC candidate, reserved for SC (Women). 14. Now the only question which requires consideration is whether appellant belongs to SC or general category. Election petition was accepted on the allegation that certificate (Ex.RWl/2) was procured with the connivance of officials of the department. Proper procedure was not followed. Before issuing certificate, there was no report of Patwari or Kanungo or Namberdar. 14. Now the only question which requires consideration is whether appellant belongs to SC or general category. Election petition was accepted on the allegation that certificate (Ex.RWl/2) was procured with the connivance of officials of the department. Proper procedure was not followed. Before issuing certificate, there was no report of Patwari or Kanungo or Namberdar. Secondly, appellant is daughter of Hardev Singh Sodhi and her brother was carrying on business in the name and style of Sodhi Medical Store, but approach of Election Tribunal is not correct one. Certificate (Ex.RW1/2) was issued by the competent authority. Only dispute is that without getting report of Namberdar, Panch, Sarpanch, Patwari or Kanungo, certificate was issued but no authority was cited by learned counsel for the respondent that when certificate issued by the competent authority without getting report of Namberdar, Panch, Sarpanch, Patwari or Kanungo, then certificate is to be declared as null and void.. Normally, candidate is not known to the issuing authority. In that case, firstly the application is marked to Panch, Sarpanch or Namberdar to report whether candidate belongs to SC or BC. After that, report is counter signed by the Patwari or Kanungo. Ultimately, certificate is to be issued by the competent authority but when candidate is personally known to the issuing authority, then question is that in case without getting report from Namberdar, Panch, Sarpanch, Patwari or Kanungo, if certificate is issued, then whether certificate is to be declared null and void. No rule was cited by learned counsel for the respondent that before issuing certificate, report of Namberdar, Panch and Sarpanch was must and after that, report is to be counter signed by Patwari or Kanungo or Naib Tehsildar. As discussed earlier, before issuing the certificate, issuing authority is to satisfy himself/herself as to whether applicant is the right person and certificate of SC/BC is to be issued or not. If the candidate is personally known to the issuing authority, then 1 am of the opinion that without getting report from Namberdar, Panch, Sarpanch, Patwari or Kanungo, certificate could easily be issued. No bar that after obtaining report of Namberdar, Panch, Sarpanch, Patwari or Kanungo, only then certificate is to be issued. 15. If the candidate is personally known to the issuing authority, then 1 am of the opinion that without getting report from Namberdar, Panch, Sarpanch, Patwari or Kanungo, certificate could easily be issued. No bar that after obtaining report of Namberdar, Panch, Sarpanch, Patwari or Kanungo, only then certificate is to be issued. 15. Second allegation was that appellant is the daughter of Hardev Singh Sodhi and Hardev Singh Sodhi was not SC by caste but nothing on the file that Hardev Singh Sodhi, r/o H.No.191, Ward No.5, near Pchalwan Adda, Dhuri, was not SC by caste. Next allegation to ignore the certificate was that brother of appellant was carrying on business in the name and style of Sodhi Medical Store. So, appellant was not SC by birth but no documentary proof on file that brother of the appellant was carrying on business in the name and style of Sodhi Medical Store and father of the appellant namely Hardev Singh Sodhi was not SC. Suppose, Hardev Singh Sodhi was the father of the appellant and brother of the appellant was carrying on business in the name and style of Sodhi Medical Store, then question is whether certificate (Ex.RW1/2) is illegal one. Common experience shows that members belonging to Majhbi Sikh caste are writing after their names as Gill, Sodhi etc. Similarly, members belonging to Harijan caste are writing after their names as Sidhu, Sodhi etc. By writing Hardev Singh Sodhi or Sodhi Medical Store, Election Tribunal was not right to ignore the certificate (Ex.RW1/2). 16. (PW1) Balwinder Singh admitted in cross-examination that Jaswinder Kaur had appeared in matriculation examination in the year 1990. So, record from Education Department could easily be summoned to show that Jaswinder Kaur had appeared as SC candidate or general candidate. Further admitted that he cannot tell licence number of medical store nor can produce any bill. He had not purchased medicines from the medical store. Lastly admitted that certificate of SC issued in the name of Jaswinder Kaur was not cancelled by any authority till today. That means, till today, certificate on file issued by the competent authority is intact. When certificate was not cancelled by any authority, then Returning Officer was not right to opine that certificate (Ex.RW1/2) is not correct one. 17. Lastly admitted that certificate of SC issued in the name of Jaswinder Kaur was not cancelled by any authority till today. That means, till today, certificate on file issued by the competent authority is intact. When certificate was not cancelled by any authority, then Returning Officer was not right to opine that certificate (Ex.RW1/2) is not correct one. 17. Kanwaljit Kaur, respondent, when appeared in Court, then admitted in cross- examination that SC certificate was issued in favour of Jaswinder Kaur and till today, certificate was not cancelled by any authority. She is not in possession of any documentary proof regarding residence of parents of Jaswinder Kaur and their caste. She is not in possession of any documentary proof regarding medical store. 18. PW3 Kashmir Singh was produced by the respondent but in the first line of his cross-examination, he stated that he cannot tell what was written in his affidavit (Ex.PW3/A). Affidavit was in Punjabi but this fact is not correct one. Affidavit of Kashmir Singh was in English. Then stated that he is not in possession of any documentary proof regarding birth of Jaswinder Kaur or ration card to show that she is Sodhi by caste. He is not in possession of any documentary proof regarding medical store. 19. Official of the department, namely, Manjit Kaur, Clerk, was summoned. She brought record and stated that certificate (Ex.RW1/2) was issued as per record. 20. RW3 Palwinder Singh was the Returning Officer and stated that Jaswinder Kaur was elected as Panch as SC candidate. SC certificate was issued to her. 21. After setting aside election, Election Tribunal cannot order ADC (Development) to hold election. After the election petition is accepted, then order is to be sent to the State Election Commissioners. Then State Election Commissioner is to issue notification. Then election is to be held under law. So, direction to ADC (Development) to hold election is not correct. 22. In the light of above discussion, I am of the opinion that Election Tribunal ignored certificate (Ex.RWl/2) without any reason. Finding of Election Tribunal on issues No.1 and 2 are reversed. Impugned order suffers from infirmity and illegality and the same is ordered to be set aside. Appeal is accepted.