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2012 DIGILAW 109 (PNJ)

Suba Singh v. State of Punjab

2012-01-20

AJAY TEWARI

body2012
JUDGMENT Mr. Ajay Tewari, J.: - By this writ petition, the petitioners have challenged the action of the official respondents in holding Panchayat elections of village Waraich Block Dhariwal, Tehsil and District Gurdaspur in May 2008 for 5 seats of Panches. 2. Counsel for the petitioners has argued that Section 10 of the Panchayat Raj Act, 1994 (for short ‘the Act’), gives a schedule for the number of Panches to be elected as per the population of the village. As per the population of village Waraich, the constitution of the Gram Panchayat had to be with 7 Panches. However, election for only 5 Panches was held. He has further argued that similar mistake has also occurred in other villages. Consequently, it has been prayed that a writ of mandamus be issued directing the official respondents to hold election for 7 Panches and quash the election of 5 Panches held earlier. 3. In the written statement, the official respondents have accepted that due to rush of work, correct schedule as per the population of village Waraich as reported in the census report of the year 2001 could not be prepared. It has been admitted in the written statement that election of 7 Panches should have been held instead of 5 Panches. It has been further stated in the reply that to remedy the error, election of the remaining 2 Panches had been recommended. 4. It is not disputed that in fact election of 2 new Panches was thereafter held and those two freshly elected Panches are respondents No.7 & 8 before this Court. 5. Counsel for the petitioners has further argued that the elections of respondents No.7 and 8 is also invalid. Section 10(1) of the Act is quoted below :- “ 10. Constitution of Gram Panchayat.- (1) Every Gram Sabha shall elect from amongst its members a Gram Panchayat for the Gram Sabha area bearing the name of its Gram Sabha and consisting of such number of Panches as indicate below against each slab of population taking Gram Sabha to be a multi-member single constituency, namely :- ---------------------------------------------------------------------------------------------------------------------------- S.No. Population Number of Panches ---------------------------------------------------------------------------------------------------------------------------- 1) For population exceeding 200 but not exceeding 1,000 Five 2) For population exceeding 1,000 but not exceeding 2,000. Seven 3) For population exceeding 2,000 but not exceeding 5,000. Seven 3) For population exceeding 2,000 but not exceeding 5,000. Nine 4) For population exceeding 5,000 but not exceeding 10,000 Eleven 5) For population exceeding 10,000 Thirteen ---------------------------------------------------------------------------------------------------------------------------- 6. In view of the admission of the mistake having taken place, the issue before this Court is what relief should be granted to the petitioners. It is not disputed that out of total term of 5 years, a period of 3 years and 8 months has elapsed and the next elections are due next year. If fresh election is directed at this stage after countermanding the earlier election, the new election would take place only for a period of about one year. On the other hand, even though the election concededly took place for only 5 Panches instead of 7, yet the said Panchayat is functioning. In the considered opinion of this Court, at this stage it would not be practicable or in the interest of justice to countermand the earlier election of this village and to have re-election for a period of one year. Had this writ petition been decided within a short period of its filing i.e in 2008/2009, the position would have been different and the option of having fresh election could have been considered because there would have been a fair amount of time at the disposal of the new Panchayat. 7. However, as regards the election of respondents No.7 and 8, the same is illegal. In a multi member single constituency, every voter has one non-transferable vote. With the election of respondents No.7 and 8, every voter has, thus, got 2 votes. Apart from that, the only provision of byeelection or re-election is defined under Section 56 of the Punjab State Election Commission Act, 1994 which is to the following effect :- “ 56. In a multi member single constituency, every voter has one non-transferable vote. With the election of respondents No.7 and 8, every voter has, thus, got 2 votes. Apart from that, the only provision of byeelection or re-election is defined under Section 56 of the Punjab State Election Commission Act, 1994 which is to the following effect :- “ 56. Casual vacancies in the Panchayats and Municipalities.- (1) When the seat of a member elected to the Panchayat or Municipality becomes vacant or is declared vacant or his election to the Panchayat or Municipality as the case may be, is declared void, the Election Commission shall subject to the provisions of sub-section (2), by a notification in the Official Gazette, call upon the concerned Panchayat or Municipality to elect a person for the purpose of filling the vacancy so caused before such date as may be specified in the notification, and the provisions of this Act and of the rules and orders made thereunder shall apply, as far as may be, in relation to the election of a member to fill such vacancy. (2) If the vacancy so caused be a vacancy in a seat reserved in any such constituency for the Scheduled Castes, Backward Classes or the Women, as the case may be, the notification issued under sub-section (1), shall specify that the person to fill that vacancy shall belong to the category of persons to which the vacancy relates.” 8. It is only in the above eventualities that a voter can be deemed to have two votes. The present is not such a case. A Division Bench of this Court in Sunder Singh and others v. State of Haryana and others, AIR 1984 Punjab and Haryana 159 has in a slightly different context held that the entire election process for the offices of Panches is an indivisible one. Consequently, the election of respondents No.7 & 8 is set aside. 9. Resultantly, this writ petition is disposed of in the terms indicated above. It is declared that the original election to the Gram Panchayat of village Waraich was improper since the constitution of the Gram Panchayat was not in conformity with Section 10 of the Act. Consequently, the election of respondents No.7 & 8 is set aside. 9. Resultantly, this writ petition is disposed of in the terms indicated above. It is declared that the original election to the Gram Panchayat of village Waraich was improper since the constitution of the Gram Panchayat was not in conformity with Section 10 of the Act. However, in view of the peculiar facts and circumstances pointed out above, this Court does not deem it appropriate to set aside the entire election and permits the present Panchayat to function till the conclusion of the term. Respondents No.1 and 2 are directed that not only in village Waraich but in the entire State of Punjab it should be ensured that the Gram Panchayat is constituted strictly as per the provisions of Section 10 of the Act. 10. No costs.