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2012 DIGILAW 563 (PNJ)

Sukhdev Singh v. State of Punjab

2012-04-17

SATISH KUMAR MITTAL, T.P.S.MANN

body2012
JUDGMENT SATISH KUMAR MITTAL, J. This Letters Patent Appeal has been directed against the order dated 27.02.2012 passed by the learned Single Judge, whereby the writ petition (CWP No.22203 of 2011) filed by Kashmir Singh (respondent No.6), who was elected as a Sarpanch of the Gram Panchayat of village Sadhuwala Tehsil Zira, District Ferozepur in the year 2008, has been allowed and the Notification dated 4.11.2011 issued by the Government of Punjab deleting his name as Sarpanch of the Gram Panchayat, was set aside, and it was declared that he would remain as Sarpanch of Gram Panchayat of village Sadhuwala. Before we deal with the questions raised in this appeal, it will be appropriate to mention the factual position in the case in brief. The Gram Panchayat of village Sadhuwala consists of seven members. In that Multi Member Single Constituency, one of the seat of Panch was reserved for SC (Woman). The election of the Gram Panchayat was held on 26.5.2008. Against the reserved seat of SC (Woman), Smt. Joginder Kaur (respondent No.8) and Smt. Bholi (respondent No.7) contested. Smt. Joginder Kaur was declared elected as SC Panch (Woman) having secured 47 votes whereas Smt. Bholi was declared defeated having secured 42 votes. In that election, respondent No.6-Kashmir Singh and appellant Sukhdev Singh were also elected as Panches from General Category. The election of Panches was notified under Section 13 of the Punjab Panchayati Raj Act, 1994 (hereinafter referred to as `the Panchayati Raj Act') and thereafter in the first meeting of the Gram Panchayat convened under Section 13-A of the Panchayati Raj Act, respondent No.6-Kashmir Singh was elected as a Sarpanch of the Gram Panchayat. It is mentioned here that the post of Sarpanch of the Gram Panchayat of village Sadhuwala was kept reserved for the candidate belonging to General Category. Aggrieved against the election of Smt. Joginder Kaur as SC Panch (Woman), Smt. Bholi, the defeated candidate in the said category, filed election petition under Section 74 of the Punjab State Election Commission Act, 1994 (hereinafter referred to as `the Election Commission Act') challenging the election of Smt. Joginder Kaur. Aggrieved against the election of Smt. Joginder Kaur as SC Panch (Woman), Smt. Bholi, the defeated candidate in the said category, filed election petition under Section 74 of the Punjab State Election Commission Act, 1994 (hereinafter referred to as `the Election Commission Act') challenging the election of Smt. Joginder Kaur. The Additional Deputy Commissioner(General), Ferozepur, exercising the powers of the Election Tribunal, vide order dated 8.9.2008 set aside the election of Smt. Joginder Kaur and declared elected Smt. Bholi as SC Panch (Woman) as in recounting Smt. Bholi secured 50 valid votes whereas Smt. Joginder Kaur secured only 45 votes. It is submitted here that in the election petition, copy of which has been annexed with the appeal as Annexure P-1, Smt. Bholi had only prayed for setting aside the election of Smt. Joginder Kaur with a further prayer to declare her elected on the post of SC Panch (Woman). In that election petition neither the election of Sarpanch was challenged nor any prayer was made for quashing the result of first meeting of the members of Gram Panchayat in which respondent No.6 was elected as Sarpanch. However, the learned Election Tribunal without any prayer made in the election petition, observed at the end of his order that `the proceeding which was held and accepted with the vote of respondent No.1 (Smt. Joginder Kaur) as S.C. Panch (Woman) stands rejected'. Aggrieved against the order of setting aside of her election as SC Panch (Woman), Smt. Joginder Kaur challenged the order of the Election Tribunal by filing an appeal before this Court under Section 100 of the Election Commission Act, which was admitted and the operation of the order of the Election Tribunal was stayed. But subsequently Smt. Joginder Kaur, during the pendency of the appeal, filed an application on 02.08.2011 and withdrew the appeal. After withdrawal of the appeal, the State of Punjab, on the basis of the aforesaid last observation made in the order of the Election Tribunal, de-notified the name of respondent No.6 (Kashmir Singh) as Sarpanch of the Gram Panchayat vide notification No.Pb.G.P./Ferozepur-2011/3766 dated 4.11.2011 (Annexure P-3). Immediately, respondent No.6-Kashmir Singh filed the writ petition (CWP No.22203 of 2011) before this Court challenging the aforesaid notification dated 4.11.2011. Immediately, respondent No.6-Kashmir Singh filed the writ petition (CWP No.22203 of 2011) before this Court challenging the aforesaid notification dated 4.11.2011. During the pendency of the said writ petition, the appellant was elected as Sarpanch of the Gram Panchayat on 16.12.2011 and his name was notified as such vide notification dated 29.12.2011. The learned Single Judge allowed the writ petition filed by respondent No.6 by holding that the observation made by the Election Tribunal to the effect that `the proceeding which was held and accepted with the vote of respondent No.1 (Smt. Joginder Kaur) as S.C. Panch (Woman) stands rejected' was beyond his jurisdiction and the de-notification of the name of respondent No.6 as Sarpanch of the Gram Panchayat was illegal as the election of Sarpanch was never challenged before the Election Tribunal, in the Election Petition filed by one of the defeated candidate challenging the election of another candidate as SC Panch (Woman). The appellant, who was elected as Sarpanch of the Gram Panchayat during the pendency of the aforesaid writ petition, challenged the judgment of the learned Single Judge by filing the instant appeal. After hearing the learned counsel for the appellant, we do not find any merit in this appeal. Undisputedly, as stated above, respondent No.6-Kashmir Singh and appellant Sukhdev Singh were elected as Panches from General Category. Their election as Panches of the Gram Panchayat was never under challenge. Only election of Smt. Joginder Kaur as SC Panch (Woman) was questioned by Smt. Bholi, a defeated candidate in that category. As stated earlier, in the election petition the only prayer was to set aside the election of Smt. Joginder Kaur and to declare Smt. Bholi in her place as SC Panch (Woman). It is true that in that election petition all the elected members of the Panchayat, including the appellant as well as respondent No.6, were made party, but they were impleaded as party in view of the requirement under Section 77 of the Election Commission Act, which reads as under:- “77. It is true that in that election petition all the elected members of the Panchayat, including the appellant as well as respondent No.6, were made party, but they were impleaded as party in view of the requirement under Section 77 of the Election Commission Act, which reads as under:- “77. Parties to the petition.-- A petitioner shall join as respondent to his petition-- (a) where he, in addition to claiming declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates and where no such further declaration is claimed, all the returned candidates; and (b) any other candidate against whom allegation of any corrupt practice is made in the petition.” Though no relief was claimed against the candidates elected from other categories, but in view of the aforesaid requirement, they were impleaded as parties. However, the fact remained that in the election petition filed by Smt. Bholi only the election of Smt. Joginder Kaur being SC Panch (Woman) was challenged. After recounting of the votes in that category, the election of Smt. Joginder Kaur was set aside and Smt. Bholi was declared elected as SC Panch (Woman) as she secured 50 valid votes whereas Smt. Joginder Kaur secured only 45 votes. But while allowing the election petition the Election Tribunal observed that `the proceeding which was held and accepted with the vote of respondent No.1 (Smt. Joginder Kaur) as S.C. Panch (Woman) stands rejected'. The learned Single Judge has held that the aforesaid observation of the Election Tribunal was wholly beyond his jurisdiction. In our opinion, the learned Single Judge was right while coming to the said conclusion. It has been argued before us as well as before the learned Single Judge that under Section 79 of the Election Commission Act the Election Tribunal has been empowered to make these observations. In our opinion, this contention of the learned counsel for the appellant is wholly without substance. Section 79 of the Election Commission Act reads as under:- “79. It has been argued before us as well as before the learned Single Judge that under Section 79 of the Election Commission Act the Election Tribunal has been empowered to make these observations. In our opinion, this contention of the learned counsel for the appellant is wholly without substance. Section 79 of the Election Commission Act reads as under:- “79. Relief that may be claimed by the petitioner.-- A petitioner may, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claim further declaration that he himself or any other candidate may be declared as duly elected.” A bare perusal of the aforesaid provisions indicates that in an election petition challenging the election of a candidate the petitioner may challenge the election of all or any of the returned candidates as void, and he may claim further declaration that he himself or any other candidate may be declared as duly elected. In the election petition filed by Smt. Bholi she sought declaration of election of Smt. Joginder Kaur as void with a further prayer that she be declared elected as a Panch in SC (Woman) category. In the election petition no prayer was made, as already observed, for setting aside the election of Sarpanch. In these facts and circumstances, in our opinion, the Election Tribunal has certainly travelled beyond his jurisdiction while making the aforesaid observation. Therefore, the contention of the learned counsel for the appellant cannot be accepted that under Section 79 of the Election Commission Act, the Election Tribunal could have set aside the proceedings of the election of the Sarpanch in which Smt. Joginder Kaur had participated. In our opinion, merely because one of the members, who had participated in the election of the Gram Panchayat in the first meeting held under Section 13-A of the Panchayati Raj Act, and if subsequently the election of the said member is set aside, the proceedings of the said meeting or the election of the Sarpanch could not be set aside. Section 14 of the Panchayati Raj Act provides that the term of offices of Sarpanch and Panch of a Gram Panchayat shall, as otherwise provided in this Act, co-terminate with the term of the Gram Panchayat. Section 14 of the Panchayati Raj Act provides that the term of offices of Sarpanch and Panch of a Gram Panchayat shall, as otherwise provided in this Act, co-terminate with the term of the Gram Panchayat. Section 15 of the Panchayati Raj Act provides that the term of office of Gram Panchayat shall be for five years unless dissolved earlier under the Act. The Panch, who has been elected as Sarpanch in the first meeting held under Section 13-A of the Panchayati Raj Act, will hold the office for a term of five years until and unless he resigns as contemplated under Section 17 or removed by passing No-Confidence Motion as contemplated under Section 19 or suspended and removed as contemplated under Section 20 of the Panchayati Raj Act. Section 22 of the Panchayati Raj Act provides for filling up of casual vacancies of Sarpanches and Panches. Sub-section(1) of Section 22 provides that whenever a vacancy occurs by death, resignation, removal or otherwise of a Sarpanch, the vacancy shall be filled up by way of election. If a Sarpanch submits his resignation or he is removed from the office or his election is set aside by the Election Tribunal, only then the name of that Sarpanch is to be de-notified and the fresh election to fill up the said post is to be conducted. In our view, in the present case the State Government acted illegally and arbitrarily while de-notifying the name of respondent No.6, who was duly elected as Sarpanch in the first meeting of the Gram Panchayat convened under Section 13-A of the Panchayati Raj Act, only on the basis of the aforesaid observation, which was wholly without jurisdiction. In the order passed by the Election Tribunal, no direction was issued to the State Government to de-notify the name of respondent No.6 for being removed from the office of Sarpanch. It is admitted legal position as held in Baljit Singh Versus State of Punjab and others, 2008(4) PLR 193 that the election of Sarpanch of Gram Panchayat can also be challenged by filing the election petition. It is an admitted fact that in the instant case the election of respondent No.6-Kashmir Singh as a Sarpanch of the Gram Panchayat was never challenged by the appellant or by Smt. Bholi in her election petition. It is an admitted fact that in the instant case the election of respondent No.6-Kashmir Singh as a Sarpanch of the Gram Panchayat was never challenged by the appellant or by Smt. Bholi in her election petition. In such a situation, in our view, de-notifying the name of respondent No.6 as Sarpanch of the Gram Panchayat by the State Government vide notification dated 4.11.2011 was wholly without jurisdiction and has rightly been quashed by the learned Single Judge. An argument was raised by the learned counsel for the appellant that the observation made by the Election Tribunal was never challenged by Kashmir Singh (respondent No.6) by filing an appeal, particularly when he was a party in the election petition. Section 100 of the Election Commission Act provides for appeal against the order of Election Tribunal to High Court. This Section provides that an appeal shall lie to the High Court on any question whether it pertains to law or fact from every order made by an Election Tribunal under Section 87 or Section 88 of the Election Commission Act. The present case relates to the order passed under Section 87 of the Act, which reads as under:- “87. Decision of the Election Tribunal.-- At the conclusion of the trial of an election petition, the Election Tribunal may make an order for,- (a) dismissing the election petition; or (b) declaring the election of all or any of the returned candidates to be void; or (c) declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected.” From the aforesaid Section, it is clear that the Election Tribunal can either dismiss the election petition or declare the election of all or any of the returned candidates to be void or declare the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected. Since the election of respondent No.6 as Panch or Sarpanch was never challenged nor declared as void, therefore, in our opinion, against the observation made by the Election Tribunal, he could not have filed an appeal, and as such he had rightly not filed the same. Since the election of respondent No.6 as Panch or Sarpanch was never challenged nor declared as void, therefore, in our opinion, against the observation made by the Election Tribunal, he could not have filed an appeal, and as such he had rightly not filed the same. It is pertinent to mention here that against the order passed by the Election Tribunal, whereby Smt. Bholi was declared elected as SC Panch (Woman), Smt. Joginder Kaur filed an appeal before this Court challenging her election. It is also pertinent to mention that in the election petition filed by Smt. Bholi, respondent No.6-Kashmir Singh was arrayed as a respondent without claiming any relief against him. During the pendency of the appeal before this Court, Smt. Joginder Kaur filed an application on 2.8.2011 for withdrawal of the appeal which was allowed. Suffice it to say that had the appeal been decided on merits, the aforesaid observation made in the last by the Election Tribunal in his order, which was beyond jurisdiction, could have been dealt with by the Appellate Authority. Admittedly, the appeal was withdrawn by Smt. Joginder Kaur without providing any opportunity to respondent No.6 to contest the appeal. In our opinion, the learned Single Judge was right while coming to the conclusion that it was inter se election dispute between Smt. Bholi and Smt. Joginder Kaur, whose interpolation with each other would not automatically result in the ouster of respondent No.6-Kashmir Singh as Sarpanch of the Gram Panchayat. Actually, the aforesaid observations made by the Election Tribunal were wholly without jurisdiction and since there was no direction, the said observation was not to be followed by the State Government nor required the de-notification of the name of Kashmir Singh, who was duly elected as Sarpanch of the Gram Panchayat. Therefore, the learned Single Judge has rightly come to the conclusion that the Election Tribunal was concerned only with the inter se election dispute between Smt. Bholi and Smt. Joginder Kaur and it mattered little that Kashmir Singh (respondent No.6) was arrayed as a respondent in the election petition, and he had no independent statutory right to call the offending line in question. In our opinion, cause of action arose to respondent No.6 when his name was de-notified by the impugned notification dated 4.11.2011 issued by the State Government. He immediately challenged that order by filing the writ petition. In our opinion, cause of action arose to respondent No.6 when his name was de-notified by the impugned notification dated 4.11.2011 issued by the State Government. He immediately challenged that order by filing the writ petition. An argument was raised by the learned counsel for the appellant that instead of filing the writ petition, respondent No.6 should have challenged the election of the appellant as Sarpanch by filing the election petition. This contention is without substance. When respondent No.6 challenged the notification dated 4.11.2011 issued by the State Government the appellant was not elected as a Sarpanch of the Gram Panchayat. He was elected as such subsequently after filing of the writ petition. Therefore, the contention of the learned counsel for the appellant that the election of the appellant as Sarpanch in the subsequent meeting could have been challenged by respondent No.6 by filing the election petition, cannot be accepted. In our view, when totally illegal order contrary to provisions of the statute had been passed by the State Government de-notifying the name of respondent No.6 as Sarpanch of the Gram Panchayat vide notification dated 4.11.2011, the same was rightly challenged by respondent No.6 by filing the writ petition and the learned Single Judge was fully justified in allowing the said petition. In view of the aforesaid, we do not find any ground to interfere in the impugned order pas by the learned Single Judge. Resultantly, the appeal is dismissed.