IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
C.W.P. No. 15042 of 2008
DATE OF DECISION : 12.11.2008
Tej Kaur
.... PETITIONER
Versus
State of Punjab and others
..... RESPONDENTS
CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE JASWANT SINGH
Present: Mr. R.S. Dhaliwal, Advocate,
for the petitioner.
Mr. M.S. Sindhu, Addl. A.G., Punjab,
for respondents No.1 to 6.
Mr. Harpreet Singh Gharuan, Advocate,
for respondent No.7.
***
SATISH KUMAR MITTAL , J.
The petitioner, who contested the election of the office of
Sarpanch of Gram Panchayat, Village Gaga, Tehsil Lehra, District Sangrur,
and was declared elected, having secured 5 votes out of 9, has filed the
instant petition for issuing direction to the respondents to notify her name as
elected Sarpanch of the Gram Panchayat and further for issuing direction to
the respondents not to convene another meeting for re-conducting the
election of the Sarpanch.
In the present case, the Gram Panchayat, Village Gaga consists
CWP No. 15042 of 2008 -2-
of 9 Panches. As per Section 11 of the Punjab Panchayati Raj Act, 1994
(hereinafter referred to as `the Act’), vide the notification, 9 seats of Panches
have been reserved for different categories. As per notification issued under
Section 12 of the Act, the office of Sarpanch of the Gram Panchayat has
been reserved for women. The election of the Panches of the Gram
Panchayat was held on 26.5.2008, in which the petitioner and respondent
No.7 were also elected as Panches.
After the election of the Panches, their names were duly
notified and oath of allegiance was administered to them. Thereafter, under
Section 13-A of the Act, the Deputy Commissioner authorised respondent
No.4 to convene the first meeting of the Gram Panchayat to conduct the
election of the Sarpanch from amongst the Panches of the Gram Panchayat.
Accordingly, the first meeting of the Gram Panchayat was convened by the
Presiding Officer on 20.7.2008. Out of 9 Panches, only 5 came present in
the said meeting. Therefore, due to lack of quorum, the meeting was
postponed. Thereafter, the said meeting was again held on 29.7.2008, which
was attended by all the 9 Panches of the Gram Panchayat. Names of the
petitioner and respondent No.7 were proposed and seconded by different
Panches for the office of Sarpanch. After nominating two names, the
Presiding Officer decided to elect Sarpanch by casting votes through ballot
papers and consequently, the ballot papers containing names of both the
candidates were circulated to all the Panches. All the 9 Panches casted their
votes and thereafter, in the presence of the Presiding Officer and Shri
CWP No. 15042 of 2008 -3-
Jaswinder Singh Khaira, Naib Tehsildar, Lehra, who was observer, the votes
were counted. The petitioner secured 5 votes, whereas respondent No.7
secured 4 votes. The petitioner was duly declared elected as Sarpanch of the
Gram Panchayat. Her declaration as Sarpanch has been duly recorded in the
proceeding book of the meeting, copy of which has been annexed with the
petition as Annexure P-1.
After the election, a note was added in the proceeding book by
the Presiding Officer that due to weak eye sight of one Panch, one vote has
been wrongly casted. Therefore, it has become necessary to postpone the
election.
After the aforesaid proceedings dated 29.7.208, respondent
No.7 and others filed CWP No. 13863 of 2008 for issuing direction to the
respondents to hold the meeting of Panches to conduct the election of the
Sarpanch, by alleging therein that the meeting which was held on 20.7.208
for conducting the election of Sarpanch was adjourned to 29.7.2008, and
thereafter, no meeting was called for the election of the Sarpanch. In the
said petition, the factum of holding the election of Sarpanch in the meeting
held on 29.7.2008 was not disclosed. The said petition was disposed of by
this Court vide order dated 6.8.2008, with a direction to respondent No.2,
the Deputy Commissioner, Sangrur, that if the election of Sarpanch of Gram
Panchayat, village Gaga has not been held so far, the same be conducted
within a period of seven days, after giving three days’ prior notice to all the
Panches. It is pertinent to mention here that the Presiding Officer did not
CWP No. 15042 of 2008 -4-
record as to who has casted vote in whose favour. In these circumstances,
the petitioner has filed the instant petition.
In the reply, filed on behalf of respondents No.1 to 3, the
aforesaid factual position has not been controverted. However, it has been
stated that after the election of the office of Sarpanch, 5 Panches requested
for re-election. Therefore, on their request, the meeting for the election of
the office of Sarpanch was adjourned by the Presiding Officer on the ground
that due to weak eye sight, one Panch wrongly polled the vote in favour of
the petitioner, though the Presiding Officer has said nothing that one Panch
wrongly polled the vote due to weak eye sight.
Respondent No.4 has also filed separate reply, in which he has
admitted that on 29.7.2008, petitioner and respondent No.7 were nominated
for the office of Sarpanch of the Gram Panchayat. Thereafter, it was decided
to hold election by giving ballot papers to all the Panches. In reply to para
16 of the petition, it has also been admitted by respondent No.4 that all the 9
elected Panches participated in the election and used their right to franchise
by using the ballot papers, where the petitioner had secured 5 votes and
respondent No.4 had secured 4 votes, as mentioned in the resolution dated
29.7.2008. Accordingly, the petitioner was declared elected. However, it has
been stated that after polling of the votes and declaration of the result, 5
Panches went to respondent No.5 and stated that they were 5 in number and
wanted to choose respondent No.7 as Sarpanch. However, due to weak eye
sight of one of those 5 Panches, she was not able to poll in favour of
CWP No. 15042 of 2008 -5-
respondent No.7. The said 5 Panches then approached respondent No.4.
Thereupon, a note was appended in the proceeding register. Thereafter, the
proceeding register was submitted to the Block Development and Panchayat
Officer, Lehra for getting final decision regarding the election from District
Development and Panchayat Officer, Sangrur, but no such decision has been
conveyed to respondent No.4.
After hearing counsel for the parties, we are of the opinion that
the present writ petition, filed by the petitioner, deserves to be allowed with
a direction to the respondents to notify the name of petitioner as elected
Sarpanch of the Gram Panchayat.
Undisputedly, in this case, the meeting to conduct the election
of the office of Sarpanch was duly convened and held on 29.7.2008. All the
9 Panches attended the said meeting. Since the office of Sarpanch was
reserved for women category, therefore, names of 2 women were nominated
by 2 different groups for contesting the election of the office of Sarpanch.
As per the written statement, filed by the Presiding Officer – respondent
No.4, he decided to hold the election of the office of Sarpanch by giving
ballot papers to all the elected Panches. Thereafter, the ballot papers were
given to all the 9 Panches, who exercised their right to franchise and casted
votes in favour of the candidates of their choice. Admittedly, thereafter, the
counting of the votes was done in presence of all the members of the
Panchayat as well as the observer. The petitioner secured 5 votes and
respondent No.7 secured 4 votes. Accordingly, the petitioner was declared
CWP No. 15042 of 2008 -6-
elected as Sarpanch. These facts have been duly recorded in the proceeding
register and have also been admitted in the written statement filed by
respondent No.4. It is also admitted position that after the declaration of
result and recording of the result in the proceeding book, 5 Panches went to
the observer and made a complaint that actually, 5 Panches were supporting
respondent No.7, but due to weak eye sight, one of them wrongly casted her
vote in favour of the petitioner. Therefore, the election be set aside and a
fresh meeting be convened for re-election of the office of Sarpanch.
In our opinion, when after the counting of votes, result was
declared, then the said declaration of result has to be notified and the
election of the returned candidate can only be set aside by filing an election
petition under the Punjab State Election Commission Act, 1994 (hereinafter
referred to as `the Election Commission Act’). Section 69 of this Act
provides as under :
“When the counting of the votes has been completed, the
Returning Officer shall, in the absence of any direction by the
Election Commission to the contrary, forthwith declare the
result of the election in the manner provided by this Act or the
rules made thereunder.”
Section 71 of the Election Commission Act further requires that every
election shall be notified by the Election Commission in the Official
Gazette, as soon as may be, after the result of the elections are declared.
In the instant case, after the declaration of the result, if
respondent No.7, the defeated candidate, wanted to question the election of
CWP No. 15042 of 2008 -7-
the petitioner as Sarpanch on the ground that actually one Panch wanted to
caste vote in her favour, but by mistake she has casted vote in favour of the
petitioner, she has the remedy to challenge the election of the petitioner by
filing an election petition. We are having doubt that even on such plea,
election of the returned candidate can be set aside, because casting of vote
by mistake in favour of another candidate, though voluntarily, may be due to
weak eye sight, cannot be construed as illegality or corrupt practice. In our
opinion, the Returning Officer has no jurisdiction to postpone the meeting
or to declare a result as invalid, after the declaration of the result. Since
Section 69 of the Election Commission Act clearly postulates that when the
counting of the votes has been completed, the Returning Officer shall
forthwith declare the result of the election. Therefore, in our opinion, in the
present case, the petitioner was duly elected as Sarpanch of the Gram
Panchayat in the meeting held on 29.7.2008. Thereafter, respondent No.4
cannot be permitted to convene any meeting for re-conducting the election
of the office of Sarpanch on the ground that one Panch, by mistake due to
weak eye sight, had casted vote in favour of the petitioner.
Learned counsel for respondent No.7 put much reliance on the
order dated 6.8.2008, passed by this Court in CWP No. 13863 of 2008,
whereby a direction was issued to convene the meeting for conducting the
elections. The said order, in our opinion, will not give any support to the
contention of learned counsel for respondent No.7, because in that order, it
was specifically mentioned that if the election of Sarpanch of Gram
CWP No. 15042 of 2008 -8-
Panchayat, village Gaga has not been held so far, the same be conducted
within a period of seven days, after giving three days’ prior notice to all the
Panches. Admittedly, prior to date of the said order, the petitioner was
already elected as Sarpanch in the meeting held on 29.7.2008.
In view of the above, the instant writ petition is allowed and the
respondents are directed to forthwith notify the name of the petitioner as the
elected Sarpanch of Gram Panchayat, village Gaga, District Sangrur.
( SATISH KUMAR MITTAL )
JUDGE
November 12, 2008 ( JASWANT SINGH )
ndj JUDGE