RAJWINDER KAUR Vs. BALWINDER SINGH

JUDGEMENT

(1.) As many as 5 Panches had challenged the election of Balwinder Singh as Sarpanch by way of Election Petition No. 11/88 of 12.03.2009 which has been dismissed by the Deputy Commissioner-cum- Presiding Officer, Election Tribunal, Tarn Taran [for short "Election Tribunal"] vide his impugned order dated 17.09.2009.

(2.) All the 5 Panches are Appellants before this Court and have alleged that Gram Panchayat Marhana, Block Chohla Sahib, Tehsil and District Tarn Taran comprises of 9 members, which includes all the 5 Appellants and Respondent Nos. 1 to 4 herein. In order to fill up the post of Sarpanch reserved for General category, a meeting was convened on 17.07.2008, which was presided over by Guriqbal Singh. In the said meeting, 4 Panches from the side of Appellants attended the meeting, but none from the side of Respondent Nos. 1 to 4 came present, therefore, in terms of Rule 45(2) of the Punjab Panchayat Election (First Amendment) Rules, 2008 for short "Rules"], the said meeting failed due to lack of quorum as in the Panchayat comprising of 9 members, the quorum to carry out resolution in the first meeting is required of 6 Panches. The Presiding Officer, thus, adjourned the meeting to 22.07.2008 at the same time and place, but on that day, Presiding Officer Guriqbal Singh fell ill and consequently the meeting was not held and proceedings were also not recorded. However, as per the Appellants, all 5 of them were present in the said meeting. Be that as it may, the meeting was re-scheduled for 25.07.2008 at 1.00 p.m. at Government Elementary School, Marhana. In the said meeting, the Presiding Officer was Sewak Singh. According to the case of the Appellants, they were present at the time and place of the meeting dated 25.07.2008 but no meeting was held as scheduled, The Appellants, in this regard, submitted their affidavits dated 25.07.2008 to the Deputy Commissioner, Tarn Taran and lateron came to know that Respondent Nos. 1 to 4, in connivance with Respondent Nos. 5 and 6, clandestinely elected Balwinder Singh as Sarpanch on an undisclosed place wherein it has been shown that the Appellants were absent. It is also alleged that the Appellants brought this fact to the notice of the Deputy Commissioner, Tarn Taran who marked an inquiry to the SDM, Tarn Taran. In his inquiry report dated 06.08.2008 (Mark 'A'), SDM, Tarn Taran opined that the meeting was not held on 25.07.2008 at the given time and place. The Deputy Commissioner, Tarn Taran again asked SDM, Tarn Taran to hold inquiry. In pursuance thereof, he submitted his report dated 26.08.2008 (Mark 'B') that no meeting was held on 25.07.2008. However, the said inquiry report was not accepted by DDPO, Tarn Taran vide his order dated 28.08.2008 and he asked the Appellants to file election petition, if they so choose. All the Appellants then filed 'Rajwinder Kaur and Ors. v. The State of Punjab and Ors.,2009 1 RecCivR 462' which was dismissed by this Court on the ground that ordinary remedy available to the Appellants is filing of election petition under Section 76 of the Punjab State Election Commission Act, 1994 [for short "the Act"] on the grounds mentioned in Section 89 of the Act and since the Appellants had filed the Writ Petition within 45 days of the election, therefore, in terms of the order of the Supreme Court in the case of Danda Rajeshwari v. Bodavula Hanumayamma and Ors., 1996 6 SCC 199, the Appellants were permitted to file an election petition, within a period of three weeks from the date of that order i.e. 03.11.2008. Aggrieved against the order of the Division Bench of this Court, the Appellants filed SLP (C) No. 29341 of 2008 which was dismissed by the Supreme Court on 23.02.2009. However, time to file election petition was extended by three weeks from the date of the order of the Supreme Court i.e. dated 23.02.2009 and the Apex Court directed the Election Tribunal to decide the election petition within six months. At last, all the 5 Appellants had filed Election Petition No. 11/88 on 12.03.2009, in which it was, inter alia, alleged that Respondent No. 1 has been illegally elected as Sarpanch of the Gram Panchayat as there was no meeting held on 25.07.2008. In reply, various objections were taken by Respondent Nos. 1 to 4 that the election of Respondent No. 1 has already been notified; election petition was not filed within the period of limitation and on merits, it was asserted that on 25.07.2008, Presiding Officer Sewak Singh and Panchayat Secretary Sarabjit Singh were present at the time and place of the meeting where the Appellants did not come present despite the receipt of notices, therefore, after waiting up to 4.00 p.m., the proceedings for election of Sarpanch were started, in which, in terms of Rule 45(6) of the Rules, Respondent No. 1 was elected as Sarpanch. The Appellants then filed replication to the written statement and on the basis of the pleadings of the parties, following issues were framed by the Election Tribunal:

(3.) Both the parties led their respective evidence. All the Appellants stepped into witness box and filed their respective affidavits as Ex. PW1/A, Ex. PW2/A, Ex. PW3/A, Ex. PW4/A and Ex. PW5/A. They also proved their respective affidavits dated 25.07.2008 as Ex. P2, Ex. P3, Ex. P4, Ex. P5 and Ex. P6. They also produced order of the Supreme Court dated 23.02.2009 as Ex. P1, copy of the complaint addressed to Deputy Commissioner, Tarn Taran as Mark P2, report of SDM, Tarn Taran dated 06.08.2008 as Mark 'A', report of SDM, Tarn Taran dated 26.08.2008 as Mark 'B', copy of Rapat No. 14 dated 25.07.2008 as Mark P1 and copy of proceedings dated 17.07.2008 as Ex. P7. On the other hand, Respondent Nos. 1 to 4 had examined their witnesses Balwinder Singh as RW1, Hardip Singh as RW2, Lal Singh as RW3, Kabal Singh as RW4, Jaspal Singh as RW5, Gurwinder Singh as RW6 and also proved their respective affidavits as Ex. RW1/A, Ex. RW2/B, Ex. RW3/C, Ex. RW4/D, Ex. RW5/A and Ex. RW6/A and produced copy of the proceedings dated 17.07.2008 as Ex. R1, copy of notification dated 04.09.2008 as Ex. R2 and copies of notices dated 24.07.2008 as Ex. R3 to Ex. R11. Besides these documents, they also produced induiry report dated 28.08.2008 of DDPO, Tarn Taran as Mark 'R' which had been agreed upon by the Deputy Commissioner, Tarn Taran to the effect that the election of Sarpanch of the village may not be cancelled/rejected in view of any report of the SDM, Tarn Taran.