PINKI DEVI Vs. ELECTIION TRIBUNAL, GURDASPUR

JUDGEMENT

(1.) This appeal is directed against order dated 25.9.2009 passed by Deputy Commissioner-cum-Presiding Officer, Election Tribunal, Gurdaspur (for short 'the Election Tribunal) by which an election petition filed by the appellant under Section 76 & 89 of the Punjab State Election Commission Act, 1994 (for short 'the Act') challenging the election of Mamta Devi (respondent No. 2) to the post of Sarpanch of the Gram Panchayat of Village Bhaini Meelman, Block Kanu-wan, Tehsil and District Gurdaspur has been dismissed.

(2.) On 26.5.2008, election was held to constitute a Gram Panchayat of 5 members of Village Bhaini Meelman, Tehsil and District Gurdaspur in which both appellant as well as respondent No. 2 to 5 were elected. The post of Sarpanch was reserved for candidate belonging to women General Category. A meeting was convened for the election of Sarpanch on 16.7.2008 at 1.00 PM in the office of Block Development & Panchayat Officer, Kanuwan. All the five Panches were present on the said date and time. According to the appellant, the Presiding Officer asked for the unanimous election of respondent No. 2 as Sarpanch but since he did not enjoy majority support, therefore, an objection was raised by the appellant demanding their presence to be marked in the meeting as they were in majority but the Presiding Officer avoided marking of presence in the proceedings on the ground that since election had not taken place therefore, presence is not required. It is alleged that later on they came to know that Presiding Officer, under the political pressure, was trying to declare respondent No. 2 as Sarpanch. Then the appellant along with Mohindro Devi and Leela Devi, who were supporting her, filed a detailed representation to the Deputy Commissioner, Gurdaspur about the conduct of the Presiding Officer. However, the appellant had to file an election petition for redressal of their grievance in which it was alleged by the respondents that meeting was initially held on 16.7.2008 in which appellant and respondent No. 2-Mamta Devi as well as Kishan Singh did not participate, therefore, due to lack of Coram the meeting was adjourned to 19.7.2008. The Presiding Officer again issued notice of the said meeting but appellant, Mohindro Devi and Leela Devi refused to receive the notices. The Presiding Officer convened the meeting on 19.7.2008 at 5.00 PM in terms of Rule 45-A of the Punjab Panchayati Raj Election Rules, 1994 (for short 'the Rules') in which Mamta Devi was declared elected as Sarpanch. The election petition was not contested by respondents No. 2, 3, 5, 6 & 7. The learned Election Tribunal, while dismissing the election petition held that from the notices placed on the file, it is clear that appellant and respondents No. 2 and 3, namely, Mohindro and Leela Devi have refused to accept notices, therefore they had willingly absented from the meeting and in that circumstances, the Presiding Officer had no option but to elect Mamta Devi as Sarpanch.

(3.) Learned Counsel for the appellant has vehemently argued that refusal report is manipulated because if the appellant and her supporters were not to attend the meeting on 19.7.2008 then there was no question for making a representation to Deputy Commissioner and also filing CWP No. 12508 of 2008. In the first meeting dated 16.7.2008, when all the members of the Panchayat were present there was no justification on the part of the Presiding Officer to adjourn the meeting, which, however, was held on 19.7.2008 after procurement of refusal report dated 19.7.2008, which itself is contrary to the provisions of Order 5 Rule 17 of the Code of Civil Procedure, 1908 (for short 'CPC'). It is submitted that Order 5 Rule 17 of the CPC states that in case of refusal, the serving officer of the summons is required to affix the summons on the outer gate of the residence or working place of the said person, who is sought to be served. In the present case, no such procedure has been adopted and meeting was held clandestinely to elect Mamta Devi, who was not enjoying the majority.