SUKHDEV SINGH Vs. EXECUTIVE MAGISTRATE

JUDGEMENT

(1.) SINCE the point involved herein is a short one, we have thought it appropriate to dispose of the Writ Petition at the motion hearing.

(2.) IN an election petition under Section 13(c) of the Punjab Gram Panchayat Act, 1952 read with Rule 42 of the Punjab Gram Panchayat Election rules, the election of the Petitioner as Panch of the Gram Panchayat has been challenged by Respondent No. 2 before the Executive Magistrate Samana, District Patiala. During the pendency of the election petition, the Petitioner has been restrained from participating in the proceedings of the Gram Panchayat, - -vide order Annexure P.1 and it is the legality and vanity of this order which is the subject matter of challenge in this, writ petition before us.

(3.) WE have given our thoughtful consideration to the entire matter and are of the view that the petition deserves to be allowed. In our considered view the prescribed authority has acted in excess of its jurisdiction in passing the impugned order. The Election Tribunal under the provisions of the Punjab Gram Panchayat Act has got limited jurisdiction to deal with election petition and has got no authority whatsoever in passing any interim order restraining a successful candidate from participating in the proceedings of the Gram Panchayat. There is absolutely no provision in the Act authorising the Tribunal to pass restraint orders. The provisions of Code of Civil Procedure do apply in general for the purpose of trying an election petition as if it is a suit because evidence has to produced by the parties. However, the provisions of Order 39 Rules 1 and 2 of the Code of Civil Procedure as such have not been made applicable authorising the Tribunal to grant injunction against the successful candidate. If the Legislature intended to vest any such power in the Tribunal, the intention could be demonstrated by enacting a specific provision. In our view, such provision has not been made in the Gram Panchayat Act for obvious reasons. Supposing a successful Panch is restrained during the pendency of the election petition from participating in the proceedings of the Gram Panchayat and ultimately the election petition is found to be meritless, the successful candidate in such an eventuality would suffer irreparable loss which cannot be compensated even on payment of costs. In any case, we would not read something more in the Gram Panchayat Act which is not there authorising the Tribunal to pass restraint orders of the type which has been passed in the instant case. The precise point involved in this petition is not res -integra. In two judicial pronouncement a similar view which we have taken in the present case has already been taken. In Kundan Singh v. Executive Magistrate 1st Class Barnala and Ors., 1975 P.L.R. 661. R.S. Narula J. while quashing the restraint order passed under Order 39 Rules 1 and 2 of the Code of Civil Procedure had held as under: