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1972 Supreme(P&H) 127
PUNJAB & HARYANA HIGH COURT
R.S.Narula and Rajendra Nath Mittal JJ.
Mange Ram
Versus
State Of Haryana
Civil Writ No. 259 of 1972,
Decided On : MAY 4, 1972
The co-option of a woman Panch under the proviso to sub-section (2) of Section 5 of the Punjab Gram Panchayat Act, 1952 (Act 4 of 1953) as amended by the Haryana Second Amendment Act of 1971 (Act 29 of 1971) is made by "election" within the meaning of Section 13-A (e) of the Act and inasmuch as a co-opted woman Panch is a "panch" within the meaning of section 3(i) of the Act, her election is liable to be called in question by an election petition, under section 13-B of the Act read with rule 44 of the Election Rules.
Headnote:
ELECTION - Co-option of woman Panch - Election or appointment - Whether co-option of woman Panch is an election - Whether co-option of woman Panch can be called in question by an election petition - Whether High Court can entertain a writ petition for questioning the validity of an election which could be called in question by an election petition under the Act - Whether the period of seven days of the notice is required to be served on the Panchas under sub-rules (2) and (3) of rule 38 of the Election Rules, and sub-rules(2) and (3) of rule 3 of the co-option rules, and the period of three days required for a notice under R. 39(3) of the Election Rules and 4(3) of the co-option Rules starts from the date of sending or giving i.e. despatching of the notice and not from the time of delivery or service of the notice on the concerned Panch - Whether the phrase three days clear notice has been used in the relevant rules to convey the same requirement as is conveyed by the expression three clear days notice.
Fact of the Case:
The petitioner, Mange Ram, challenged the co-option of respondent No. 4 as a Panch and the election of respondent No. 5 as Sarpanch of the Gram Panchayat Pichoppa Kalan, Tahsil Charkhi Dadri, District Mohindergarh (Haryana). The petitioner contended that the co-option of respondent No. 4 was not an election and could not be questioned in an election petition under Section 13-B of the Punjab Gram Panchayat Act, 1952 (Act 4 of 1953) (hereinafter called the Act) as applicable to the State of Haryana read with Rule 44 of the Election Rules. The petitioner also contended that the election of respondent No. 5 as Sarpanch was invalid as the notices of the meetings for December 17, 1971, served on the petitioner were of a period shorter than that prescribed by the relevant rules.
Finding of the Court:
The Court held that the co-option of a woman Panch under the proviso to sub-section (2) of Section 5 of the Act as amended by the Haryana Second Amendment Act of 1971 (Act 29 of 1971) is made by "election" within the meaning of Section 13-A (e) of the Act and inasmuch as a co-opted woman Panch is a "panch" within the meaning of section 3(i) of the Act, her election is liable to be called in question by an election petition, under section 13-B of the Act read with rule 44 of the Election Rules. The Court further held that though Section 13-B of the Act bars all remedies for questioning an election under the Act except by an election petition it does not create a bar to the invoking of the extraordinary constitutional jurisdiction of the High Court under Art. 226. The Court also held that the period of seven days of the notice is required to be served on the Panchas under sub-rules (2) and (3) of rule 38 of the Election Rules, and sub-rules(2) and (3) of rule 3 of the co-option rules, and the period of three days required for a notice under R. 39(3) of the Election Rules and 4(3) of the co-option Rules starts from the date of sending or giving i.e. despatching of the notice and not from the time of delivery or service of the notice on the concerned Panch.
Issues: 1. Whether the co-option of a woman Panch is an election and can be called in question by an election petition under the Act? 2. Whether the High Court can entertain a writ petition for questioning the validity of an election which could be called in question by an election petition under the Act? 3. Whether the period of seven days of the notice is required to be served on the Panchas under sub-rules (2) and (3) of rule 38 of the Election Rules, and sub-rules(2) and (3) of rule 3 of the co-option rules, and the period of three days required for a notice under R. 39(3) of the Election Rules and 4(3) of the co-option Rules starts from the date of sending or giving i.e. despatching of the notice and not from the time of delivery or service of the notice on the concerned Panch?
Ratio Decidendi: 1. The co-option of a woman Panch under the proviso to sub-section (2) of Section 5 of the Act as amended by the Haryana Second Amendment Act of 1971 (Act 29 of 1971) is made by "election" within the meaning of Section 13-A (e) of the Act and inasmuch as a co-opted woman Panch is a "panch" within the meaning of section 3(i) of the Act, her election is liable to be called in question by an election petition, under section 13-B of the Act read with rule 44 of the Election Rules. 2. Though Section 13-B of the Act bars all remedies for questioning an election under the Act except by an election petition it does not create a bar to the invoking of the extraordinary constitutional jurisdiction of the High Court under Art. 226. 3. The period of seven days of the notice is required to be served on the Panchas under sub-rules (2) and (3) of rule 38 of the Election Rules, and sub-rules(2) and (3) of rule 3 of the co-option rules, and the period of three days required for a notice under R. 39(3) of the Election Rules and 4(3) of the co-option Rules starts from the date of sending or giving i.e. despatching of the notice and not from the time of delivery or service of the notice on the concerned Panch.
Final Decision: The petition was dismissed with costs.
R.S.Narula, J.
1. We are called upon to pronounce in this petition under Arts. 226 and 227 of the constitution upon the validity of the co-option of Mst. Nanhti respondent No. 4 as a Panch and upon the election of Dhan Singh respondent No. 5 as Sarpanch of the Gram Panchayat Pichoppa Kalan,Tahsil Charkhi Dadri,District Mohindergarh (Haryana) (hereinafter called the Panchayat) in the circumstances hereinafter mentioned.
2. Mange Ram petitioner No.1,Dhan singh,Chander and Rameshwar,respondents Nos. 5 to 7 one Jai Chand,and one member of a Scheduled Caste namely Pahlad,were elected as Panchas of the Panchayat in the election held on July 5,1971. Notice (Annexure A) was issued by the Block Development and Panchayat Officer (respondent No.3) on December 13,1971 to all the above mentioned Panchas for holding a meeting of the elected Panchas at 8 a.m. on December 17,1971 for co-opting a woman Panch for the Panchayat,under rule 4 of the Haryana Gram Panchayat (Co-option of Women Panchas) Rules,1971 (hereinafter referred to as the co-option Rules). On the same day respondent No.3 issued another notice (Annexure B) to all the Panchas for electing a Sarpanch of the Punchayat under R.39 of the Haryana Gram Panchayat Election Rules 1971 (hereinafter called the Election Rules) at 10.30 a.m. on December 17,1971. Both the notices were received by Mange Ram petitioner on December 14,1971.
3. Nanhti respondent No. 4 was declared elected as a co-opted woman Panch defeating her rival candidate Mst. Shanti Petitioner No.2 in the meeting held at 8 am. on December 17,1971. In the second meeting in which Nanhti also voted Dhan Singh respondent No. 5 was declared elected as Sarpanch defeating Mange Ram petitioner. On December 23,1971 this joint petition was filed by Mange Ram and Shanti impugning the co-option of respondent No. 4 and election of respondent No. 5 as Sarpanch. In contesting the petition respondent No. 1 (the State of Haryana) respondent No. 2 (the inspector Co-operative Society,Charkhi Dadri,who presided over the two meetings),and respondent No.5 (the elected Sarpanch) have filed separate written statements. The petitioners have filed a replication in reply to the written statement of respondent No. 5.
4. Before noticing the rival contentions of the parties on the merits of the controversy involved in this case. It is necessary to dispose of two objections of a somewhat preliminary nature raised by Mr. H.S. Hooda Advocate for respondents Nos. 4 to 7 at almost the fag end of the hearing of this petition. He has firstly contended that this petition suffers from a misjoinder of parties in as much as the defeated Sarpanch and the defeated candidate for election as a woman panch cannot be permitted to joining together in filing a writ petition for questioning two separate elections for two separate offices. At the first sight this argument appears to be quite attractive. On the facts of this case,however much of the charm in the argument is lost by the fact that both the petitioners impugned both the elections on grounds which are common to each of the two elections. Though Mr. Mittal went to the length of suggesting that if we feel that a joint petition could not be filed by the two petitioners. We may in the circumstances of this case entertain hear and decide this petition as confined to the claim of Mange Ram petitioner No.1 and not dismiss the petition on that ground yet he made it clear that he was not asking for that course being adopted at his instance. After having heard counsel on the merits of the controversy,we are of the opinion that even if we entertain and decide the claim of petitioner No.1 alone we will have no pronounce on the validity of all the grounds urged against the legality of the election of the co-opted woman Panch by which the second petitioner is support of this objection of his on my judgment in Amrik Singh Waryam Singh V/s. B.S. Malik AIR 1966 Punj 344. The real objection in the case of Amrik Singh Wary
