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2008 Supreme(P&H) 1703
2008(4) LAW HERALD (P&H) (DB) 3042
IN THE HIGH COURT OF PUNJAB AND HARYANA
(DIVISION BENCH)
Before
The Hon’ble Mr. Justice Satish Kumar Mittal
The Hon’ble Mr. Justice Jaswant Singh
C.W.P. No.13391 of 2008
Kulwant Singh
v.
State of Punjab
{Decided on 03/10/2008}
For the Petitioner:Mr. Navdeep Singh, Advocate.
For the Petitioners:Mr. C.L. Sharma, Advocate.
For the Respondent No.6:Mr. Navdeep Singh, Advocate.
For the Respondents No.1 to 4: Mr. M.S. Sindhu, Addl. A.G., Punjab.
For the Respondents No.5 to 7:Mr. K.S. Dadwal, Advocate.
IMPORTANT POINT
Election of Sarpanch--Disputed questions of fact--Cannot be gone into in writ petition--Petitioners can question the Election of Sarpanch by filing a election petition.
Headnote:(A) Election Law--Election of Sarpanch of Gram Panchayat--Out of seven members six had taken oath--Petitioner ‘K’ did not take the oath inspite of having knowledge and information of the oath ceremony--The right of a Panch to participate in the meeting convened for the election of Sarpanch only arises after notifying his name as Panch and taking oath or affirmation of the office of Panch under Section 13 of the Act-
ON FACTS
Out of seven panchs six members of the Panchayat attended meeting-- Only name of ‘R’ was proposed and seconded--He was rightly declared elected as Sarpanch--|Punjab Panchayati Raj Act, 1994, Sections 13-A, 13, 104, 167--Punjab Panchayati Election Rules, 1994, Rule 45(1). (Para 10)
(B) Election Law--Election of Sarpanch--Setting aside of--Disputed questions of fact--Cannot be gone into in writ petition--Petitioners can question the Election of Sarpanch by filing a election petition--|Punjab Panchayati Raj Act, 1994, Sections 13-A, 13, 89, 76--Constitution of India, 1950, Article 226. (Para 11)
Satish Kumar Mittal, J.:-This order shall dispose of CWP Nos.13391 of 2008 and 13938 of 2008. CWP No.13391 of 2008 has been filed by Kulwant Singh, who has been elected as Panch of Gram Panchayat of Village Sandhra, Tehsil and District Hoshiarpur, but at present is confined in District Jail, Hoshiarpur in case FIR No.41 dated 4.6.2008 under Sections 323/324/452/427/34 IPC registered at Police Station Bullowal. CWP No.13938 of 2008 has been filed by three elected Panches of the Gram Panchayat out of seven members Panchayat.
2. In both the petitions, a prayer has been made for setting aside the election of respondent-Ranjit Singh, who was elected as Sarpanch of the Village Gram Panchayat in the meeting of Panches held on 16.7.2008. In the writ petition filed by Kulwant Singh, an additional prayer has been made for issuing direction to respondents No.1 to 4 to administer the oath of Panch to him.
3. In this case, Gram Panchayat of Village Sandhra consists of seven members (Panches). In the Panchayat election held on 26.5.2007, petitioner Kulwant Singh in CWP No.13391 of 2008 and three petitioners in CWP No.13938 of 2008 were elected as Panches of the Gram Panchayat. Immediately after the election and before administering the oath to the elected members, a criminal case was registered against petitioner Kulwant Singh under Sections 323/324/452/427/34 IPC (FIR No.41 dated 4.6.2008 registered at Police Station Bullowal) in which the petitioner was arrested on 8.6.2008. All the elected Panches were administered oath or affirmation on 11.7.2008 by the authorised person, as specified in Schedule 1 of the Punjab Panchayati Raj Act, 1994 (hereinafter referred to as ‘the Act’). Since the petitioner was in judicial custody in the aforesaid criminal case, he could not take the oath as required under Section 13(1) of the Act. Subsequently, after the notification and oath of elected members of the Gram Panchayat, the Deputy Commissioner authorized Shri Harbans Singh, Presiding officer to convene the meeting of the elected Panches under Section 13-A of the Act for electing the Sarpanch of the Village Gram Panchayat. A notice of the said meeting was also served upon the petitioner as required under Rule 45 (1) of the Punjab Panchayat Election Rules, 1994 (hereinafter referred to as ‘the Rules’). On receipt of the said notice, petitioner Kulwant Singh moved an application before the Sessions Court for interim bail or for directing the jail authorities to produce the petitioner in custody at the venue to attend the aforesaid meeting and to exercise his right to vote to elect the Sarpanch of the village. The Incharge Sessions Judge, Hoshiarpur vide his order dated 15.7.2008 though dismissed the prayer of the petitioner for interim bail, however, he directed the jail authorities to take the petitioner to GES Hargarh Sandhra on 16.7.2008 at 3 PM under proper security to enable him to attend the said meeting and to exercise his right to vote. It is pertinent to mention here that no direction was issued by the Incharge Sessions Judge, Hoshiarpur to administer oath to the petitioner.
4. In compliance with the aforesaid order, when the petitioner was taken to the venue of the meeting, the Presiding Officer did not permit him to attend the meeting and to cast his vote for the election of Sarpanch on the ground that he had not taken the oath or affirmation in terms of Section 13(1) of the Act as he had received the intimation to this effect from the District Development and Panchayat Officer, Hoshiarpur. The said meeting was attended by the remaining six Panches and in the meeting respondent-Ranjit Singh was elected as Sarpanch of the Gram Panchayat as he was the only candidate. It is mentioned here that all the three petitioners did not propose the name of anybody and they had gone outside the meeting after signing the proceedings. Hence this petition.
5. Counsel for the petitioner submitted that respondent No.2- Harbans Singh, Presiding Officer
