Rakesh Kumar Jain, J, (Oral).:- This appeal is directed against the order passed by Deputy Commissioner-cum Presiding Officer, Election Tribunal, Gurdaspur, dated 9.9.2009, whereby an election petition filed under Sections 76 & 89 of the Punjab State Election Commission Act, 1994 (for short, the Act), challenging the election of Balbir Singh, has been dismissed.

2. Brief facts of the case are that election to constitute Gram Panchayat, Jagowal Bet, District Gurdaspur, was held on 26.5.2008, in which 7 members from various categories were elected. In order to elect Sarpanch of the said village, a meeting was convened by the Returning Officer on 17.7.2008. The said meeting failed as the Presiding Officer did not come. Next meeting was scheduled for 19.7.2008 at 2.30.p.m and for that purpose, separate notices were issued by the Returning Officer on prescribed form. That meeting was attended by respondent Nos 2 to 4 in which respondent No.2 was declared to have been elected in terms of Rule 45-A of the Punjab Panchayat Election Rules, 1994 (for short, the Rules).

3. The appellant then filed a C.W.P.No.13111 of 2008 in this Court, seeking a writ in the nature of mandamus directing the official respondents i.e. respondent Nos. 1 and 2 to hold election of the Sapanch of Gram Panchayat, Jagowal Bet by allowing the petitioners to elect Sarpanch of their choice as they have got majority of four members out of seven members of the Panchayat. The said writ petition was disposed of by this Court in terms of an order passed in C.W.P.No.12694 of 2008 titled Gurmeet Singh Vs. State of Punjab and others decided on July 23,2008. The sum and substance of the said order passed in CW.P.No.12694 of 2008, was to file an election petition instead of approaching this Court by way of writ petition.

4. Consequently, the appellant filed an election petition before the Election Tribunal for the purpose of challenging the election of respondent No.2 on the ground that meeting dated 19.7.2008 has been held in their absence without notice to them.

5. On the pleadings of the parties, following issues were framed:-

1. Wehther the Election of respondent No.1 for the office of Gram Panchayat of Jagowal Bet is liable to be declared as illegal, null and void and set aside on the grounds mentioned in the petition ? OPP

2. Whether the election petition is not maintainable ?OPR

3. Whether the petition is time barred ? OPR

4. Wehther the Election Tribunal has not got the jurisdiction to entertain and try the present petition ? OPR

5. Relief:

6. The petitioner recorded his own statement as PW-1, whereas respondents Balbir Singh and Parshotam Lal got recorded their statements as RW-1 and RW-2, respectively.

7. Learned Tribunal dismissed the election petition only on the ground that the appellant and his supporters i.e. respondent Nos. 4 to 6 did not attend the meeting held on 19.7.2008 as they had refused to receive the notices served upon them. In that situation, the Presiding Office had no option but to elect respondent No.1. in their absence as Sarpanch from the members present in the meeting held on 19.7.2008 because Rule 45-A provides that in the adjourned/second meeting, coram is not required.

8. Notice of motion was issued in this case on 5.2.2010. In the meantime, Registry was directed to summon the record of the Election Tribunal through fax. Record has been received.

9. Learned counsel for the appellant has referred to Form No.10 and submitted that refusal service of summons effected upon the appellant and respondent Nos. 4 to 6 have not been acknowledged by way any independent witness. There is no evidence on record that the said summons were presented to the appellant who is alleged to have refused the same. He has also submitted that there is no time and date of refusal of summons that at what time, the summon was tried to be served upon the appellant or respondent Nos. 4 to 6. Learned counsel has further submitted that Section 81 of the Punjab Sta