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2008 Supreme(P&H) 1934
2009 (3) RCR(Civ) 641
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
SATISH KUMAR MITTAL and JASWANT SINGH, JJ.
Makhan Singh -PETITIONER
Versus
State of Punjab and others -RESPONDENTS
C.W.P. No. 16782 of 2008
Decided on: 19.11.2008
Advocate Appeared:
Mr. K.S. Sidhu, Advocate, for the petitioner.
Mr. N.D.S. Mann, Addl. A.G., Punjab, for respondents No.1 to 3.
Mr. Sukhdev Raj Kamboj, Advocate, for respondent No.4.
An elected candidate cannot be restrained from discharging duties based on the pendency of an election petition, and the Election Tribunal has no jurisdiction to pass interim orders restraining an elected Panch from functioning.
Headnote:
Election Tribunal - Panch - Punjab Panchayati Raj Act, 1994, Section 13; Punjab State Election Commission Act, 1994, Section 76 - The court discussed the provisions of the Punjab Panchayati Raj Act, 1994 and the Punjab State Election Commission Act, 1994. It highlighted the legal position that an elected candidate cannot be stopped from functioning and discharging duties based on the pendency of an election petition. The court referred to the Sham Lal v. State Election Commission, Punjab, 1997 (1) RCR (Civil) 82 case, emphasizing that the Election Tribunal has no power to pass an injunction or stay order during the pendency of an election petition. It also cited the Sukhdev Singh and others v. State of Punjab and others case, where it was held that the Election Tribunal has no jurisdiction to pass an interim order restraining the elected Panch from discharging his duties and participating in the election of the Sarpanch.
Fact of the Case:
The petitioner, elected as Panch of Gram Panchayat, challenged an interim order restraining him from working during the pendency of an election petition. The petitioner sought to quash the interim orders and allow him to discharge his duties as Panch.
Finding of the Court:
The court found that the interim order restraining the petitioner from discharging his duties as Panch during the pendency of the election petition was wholly illegal and without jurisdiction. It set aside the impugned orders and directed the Election Tribunal to decide the election petition expeditiously.
Issues: The issues involved the legality of restraining an elected candidate from functioning based on the pendency of an election petition and the jurisdiction of the Election Tribunal to pass interim orders.
Ratio Decidendi: The court held that an elected candidate cannot be prevented from assuming office based on the pendency of an election petition. It emphasized that the Election Tribunal has no power to pass an injunction or stay order during the pendency of an election petition.
Final Decision: The petition was allowed, and the impugned orders were set aside. The Election Tribunal was directed to decide the election petition expeditiously.
SATISH KUMAR MITTAL, J.
1. The petitioner, who was elected as Panch of Gram Panchayat, Village Holanwali, Tehsil Zira, District Ferozepur, in the elections held on 26.5.2008, has filed this petition under Articles 226/227 of the Constitution of India for setting aside the interim order dated 18.7.2008, passed by the Election Tribunal, Ferozepur, whereby the petitioner has been restrained from working as Panch of the aforesaid Gram Panchayat during the pendency of the election petition. A direction has also been sought to allow the petitioner to work and discharge the duties of Panch of the Gram Panchayat.
2. The brief facts of the case are that in the elections held on 26.5.2008, the petitioner was elected as a Panch of the Gram Panchayat against the seat, meant for General category. His name was notified as elected Panch of the Gram Panchayat and he was also administered the oath of allegiance under Section 13 of the Punjab Panchayati Raj Act, 1994 (hereinafter referred to as `the Act').
3. On 25.7.2008, Jatinder Pal Singh (respondent No.4 herein) filed an election petition under Section 76 of the Punjab State Election Commission Act, 1994 (hereinafter referred to as `the State Election Commission Act') before the Additional Deputy Commissioner, exercising the powers of the Election Tribunal, challenging the election of the petitioner as Panch of the Gram Panchayat, on the ground that he was disqualified under provisions of the Act to contest the election, as he was working as Security Guard (Contractual) with BSNL.
4. After filing of the said election petition, respondent No.4 filed CWP No. 11827 of 2008 in this Court for directing the Punjab State Election Commission not to allow the petitioner to participate in the election of Sarpanch of the Gram Panchayat, as the election petition challenging his election as Panch is pending before the Election Tribunal. This Court, vide order dated 11.7.2008, disposed of the said writ petition with a direction to the Election Tribunal to decide the election petition expeditiously within three months, with a further liberty to respondent No.4 to move an application before the Election Tribunal to obtain an interim relief for restraining the petitioner from functioning as a Panch. Consequently, respondent No.4 filed the application for restraining the petitioner from performing his duties as Panch. The Election Tribunal vide its order dated 18.7.2008 stayed the working of the petitioner as Panch of the Gram Panchayat.
5. Prior to that, Bachittar Singh and Kulwant Kaur Panches filed CWP No. 12400 of 2008 in this Court to the effect that they along with petitioner Makhan Singh constitute majority of 3 out of 5 Panches in the Gram Panchayat, therefore, they be permitted to elect the Sarpanch of their choice. However, the said petition was dismissed on the statement of counsel representing the other group of Panches that Makhan Singh has been debarred by the Election Tribunal from working as Panch, with the observation that as long as the said order stands, those petitioners do not enjoy majority.
6. Thereafter, petitioner Makhan Singh filed CWP No. 12733 of 2008 for quashing the interim order dated 18.7.2008 and the said petition was dismissed by this Court on 24.7.2008, by passing the following order :
“In an earlier petition filed by Bachittar Singh and another, C.W.P. No. 12400 of 2008, petitioners had claimed that they along with Makhan Singh (present petitioner) constituted a majority of three out of five Panches in the Gram Panchayat. However, counsel had put in appearance on behalf of Amarjit Singh and Gurmeet Kaur and stated that Makhan Singh had been debarred by the Election Tribunal from working as Panch. On this basis, the petition was dismissed and it was recorded that as long as the above order stands debarring Makhan Singh from participating in the elections, he does not enjoy a majority.
In view of the above, this petition is without any merit and the same is dism
