IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH.

C.W.P. No. 13512 of 2008

DATE OF DECISION : 23.09.2008

Jaswinder Singh

.... PETITIONER

Versus

Presiding Officer and others

..... RESPONDENTS

CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL

HON'BLE MR. JUSTICE JASWANT SINGH

Present:

Mr. Sameer Sachdev, Advocate,

for the petitioner.

Mr.N.D.S. Mann, Addl. A.G., Punjab,

for respondents No.1 and 2.

Mr. S.S. Grewal, Advocate,

for respondents No.3 to 6.

* * *

SATISH KUMAR MITTAL , J. ( Oral )

Written statement on behalf of respondents No.3 to 6 has been

filed in Court today. The same is taken on record and its copy has been

supplied to counsel for the petitioner.

The petitioner is a returned candidate. He was elected as a

Panch of Gram Panchayat, Village Chaba, Tehsil Zira, District Ferozepur, in

the election held on 26.5.2008. Subsequently, respondent No.3, being a

voter of the constituency, filed an election petition under Section 76 read

CWP No. 13512 of 2008

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with Section 89 of the Punjab State Election Commission Act, 1994 before

the Election Tribunal, challenging the election of the petitioner on the

ground that he was not of the age of 21 years. The said election petition is

still pending. However, the Election Tribunal, vide impugned interim order

dated 22.7.2008 (Annexure P-2), restrained the petitioner from participating

in the election to the office of Sarpanch.

The contention of the counsel for the petitioner is that the

Election Tribunal has no jurisdiction to pass interim order restraining a

returned candidate from participating in the election of Sarpanch or

performing the functions and duties of the Panch till the election of the

returned candidate is set aside. In support of his contention, learned counsel

for the petitioner has relied upon a Division Bench decision of this Court in

Sham Lal v. State Election Commission, Punjab, 1997 (1) RCR (Civil) 82.

Counsel for respondents No.3 to 6 submits that as per the

direction issued by this Court in CWP No. 12450 of 2008, respondent No.3

submitted the application for stay before the Election Tribunal, who after

taking into consideration the averments made in the said application has

restrained the returned candidate Jaswinder Singh from participating in the

election of the Sarpanch. He further submits that in order to prove that the

returned candidate (petitioner herein) was about 21 years of age on the day

of election, he has relied upon the Birth Certificate (Annexure P-3). Counsel

for respondents No.3 to 6 submits that this document is false and forged,

therefore, the writ petition filed by the petitioner is liable to be dismissed.

CWP No. 13512 of 2008

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After hearing the arguments of learned counsel for the parties,

we are of the opinion that the present petition is to be allowed and the

impugned order dated 22.7.2008, passed by the Election Tribunal, is liable

to be set aside. This Court in Sukhdev Singh and others versus State of

Punjab and others (CWP No. 13116 of 2008, decided on 12.9.2008), while

relying upon the above said Division Bench decision of this Court, has

already held that no power has been conferred upon the Election Tribunal to

pass an injunction or stay order during the pendency of the election petition.

As far as the second contention of learned counsel for

respondents No.3 to 6 that the petitioner has relied upon forged birth

certificate (Annexure P-3) is concerned, we are of the opinion that while

deciding this petition, we are not placing reliance upon the said document,

therefore, we are not deciding the genuineness of the birth certificate

(Annexure P-3). The question regarding the age of the petitioner at the time

of the election has to be decided by the Election Tribunal.

In view of the above, this writ petition is allowed and the

impugned order dated 22.7.2008 is set aside.

( SATISH KUMAR MITTAL )

JUDGE

September 23, 2008

( J