Punjab-Haryana High Court
Gurinder Singh vs State Of Punjab And Ors. on 21 February, 2007
Equivalent citations: (2007)147PLR747, AIR 2007 (NOC) 1061 (P. & H.)
JUDGMENT Vinod K. Sharma, J.
1. The petitioner, who is District President of Shiromani Akali Dal Badal (Youth Wing), District Ropar, (hereinafter referred to as 'SADB') was elected as Member of Panchayat Samiti, Ropar in the election held in June 2002 on party symbol of SADB,
2. It is the case of the petitioner that against the 17 elected members of Block Samiti, Ropar, eight members including the petitioner belonged to SADB and the remaining nine members belonged to the Congress Party which is in power in the State of Punjab. It is the further case of the petitioner that Bibi Satwant Kaur Sandhu, M.L.A. Chamkaur Sahib, is also ex officio member of the Block Samiti, who also belonged to SADB and, therefore, was to support the Akali Dal Candidates for the election of Chairman and Vice Chairman of Block Samiti.
3. The petitioner was in race for the office of Chairman, Block Samiti, Ropar in the election which was fixed for 28th of January, 2003. It is averred in the writ petition that the petitioner was also a contestant for election to the office of Zila Parishad which was to be held in near future. It is the further case of the petitioner that SDM-Cum-Returning Officer issued a notice under Rule 45(1) of the Punjab Panchayat Election Rules, 1994 to the effect that a special meeting of Panchayat Samiti would held at Zila Parishad Office, Ropar on 28.1.2003 at 3.30 p.m. for the elections of Chairman and Vice Chairman and the petitioner was asked to attend the same.
4. It is also the case of the petitioner that on 28.1.2003 the petitioner along with other elected members of the SADB came present in the office of Zila Parishad, Ropar,. for participating in the election for the Office of Chairman and Vice Chairman, Panchayat Samiti, Ropar. It is the further case of the petitioner that nine members belonging to Congress Party did not attend the meeting on 28.1.2003. Thus the meeting was postponed for want of coram.
5. It is also averred in the petition that the petitioner was thereafter suspended as member of the Panchayat Samiti due to political reasons. The meeting of the Panchayat Samiti was thereafter fixed for 1st February, 2003 for holding election for the posts of Chairman and Vice Chairman, the notice of which was also given to the petitioner. It is also the case of the petitioner that he was served with an order dated 30.1.2003 issued by the Secretary to Government Punjab Department of Rural Development and Panchayat, suspending him from the membership of Panchayat Samiti. He was further restrained from participating in any proceedings of the Panchayai Samiti, Ropar. On account of this order, the notice issued to the petitioner under Rule 45(1) Punjab Panchayat Election Rules, 1994 was also withdrawn. Thus, he was debarred from participating in the election to be held on 1st February, 2003. On account of this, respondent Nos. 5 and 6 were declared successful in election as Chairman and Vice Chairman respectively.
6. The petitioner has challenged the impugned order suspending him from the membership of Panchayat Samiti primarily on the ground that the only ground on which the order of suspension was passed was that a case under Section 323, 325 of the Indian Penal Code and Section 3(1) of the Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was pending against him. It was further claimed that the charge has been framed in the case against the petitioner along with others.
7. Mr. H.S. Mattewal, learned senior counsel appearing on behalf of the petitioner, contended that the impugned order cannot be sustained in view of the Division Bench Judgment of this Court in the case of Satnam Singh @. Kala v. State of Punjab and Ors. (2003-3)135 P.L.R. 522, wherein this Court has been pleased to hold as under:
11. It is apparent from the record that admittedly, an F.I.R. under Section 379 I.P.C. was registered against the petitioner on 23.2.2001 and trial in that regard, was going on before the competent court. It is also an admitted fact that the petitioner was selected as member of the Panchayat Samiti on 10.6.2002 along with 19 other members. It is also clear from the record that in the group of the petitioner, there were 11 members out of 20 elected members and in view of this, it can reasonably be presumed that his group was likely to win election for the post of Chairman and Vice Chairman of Panchayat Samiti. It is also an admitted fact that the election of the office-bearers was fixed on 28.1.2003 and only 11 members came present and for want of quorum, election meeting was adjourned to 30.1.2003 and on that day, when the meeting was in progress, restraint order, Annexure P-3, was handed over to the Presiding Officer, petitioner then was not allowed to participate in the election and on counting of votes, it transpired that for the post of Vice-Chairman, both the candidates secured 10 votes each. From these facts, this Court can infer that an attempt was made to see that the petitioner be not in a position to cast his vote at the time of election and the pending FIR was chosen as a handle to achieve the desired objective, on the basis of which impugned order was got passed, on a complaint made by respondent No. 4. As such, argument raised by counsel of the petitioner that the impugned order is a mala fide one, having been passed to debar the petitioner illegally from casting this vote, seems perfectly justified.
12. On a conjoint reading of Sections 20, 113 and 208 of 1994 Act, further argument of counsel for the petitioner that order was passed without jurisdiction, also seems to be correct. From reading of the provisions of Section 208 of 1994 Act, it is clear that many grounds have been enumerated therein, on the basis of which, action can be taken and Panch, Sarpanch can be suspended and removed from the office.
13. Sub-section (3) of Section 20 envisages that the Director may suspend any Sarpanch and Panch, where a case against him in respect of any criminal offence, is under investigation, enquiry or trial, if, in opinion of the Director, the charge made or proceedings taken against him is likely to embarrass him in the discharge of his duties or involves moral turpitude or defect of character. Sub-section (4) of Section 20 envisages that the Director at any time and the Deputy Commissioner or the District Development and Panchayat Officer during the course of an enquiry, may suspend a Sarpanch or Panch for any of the reasons for which he can be removed.
14. Contrary to this, a reading of Section 113 of the 1994 Act, clearly indicates that there exist no provisions to the effect that in case of registration of a criminal case, a member of Panchayat Samiti can be removed/suspended from the office. Sub-section (1) of Section 113 of 1994 Act lays down that State Government may, during the course of an inquiry suspend a member of Panchayat Samiti for any of the reasons for which he can be removed and debar him for taking part in any act or proceeding of the said body during the enquiry. These provisions further envisage that the State Government may by notification remove any member who in the opinion of the State Government has been guilty of misconduct in the discharge of his duties.
15. A reading of Section 113 of 1994 Act, shows that power regarding suspension and removal is limited with the Government as compared to the powers available for suspension and removal of Sarpanches and Panches under Section 20 of the Act.
16. A perusal of provisions of Section 113 and Section 208 of 1994 Act, clearly indicates that mere pendency of an F.I.R. against a member of Panchayat Samiti, cannot be made a ground for his suspension/removal, as has been done in the present case.
17. Under Section 208(1)(c) conviction for any offence involving moral turpitude or an offence implying of any defect of character is a disqualification to be chosen as a member and to remain as a member of the Panchayat but mere pendency of the F.I.R. is not a disqualification.
18. Argument advanced by counsel for the petitioner that since no enquiry under the Act was pending, suspension of the petitioner, vide impugned order is without jurisdiction, seems to be correct. Section 13 lays down that a member of Panchayat Samiti can be suspended only during the course of enquiry.
19. Argument of the State Counsel that pendency of trial, in the court regarding F.I.R., amounts to enquiry and suspension is justified, is misconceived and is liable to be rejected.
20. A Division Bench of this Court in Mangu Ram v. The State of Haryana and Ors. 1992 P.L.J. 525, while interpreting provisions of Section 102(l-A) of the Punjab Gram Panchayat Act (those provisions are para material) of Section 113 of 1994 Act), opined as under:
An order suspending a Panch could only be made during the pendency of an enquiry and as no enquiry had been instituted by the Director who alone was competent to do so, the order of suspension has to be declared as having been made without authority of law.
Similarly, a Division Bench of this Court in Isham Singh v. Deputy Commissioner, Kaithal and Ors. 1993 P.L.J. 626, again, while interpreting the provisions of Section 102 of the Punjab Gram Panchayat Act, gave the following verdict:
As far as interpretation of Section 102 of the Act is concerned, we are of the opinion that the order of suspension can only be passed when an enquiry is ordered or is pending. Such a situation is yet to come in the present case. May be that the Deputy Commissioner accepts the plea of the petitioner as given in the reply to the show cause notice and he may not invoke jurisdiction to actually suspend the petitioner.
In the above mentioned case show cause notice to a Panch, who was apprehending suspension, was under challenge. In those circumstances, above mentioned observations were made by this Court.
21. In this case also, no enquiry was pending when impugned order was passed. On the asking of the Court, State Counsel has even failed to state that any such enquiry was instituted, even thereafter. Under these circumstances, no option is left with the Court except to declare that in the absence of any pending enquiry, the impugned order Annexure P-3 could not have been passed by respondent No. 1, as such, order under challenge, cannot be sustained.
8. Mr. G.S. Chahal, learned Counsel appearing on behalf of respondent No. 4, on the other hand, contended that Section 208 of the Punjab Panchayati Raj Act, 1994 (for short the 'Act') defines the 'Disqualification for Membership' wherein it has been provided that a person shall be disqualified for being chosen as and for being a member of. a Panchayat, if-
(a) to (o) xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx He further made reference to definition of Panchayat as given under Section 2(z) which reads as under:
Panchayat means a Gram Panchayat, Panchayat Samiti and Zila Parishad.
9. The contention of the learned Counsel for respondent No. 4 was that the judgment of the Division Bench of this Court does not lay down correct law and it has not taken note of definition of Panchayat as given under Section 2(z) of the Act. This contention of the learned Counsel for respondent No. 4 is totally misconceived. The Division Bench of this Court while deciding the matter has interpreted the provisions of Sections 113, 208 and 220 of the Act and in view of this, the reading of these sections leaves no manner of doubt that interpretation given by the Division Bench of this Court is in consonance with the Act and the definition of Panchayat as given under Section 2(zj) cannot lead to any other conclusion.
10. Learned Counsel for respondent No. 4 further submits that the impugned order stood withdrawn. Be that as it may, the order being totally without jurisdiction and arbitrary, deserves to be set aside.
11. Mr. H.S. Mattewal, learned senior counsel for the petitioner thereafter contended that election of respondent Nos. 4 and 5 as Chairman and Vice Chairman of the Panchayat Samiti cannot be sustained as the petitioner was debarred from participating in the election due to illegal order passed by the State in ordering his suspension. The contention of the learned senior counsel for the petitioner, therefore, was that keeping in view the strength of the respective parties, the absence of the petitioner has materially affected the result of the election which deserves to be set aside.
12. The learned senior counsel for the petitioner further contended that in view of the judgment of the Full Bench of this Court in the case of Lal Chand v. State of Haryana (1998-2)119 P.L.R. P.L.R. 640 it is open to the petitioner to challenge the election of respondent Nos. 4 and 5 by way of present writ petition. Paras 9 and 27 of the said judgment read as under:
9. We propose to deal with first question only as the second question has already been answered by a Full Bench of this Court in the case of Smt. Anju v. Addl. Civil Judge, (Sr. Division), Pehowa (1998-2)119 P.L.R. 393 (F.B.). In this case, it was held by the Full Bench that the election of a returned candidate cannot be allowed to be challenged on any of the grounds other than those specific in Section 176 of the Haryana Panchayati Raj Act, 1994. That is to say that the grounds on which the election can be challenged are:
(a) That the returned candidate committed corrupt practices within the meaning of Sub-section (5);
(b) That some irregularities or illegalities were committed during the course of counting, on which plea the court may order scrutiny and recounting of votes and declaring the candidate who is found to be duly elected.
27. In view of the above discussion, we are of the considered view that despite the bar imposed under Article 243(0) and Article 243ZG of the Constitution of India, the election of the Panchayat/Municipality can be challenged directly before the High Court under Article 226/227 of the Constitution of India otherwise the Articles would be against the basic structure of the Constitution (i.e. Judicial review by the High Court/Supreme Court). The High Court, however, keeping in view the facts and circumstances of the case may relegate the petitioner to the remedy available before the Election Tribunal.
13. Mr. G.S. Chahal, learned Counsel appearing on behalf of respondent No. 4, on the other hand, contended that the petitioner has an alternative remedy of filing an election petition and, therefore, the writ petition to challenge election of respondent Nos. 4 and 5 is not competent. In support of his contention, the learned Counsel for respondent No. 4 placed reliance on the Division Bench of this Court in the case of Nachhattar Singh and Anr. v. State of Punjab and Ors. 1993 P.L.J. 428, wherein it has been held as under:
8. On a consideration of the judgments quoted above, it is clear that while the remedy for the purpose of challenging the result of the election by way of an election petition under Section 13-B of the Act may be available, yet in the facts and circumstances of a particular case the High Court could interfere under Article 226 of the Constitution. The mere availability of an alternative remedy is not the solitary test: such a remedy must, in addition, be adequate and efficacious. It bears repetition that there is no constitutional bar to the maintainability of such as writ petition with respect of local bodies such as Municipal Committees, District Boards or Gram Panchayats in the manner indicated by the Constitution under Article 329(b) with respect to elections held to the State Assemblies or Parliament, and in the absence of such a restrain, the scope of Article 226 is all prevasive and wide enough to reach and remove an injustice suffered. This Court would not, therefore, throw out the writ petition at the very threshold and compound the sense of injury, and injustice inflicted on the petitioners with another one at the hands of the Court by circumscribing artificially the scope of Article 226. The Court in exercising restrain must not clip its wings, though interference should be made, to use the oft repeated words, in the 'rarest of rare' cases. We, therefore, hold that though an alternative remedy by way of an election petition is available to the petitioners, yet we find that it is not an efficacious one in the facts and circumstances of the present case which we now proceed to enumerate.
9. From the facts as stated at the start of the judgment, it is apparent (hat she relationship interse between the Sarpanch and the Panches stands proved beyond a shadow of doubt. The states in its reply has not denied this relationship and the reply is that as they were the only validly nominated candidates, their unanimous election was in order. Moreover as already mentioned earlier, no reasons have been spelt out by respondent Nos. 1 to 4 in their reply (which includes the returning officer respondent No. 4) as to why the nomination papers of as many as 26 candidates had been rejected. In the reply filed by respondent No. 5, an attempt to raise disputed questions of fact has been made, but it has been admitted that Gurmeet Singh and Pritam Kaur were related to him as averred whereas the relationship qua Satpal Singh has been denied. This denial has been met by the affidavit of Jagmohan Singh filed along with the replication, who claims to be a relative of Kishan Singh and Satpal Singh. Moreover, even assuming that Sat Pal Singh was not related to the others yet it would not really make any difference as the conduct of the returning officer has called into question his integrity and on that basis the entire election. Respondent No. 5 has stated that as far as candidates for the office of Panches was concerned the nomination papers of Scheduled Caste candidates were rejected as the Scheduled Caste Certificate had not been appended therewith and secondly that in the nomination papers instead of identifying the village as Gram Panchayat Mothanwala only Mothanwala had been mentioned. These reasons, to your mind, are wholly untenable. It is to be noted that out of 22 candidates who were of the scheduled Caste category and even assuming that their papers could be validly rejected, this ground was not available qua at the other candidates. The second ground urged is so absurd that it requires no comment. As per the reply of respondent No. 5, the nomination paper of Jagroop Singh, who was a candidate for the office of Sarpanch was rejected as he had been fined for travelling in the train without ticket. The averment is also without any basis and a mere assertion to this effect cannot be believed, more so as the said Jagroop Singh was a member of the outgoing Panchayat. The assertion that Form No. IV was not filed necessitating the rejection of the other nomination papers is also without basis as respondent No. 5 was not competent to make this reply. The objection that an election petition filed by Jagroop Singh is pending, has no bearing on the result of this case as clearly the petitioners herein have not filed any election petition.
11. It is apparent to us that election to the Gram Panchayat of Mothanwala was a farcical exercise. In the facts as set out above, it would be travesty of justice if this Court would shut its eyes and relegate the petitioners to the alternative remedy of an election petition under the Act. The election of respondent No. 4, the returning officer, in rejecting 26 out of 30 nomination papers on flimsy grounds just to see that the members of one family win the election is nothing, but a malafide act which shocks the conscience of the Court and calls for interference.
The learned Counsel for respondent No. 4 also placed reliance on the judgment of the Hon'ble Supreme Court in the case of Harnek Singh v. Charanjit Singh and Ors. wherein it has been held as under:
16. Article 243O of the Constitution of India mandates that all election disputes must be determined only by way of an election petition. This by itself may not per se bar judicial review which is the basic structure of the Constitution, but ordinarily such jurisdiction would not be exercised. There may be some case where a writ petition would be entertained but in this case we are not concerned with the said question.
14. The learned Counsel further placed reliance on the judgment of the Hon'ble Supreme Court in the case of C. Subrahmanyam v. K. Ramanjaneyullu and Ors. to contend that even in the case of violation of the provisions of the Act, the writ petition to challenge the election is not competent.
15. I have heard the learned Counsel for the parties and find force in the contentions raised by the learned senior counsel for the petitioner.
16. It is not in dispute that according to Punjab State Election Commission Act, 1994, the election can be challenged only on the grounds mentioned therein. Section 89 of this Act reads as under:
89. Grounds for declaring election to be void:
(1) Subject to the provisions of sub-section (2) if the Election Tribunal is of the opinion,-
(a) that on the date of his election, a returned candidate was not qualified, or was disqualified to be chosen to fill the seat under the Constitution of India or under this Act; or
(b) that any corrupt practice has been committed by a returned candidate or his election agent or by other person with the consent of the returned candidate or his election agent; or
(c) that any nomination has been improperly rejected; or
(d) that the result of the election, in so far as it concerned a returned candidate, has been materially affected, -
(i) by the improper acceptance of any nomination; or
(ii) by any corrupt practice committed in the interest of the returned candidate by an agent other than his election agent; or
(iii) by the improper reception, refusal or rejection of any vote which is void; or
(iv) by any non-compliance with the provisions of the Constitution of India or of this Act or any rules or orders made under this Act;
the election Tribunal shall declare the election of the returned candidate to be void.
(2) If in the opinion of the Election Tribunal, a returned candidate has been guilty by an agent, other than his election agent, of any corrupt practice, but the Election Tribunal is satisfied,-
(a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and without the consent of the candidate or his election;
(b) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practice at the election; and
(c) that in all other respects, the election was free from any corrupt practice on the part of the candidate or any of his agent;
(d) then the Election Tribunal may decide that the election of the returned candidate is not void.
(3) In this section, the expression 'agent' has the same meaning as assigned to it in Explanation (1) given under Clause (9) of Section 108, but does not include election agent.
17. It would be seen that the case of the petitioner does not fall within any of the conditions laid down therein and, therefore, the petitioner does not have the remedy of election petition, so as to relegate him to avail the remedy of election petition as suggested by the learned Counsel for respondent No. 4. Even otherwise, in view of the law laid down by the Hon'ble Supreme Court in Harnek Singh's case (supra), it is open to this Court to entertain the writ petition. This is one of such cases, where the writ jurisdiction can be invoked to set aside the election of respondent Nos. 4 and 5 as the right of the petitioner to contest the election has been taken away on the basis of an illegal order.
18. Accordingly, the writ petition is allowed. The impugned order Annexure P-4 suspending the petitioner as Member of Panchayat Samiti as well as election of respondent Nos. 4 and 5 are set aside.