(O&M) v. Gurpreet Kaur & Ors.

CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. S.S.Bhinder, Advocate, for the appellant. Mr. B.S.Sidhu, Advocate, for the respondents. ***** RAKESH KUMAR JAIN, J. Nazam Singh (respondent No.1 in the election petition) is the appellant before this Court challenging the order of Sub Divisional Magistrate-cum-Presiding Officer, Election Tribunal, Bathinda [for short “Election Tribunal”] dated 29.01.2010 by which the election petition filed by the election petitioners (respondent Nos.1 to 5 herein) has been allowed and the election of Sarpanch has been ordered to be held afresh, as per Rules. In brief, there are 9 posts of Panches in the Gram Panchayat of village Bangi Ruldu, Block Talwandi Saboo, District Bathinda. After the election of 9 Panches on 26.05.2008, the process of election of the Sarpanch started. First meting was held on 18.07.2008 in which election petitioners (respondent Nos.1 to 5) came present, but the minority group of Nazam Singh, Malkit Kaur, Buta Singh and Charanjit Singh abstained FAO No.914 of 2010 (O&M) - 2 - ****** from participating in the meeting. Therefore, the said election meeting was adjourned to 21.07.2008 to be held at the same date, time and place. In the meeting dated 21.07.2008, both the groups proposed the names of their Sarpanch, namely, the election petitioners, who are five in number, proposed the name of Gurpreet Kaur for the post of Sarpanch, whereas the minority group of respondent No.1 in the election petition, who are four in number, proposed the name of Nazam Singh (appellant herein). In this election meeting, there were allegations against the Presiding Officer Harlabh Singh Chahal, XEN, Irrigation Department, of bias in favour of the appellant's party. Therefore, it is alleged that the party of the election petitioners had staged a demonstration resulting into commotion in which the proceeding book was torn off and the election result was deferred by the Presiding Officer to 30.07.2008. Despite the fact that the Presiding Officer, Harlabh Singh Chahal was impleaded as a respondent in the election petition, he did not contest it and was proceeded against ex-parte. However, learned Election Tribunal, vide its order dated 25.01.2010, ordered him to be present in Court as witness along with record. His statement was recorded. The Presiding Officer stated that the election of Sarpanch was conducted through ballots. However, he submitted that the ballots were kept in an open envelope. After the election, he did not seal the result and election report before depositing it to the District Electoral Officer nor did he seal the ballots used in the election at the spot rather, at the time of his evidence, he produced open ballots before the Election Tribunal marked as H-9 to H-17. Thus, the Election Tribunal had found that there is no secrecy maintained in the election of Sarpanch which was conducted through ballots and nothing can be ensured that the ballots produced in the Court, namely, H-9 to H-17, are the same ballots which were used at the time of election or have been replaced. The election petitioners had also produced a Compact Disk (CD) which was played by the Election Tribunal on the computer from which it was found that the atmosphere in the election meeting was surcharged due to the partisan behaviour of the Presiding Officer and also that no secrecy of the election FAO No.914 of 2010 (O&M) - 3 - ****** record/ballot papers was maintained. The Election Tribunal had also found that since after the election, the election petitioners, who are five in number, have been together as they have been filing writ petitions one after the other before this Court and had also filed the election petition together. It was thus observed that there is no question of election of the Sarpanch in the election meeting from the minority group of the appellant. Challenging the finding of the learned Election Tribunal, learned counsel for the appellant has submitted that the Presiding Officer has not filed any reply and had only appeared as a witness. He has argued that it would be proper that the order of the Election Tribunal is set aside and the matter is remanded back to the Election Tribunal directing respondent No.9 Harlabh Singh Chahal to file his reply. He has also urged that the entire fault lies with the election petitioners as they had torn off the election proceedings, therefore, they should not have been rewarded by the Election Tribunal while allowing their election petition. On the other hand, learned counsel for the respondents (election petitioners) has submitted that from the bare perusal of the CD and also the fact that the ballot papers H-7 to H-19 have been kept open by the Presiding Officer, no sanctity can be attached to the election which was held in the said meeting because it is provided in the Rules that the Presiding Officer is required to seal the election record immediately and deposit the same with the District Electoral Officer in order to avoid any chance of tempering by any unscrupulous person. I have heard both learned counsel for the parties and perused the record with their able assistance. In this case, the findings recorded by the Election Tribunal on the basis of statement made by the Presiding Officer are sufficient to dismiss the present appeal as he had admitted in so many words that after the election was over he did not seal the ballot papers used by the Panches for the purpose of election of the Sarpanch and had also not deposited the same with the District Electoral Officer. He brought the ballot papers in an open envelope even before the Election Tribunal which had lost entire FAO No.914 of 2010 (O&M) - 4 - ****** confidence of the Election Tribunal in the election process and as such, it has rightly been observed that the election was a farce and is required to be re-held so that the person, who has support of the majority, could be elected as Sarpanch. Moreover, it cannot be digested that five Panches, who have been together ever since the date of their election as Panch, would not elect their Sarpanch and would allow the group in minority to elect Sarpanch out of them. Thus, I do not find any error of law in the order of the Election Tribunal and as such, the present appeal is hereby dismissed. The parties shall bear their own costs. September 28, 2010. vinod* (RAKESH KUMAR JAIN) JUDGE