Mehar Chand and Another vs T.D. Sharma and Others

S.P. Goyal, J.—By way of this petition under Articles 226 and 227 of the Constitution of India, the Petitioners have challenged the election of Sarpanch, Respondent No. 2 and the Panches Respondents Nos. 3 to 8 held on June 8, 1978.

The Haryana Government constituted Nangal Sabha area u/s 5 of the Gram Panchayat Act 1952 vide notification dated April 15, 1977. The number of Panches including the Sarpanch of the Gram Panchayat Nangal was fixed at six, five from the general quota and one from the reserved quota from amongst the members of the Scheduled Caste. Sub-section (1) of Section 5 further provides that if no woman is elected as Panch then a woman member of the Sabha who is qualified to be elected is to be co-opted as Panch in the manner prescribed. The election of the Sarpanch and Panches was ordered to be held on June 8, 1978 according to the election programme and Shri T.D. Sbarma was appointed as the Returning Officer for that purpose. The Returning Officer by wrongly interpreting the notification at the time of the election announced that four Panches including a Scheduled Caste Panch and Sarpanch were to be elected for the said Panchayat and kept one vacancy reserved for a woman panch. In the election held, Respondent No. 2 was declared elected as Sarpanch and Respondents Nos. 3, 4, 5 and 7 as Panches. When the matter came to the notice of the Government, notification, Exhibit P-3 dated September 13, 1978 was issued declaring Shri Parbhati, Respondent No. 6 to have been elected as member Gram Panchayat Nangal. The said notification and the legality of the election of the Panches and the Sarpanch have been challenged by the two voters of the said Gram Sabha but the challenge against the election of the Sarpanch was not pressed at the time of arguments.

So far as notification, Exhibit P. 3, issued by the State of Haryana is concerned, I have already held in Civil Writ Petition No. 4485 of 1978 Shera Ram and Ors. v. State of Haryana and Ors. decided on April 25, 1980 that the Government has no authority to declare anybody elected as Panch by issuing such a notification. For the reasons recorded in that decision, Exhibit P-3, has to be quashed.

As regards the election of the Panches, it is not disputed that each member of the Sabha has only one vote and the persons getting highest votes serial wise are declared elected. The election of one Panch, therefore, cannot be separated from the election of other Panches. According to the notification of the Government, the Gram Panchayat Nangal consisted of six members including the Sarpanch. The Returning Officer, however, announced at the time of the election that only four Panches were to be elected instead of five. The election proceedings held in pursuance of this announcement were therefore, void ab inito and election of all the Panches liable to be quashed. Mr. Gopi Chand learned Counsel for the Respondents, however, urged that a regular remedy of election petition being available to the Petitioners, this petition was not maintainable. Reliance for this contention was placed by the learned Counsel on Pritam Singh v. The State of Punjab and Ors. 1973 PLJ 623 and Tarsem Lal v. Buta Ram etc. 1973 Cur. LJ 594. I am, however, unable to subscribe to the view of the learned Counsel because with the passage of time, the remedy of the regular election petition has become inefficacious. The election was held in the year 1978 and two and a half years have passed since then the term of the Gram Panchayat being five year, if the Petitioners are relegated to the ordinary remedy, they are not likely to get any relief by the time term of the Panchayat expires. Moreover, it is also doubtful if the election as a whole can be challenged by way of an election petition. In these circumstances, I do not think it proper to dismiss the petition because of the availability of the ordinary remedy under statute.

For the reasons recorded above, this petition is allowed and the election of Respondents Nos. 3 to 7 as Panches as well as Annexure P-3, are hereby quashed. No costs.