Parkasho vs State of Punjab and others

The petitioner by way of this writ petition has sought the indulgence of this Court to issue a writ of certiorari quashing the co-option of respondent No. 4 and for declaration that the petitioner be deemed to be declared elected as Panch of Gram Pan-chayat, Karawar, Tehsil Balaghaur, District Hoshiarpur. Some of the facts have remained undisputed before us. Admittedly, two women, i.e., petitioner and Satya Devi wife of Risal Singh were the candidates for the post of Ranch in the election of the aforesaid Gram Panchayat. Smt. Satya Devi got 49 votes and was declared elected. Petitioner secured 18 votes and was unsuccessful in the election. However, she could have been declared elected under the provisions of S. 6(4) of the Punjab Gram Panchayat Act, 1952, which reads as under:--

"6(4). In every Gram Panchayat there shall be at least two women Panchas and if only one woman or no woman is elected as a Panch and the number of unsuccessful contesting weman candidates is two or more, then one woman or two women, as the case may be, securing the highest number of valid votes from amongst unsuccessful women candidates shall be deemed to have been elected as Panchas.

Provided that if only one woman or no woman is deemed to have been elected then one woman or two women as the case may be shall be co-opted by the Gram Panchayat in the prescribed manner from amongst the members of the Gram Sabha qualified to be elected as Panch."

The petitioner was not declared elected under the aforementioned provisions. Gram Panchayat, respondent No. 3, co-opted respondent No. 4 as lady Panch on 8-2-1993.

Learned counsel for the petitioner on the basis of the law laid down by this Court in a case reported as Gurdev Kaur and another Vs. Deputy Commissioner, Patiala and others, . has argued that since there were two women candidates. The petitioner would be deemed to have been elected under S. 6(4) of the Punjab Gram Panchayat Act, 1952 and that co-option of respondent No. 4 is void.

Mr. S.K. Sharma, learned Deputy Advocate General, Punjab has argued that no election can be called in question in view of the bar created by An. 243-K(b) of the Constitution of India as inserted by the 73rd Amendment Act, 1993. He has further argued that the petitioner should be directed to file an election petition as respondent No. 4 would be deemed to be elected Panch after she has been co-opted.

Having given our thoughtful consideration to the arguments of the counsel for the parties, we are of the considered view that the petitioner wouSd be deemed to be elected in view of the mandatory nature of S. 6(4) of the Punjab Gram Panchayat Act, 1952 which has been so interpreted in Gurdev Kaur and another Vs. Deputy Commissioner, Patiala and others, . Co-option of respondent is illegal and will have to be quashed. Had the petitioner been declared elected as was the mandate of S. 6(4) of the Gram Panchayat Act, the question of co-opting respondent No. 4 would not have arisen. Respondent No. 4 can by no stretch of imagination be treated as elected as she never contested the election and she was never declared elected as a result of her having contested the election. On the other hand, she became Panch in consequence of her having been co-opted. As a consequence of the aforementioned discussion, the principle of law as laid down in Gurdev Kaur and another Vs. Deputy Commissioner, Patiala and others, is hereby reiterated. It can further safely be held that a Panch on co-option cannot be deemed to be an elected Panch in the eye of law. As has been observed above, the petitioner in view of the mandatory nature of the provisions of S. 6(4) of the Punjab Gram Panchayat Act, 1952, would be deemed to have been elected and this is the precise declaration which she is seeking in this petition. Moreover, the petitioner deserved to be declared elected then and there on the spot in order to make up the quota of two women Panches as per mandatory provisions of the Punjab Gram Panchayat Act 1952.

For the reasons recorded above, this petition is allowed at the stage of motion hearing. The petitioner will be deemed to have been elected as Panch of Gram Panchayat, Karawar, Tehsil Balachaur, District Ho-shiarpur. Co-option of respondent No. 4 is hereby quashed. The proceedings of the Panchayat in which respondent No. 4 has participated would not be declared invalid simply because her co-option has been set aside by this Court. No costs.

Petition allowed.