Pritam Kaur vs Deputy Commissioner-cum-Presiding Officer, Election Tribunal and Another

Rakesh Kumar Jain, J.—This appeal is directed against order of Deputy Commissioner, exercising the powers of Presiding Officer-cum Election Tribunal, Amritsar, dated 5.11.2009 whereby an election petition filed by Sukhbir Kaur, respondent No. 3. has been allowed and appellant has been unseated from the post of Sarpanch.

In brief, facts of the case are that general elections for constitution of Gram Panchayat in the State of Punjab were held on 26.5.2008 including Gram Panchayat, Veeram Block Majitha, District Amritsar in which appellant Pritam Kaur returned from constituency of Scheduled Caste (Women) and respondent No. 3 Sukhbir Kaur returned from constituency of General Category (Women). Election for the post of Sarpanch was held on 19.7.2006 in which the appellant was elected as Sarpanch. Her election was challenged by the contesting respondent by way of an election petition on the ground that post of Sarpanch is meant for general category, therefore, the appellant having been returned from constituency of Scheduled Caste (Women) was not eligible to contest. Election petition was allowed against which the appellant filed FAO No. 1044 of 2009 which was allowed on the basis of law laid down by the Supreme Court in the case titled as Bihari Lal Rada Vs. Anil Jain (Tinu) and Others, and the matter was remanded back to the Election Tribunal, Amritsar, to frame the issue as to whether the notice of the meeting dated 19.7.2008 was ever served upon respondent No. 3 Sukhbir Kaur or not. It was also observed that in case the said issue is decided in favour of the contesting respondent that she has not been served with the notice for the meeting dated 19.7.2008, then fresh election of Sarpanch shall be held.

After the remand, the matter was once again been taken up by the Election Tribunal, who had asked for the record of notice of meeting dated 19.7.2008. Harjit Singh, Junior Engineer who was the Returning/Presiding Officer was directed to produce the original record, who in turn, produced the certified copy of meeting held on 19.7.2008 and submitted that original record pertaining to notice of meeting is lying with Panchayat Secretary Raj Mohinder Singh of village Veeram, Block, Majitha. The Tribunal issued notice to said Raj Mohinder Singh to produce the record, who despite three opportunities given on 8.10.2009, 15.10.2009 and 27.10.2009 failed to produce the original record pertaining to the meeting dated 19.7.2008. The Tribunal recorded in the impugned order �several opportunities for producing the record pertaining to the meeting notice was given to the respondent No. 2. Returning Officer and Panchayat Secretary of village Veeram for 8.10.2009, 15.10.2009 and 27.10.2009. But neither respondent No. 2. and Panchayat Secretary nor the petitioner were able to produce the record�.

Learned Tribunal, despite the fact that it was directed by this Court in the previous order to decide the case after framing issue as to whether notice of meeting dated 19.7.2008 was ever served upon contesting respondent or not, did not frame any issue and decided the election petition on the basis of presumption drawn from the evidence available on record that no notice was given as she was not found present in the meeting. In this back ground, learned Tribunal decided the election petition in favour of Sukhbir Kaur upsetting the election of returned candidate Pritam Kaur.

Learned Counsel for the appellant has vehemently argued that there is apparent violation of the order of this Court as the direction contained therein has not been followed in letter and spirit as neither issue has been framed nor evidence has been taken in that regard for the purpose of deciding that issue.

Learned Counsel for the contesting respondent has failed to point out any flaw in the argument raised by learned Counsel for the appellant because despite the fact that the Election Tribunal tried to get the record of notice of meeting dated 19.7.2008, the same was not brought before it by the Panchayat Secretary or the Returning Officer for the reasons best known to him. In my opinion, the Election Tribunal should not have proceeded further in this case until and unless record of notice of meeting dated 19.7.2008 was produced before it.

Since there is violation of the direction of this Court, therefore, without commenting upon the action of Deputy Commissioner, exercising the powers of Presiding Officer-cum Election Tribunal, Amritsar, at this stage, the present appeal is allowed. The impugned order is set aside and the matter is remanded back to him to frame an issue in accordance with the direction given by this Court in its order dated 1.9.2009 passed in FAO No. 1044 of 2009, and decide the case afresh on the basis of positive evidence by summoning the record of notice of meeting dated 19.7.2008.

The parties are directed to appear before the Election Tribunal, Amritsar, once again on 22.3.2010. Learned Tribunal is further directed to expedite the proceedings and decide the lis between the parties as early as possible but preferably before 30.4.2010.