Shrimati Hargobind Kaur vs The State of Punjab and Others

Dua and Mahajan, JJ.—In this petition under Article 226 of the Constitution, not only the mala fides of a Sarpanch but also the illegalities of the Panchayat in co-opting a woman Panch to the Gram Panchayat of village Killianwali, tehsil Muktsar, district Ferozepore, are apparent on the face of the record. In these circumstances, there is no option but to allow the petition.

The facts giving rise to this petition may now be stated. The petitioner Hargobind Kaur is a Member of the Panchayat Samiti for Lambi Block in Ferozepore district. She was also a Panch in the Gram Panchayat Killianwali up to the 27th December, 1963. On the 28th December, 1933, fresh elections to the Gram Panchayat Killianwali were held. The petitioner contested the election to the office of the Sarpanch and lost the election to that office by a narrow margin. Gajinder Singh Bhatti was elected Sarpanch securing 499 votes as against 442 votes secured by the petitioner. It is not necessary to go into the various allegations made by the petitioner against the preparation of the electoral rolls. However, according to section 6 of the Punjab Gram Panchayat Act 1952-hereinafter referred to as the Act-as amended up to date, the petitioner''s case is that she being the only woman candidate at the election was entitled to be co-opted as a Panch as there was no woman who was elected to the Panchayat in the elections held in December, 1963. According to the petitioner, the Sarpanch, who defeated her, has stood in the way of the co-option of the petitioner for the reasons that he bears a grudge against the petitioner in her having stood for election against him for the office of the Sarpanch. The other reasons for the grudge is stated to be that the petitioner has also filed a writ petition in this Court challenging his election; and that in spite of the directions of the officers, the Sarpanch and some of his colleagues have, mala fide, delayed the co-option of the woman member because the only woman member who, according to law, could be co-opted is the petitioner. The petitioner is a sitting member of the Panchayat Samiti for Lambi Block and is also keen to contest the forthcoming election to the Panchayat Samiti of this Block. These are the allegations with which we are really concerned in the present petition.

In the return filed by the Deputy Commissioner, Ferozepore, no comment has been made with regard to the mala fides of the Sarpanch. It may be mentioned that by the time the return was filed, one Vidya Vati had been co-opted as a woman member of the Panchayat. The reply to paragraphs 5 and 9 of the petition by the Deputy Commissioner is significant and is reproduced below:

The co-option of lady Panch has since been made which is wrong. The authorities advised the Panchayat for co option in accordance with the provisions of section 6 of the Gram Panchayat Act. The District authorities did not recommend to the Panchayat for co-option of Sarpanch and that the petitioner was a suitable candidate. Advice was made for co-option of lady Panch in accordance with the provisions of section 6 of the Act ibid. The petitioner is a Member of Panchayat Samiti for the last three years. The petitioner is a member of Panchayat Samiti, Lambi. The Panchayat did not co-opt the petitioner as lady Panch. Rather the Panchayat has co-opted Smt. Vidya Vati as lady Panch against the provisions of the Act.

No return has been filed by the co-opted woman member or the Sarpanch, but there is a return by the Gram Panchayat respondent 5, which is supported by an affidavit by the Sarpanch. In the return it is stated, by way of preliminary objection, that a woman member has been co-opted and has taken oath and, therefore, she is a necessary party to these proceedings. On the merits, in paragraph 4 of the return, it is stated that-

According to section 6 only that woman who has contested election as a Panch is entitled to be co-opted. As the petitioner never contested this election she could not be co-opted u/s 6. The Block Development and Panchayat Officer is very thick with the petitioner and has issued such notices but the Gram Panchayat who alone is the prescribed authority in the matter have co opted Shrimati Vidya Vati as-Lady Panch who has taken charge and is working as such.

It is also denied that there is any mala fide intention on the part of the Panchayat in not co-opting the petitioner.

The contentions of the learned counsel for the petitioner are-

that the co-option of Smt. Vidya Vati is illegal and against the mandatory provisions of the Gram Panchayat Act;

that the act of keeping out the petitioner from being co-opted as a member of Panchayat is wholly mala fide, particularly when the correct provision of law was pointed out by the Deputy Commissioner and the other officers to the Panchayat and in spite of their advice the Panchayat has clearly flouted the mandatory provisions of the Act and. have co-opted Smt. Vidya Vati instead of the petitioner; and

that in view of the return filed by the Panchayat there is no force in the preliminary objection because Smt. Vidya Vati according to the return is as much a member of the Gram Panchayat as the other Pan-ohes, and, in any case, it is the act of the Panchayat which is called in question and as the Panchayat is effectively represented, so would Smt. Vidya Vati be.

These allegations are controverted by the learned counsel for the Gram Panchayat. His contention, in the main, is that the petitioner con-tested the election of Sarpanch and as such she cannot be said to have contested for the seat of a Panch, and therefore she is not entitled to the benefit of section 6 of the Act. The Panchayat was right in co-opting Smt. Vidya Vati.

In order to appreciate the aforesaid contentions, it will be proper to set out the relevant provisions of the Act and the Gram Panchayat Election Rules, 1960. Section 3 (h) (i) defines a Panch as follows:

(h) (i) ''Panch'' means a member of Gram Panchayat, or an Adal-ti Panchayat elected or appointed under this Act and includes a Sarpanch;

Rule 2 (d) of the Gram Panchayat Election Rules defines ''election'' meaning as the election of a Panch, other than the Panch of an Adalti Panchayat, or the election to the Chairman of the Sabha. Section 5 of the Act provides for the establishment and constitution of Gram Sabhas. Section 6 provides for the constitution of Gram Panchayats and disqualifications to be members thereof. This is the main section, which requires close scrutiny in the present proceedings The relevant part of this Section is set out below:

(1) Every Sabha shall, in the prescribed manner, elect from amongst its members a Chairman of the Sabha and an executive committee consisting of such number of persons not being less than five or more than nine including the Sarpanch of the Executive Committee as the Government may determine taking into account the population of the Sabha.

Provided that if no woman is elected as a Panch of any Sabha, the woman candidate securing the highest number of votes amongst the women candidates in that election shall be co-opted by the Panchayat as a Panch of that Sabha and were no such woman candidate is available the prescribed authority shall co-opt as such Panch a woman member of the Sabha who is disqualified to be elected as a Panch.

(2) The Chairman shall also be called the Sarpanch of the Executive Committee which shall be styled as the Gram Panchayat, the members thereof to be called Panches.

(3) Every woman co-opted as a Panch under the proviso to sub-section (1) shall have the right to vote at a meeting of the Gram Panchayat.

(4) * * * * *

(5) * * * *.

Thus it would be seen that there is one election in the Sabha area to constitute the Gram Panchayat. In that election a Chairman and an Executive Committee consisting of the prescribed number of persons,, being not less than 5 or more than 9 including the Sarpanch of the Executive Committee as determined by Government, is to be elected. It is also provided that in case no woman is elected as a Panch of any Sabha, a woman candidate securing the highest number of votes amongst the women candidates in that election shall be co-opted, as a member of the Panchayat, i. e., as a panch of that Sabha and it is only where no such woman candidate is available that the prescribed authority referred in section 6 of the Act has to co-opt a woman member. The prescribed authority according to rule 33 of the Rules is the Gram Panchayat. It will, therefore, be apparent that the provisions of section 6 read with the definition of Panch in section 3 (h) (i) of the Act would lead to the irresistible conclusion that the petitioner is the only woman candidate qualified under the Act to be co-opted as a woman member of the Executive Committee. The argument that the petitioner contested the election to the office of the Sarpanch and, therefore, could not be deemed to have contested the election to the office of the Panch, is pointless because a Panch includes a Sarpanch. Moreover, there is only one election so far as a Gram Panchayat is concerned, and the words "the woman candidate securing the highest number of votes amongst the women candidates in that election" will have no significance if the contention advanced by the learned counsel for the respondent Gram Panchayat, namely, that the wowan candidate must, in order to get the benefit of section 6, contest the election as a Panch and not as a Sarpanch is accepted. We are, therefore, clearly of the view that the co-option of Smt, Vidya Vati is wholly illegal. The only person who could be co-opted in accordance with law is the petitioner. We would, therefore, direct the Gram Panchayat to co-opt the petitioner as a woman member. We also quash the co-option of Smt. Vidya Vati as a woman member of the Gram Panchayat.

In the opening part of this order we have already stated that the mala fides of the Gram Panchayat as well as the Sarpanch are writ large in this petition. In spite of the clear advice by the authorities that the petitioner was the only person who could be co-opted, the Gram Panchayat went out of its way to co-opt Smt. Vidya Vati instead of the petitioner. The only reason for this that we can find is, as alleged by the petitioner, that the Sarpanch was upset by the fact that his election to the office of the Sarpanch was contested by the petitioner when she lost it but has also pursued the same in a writ petition under Article 226 of the Constitution of India challenging that election in this Court. It is really unfortunate that the members of the Panchayat should behave in this vindictive and arbitrary fashion and flout the law, particularly when the Act confers judicial powers on the Panchayats and naturally an expectation is justified that they will uphold the rule of law. It is high time that the members of these bodies realized their responsibilities and rise above petty matters and act in a really democratic way and not upon personal vendetta.

For the reasons given above, this petition is allowed, the co-option of Smt. Vidya Vati is quashed with a direction that in her place the petitioner be co-opted as a member of the Panchayat of village Killianwali. As we are of the view that the sole moving figure in this case is the Sarpanch, we direct that the costs of this petition be paid by him personally and not out of the Panchayat funds. The costs are assessed, at Rs. 200/-.