SATISH KUMAR MITTAL, J. - (1.) THE petitioner, who is a sitting Panch and was the candidate for the office of Sarpanch of Gram Panchayat, Village Bhamian Khurd, Block Ludhiana-2, Tehsil and District Ludhiana, has filed this petition under Article 226/227 of the Constitution of India for quashing the election of respondent No. 5 as Sarpanch of the aforesaid Gram Panchayat, being illegal, arbitrary and contrary to the provisions of the Punjab Panchayati Raj Act, 1994 (hereinafter referred to as 'the Panchayati Raj Act'); and for issuing a direction to the respondents to hold fresh election by way of secret ballot, as so observed by this Court in order dated July 16, 2008 (Annexure P-2), passed in CWP No. 12006 of 2008.
(2.) IN the present case, after the election of the Panches of Gram Panchayat, Village Bhamian Khurd was duly notified by the Government and after the taking of oath or affirmation under Section 13 of the Panchayati Raj Act, the Deputy Commissioner, Ludhiana authorised respondent No. 4 to call the meeting of the Members of the Gram Panchayat, as laid down under Section 13-A of the Panchayati Raj Act and to hold the election of Sarpanch of the Gram Panchayat. Respondent No. 4 called the said meeting on 19.7.2008. However, since the quorum of the meeting was not complete, as provided under Rule 45 (2) of the Punjab Panchayat Election Rules, 1994 (hereinafter referred to as 'the Panchayat Election Rules'), the said meeting was postponed. Thereafter, the meeting for the aforesaid purpose was again called for 25.7.2008, in which respondent No. 5 was declared elected as Sarpanch of the Gram Panchayat. In this petition, the grouse of the petitioner is that no notice of the second meeting held on 25.7.2008 was issued to him and other Panches of the Gram Panchayat, namely Kulwinder Kaur and Tribhuwan Prashad. Without any notice to these Panches, election of the office of Sarpanch was conducted by respondent No. 4 in a clandestine manner. It is also alleged that even the election of the office of Sarpanch was conducted without secret ballot, as directed by this Court in order dated July 16, 2008 (Annexure P-2), passed in CWP No. 12006 of 2008. It has also been alleged that respondent No. 4 had postponed the meeting on 19.7.2008 on the ground that quorum of the Gram Panchayat was not complete. In this regard, it is alleged that amendment to Rule 45 of the Panchayat Election Rules, authorising the Presiding Officer to adjourn the meeting, on the ground of quorum, made by the Government, is illegal and contrary to the provisions of the Panchayati Raj Act. Therefore, the election of respondent No. 5 is alleged to be illegal, null and void and is liable to be quashed. At the time of motion hearing, on a question asked by the Bench regarding the maintainability of the writ petition, in view of the availability of alternative remedy of election petition, Shri Mansur Ali, Advocate, learned counsel for the petitioner, and Shri Kanwaljit Singh, Senior Advocate as well as Shri M.L. Saggar, Senior Advocate, who are counsel in the connected petitions, submitted that as far as election to the office of Sarpanch is concerned, under the Panchayati Raj Act and the Punjab State Election Commission Act, 1994 (hereinafter referred to as 'the Election Commission Act') as well as the Rules made thereunder, no remedy of election petition has been provided. On this aspect, we sought the assistance of Shri Amol Rattan Singh, Shri N.S. Virk, Additional Advocates General, Punjab, and Shri Parveen Goyal, Senior Deputy Advocate General, Punjab, who were present in the Court, on behalf of the Government. They submitted that even for the election to the office of Sarpanch of the village Gram Panchayat, a remedy of election petition has been provided under Section 76 of the Election Commission Act on the grounds mentioned in Section 89 of the said Act. Therefore, according to them, in view of the availability of the remedy of election petition, the instant writ petition, filed by the petitioner, in which disputed questions of facts have been raised, challenging the election of respondent No. 5 as Sarpanch of Gram Panchayat, village Bhamian Khurd, is not maintainable.
(3.) WE have heard the arguments of learned counsel for the parties on this preliminary issue.;