FAO No.3940 of 2009 1 In the High Court for the States of Punjab and Haryana at Chandigarh. FAO No.3940 of 2009 Decided on Dec 09,2010 Sharma Singh --Appellant vs. Malook Singh and another -- Respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.GPS Bal,Advocate, for the appellant Mr K.S.Rekhi,Advocate,for the respondents. Rakesh Kumar Jain, J, This appeal is directed against the order passed by the Sub Divisional Magistrate, exercising the powers of Presiding Officer- cum- Election Tribunal Amritsar, dated 24.7.2009, by which the election petition filed by Malook Singh (respondent No.1), challenging the election of Sharma Singh (appellant) has been allowed and respondent No.1, who was found to be the only candidate in the category of Scheduled Caste for the post of Panch, was declared elected. FAO No.3940 of 2009 2 Brief facts of the case are that in order to constitute Gram Panchayat Bhagupur Bet, Block Chogawan, Tehsil Ajnala, District Amritsar comprising of five members, elections were held on 26.5.2008 in which the appellant is alleged to have filed his nomination papers in the category of Scheduled Caste and contested the election for the post of Panch against respondent No.1, who had also filed his nomination papers in the said category. The appellant had polled 158 votes while respondent No.1. had polled 137 votes. Consequently, the appellant was declared elected as Panch in the category of Scheduled Caste. His election is challenged by respondent No.1 by way of election petition under Section 76 of the Punjab State Election Commission Act, 1974 (for short,'the Act') read with rules 50 and 51 of the Punjab State Panchayat Election Rules, 1994 (for short,'the Rules'), on the ground that the appellant was belonging to Scheduled Caste category, but he had contested in the category meant for General Candidate and for that purpose, he had deposited Rs.100/- as his nomination papers in terms of the Rules. After scrutiny of the nomination papers, name of the appellant appeared at Sr. No.9 in the category of Scheduled Caste candidates and had been given symbol of Axe, whereas name of respondent No.1 was shown at serial No.5 in the category of Scheduled Caste candidate. It was alleged that the Returning Officer was conniving with the appellant, as a result of which he had shown him contesting in the category of Scheduled Caste, otherwise, he had chosen to contest in the general category. It is further alleged that result of the appellant had been wrongly declared in the category of Scheduled Caste and for that FAO No.3940 of 2009 3 matter, a prayer was made in the election petition for setting aside the election of the appellant in the category of Scheduled Caste candidate and respondent No.1 who contested in the category of Scheduled Caste, be declared elected in his place. In reply, it was alleged that the election petitioner had no locus standi to file the election petition as he himself belongs to Jat family as he is resident of village Singoke, Tehsil Ajnala, District Amritsar. Secondly, it is submitted that there was no question of any connivance of the returning officer with the appellant. The appellant admittedly is a Balmiki- Mazbi Sukh and as such, he had contested the election in the category of Scheduled Caste and has wrongly deposited Rs.100/- instead of Rs.50/- as fee in terms of Rule 9 (5) of the Rules. The Election Tribunal after evaluating the available evidence on record has found that the appellant had categorically mentioned in the form that he wanted to contest the election in the category of General Candidate. Learned counsel has drawn the attention of the Court to the form which is available on record from which the Court had found that the the appellant has himself mentioned about his category as General Candidate for the purpose of contesting the election and there is no provision of law which shows that the category can be changed at the time of allotment of symbol which has been done in the present case. It is pertinent to mention that a person belonging to Scheduled Caste category can always contest in the Scheduled Caste Category as well as in the General Category ,but vice versa it is not possible. He has consciously deposited Rs.100/- in FAO No.3940 of 2009 4 terms of rule 9 in order to contest the election in General Category. Hence, election of respondent No.1 is maintained. It is provided in Section 76 of the Act that an election petition may be presented on one or more of the grounds specified in sub section (1) of Section 89 to the Election Tribunal by any candidate to such election or by any elector within a period of 45 days from the date of election of the returned candidate or if there are more than one returned candidates at the election and there are different dates of their election, then the later of these dates shall be taken into account for this purpose. Even if it is presumed that respondent No.1 belongs to General Category and is not a Scheduled Caste, he cannot be debarred from filing the election petition as an elector. In view thereof, I do not find any merit in the present petition and the same is hereby dismissed and the order of the election Tribunal is maintained. No costs. Dec 09,2010 (Rakesh Kumar Jain) RR Judge