IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.4475 of 2010(O&M) Date of Decision: December 5th, 2011 Bachan Masih ….Appellant Versus Election Tribunal Gurdaspur and others ….Respondents CORAM : HON'BLE MR. JUSTICE MOHINDER PAL Present:- Mr.A.S.Manaise, Advocate for the appellant Mr.K.S.Kahlon, Advocate for respondents no.4,5,6,8,12,16 and 17 Mr.Alok Jain, Additional Advocate General, Punjab for State-respondents no.1 and 2. *** Mohinder Pal, J. This appeal is directed against the order dated 20.10.2009 passed by Deputy Commissioner-cum-Presiding Officer, Election Tribunal, Gurdaspur (in short ‘the Tribunal’) whereby the Election Petition filed by Bachan Masih-appellant under Section 74 and 76 of the Punjab State Election Tribunal Act read with Rule 51 of the Punjab Panchayat Election of Rules 1994 for declaring the election of Gram Panchayat Mannepur, Block Kalanaur, Tehsil and District Gurdaspur as illegal, null and void was dismissed. The short facts leading to this appeal are as follows:- There were seven seats for the office of Panches of village Mannepur Block Kalanaur, Tehsil and District Gurdaspur, out of which four seats were general and two were meant for women-general category. One seat was reserved for backward class category. As per notification, the nomination papers were to be filled and filed from 1 FAO No.4475 of 2010(O&M) 13.05.2008 to 16.05.2008 and scrutiny of the nomination papers was to be done on 17.05.2008. Withdrawal of nomination papers was fixed as 18.05.2008. Twenty candidates submitted their applications on the prescribed forms along with required documents to Returning Officer- respondent no.2, who confirmed the correctness of all the papers but failed to give any receipt. The Returning Officer cancelled the nomination papers of six lady candidates out of eight and also cancelled the nomination papers of the appellant meant for reserve seat without assigning any reason. The appellant made representations to higher authorities and also approached the Hon’ble High Court regarding the high handedness of respondent-Returning Officer. Respondent no.1-Returning Officer in his written statement pleaded that respondents no.12 to 20 had withdrawal their names. Reasons for rejecting nomination papers for respondents no.6 to 11 have been given but there is not an oblique reference to the rejection of nomination papers of appellant. Respondents no.2 to 5 pleaded that reasons for rejection of nomination papers of appellant was disclosed to him. Respondents no.6 to 20 supported the claim of the appellant. On the pleadings of the parties following issues were framed:- 1. Whether the election of Gram Panchayat Mannepur is liable to be declared as illegal null and void and set aside on the grounds mentioned in the petition?OPP 2. Whether the election petition is not maintainable?OPR 3. 3.Relief. The parties led their evidence in support of their respective claims. Learned Tribunal after scrutinizing the evidence led by the parties and hearing them, dismissed Election Petition filed by the 2 FAO No.4475 of 2010(O&M) appellant vide impugned order dated 20.10.2009 against which the present appeal has been filed which is now meant for disposal. Learned counsel for the appellant mainly contended that no reason has been assigned by the Returning Officer for rejecting the nomination papers of the appellant for the election in question. Even the exhibited documents and own admission of the Returning Officer in the written statement and cross examination were not considered. It was claimed that the impugned order of learned Tribunal is non- speaking order and finding of issue no.1 was contrary to the record. Learned counsel appearing for contesting respondents no. 4,5,6,8,12,16 and 17 contended that the finding arrived at by learned Tribunal were given after appraisal of evidence and material brought on record and cannot be said to be improper and no interference by this Court is warranted. Learned State counsel representing official respondents no.1 and 2 supported the arguments of contesting respondents and contended that there was no proof on the file that the appellant had filed his nomination papers. The Returning Officer had rejected the nomination papers of those candidates which were incomplete. After hearing the learned counsel for the parties, I am of the view that this case deserves to be remitted back for deciding the matter afresh. It is the specific case of the appellant at the very outset that no reason for rejection of nomination papers was assigned by the Returning Officer and election conducted by him was illegal, unfair, null and void and thus was liable to be set aside. From the documents Ex.P2 to Ex.P6 proved on record by the appellant also establishes that he approached the authorities including District Electoral Officer, State Election Commissioner and Hon’ble High Court regarding the conduct 3 FAO No.4475 of 2010(O&M) of Returning Officer but it is strange enough to note that there is not even oblique reference to these documents in the impugned order. Even no reference of allegation contained in the Election Petition preferred by the appellant were controverted by respondent-Returning Officer in the written statement filed by him. The Returning Officer N.K.Malik, X-En, PSEB Office, Jail Road, Gurdaspur in his cross- examination has admitted that he had not stated anything regarding the cancellation of nomination papers of the appellant-Bachan Masih. It is thus evident that learned Tribunal has failed to consider all the aforesaid material facts which require to be appreciated before returning the findings on issue no.1. Arguments of learned State counsel representing respondents no.1 and 2 that the Returning Officer had rejected the nomination papers of those candidates which were incomplete is without any basis when the Returning Officer himself has admitted that appellant had submitted him a set similar to mark A- photocopy of nomination paper. Under these circumstances the impugned order is not sustainable in the eyes of law. Resultantly, the impugned order dated 20.10.2009 passed by the learned Tribunal is set aside. The appeal filed by the appellant is allowed and the case is remanded back to the learned Tribunal for deciding the matter afresh. The learned Tribunal shall decide the case within one month from the receipt of the record as period of 3½ years out of 5 years has already been elapsed. As the case is being remitted, the parties may lead further or additional evidence, if they so desire to support their respective claims. The parties shall appear before the said Tribunal on 15.12.2011. The record of the Tribunal be sent back immediately so as to reach before the said Court on or before 14.12.2011. No fresh notice shall be issued to the parties. It is hoped that the parties shall 4 FAO No.4475 of 2010(O&M) fully cooperate before the learned Tribunal and shall not seek unnecessary adjournments. Anything said or observed in the order shall not be treated as an expression of opinion on the merits of the case. (MOHINDER PAL) December 05, 2011 JUDGE p.singh 5