IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. No.6965 of 2009 Date of Decision: 20.7.2010 Amarjit Kaur and others. ....... Petitioners through Shri A.D.S.Sukhija, Advocate. Versus Raj Kaur and another. ....... Respondents through Shri Bhoop Singh,Advocate. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. Challenge in this revision petition filed under Article 227 of the Constitution of India is to the order dated 18.9.2009 passed by the Election Tribunal,Ludhiana rejecting the objections of the petitioners by which they had sought the dismissal of the election petition preferred against them by the respondents on the ground of violation of the provisions of Section 77 of the Punjab State Election Commission Act,1994 (for short, `the Act'). On 26.5.2008, election of the Panches of Gram Panchayat, Butahri, Tehsil and District Ludhiana was held in which the petitioners and the respondents participated. After conclusion of the election process, the petitioners were declared as returned candidates. Dis-satisfied with the C.R.No.6965 of 2009 -2- .... result, the respondents moved an election petition alleging material irregularities in the process. A copy of that petition has been enclosed as Annexure P2 with the instant petition, wherein the prayer made was as under:- “It is, therefore, respectfully prayed that the election of the respondents returned candidates as Member Panchayat from Gram Panchayat of Vilage Butahri, Tehsil and District Ludhiana be declared as void and the petitioners be declared as duly elected Member Panchayat of Gram Panchayat of village Butahri or set aside election of respondents held on 26.5.2008 or order afresh elections.” The petitioners resisted the election petition by filing a written statement in which various objections were taken while controverting the irregularities as set out by the respondents. It was pleaded that all the persons who were returned as elected members of the Gram Panchayat, were not impleaded as parties despite the fact that they were necessary under the law and that not having been done, the petition was liable to be dismissed for non-joinder of necessary parties. Preliminary objection no.2, which is to that effect, is extracted below:- “2. That the petition is bad for non-joinder of necessary parties. The allegations of misconduct and wrong counting has been levelled against the Returning Officer and there is prayer of recounting of votes. The Returning Officer who conducted the election on 26.5.2008 is itself necessary party to the petition. C.R.No.6965 of 2009 -3- .... All the candidates who contested the election are necessary and proper parties to the petition under the law. The elected candidates are Mohinder Singh son of Kehar Singh, Gurdip Singh son of Gajjan Singh, Kartar singh son of Dalbara Singh, Kewal Singh son of Manjit Singh, Kuldeep Singh son of Gurdev Singh, Harnek Singh son of Pritam Singh, all residents of Village Butahri, Tehsil and District Ludhiana. All these persons conducted ( sic. contested ) the election and have been declared elected. Nachhattar Singh son of Partap Singh, Balhiaa Singh son of Sarwan Singh, Mohinder Singh son of Sarwan Singh, Mohinder Singh son of Mukhtiar Singh and Tarlochan Singh son of Prem Singh contested the election but they lost. Similarly, Darshan Singh son of Shri Pritam Singh and Santokh Singh son of Prem Singh filed their nomination papers but they withdraw the same. All the persons detailed in this para are necessary parties under the law and without their being impleaded as parties to the petition, this petition is bad for non-joinder of necessary parties and is liable to be dismissed.” Thereafter, the petitioners filed an application dated 6.4.2009 specifically invoking the provisions of Sections 76 and 77 of the Act and sought the dismissal of the election petition for violation thereof. That application has been dismissed by the Election Tribunal by the impugned order giving rise to the present petition. C.R.No.6965 of 2009 -4- .... I have heard the learned counsel for the parties and have considered the contentions which have been raised by them. It has been contended on behalf of the petitioners that if there is a violation of the provisions of Sections 76 and 77 of the Act, then in terms of Section 80, the election petition has to be dismissed, while it has been urged on behalf of the respondents that only those persons are required to be impleaded as parties whose election has been challenged and all the returned candidates are not essential parties. Section 77 of the Act lays down that a person who invokes the jurisdiction of the Election Tribunal and presents a petition pursuant to Section 76, he is required to join the respondents as mentioned therein. For the reference purposes, the same is reproduced below:- “77. Parties to the petition.- A petitioner shall join as respondent to his petition- (a) where he, in addition to claiming declaration that the election of all or any of the returned candidate is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates and where no such further declaration is claimed, all the returned candidates; and (b) any other candidate against whom allegation of any corrupt practice is made in the petition.” The crucial test for determining the necessary parties to the election petition is, hence, couched in the nature of prayer which is made in C.R.No.6965 of 2009 -5- .... an election petition. A reading of the afore-quoted provisions shows that if a person, in addition to claiming a declaration that election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate be declared as duly elected, then, in that eventuality, all the contesting candidates are necessary parties while if no such declaration is claimed, then all the returned candidates and any other candidate against whom allegation of corrupt practice is made,is a necessary party. Three eventualities are, therefore, contemplated. A person assailing the election of all or any of the returned candidates and who also seeks a declaration that he or any other candidate be declared as elected, then all the contesting candidates are to be impleaded as parties in the petition and if no such prayer is made, then all the returned candidates are necessary parties. Thus, it is necessary for a person challenging the election of the returned candidates to implead as respondents all the contesting candidates if he prays for getting himself or any other candidate declared elected or if no such declaration is claimed, then all the returned candidates. The prayer of the respondents, if evaluated in the light of the provisions of Section 77, reveals that they had prayed that election to the Gram Panchayat be declared as void and that they be declared as duly elected Members of Gram Panchayat. They had further prayed that the election of the petitioners be set aside and fresh election be ordered. A cluster, therefore, has been made of a number of prayers and all of them individually or collectively essentially point out to the fact that the persons C.R.No.6965 of 2009 -6- .... who had contested the election or at least all the persons, who were returned as elected candidates, were required to be impleaded as parties to the election petition. Even otherwise, the rules of natural justice, in particular the rule of audi alteram partem, envision that each affected party be heard before an adverse order is passed against him. The respondents, as seen above, have challenged the entire election to be void and have pleaded that they be declared elected and in such an eventuality of their prayer being granted, the election of the returned candidates necessarily would be required to be set aside because in their absence, no such adverse order against them could be passed. Besides, the respondents are also seeking fresh mandate by alleging material irregularities in the election, in which eventuality also, the out-come of the election petition is likely to impact the election of all the returned candidates. Consequently, looking at it from any angle, the persons,who were returned as elected candidates were essential parties to the election petition. As noticed above, the petitioners had, at the very out-set while filing their written statement, raised a preliminary objection that the election petition was bad for non-joinder of necessary parties and which objection was highlighted by them by moving a separate application. Now, the question arises at what stage such a question has to be decided and whether the Election Tribunal was right in proceeding with the C.R.No.6965 of 2009 -7- .... proceedings by observing that it could be seen at a subsequent stage or whether the election petition was required to be thrown out at the threshold. Section 80 of the Act contemplates that the election Tribunal shall dismiss an election petition which does not comply with the provisions of Section 76 or Section 77 or Section 103. Sub-section (1) of Section 80 and the explanation thereto, which are necessary for the purposes of this order, are as under:- “80. Trial of election petitions.- (1) The Election Tribunal shall dismiss an election petition which does not comply with the provisions of Section 76 or Section 77 or Section 103. Explanation.- An order of the Election Tribunal dismissing an election petition under this sub-section, shall be deemed to be an order made under clause (a) of Section 87.” Section 87 of the Act which finds mention in the explanation to sub-section (1) of Section 80 is also reproduced below:- “87. Decision of the Election Tribunal.- At the conclusion of the trial of an election petition, the Election Tribunal may make an order for,- (a) dismissing the election petition; or (b) declaring the election of all or any of the returned candidates to be void; or ( c) declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected.” C.R.No.6965 of 2009 -8- .... A perusal of the above extracted provisions of law, in particular Section 87, shows that the Election Tribunal is conferred with a power to pass an order dismissing an election petition or declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected at the conclusion of the trial. Section 80(1) of the Act, on the other hand, postulates a situation where the Election Tribunal shall pass an order of dismissal of an election petition if the same does not comply with the provisions of Section 76 or Section 77 or Section 103 and that order shall be deemed to have been passed under clause (a) of Section 87. It is, therefore, clear that Section 80 (1) contemplates the passing of an order of dismissal of an election petition before determining the rights of the parties in a trial and this power has to be exercised by the Election Tribunal at the threshold when an objection is raised by the contesting respondent and cannot be permitted to linger on till the conclusion of the trial. Therefore, in the instant case, the Election Tribunal was wrong in not deciding the objection application filed by the petitioners at the threshold. It is not necessary that proceedings before an Election Tribunal be permitted to go through the entire rigmarole of a tedious trial when an issue which is germane to the election petition and which, law mandates, to be decided at the earliest. It is also to be noticed that Section 80(1) of the Act is indicative of a non-curable defect if an election petition is filed in violation of Section 76 or Section 77 or Section 103. The Election Tribunal, C.R.No.6965 of 2009 -9- .... therefore, has no choice but to evaluate the election petition and to see that if it is not in conformity with the provisions of Section 76 or Section 77 or Section 103, then to pass an order dismissing it at the threshold. It has no power to offer curative action to the person who has filed a petition lacking in inherent particulars mentioned in Sections 76, 77 and 103 of the Act. As a result of the above discussion, I am of the considered opinion that the objections of the petitioners were well founded and deserved to be answered in their favour and the election petition was liable to be dismissed. Accordingly, this petition is allowed and the impugned order is set aside. The matter is remitted back to the Election Tribunal, Ludhiana to decide the objections of the petitioners in the light of the observations made above. July 20,2010 ( Mahesh Grover ) “SCM” Judge