In the High Court of Punjab and Haryana at Chandigarh ...... (1) F.A.O. No.718 of 2010 (O&M) ..... Date of decision:2.8.2011 Rajeev Sharma .....Appellant v. Vipin Kumar Thamman and others .....Respondents .... CORAM : HON'BLE MR. JUSTICE MOHINDER PAL ..... 1. Whether Reporters of Local papers 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 ? ...... Present: Mr. Pawan Kumar Mutneja and Mr. B.S. Sudan, Advocates for the appellant. Mr. Bhoop Singh, Advocate for respondent No.1. ..... (2) C.W.P. No.18122 of 2009 ..... Rajeev Sharma .....Appellant v. State of Punjab and others .....Respondents .... Present: Mr. Pawan Kumar Mutneja, Advocate for for petitioner. Mr. Bhoop Singh, Advocate for respondent No.4. F.A.O. No.718 of 2010 (O&M) and C.W.P. No.18122 of 2009 [2] Mr. Ranbir Singh Chauhan, Deputy Advocate General, Punjab for respondent No.1-State. ..... Mohinder Pal, J. This order will dispose of F.A.O. No.718 of 2010 (O&M), Rajeev Sharma v. Vipin Kumar Thamman and others and C.W.P. No.18122 of 2009, Rajeev Sharma v. State of Punjab and others as both have arisen from the elections held for Member of Municipal Council Constituency, Ward No.7, Municipal Council, Dera Bassi, District S.A.S. Nagar (Mohali). This is an appeal against the impugned order dated 19.11.2009 passed by the Election Tribunal, S.A.S. Nagar (Mohali) dismissing the election petition filed by the present appellant wherein the election of respondent No.1 from Municipal Council Constituency, Ward No.7, Municipal Council, Dera Bassi, District S.A.S. Nagar (Mohali) was challenged. As per facts of this case, respondent No.1 was declared elected by a margin of three votes. The appellant preferred election petition dated 11.8.2008 on the ground of improper acceptance of nomination papers of respondent No.1, bogus voting during polling in favour of respondent No.1 in active connivance with Shri Gurminder Singh, Tehsildar, Dera Bassi (respondent No.3) and reception of void votes and violation of rules have taken place in the elections. It was further submitted that Smt. Raghbir Kaur Khaira, SDM, S.A.S. Nagar (Mohali)-cum-Election Tribunal has manipulated the record of proceedings in favour of respondent No.1 for extraneous reasons and declared respondent No.1 as elected candidate. The Election Tribunal while taking into consideration the F.A.O. No.718 of 2010 (O&M) and C.W.P. No.18122 of 2009 [3] arguments raised by the petitioner dismissed the election petition. This is how the petitioner (appellant herein) is before this Court. In the civil writ petition, petitioner-Rajeev Sharma has prayed for quashing the impugned orders dated 16.10.2009 and order dated 6.11.2009 (Annexures-P.8 and P.9). Vide these orders application filed for leading additional evidence by Vipin Kumar Thamman-respondent No.4 has been entertained and allowed after the announcement of final order in the election petition. The petitioner has also prayed for issuance of a direction to respondent No.1 (State) to take appropriate disciplinary and penal action against respondents No.2 and 3 i.e. Smt. Raghbir Kaur Khaira, SDM, S.A.S. Nagar (Mohali)-cum-Election Tribunal and Shri Gurminder Singh, Tehsildar, Dera Bassi-cum-Assistant Returning Officer. While arguing before me learned counsel for the petitioner apart from levelling allegations against respondent No.3 i.e. Tehsildar, namely, Gurminder Singh and Smt. Raghbir Kaur Khaira, SDM, Mohali, it has been submitted that respondent No.1 has encroached upon over the land of Municipal Council, Dera Bassi by raising pillars so he was disqualified from contesting the elections. It has also been submitted that during elections balloting unit was kept in such a manner that no voter could cast vote without being seen by the Presiding Officer and the person sitting with him so the elections were held in wrongful manner. It has been further argued that Shri Gurminder Singh, Tehsildar openly helped respondent No.1 and 15-20 bogus votes were polled by Gurminder Singh, Tehsildar in favour of respondent No.1 as the Tehsildar has not performed his duties as per the law and the election was liable to be set aside. F.A.O. No.718 of 2010 (O&M) and C.W.P. No.18122 of 2009 [4] On the other hand learned counsel for the respondents has controverted these arguments that there was no evidence to show if the Municipal Council land has been encroached upon by respondent No.1 and further there was no evidence that respondent No.3 has helped the other candidate in the elections and as such the election process has been vitiated. I have given my thoughtful consideration to the submission of both the sides and have gone through the record. The petitioner in this case was required to prove that the Municipal Council land has been encroached upon by respondent No.1. Apart from oral submissions, no document was produced before the Election Tribunal to show that any encroachment has been made by respondent No.1. It was incumbent upon the petitioner to prove that Tehsildar or other officials have helped respondent No.1 during the elections. There is nothing on record to show that any favouritism has been shown to respondent No.1. Had there been rigging done by the Government official the margin would have been more. In cross- examination, the petitioner has admitted as is evident from record the elections has taken place on 30.6.2008, however, the complaint has been made on 2.7.2008. If the petitioner was aggrieved from the conduct of the respondents or from the manner in which the elections were held, he was required to make a complaint in writing immediately to the Presiding Officer or the next officer in-charge of the elections or to the Election Commissioner or the observers appointed by the Government. No such action has been taken by the petitioner at that time. Punjab State Election Commission has laid down the procedure for raising the objections during elections. Section 89 of the Punjab Panchayati Raj Act, 1994 reads as F.A.O. No.718 of 2010 (O&M) and C.W.P. No.18122 of 2009 [5] under:- “89. Grounds for declaring election to be void.- (1) Subject to the provisions of sub-section (2), if the Election Tribunal is of the opinion,- (a) that on the date of his election, a returned candidate was not qualified, or was disqualified to be chosen to fill the seat under the Constitution of India or under this Act, or (b) that any corrupt practice has been committed by a returned candidate or his election agent or by other person with the consent of a returned candidate or his election agent; or (c) that any nomination has been improperly rejected; or (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected,- (i) by the improper acceptance of any nomination; or (ii) by any corrupt practice committed in the interest of the returned candidate by an agent other than his election agent, or (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void; or (iv) by any non-compliance with the provisions of the Constitution of India or of this Act or of any rules or orders made under this Act; the Election Tribunal shall declare the election of the returned candidate to be void. (2) If in the opinion of the Election Tribunal, a returned candidate has been guilty by an agent, other than his election F.A.O. No.718 of 2010 (O&M) and C.W.P. No.18122 of 2009 [6] agent, of any corrupt practice but the Election Tribunal is satisfied,- (a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice as committed contrary to the orders, and without the consent, of the candidate or his election agent; (b) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and (c) that in all other respects, the election was free from any corrupt practice on the part of the candidate or any of his agent; then the Election Tribunal may decide that the election of the returned candidate is not void. (3) In this section, the expression `agent' has the same meaning as assigned to it in Explanation (1) given under clause (9) of section 108, but does not include election agent.” Nothing of that sort has been made. Once a person has been defeated in the elections it is general tendency to move such petitions by raising the allegations of bogus votes, it cannot be ascertained who has been benefitted by these bogus votes. Accordingly, I do not find any reason to interfere with the well reasoned findings by the Election Tribunal. Resultantly, I allow the award of the Election Tribunal by dismissing the present appeal. As the FAO filed against the award of the learned Election Tribunal has been dismissed, the civil writ petition filed by the petitioner is F.A.O. No.718 of 2010 (O&M) and C.W.P. No.18122 of 2009 [7] also dismissed. August 2, 2011. (Mohinder Pal) Judge *hsp*