FAO No.1658 of 2009 1 In the High Court for the States of Punjab and Haryana at Chandigarh. FAO No.1658 of 2009 Decided on August 24,2010. Karanpreet Singh --Appellant vs. Deputy Commissioner-cum Election Tribunal, Tarn Taran and others -- Respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.B.R.Mahajan,Advocate,for the appellant Mr.Ashish Gupta,Advocate,for respondent No.4. Rakesh Kumar Jain, J,(Oral) This appeal is directed against the order passed by Addl. Deputy Commissioner-cum Election Tribunal,Tarn Taran, dated 16.2.2009, by which election of the appellant Karanpreet Singh as Panch (General Category) has been set aside. Brief facts of the case are that to constitute a 9 Member Panchayat of Gram Panchayat Singhpura, Tehsil Patti, District Tarn Taran, election was held on 26.5.2008. Out of nine Panches, five posts were meant for General Category (Men), two for General Category (Women), FAO No.1658 of 2009 2 one for Scheduled Caste (Man) and one for Scheduled Caste (Woman). There were total 16 candidates in the fray. The election petitioner challenged the election of the appellant , inter-alia, on the ground that he was below the age of 21 years as his Date of Birth was 18.11.1988 and was not qualified to contest the election. In the election petition, a categoric prayer of the election petitioner was that:- “ it is therefore, prayed for ends of natural justice the election petition of the petitioner be accepted and the election of Karanpreet Singh- respondent No.3.be set aside being erroneous,illegal, void ab-initio and against Acts and Rules and the petitioner be declared as Panch of the said Gram Panchayat of village Singhpura, Tehsil Patti,District Tarn,Taran”. In the written statement, preliminary objection No.2. was taken to the effect that : “the election petition is liable to be dismissed under Section 80 of the Punjab State Election Commission Act and Rules and the petitioner has not complied with the provisions of Section 76 and 77 of the said Act”. Another preliminary objection was taken that: “the petitioner has committed non compliance of provisions of section 76 of the Act as the every copy of the petition have not been attested by the petitioner under his own signature/thumb impression to be true copy of the petition and also the annexures filed with the election are not verified or attested under the provisions of Section 76 of the Act, so the election petition is liable to be dismissed on this score alone“. On the pleadings of parties, following issues were framed :- 1. Whether the election petition is maintainable as per law? OPP 2. Whether all the necessary candidates are made party in Election petition? OPP 3. Whether respondent no. 3 Karanpreet Singh was eligible to FAO No.1658 of 2009 3 contest the election of Gram Panchayat? OPP 4. Relief: The Election Tribunal while deciding issue No.2. had observed that “ “All the necessary person who contested election of Panch in Gram Panchayat Singhpura are made party. This issue is decided in favour of petitioner and against respondent”. On merit, it was decided that the appellant was 19 years 5 months and 28 days of age and being below the age of 21 years, was not eligible to contest the election of Gram Panchayat, Singhpura and therefore, his election was set aside and election petition was accepted in toto. Learned counsel for the petitioner has, inter-alia, argued that election petition by itself was not maintainable, firstly, it is not presented by a candidate and was rather presented by an Advocate appearing on behalf of the candidate (petitioner), therefore, there was violation of Section 76 (1) of the Act and secondly, the petition was bad in law as the election petitioner had prayed for not only setting aside the election of the appellant but also declaring him as elected in his place without impleading all the contesting candidates as parties in terms of Section 77 (a) of the Act. In support of his submission, learned counsel for the appellant has relied upon a decision of the Supreme Court in the case of G.V Sreerama Reddy & Anr Vs. Returning Officer & Ors.2009 (3) R.C.R.(Civil) 937 and also a judgment of this Court in the case of FAO No.1012 of 2010 Gurlal Singh Vs. Presiding Officer, Election Tribunal, Block Lehra, District Sangrur and others decided on 26.3.2010. And in support of his second contention, he has relied upon a decision of this Court in FAO No.96 of 2010 Nathu Singh Vs. Presiding Officer, Election Tribunal and others decided on FAO No.1658 of 2009 4 17.3.2010. On the other hand, learned counsel for the respondents has submitted that the provisions with regard to non-presentation of the election petition by a candidate was not raised before the Court below or during the course of hearing of this appeal and as such, it is deemed to have been waived off. In respect of the second contention, it is submitted that the election petitioner has contested the election in the General Category. There were six candidates in the General Category including the election petitioner and the returned candidate. All those candidates are before this Court. It is submitted that all the contesting candidates are not required to be impleaded as a party . I have heard both the learned counsel for the parties and gone through the record with their assistance. Election law is not a law of equity. Section 80 of the Act specifically provides 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. Learned counsel submits that insofar as violation of Section 76 (1) and 77 of the Act is concerned, that offends Section 80 of the Act and the election petition should have been dismissed by the Election Tribunal. Learned counsel for the appellant has submitted that admittedly, there were 16 candidates in the fray. Undiputably, the election petitioner has not only sought declaration of the election of the appellant to be illegal but he has sought himself to be declared to be elected in his place. In this situation, finding of the election Tribunal on issue No.2 is illegal because the election petition has impleaded only those FAO No.1658 of 2009 5 candidates who had contested the election in the General Category, whereas the law provides that all the candidates have to be impleaded as party in case declaration is sought by the election petitioner for declaring himself or any other person elected in place of Returned Candidate. If any such declaration is sought, then he is required to implead all the contesting candidates as party. The decision taken by this Court in FAO No.96 of 2010 fully supports the arguments of learned counsel for the appellant. Thus,this issue is decided in favour of the appellant and against the election petitioner. Insofar as non-presentation of the election petition by a candidate and the question for not raising this plea in the written statement or before the Tribunal is concerned, this Court has already taken a view in Gurlal Singh's Case (Surpa), that this objection cannot be waived off and if the election petition has not been filed by a candidate himself then it offends Section 76 (1) of the Act and the election petition is liable to be dismissed in terms of Section 80 of the Act. In view of the above discussion, I find force in the present appeal and the same is hereby allowed. The election petition is held to be not maintainable in view of Section 76 (1) and 77 (a) of the Act. No costs. August 24,2010 (Rakesh Kumar Jain) RR Judge