FAO No. 297 of 2009 (O&M) 1 In the High Court for the States of Punjab and Haryana at Chandigarh. Decided on 24.5,2010. Major Singh -- Appellant vs. Presiding Officer,Electidon Tribunal( A.D.C).Sangrur and others -- Respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.Manish Kumar Singla,Advocate,for the appellant Mr.J.S.Bhandohal,Advocate,for respondent No.3 Rakesh Kumar Jain, J, (Oral) This appeal is directed against order of learned Election Tribunal (Addl.Deputy Commissioner), Sangrur, dated 30.12.2008, whereby an election petition filed at the instance of five persons, namely, Harpal Singh, Zila Singh, Sukhdev Singh,Tarsem Singh and Lajjo Devi (respondents herein) has been allowed Election to constitute Gram Panchayat Bushera, was held on 26.5.2008 in which total nine Panches were elected including the election petitioners and the appellant herein. In order to elect Sarpanch, a meeting was convened on 20.7.2008 in which appellant Major Singh was elected. All the petitioners filed C.W.P No. 13195 of 2008 on 28.7.2008 before this Court seeking a writ in the nature of mandamus directing the respondents to FAO No. 297 of 2009 (O&M) 2 hold the meeting of Panches to elect the Sarpanch and to declare Harpal Singh (petitioner No.2) as Sarpanch without any delay as he is having majority of five Panches, whereas the opposite group has the support of four Panches, but the official respondents are not holding the meeting to elect the Sarpanch at the instance of Ruling Party and on that pretext, no meeting was held on 20.7.2008 as the Election Officers are dilly-dallying the meeting in order to elect Major Singh clandestinely. The said writ petition was disposed of by this Court on 29.7.2008 with the following order:- “This petition is disposed of in view of order dated July 23, 2008 passed in C.W.P.No.12694 of 2008 entitled Gurmeet Singh & Ors Vs. State of Punjab & Ors. Copy dasti on payment of usual charges”. In the case of Gurmeet Singh & Ors (Supra), this Court had issued following directions:- “1.The police shall not arrest any Panch until the first meeting of the Gram Panchayat has been held and the Sarpanch has been elected. 2. In case any Panch demands security or complains of harassment by the opposite group, his complaint should be recorded in the daily Diary at the police station and full security should be provided to him; 3.If any Panch at the meeting demands that the election of Sarpanch should be conducted by a secret ballot, then a procedure for election through secret ballot shall be adopted. 4. Presiding Officers should not change the date, time and venue FAO No. 297 of 2009 (O&M) 3 of the first meeting once these have been notified to all the members of the Panchayat. If the first meeting of the Gram Panchayat concludes without electing the Sarpanch or is adjourned for lack of quorum, in such an event, the notice of the adjourned meeting should be sufficient notice of stay 2 or 3 days. 5. Presiding Officers should ensure the presence of the Panchayat Secretary in the meeting. 6. Presiding Officers should maintain an attendance register to show the names of Panches who attended the meeting. 7. The Deputy Commissioners of each district shall act as observers to ensure that first meeting of the Gram Panchayat and the election of Sarpanches takes places in a free and impartial manner, without any panch facing any kind of threat, pressure or inducement. A register should be maintained by Deputy Commissioners to receive and decide complaints, in the same manner as Election Observers in the State Assembly elections. In other words, the mechanism for redressal of complaints should be an effective one, in order to instil confidence in the members of Gram Panchayat”. After disposal of the writ petition, the writ petitioners filed the election petition on 10.9.2008 through an Advocate as is apparent from the record of the Election Tribunal. The English translation of the order which has been recorded in vernacular reads as under:- “This election petition has been filed through counsel for the eletion petitioners. Counsel for the petitioners is heard. Be registered. Notices be issued to summon the respondents. Summons should also accompany a copy of the FAO No. 297 of 2009 (O&M) 4 election petition. File be produced after service of the respondents on 26.9.2008. Sd/- 10.9.2008 Presiding Officer, Election Tribunal, (A.D.C.) Sangrur)” In the election petition, notice to appear was issued to appellant Major Singh, who filed his written statement dated 21.10.2008 in which preliminary objection was taken to the effect that the election petition is time barred and is not maintainable in the present form. Besides, the election petition was also contested on merits. The election petitioners filed replication on 11.12.2008 denying the averments made in the written statement and reiterating the stand taken in the election petition alleging that the election petition is in time and maintainable. However, the election petition was allowed by order dated 30.12.2008 Aggrieved against the order of the Election Tribunal, the returned candidate Major Singh filed the present appeal which was admitted on 16.1.2009 and was ordered to be heard within six months but in the meantime, operation of the impugned order was stayed. After admission, this appeal is listed for regular hearing. Record of this has also been requisitioned. Learned counsel for the appellant has made two pronged attack while assailing the order of Election Tribunal i.e. (i) that the petition is barred by limitation and (ii) the election petition has not been presented in accordance with law. To buttress his arguments, learned counsel for the appellant has submitted that limitation to file election petition as provided FAO No. 297 of 2009 (O&M) 5 under Section 76 of the Punjab State Election Commission Act,1994 (for short, the Act) is 45 days from the date of election of the returned candidate which cannot be extended in any case. It is submitted that there is an endorsement on the record of the Election Tribunal that election was held on 20.7.2008, whereas the election petition was filed on 10.9.2008, which is beyond limitation. It is also apparent from the record that no issues have been framed in terms of Section 81 of the Act nor the election petition has been dismissed by the Tribunal in terms of Section 76 read with Section 80 of the Act. In this connection, learned counsel has relied upon a decision of the Bombay High Court in the case of Ashok Shankar Gholap Vs.Krishnarao H.Deshmukh and another AIR 1980 Bombay 224 and a decision of this Court in the case of Ajit Singh Vs.Nusrat Ali Khan 1997 (4) R.C.R.(Civil) 460 In respect of the second argument raised by learned counsel for the appellant, it is submitted that in case of election, provisions of the Act have to be strictly construed. Since the election petition has not been presented by a candidate/election petitioner himself and has been presented through an Advocate, therefore, it could not be presumed to have been duly presented before the Court below in terms of Section 76 of the Act. In this regard, learned counsel has placed reliance on a decision of the Supreme Court in the case G.V.Sreerama Reddy & Anr. Vs. Returning Officer & Ors. 2009 (3) R.C.R.(C) 937 and a decision of this Court passed in FAO No.1012 of 2010- Gurlal Singh Vs. Presiding Officer, Election Tribunal, Block Lehra,District Sangrur and others decided on 26.3.2010. On the other hand, Mr.J.S.Bhandohal, learned counsel FAO No. 297 of 2009 (O&M) 6 appearing for respondent No.3 has submitted that this Court should not set aside the well reasoned order of the Tribunal merely on technicalities as the appellant does not enjoy the majority of Panches. It is further submitted that insofar as the presentation of the election petition is concerned, it was filed alongwith the petitioners through the Advocate on 10.9.2008, but the learned Election Tribunal has erred in not recording their presence. I have heard both the learned counsel for the parties and have perused the record with their assistance. Before adverting to the rival contentions of learned counsel for the parties, a look at the relevant provisions of Act is necessary and for that purpose, Sections 76,77, and 80 and 81 are reproduced below:- Sec 76.Presentation of petition.- (1)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. (2) Every Election petition shall be accompanied by as many copies thereof, as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signatures to be a true copy of the petition. FAO No. 297 of 2009 (O&M) 7 Sec 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 candidates 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; Sec. 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. (2) Where more than one election petitions are presented to the election Tribunal in respect of the same matter, the Presiding Officer of the Election Tribunal, may, in his discretion, try them separately or in one or more groups. (3) Any candidate not already a respondent shall, upon application made by him to the election Tribunal within fourteen days from the date of commencement of the trial of the election petition and subject to any order as to security for costs which may be made by the Election Tribunal, be entitled to be joined as a respondent. (4) The Election Tribunal may, upon such terms as a costs and otherwise, as it may deem fit, allow to particulars of any corrupt practice alleged in the petition to be amended or amplified in such FAO No. 297 of 2009 (O&M) 8 manner, as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice which has not been previously alleged in the petition (5) The trial of an election petition shall, so far as is practicable consistently with the interest of justice in respect of the trial be continued from day to day until the conclusion, unless the Election Tribunal finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded in writing. (6)Every election petition shall be tried as expeditiously as possible and every endeavor shall be made to conclude the trial within a period of six months from the date on which the election petition is presented to the election Tribunal for trial. Sec.81.Procedure before the Election Tribunal.-- (1) Subject to the provisions of this Act and of the rules made thereunder, every election petition shall be tried by the election Tribunal, as nearly as may be, in accordance with the procedure contained in the Code of Civil Procedure, 1908 (Central Act 5 of 1908) to the trial of suits; Provided that the election Tribunal shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witness or witnesses, if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of the election petition or that the party tendering such FAO No. 297 of 2009 (O&M) 9 witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings of the election petition; (2) The provisions of the Indian Evidence Act, 1872 (Central Act 1 of 1872) shall, subject to the provisions of this Act, be deemed to apply in all respects to the trial of an election petition”. Taking up the first argument with regard to limitation, it is now well settled that the election petition has to be filed within 45 days from the date of election of the returned candidate and there is no scope for any extension of time. If the election petition is not filed within period of limitation, then there is no alternative with the Election Tribunal but to dismiss the election petition in view of Section 80 of the Act. Similarly, the election petition has to be presented by a candidate, namely the election petitioner and not the Advocate and if the election petition is not presented by the election petitioner, then it is violation of Section 76 read with Section 80 of the Act which disentitles the election petitioner as it goes to the root of the case as held in the case of Ashok Shankar Gholap (Supra). In the said case, the petition was filed on the last day of limitation without requisite number of copies, which were kept in Board Department and were handed over to the designated officer of the Court and objection in that regard was removed. It was held that there was non compliance with Section 81 (3) of Representation of the People Act,1951. Similarly, in the case of Ajit Singh (Supra), election petition could not be filed being Saturday. It was held that if the Court is closed on the day when limitation expired, it could be filed on the next working day of the Court, but as on Saturday, High Court Registry was open, the petition should have been filed FAO No. 297 of 2009 (O&M) 10 on that day. Insofar as the presentation of the election petition is concerned, in G.V. Sreerama Reddy's case (Supra), the Supreme Court has held that the election petition has to be presented by the candidate himself and not through the Advocate, failing which it is violative of Section 81 of the Representation of People Act, 1951. In view of the above, I find that the order passed by the Court below is patently illegal specially when the Court below has not even framed the issue of limitation which is violative of Section 81 of the Act which provides that the election petition has to be filed in accordance with the procedure contained in the Code of Civil Procedure,1908. In view of the above, the present appeal is allowed and the impugned order is set aside. 24.5.2010 (Rakesh Kumar Jain) RR Judge