FAO No. 1012 of 2010 (O&M) 1 In the High Court for the States of Punjab and Haryana at Chandigarh. Decided on March 26,2010. Gurlal Singh Appellant vs. Presiding Officer, Election Tribunal, Block Lehra, District Sangrur and others -- Respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.M.K.Singla,Advocate,for the appellant Mr.Jatinder Singla,Advocate, for respondent No.2. Rakesh Kumar Jain, J, This appeal is directed against order dated 16.2.2010 passed by the Sub Divisional Magistrate, Sunam, exercising the powers as Presiding Officer, Election Tribunal, Tehsil Lehra Gaga, District Sangrur by which election petition filed by Gurnam Singh (respondent No.2) challenging the election of Gurlal Singh (appellant) has been allowed, the meeting dated 24.8.2008 in which the appellant was elected as Sarpanch has been cancelled and the meeting dated 24.7.2008 in which respondent No.2. is alleged to have been elected, has been declared to be valid. FAO No. 1012 of 2010 (O&M) 2 A brief skeletal facts of the case necessary to unfold the dispute between the parties are that a meeting of elected panches of Gram Panchayat, Jhaloor, Tehsil Lehra Gaga, District Sangrur for the purpose of election of Sarpanch was convened on 18.7.2008 at 2.p.m., but was adjourned due to lack of coram for 20.7.2008. However, it was again adjourned to 24.7.2008 as the Presiding Officer did not come present due to his ill health. According to the case of respondent No.2., in the meeting held on 24.7.2008, he was elected as a Sarpanch whereas according to the case of the appellant, meeting dated 24.7.2008 was adjourned to 24.8.2008 in which he was elected as Sarpanch. Admittedly, respondent No.2 filed a writ petition i.e. C.W.P.No.14960 of 2008 titled as Gurnam Singh Vs. State of Punjab and others seeking a direction that he should be declared as Sarpanch as per meeting dated 24.7.2008 and be notified as such. The said writ petition was disposed of by this Court on 1.12.2008 with the following order:- “The petitioner has filed this petition under Article 226/227 of the Constitution of India for issuing directions to respondent no.2 to declare him as elected Sarpanch of Gram Panchayat of village Jhaloor, PO Rai Dhirana, Tehsil Lehra Gaga, District Sangrur and thereafter notify his name. It is the case of the petitioner that in the meeting of the members of the Panchayat held on 24.7.2008, he was elected as Sarpanch of the said Gram Panchayat but subsequently his election was not notified. In the written statement , it has been stated that the proceedings of the meeting held on 24.7.2008 were cancelled by the Deputy Commissioner vide order dated 22.8.2008 and thereafter a fresh meeting FAO No. 1012 of 2010 (O&M) 3 was called on 24.8.2008 and in the said meeting respondent No.9 namely Gurlal Singh was elected as Sarpanch of the Gram Panchayat. It has also been stated that the petitioner has remedy of filing an election petition, which admittedly has not been availed. Learned counsel for the petitioner states that no proper notice of the meeting held on 24.8.2008 was issued to the petitioner. However, after arguing for sometime, learned counsel submitted that in view of the disputed questions of facts raised in this writ petition and in view of decision of this court in Baljit Singh Vs. State of Punjab and others (CWP No.13643 of 2008, decided on August 22,2008), the petitioner may be permitted to withdraw this petition with liberty to challenge the election of respondent no.9 as Sarpanch in the meeting held on 24.8.2008 by filing an election petition on the ground that for the said meeting no proper notice was issued to the petitioner as well as other grounds. He has further submitted that since petitioner filed this petition within the prescribed limit of 45 days of the declaration of the result, therefore, in view of the law laid down by the Hon'ble Supreme Court in Danda Rajeshwari v. Bodavula Hanumayamma and others (1996) 6 SCC 199, the petitioners may be granted three weeks time to file the election petition with direction to election Tribunal to decide that petition on merit. Counsel for the respondent no.9 has no objection if the election petition is filed by the petitioner. In view of the above, this writ petition is dismissed as withdrawn with liberty to the petitioners to file an election petition under Section 76 read with section 89 of the Punjab State Election Commission Act, 1994, challenging the election of respondent no.9. In case the FAO No. 1012 of 2010 (O&M) 4 election petition is filed within three weeks from today, the Election Tribunal is directed to decide the same on merits expeditiously”. Respondent No.2.challenged the election of the appellant by way of election petition presented on 17.12.2008 which was ultimately allowed by the impugned order. Learned counsel for the appellant has challenged the impugned order inter-alia, on the grounds that the petition by itself was not maintainable as it was not presented in terms of Section 76 (1) of the Punjab State Election Commission Act, 1994 (for short,'the Act'). In this regard, he referred to the order recorded by the Election Tribunal on the election petition itself at the time when it was presented, which after translation into English reads as under:- “Application filed through counsel. Counsel for the petitioner heard. It be registered. Respondents be summoned for 8.1.2009. Order dated 17.12.2008”. Learned Counsel for the appellant has submitted that since the election petition has not been presented by the candidate (respondent No.2) himself, therefore, it is in violation of Section 76 (1) of the Act and should have been dismissed by the Tribunal in view of Section 80 (1) of the Act. In order to lend support to his arguments, learned counsel for the appellant has relied upon a decision of the Apex Court in the case of G.V.Sreerama Reddy & Anr Vs. Returning Officer & Ors. 2009 (3) RCR (Civil ) 937. In reply, learned counsel for the respondent has vehemently contended that in order to take the aforesaid plea, the appellant was required to plead and prove the alleged fact that the election petition was filed only FAO No. 1012 of 2010 (O&M) 5 by the Advocate in the absence of the candidate (respondent No.2). It is submitted that there is no objection raised in the written statement in this regard, rather in reply to para 7 of the election petition, in which respondent No.2. had alleged that “ therefore, the petitioner is filing the election petition in this Court”. It is stated in para 7 of the written statement that para 7 relates to record. Thus, needs no reply. It is submitted that in para 14 of the impugned order, counsel for the appellant had himself argued that the petitioner has filed the election petition. It is further submitted that presence/absence of respondent No.2. is a question of fact which could have only been proved by leading cogent evidence but since there was no pleading/denial by the appellant about the presence of respondent No.2, therefore, no issues have been framed in this regard. It is contended that as this plea about the presentation of the election petition is not raised by the appellant in his pleadings or even before the Election Tribunal, it is deemed to have been waived. In this regard, learned counsel for the respondent has relied upon a Division Bench judgment of this Court in the case of Salig Ram and another Vs. Shiv Shankar and others, AIR 1971 Punjab and Haryana 437. It is further contended that decision in the case of G.V. Sreerama Reddy (Supra) would not be applicable because in that case, the election petition was presented before the Registry of the High Court which had put up an objection that the petition has not been presented by the candidate and was then put up before a learned Single Judge of the High Court for orders. In the present case, election petition has been presented directly before the Election Tribunal, who did not raise any objection about its due presentation in consonance with Section 76 (1) of the Act. It is submitted that had this objection been raised, FAO No. 1012 of 2010 (O&M) 6 respondent No.2. would have filed the election petition again after rectifying the defect. In rebuttal, learned counsel for the appellant contended that in reply to para 7 of the election petition where it is highlighted by learned counsel for respondent No.2. that “therefore, the petitioner is filing the election petition is concerned, it has been rightly replied in the written statement that it relates to record. Thus, needs no reply, which means that it is a matter of record that who has presented the election petition. In regard to question of waiver, it is submitted that Section 80 of the Act is couched in negative language which is peremptory and mandatory in nature. In this regard, he has also relied upon two judgments of the Supreme Court in the cases of Vijay Narayan Thatte & Ors Vs. State of Maharashtra & Ors 2009 (4) RCR (Civil) 283 and Udhav Singh Vs. Madhav Rao Scindia AIR 1976 Supreme Court 744. Learned counsel for the appellant has also relied upon a decision of the Supreme Court in the case of Jyoti Basu and others Vs. Debi Ghosal and others AIR 1982 Supreme Court 983 (1) to contend that an election petition is not an action at Common Law, nor in equity. It is a special jurisdiction and has always to be exercised in accordance with the statute creating it. He has also argued that initially, issues were framed by the Election Tribunal, but later on, it was found by the Tribunal that the issues framed on 20.2.2009 do not match with the facts of the present case, evidence or proof, which is brought on record by learned counsel for the parties. It was felt that after typing it on the computer and while taking the print of issues framed in another election petition, the same were taken and brought on record of the present case. Thus, it was decided by the election Tribunal that dehors the issues, on the basis of record/proof/ evidence, the FAO No. 1012 of 2010 (O&M) 7 case is being decided. After hearing both the learned counsel for the parties, two questions have come to fore to be adjudicated by this Court: - (i) Whether an election petition presented through an Advocate is liable to be dismissed under Section 80 of the Act, being in violation of Section 76 (1) of the Act ? (ii) Whether non-compliance of mandatory provisions of Section 76 (1) of the Act and its resultant effect as per Section 80 of the Act, could be raised for the first time in appeal or if not raised, whether the said right/ issue is deemed to have been waived by the appellant on the ground of acquiescence ? Before adverting to the rival contentions raised by learned counsel for the parties, it would be necessary to refer to the relevant provisions of the Act, namely, Sections 74,76 and 80. 74.Election petitions:- No election shall be called in question except by an election petition presented in accordance with the provisions of this Chapter. 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 forty five 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 FAO No. 1012 of 2010 (O&M) 8 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. 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. (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 Explanation.-- For the purposes of this sub-section and of section 86, the trial of a petition shall be deemed to commence on the date fixed for the respondents to appear before the Election Tribunal and to answer the claim or claims, as the case may be made in the petition. (4) The Election Tribunal may, upon such terms as to costs and otherwise, as it may deem fit, allow to particulars of any corrupt practice alleged in the FAO No. 1012 of 2010 (O&M) 9 petition to be amended or amplified in such 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.” Chapter XII deals with election petition. Chapter XII of the Act lays down a complete format which provides that who would present the election petition; who would be the parties to the election petition, what would be the contents of the election petition, how the election petition would be tried; what would be the procedure, to what extent, election Tribunal can decide and what are the grounds to declare the election void. etc.etc. Section 74 specifically says that no election shall be called in question except by way of an election petition presented in accordance with the provisions of this Chapter. Section 76 mandates that 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 FAO No. 1012 of 2010 (O&M) 10 election or by any elector within a period of forty five days from the date of election of the returned candidate. Section 80 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. As per the aforesaid mechanism, election law would be set into motion after the presentation of the election petition in accordance with the provisions of this Chapter i.e. Chapter XII of the Act in which section 76 specifically provides that the election petition has to be presented by a candidate. Section 80 of the Act is couched in negative language that if there is a violation due to non-compliance of any provisions of section 76 of the Act, then the Election Tribunal shall have to dismiss the election petition. Thus, it is to be seen that whether the judgment relied upon by the learned counsel for the appellant in G.V. Sreerama Reddy's Case (Supra) applies to the facts of the case in hand or not. In the said case, election for the Constituency No.140, Bagepalli, Karnataka Legislative Assembly was held in the year 2008 in which the respondent was elected. The election petition was filed by the appellant on 06.7.2008 through an Advocate Sh.Shiva Reddy who presented the election petition before the Registrar (Judicial), High Court of Karnataka. The Registry of the High Court found that the presentation is not in accordance with Section 81 of the Representation of the People Act, 1950 as the election petition was not presented by the candidate. Based on the office objection, the matter was placed before the learned Single Judge of the High Court dealing with the election petition, who dismissed the election petition on the ground that it is not a proper presentation in terms of Section 81. The question arose before the Apex Court was also “whether FAO No. 1012 of 2010 (O&M) 11 the election petition as presented was in accordance with Section 81 (1) of the Act and whether the High Court was right in dismissing the same as it was not presented by the candidate or elector ? This question has been answered by the Apex Court against the appellant in the said case and dismissed the Civil Appeal. In the said case, it was observed thus:- “ While interpreting a special statue, which is a self- contained code, the Court must consider the intention of the Legislature. The reason for this fidelity towards the Legislative intent is that the statute has been enacted with a specific purpose which must be measured from the wording of the statute strictly construed. The preamble of the Representation of the People Act makes it clear that for the conduct of elections of the Houses of Parliament or the Legislature of each State, the qualification and disqualification for membership of those Houses, the corrupt practice and other offences in connection with such allegations the Act was enacted by the Parliament. Inspite of existence of adequate provisions in the Code of Civil Procedure relating to institution of a suit, the present Act contains elaborate provisions as to disputes regarding elections. It not only prescribes how election petitions are to be presented, but it also mandates what are the materials to be accompanied with the election petition, details regarding parties, contents of the same, relief that may be claimed in the petition. How trial of election petitions are to be conducted has been specifically provided in Chapter III of Part VI. In such circumstances, we are of the view that the provisions have to be interpreted as mentioned by the Legislature”. “One can discern the reason why the petition is required to be FAO No. 1012 of 2010 (O&M) 12 presented by the petitioner personally. An election petition is a serious matter with a variety of consequences. Since such a petition may lead to the vitiation of a democratic process, any procedure provided by an election statute must be read strictly. Therefore, the Legislature has provided that the petition must be presented “by” the petitioner himself, so that at the time of presentation, the High Court may make preliminary verification which ensure that the petition is neither frivolous nor vexatious”. “Learned Counsel appearing for the appellants relied on a decision of the High Court of Rajasthan (Jaipur Bench) in Bhanwar Singh Vs. Navrang Singh, AIR 1987 Raj 63. In the case before the learned Single Judge, the election petition had been presented by one Rajendra Prasad, Advocate and not by the petitioner himself. It was argued by learned counsel for the petitioner therein that election petition had been validly presented under Section 81 (1) of the Act because Section 81 (1) of the Act only makes a provision as to who can file an election petition and does not deal with as to who should actually present it before the Registry. It is further submitted that Section 81 of the Act nowhere provides that the petitioner should be physically present at the time of presentation of the election petition. The learned Single Judge after adverting to the words- “by”, “presented” concluded that these words used in Section 81 (1) of the Act have to be given wide meaning and found that election petition filed through an advocate without the presence of candidate or elector is valid. We are unable to accept the said conclusion”. “We have already pointed out that inspite of provisions in CPC and Evidence Act relating to institution of suit and recording of evidence etc, this Act provides all the details starting from the presentation of the FAO No. 1012 of 2010 (O&M) 13 election petition ending with the decision of the High Court. In such circumstances, it is but proper to interpret the language used by the Legislature and implement the same accordingly. The challenge to an election is a serious matter. The object of presenting an election petition by a candidate or elector is to ensure genuineness and to curtail vexatious litigations. If we consider sub-section (1) along with the other provisions in Chapter II and III, the object and intent of the Legislature is that this provision i.e. Section 81 (1) is to be strictly adhered to and complied with”. In the present case, admittedly, the election petition has been presented through an Advocate and not by the candidate (respondent No.2.). Therefore, it is in violation of Section 76 (1) of the Act which offends Section 80 of the Act wherein it is provided that in case of non-compliance of the provisions of Sections 76,77 and 103 of the Act, election Tribunal has to dismiss the election petition. Thus, the first question is decided in favour of the appellant and it is held that the election petition having been presented by the Advocate is in violation of Section 76 (1) of the Act and the election petition deserves to be dismissed in view of Section 80 of the Act. Insofar as second question is concerned, learned counsel for the respondents has relied upon a Division Bench judgment of this Court in the case of Salig Ram and others (Supra) to contend that since there was no objection either in the written statement or anywhere before the Election Tribunal about the non-compliance of Section 76 (1) of the Act much-less presentation of the election petition in accordance with law, therefore, the said objection was deemed to have been waived. In Salig Ram and others (Supra), the facts were that the appellants in the said case FAO No. 1012 of 2010 (O&M) 14 were the plaintiffs who filed a suit that khasra No. 1591 forms part of the area of Mandi Dadri which is owned and possessed by the owners of the Mandi and is in their possession since the time of existence of the Mandi. The owners of the Mandi opened a school for the education of the children and provided a play ground as also some buildings which are well located in this khasra number for the common purposes of the population of the town. They had to file a suit because the defendants in the said case who had started obstructing the owners of the Mandi in the use of that piece of land. One of the defendants had even obtained sanction from the Municipal Committee for construction of a house and a shop on that piece of land and wanted to forcibly build by collecting building materials on the disputed plot. The plaintiff thus, filed a suit for declaration and injunction and in the alternative, it was pleaded that if they are not proved to be the owners, even then members of the public had been continuously using the said plot as a public way