FAO No.2591 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** FAO No.2591 of 2009 DATE OF DECISION: 26.08.2010 **** Asha Rani . . . . Appellant VS. Barjinder Kaur and others . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: - Mr.H.S. Dhindsa, Advocate for the appellant. Mr.Sunil Agnihotri, Advocate for respondent No.1. **** RAKESH KUMAR JAIN J. This appeal is filed at the instance of election petitioner who remained unsuccessful before the Election Tribunal in assailing the validity of election of respondent No.1. In brief, election for the purpose of constituting Gram Panchayat, Rajpur was held on 26.5.2008. There was one seat reserved for General Category (Woman) from which respondent no.1 was returned. The post of Sarpanch was also reserved for the candidate belonging to General Category (Woman). The appellant challenged the election of respondent No.1 by way of election petition filed under Section 89 & 90 of the Punjab State Election Commission Act, 1994 (for short ‘the Act’) and Rules 50 & 51 of the Punjab Panchayat Election Rules, 1994 (for short ‘the Rules), inter alia, on the following grounds: “a) That the election was held under fear and not in its true spirit. FAO No.2591 of 2009 -2- There was violation of various mandatory provisions of rules framed under the act before & after holding the election, the result of election, the preparations of its publication, conducting of election polling, counting of votes & canvassing were one in irregulars manner and against the provisions of rules. b) That neither any opportunity of to file the objection against the publication of the voter list was given nor any objections were invited from the Public/Petitioner. Some persons in the voter list have been shown in the voter list inspite of the fact that they have expired long ago or some were residing in the other village or place. All such type of votes has been casted by mis-representing. c) That the Presiding Officer was openly siding with the respondent No.1 & was biased towards petitioner. The Presiding Officer was through out the polling supporting the respondent No.1 in utter violation of the provisions of the Act. The Presiding officer has refused to give/provide the summary of total vote casted inspite of the various request by the polling agent of the petitioner. Till date the petitioner has not been informed about the total number of FAO No.2591 of 2009 -3- votes polled. However the petitioner has come to know from some sources that total number of votes polled were 352 (but not officially disclosed) out of which more than 160 votes has been polled in favour of the petitioner. d) That the Presiding Officer wrongly rejected/canceled the votes polled in favour of the petitioner & accepted the votes in favour of respondent No.1. While rejecting the vote polled in favour of the petitioner, the Presiding Officer has not given any cogent reason for the rejections of the votes. The Presiding Officer has wrongly rejected 6 votes polled in favour of the petitioner by giving wrong reason. The Presiding Officer has violated the provision of Section 36 of the Act. Marks of thumb impression of voters on the ballot paper can be appeared due to the handling/carrying of ballot paper to be put in the ballot box by an illiterate voter. It is not a ground to reject the vote/ballot paper. On some ballot papers more than half of the seal was on the other column. As a matter of law if the seal was affixed on the line the higher side of the seal affixed is to be consider. Thus, the Presiding Officer illegally rejected the said 6 votes polled in favour of petitioner FAO No.2591 of 2009 -4- in order to give undue advantage to the respondent No.1. Thus fact can be verified by summoning the record pertaining to election in dispute. e) That the Presiding Officer has violated the various provision of Act and rules and has not properly followed the procedure of counting of votes as laid down in rule 33 of Punjab Panchayat Election Rules, 1994 & Section 66 of the Act. No opportunity was given to petitioner or her agent to inspect the ballot papers. Even the bundles of ballot papers of petitioners were mixed with bundles of ballot papers of respondent No.1. f) That at the time of counting of votes 8 ballot papers were found unstamped. The date of said unstamped ballot paper were not known to the petitioner and she has every apprehension that it can be misused by respondent No.1 in connivance with the Presiding Officer. The Presiding Officer illegally declare the respondent No.1 as elected/wining candidate with the margin of just one vote. In fact the petitioner got much higher votes than the respondent No.1 & she is the elected candidate if the above said votes were not rejected by the presiding officer. FAO No.2591 of 2009 -5- g) That the respondent No.1 and her agent namely Santokh Singh s/o Pritiam Singh R/o Rajpur Distt. Hoshiarpur involved in corrupt practices. They have lured/induced the voters to cast their votes in the favour of respondent No.1 by giving gratification. The respondent No.1 and her supporters/agent brought the voters in cars, Tata Sumos, Tracter, Trolly & Scooter etc. to cast their votes & they did canvassing in the polling station. That the respondent No.1 her husband Karnail Singh & her polling agent Santokh Singh with the help of their supporters created a panic atmosphere at the polling station so that voters cannot cast their votes with their free wills. Even at the time of counting of votes said Santokh Singh the polling agent of respondent No.1 was loudly crying in order to create panic. This amounts to corrupt practices on the part of respondent No.1. h) That Joginder Pal who is the nearest relative of respondent No.1 was the supporter of respondent No.1 by using undue influence over the voters, threatened the voters to cast their votes in favour of respondent No.1. Said Joginder pal who is a Govt. servant & is FAO No.2591 of 2009 -6- posted at Jujhar chathial village in Govt. School, has threatened to get failed the wards of voter in annual examination if they do not cast the votes in favour of respondent No.1. Thus the act of Joginder Pal above said amounts to corrupt practices. i) That the respondent No.1 & her agent with her consent were appealing to the voters to cast their votes on the ground of her religion, caste & community. Even the respondent No.1 & her agent distributed the photographs & cards of religious leaders. This amounts to corrupt practices. j) That there was clear violation of the rules framed under the act which has materially affected the result.” The election petition was contested by respondent No.1 by filing reply thereto on the basis of which issues were framed by the Election Tribunal which reads as under: “(i) Whether any corrupt practice was restored to which led to violation of sacrosanct election process? OPP (ii) Whether the election staff (Returning Officer & Presiding Officer) have played their role fairly under the provisions of law in conducting the election? OPR (iii) Whether form No.5 and form No.9 are require to be examined, if substantive evidence is produced in favour of issue No.1? OPP” FAO No.2591 of 2009 -7- After obtaining evidence, learned Election Tribunal dismissed the election petition on the ground that the petitioner has questioned the role of the Returning Officer, Presiding Officer and the supporting election staff but neither they have been impleaded as party nor anybody has been examined as a witness. Admittedly, neither the Returning Officer nor the Presiding Officer has been impleaded as respondent in the election petition although all the allegations have been made against them. It is well settled that whenever there is an allegation of corrupt practice made in the election petition against a person much less an authority, who in exercise of its statutory duties have indulged in corrupt practice, the said person should be impleaded as a party so that he/she may contest the election by filing appropriate reply and also lead evidence in his/her favour otherwise it would violate the salutary principle of natural justice namely ‘Audi Alteram Partem’. In the present case none of the official respondents have been impleaded as a party although it has been specifically alleged in the ground 3(c) of the election petition that “the Presiding Officer was openly siding with the respondent No.1 & was biased towards petitioner. The Presiding Officer was through out the polling supporting the respondent No.1 in utter violation of the provisions of the Act.” Thus, in my view, the election petition by itself suffered from material illegality and has been rightly dismissed by Election Tribunal on the ground of non-impleadment of the necessary parties. No other point has been raised. In view of the above discussion, I do not find any merit in the present petition and the same is hereby dismissed with costs. FAO No.2591 of 2009 -8- (RAKESH KUMAR JAIN) 26.08.2010 JUDGE Vivek