FAO No.5573 of 2009 (O&M) -1- ****** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.5573 of 2009 (O&M) Date of decision:29.11.2010. Jaswant Singh ...Appellant Versus Bakhshish Singh and others ...Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Rajiv Kataria, Advocate, for the appellant. Mr. J.S.Bhandohal, Advocate, for respondent No.1. ***** RAKESH KUMAR JAIN, J. The following questions of law are involved in this appeal: - i) Whether the election of a returned candidate can be called in question if he is recorded as a voter in more than one constituencies but had neither contested the election in more than one constituencies nor had polled his vote? ii) Whether an election petition deserves dismissal in terms of Section 80 of the Punjab State Election Commission Act, 1994 [for short “the Act”] if the election petition is not filed in terms of Section 77 of the Act, even if the said plea is not taken in the written statement? In order to find out answer to the aforesaid questions, a few facts are required to be noticed. The appellant (Jaswant Singh) was elected as a Panch of the Gram Panchayat of village Paragpur in the election held on 26.05.2008 in which he had secured 153 votes as against respondent FAO No.5573 of 2009 (O&M) -2- ****** No.1/election petitioner (Bakhshish Singh) who had polled 62 votes. After the election, respondent No.1 filed an election petition under the provisions of the Act after impleading only the appellant, Ajmer Singh (Presiding Officer) and Returning Officer of the Gram Panchayat, in which it was alleged that the appellant is a resident of House No.112, Ward No.10, Zirakpur, Tehsil Dera Bassi, District SAS Nagar (Mohali) and his name appears at Sr. No.920 in the electoral roll of Ward No.10 of the Municipal Committee, Zirakpur, whereas he is also recorded as a voter at Sr. No.379 in the electoral roll of Gram Panchayat of village Paragpur, Tehsil Dera Bassi, District SAS Nagar (Mohali). It was thus alleged that the appellant was not competent to contest the election of Gram Panchayat of village Paragpur as he was also recorded as a voter at Sr. No.920 in the electoral roll of Ward No.10 of the Municipal Committee, Zirakpur. On this premise, the prayer made in the election petition was for setting aside the election of the appellant as illegal, null and void and for declaring respondent No.1 as a winning candidate for the post of Panch of Gram Panchayat of village Paragpur. In reply, the appellant had alleged that his name along with his wife and daughter was shown in the electoral roll of Municipal Committee, Zirakpur for which he had filed an application dated 25.06.2008 to the SDM, Dera Bassi for deleting his name from the electoral roll of Municipal Committee, Zirakpur which was duly received by the SDM, Dera Bassi on 29.06.2008 i.e. prior to the elections for Municipal Committee, Zirakpur so that no person could misuse or impersonate him, his wife and daughter. After taking evidence, the learned Election Tribunal observed that the election for the post of Panch was held on 26.05.2008, whereas the application for deletion of his name from the electoral roll of Municipal Committee, Zirakpur was filed by the appellant much after that, therefore, at the time of election of the Panchayat, he already had a vote in the electoral roll of the Municipal Committee, Zirakpur, therefore, he was declared to be disqualified for the post of Panch of the Gram Panchayat of village Paragpur, but insofar as the respondent No.1 is concerned, he was not declared elected. Aggrieved against the aforesaid order of the learned Election FAO No.5573 of 2009 (O&M) -3- ****** Tribunal dated 26.10.2009, the present appeal was filed which was admitted on 26.11.2009 and was ordered to be heard within six months for regular hearing. Learned counsel for the appellant has raised two fold contentions in this appeal, firstly, that the learned Election Tribunal has committed a patent error of law in considering the vote of the appellant in more than two constituencies to be a disqualification for the purpose of setting aside his election and secondly not dismissing the election petition filed by respondent No.1 for not complying with Section 77(a) of the Act. In respect of his first contention, he has submitted that Section 26 of the Act provides that no person shall be entitled to be registered in the electoral roll for more than one constituency, whereas Section 27 of the Act provides that no person shall be entitled to be registered in the electoral roll for any constituency more than once. It is alleged that it is not the case of respondent No.1 that the appellant was registered in any constituency more than once because Paragpur and Zirakpur fall in different constituencies. The name of the appellant appearing in the electoral roll of Municipal Committee, Zirakpur is meant for Municipal Committee which falls in the Legislative Assembly Constituency of Kharar, whereas Gram Panchayat Paragpur falls in the Legislative Assembly Constituency of Dera Bassi. So, at the most, the case could fall under Section 26 of the Act. He further submitted that mere appearance of the name of a candidate in the electoral roll of more than one constituencies would not disqualify him from contesting election and in support of his submission, he has relied upon the decisions of the Supreme Court in the cases of Baburao Vs. Manikrao and another, (1999) 5 Supreme Court Cases 38, Pothula Rama Rao Vs. Pendyala Venakata Krishna Rao and others, (2007) 11 Supreme Court Cases 1 and I. Vikheshe Sema Vs. Hokishe Sema, (1996) 4 Supreme Court Cases 53. In respect of his second submission, it is submitted that as respondent No.1 had prayed for setting aside the election of the appellant and for declaring him to be elected, he was required to implead all the contesting candidates and even if the learned Election Tribunal had only set aside the election of the appellant, then all the returned candidates were to be impleaded by respondent No.1 and since it had not been done, the election FAO No.5573 of 2009 (O&M) -4- ****** petition should have been dismissed by the learned Election Tribunal under Section 80(1) of the Act. In reply, learned counsel for respondent No.1 has submitted that Section 26 of the Act is mandatory and in view of its non-compliance, the election of the appellant has rightly been set aside by the learned Election Tribunal under Section 89(d)(iv) of the Act. I have heard both learned counsel for the parties and perused the record with their able assistance. In order to appreciate the respective submissions of both leaned counsel for the parties, it would be appropriate to refer to the provisions of law which have been invoked by both the learned counsels, which are as follows: - “25. Disqualification for registration in an electoral roll.-- A person shall be disqualified for registration in an electoral roll, if he, - (a) is not a citizen of India; or (b) is of unsound mind, and stand so declared by a competent court; or (c) is for the time being disqualified from voting under the provisions of any law relating to corrupt practices and other offences in connection with elections; or (d) has been convicted of an offence punishable under, -- (i) the Protection of Civil Rights Act, 1955; or (ii) the Unlawful Offences (Prevention) Act, 1967; or (iii) the Dowry Prohibition Act, 1962; or (iv) the Terrorist and Disruptive Activities (Prevention) Act, 1987; or (v) the Religious Institutions (Prevention of Misuse) Act, 1988; or FAO No.5573 of 2009 (O&M) -5- ****** (vi) any law providing for the prevention of profiteering and hoarding; or (vii) any law relating to the adulteration of food or drugs.” “26. No person to be registered in more than one consistency.-- No person shall be entitled to be registered in the electoral roll for more than one constituency.” “27. No person to be registered more than once in any constituency.-- No person shall be entitled to be registered in the electoral roll for any constituency more than once.” “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 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. 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 FAO No.5573 of 2009 (O&M) -6- ****** 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.” “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.” “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 FAO No.5573 of 2009 (O&M) -7- ****** (ii) by any corrupt practice committed in the interest of he 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.” From the reading of the facts and circumstances of this case and the aforesaid provisions of law, two questions have arisen in this appeal for consideration of this Court which have already been mentioned in opening para of this judgment, which shall be dealt with in detail separately. The first question is with regard to setting aside of the election of a returned candidate on the ground that he had a vote in more than one constituencies at the time of his election and that Section 26 of the Act is mandatory on the basis of which election of the returned candidate can be called in question and can be declared void. Insofar as the facts of this case are concerned, admittedly, the appellant had recorded as a voter in the electoral roll of Gram Panchayat of village Paragpur as well as electoral roll of the Municipal Committee, Zirakpur. Undisputedly, an application was filed by the appellant to the SDM, Dera Bassi for deletion of his name from the electoral roll of Municipal Committee, Zirakpur after the election of Gram Panchayat of village Paragpur in which he contested as a candidate for the post of Panch and was declared elected having polled 153 votes as against respondent No.1 who had polled 62 votes. This is also not in dispute that the appellant had not casted his vote in the election of Municipal Committee, Zirakpur as those elections were notified on 12.06.2008 after the election of Gram Panchayat of village Paragpur were over in which he was elected as a Panch. Now the question is as to “whether FAO No.5573 of 2009 (O&M) -8- ****** the election of the appellant could be set aside only for the reason that he was registered as a voter in the electoral roll of more than one constituencies”. In this regard, the first judgment relied upon by learned counsel for the appellant in the case of Baburao (supra) shall have to be looked into. In the said case, elections of Maharashtra State Legislative Assembly were held in January 1995. Appellant Baburao and first respondent Manikrao filed their nomination papers to contest from 211, Nilanga Assembly Constituency, District Latur. The objection raised by Baburao was that Manikrao was recorded as a voter in the electoral roll of 211, Nilanga Assembly Constituency, District Latur and 206, Latur Assembly Constituency, therefore, his nomination paper should have been rejected. The said objection raised before the Returning Officer and before the Electoral Officer was declined and respondent No.1 was declared elected from 211, Nilanga Assembly Constituency, District Latur. His election was challenged by the appellant Baburao mainly on the ground that name of respondent No.1 appeared in two Assembly Constituencies and as such he had earned a disqualification. The matter was taken up to the Supreme Court where the Supreme Court had proceeded on the premise that the name of the first respondent finds mention in the electoral roll of 206, Latur Assembly Constituency as well as 211, Nilanga Assembly Constituency, District Latur. To decide the question as to whether the appearance of the name of a candidate in two Assembly Constituencies is a disqualification to contest election from any one of the Constituency, the Supreme Court had taken into consideration Sections 16, 17 and 18 of the Representation of the People Act, 1950 [for short “the Act of 1950”]. Sections 16, 17 and 18 of the Act of 1950 are exactly similar to the provisions of Sections 25, 26 and 27 of the Act. The Supreme Court observed that Sections 17 and 18 of the Act of 1950 are mandatory, for example, to object to the inclusion of the name in the electoral roll, but it was held that there was nothing to suggest in Section 16 of the Act of 1950 that if a person's name finds a place in more than one constituencies that would automatically entail disqualification from contesting in any one of the constituencies. The law laid down by the Supreme Court in the case of Baburao (supra) was followed in the case of Pothula Rama Rao (supra) in FAO No.5573 of 2009 (O&M) -9- ****** which the following observations were made by the Supreme Court: - “10. The second ground urged by the appellant was that the Returning Officer ought to have rejected the nomination of the first respondent, as his name was entered twice in the General Electoral Roll for “No.72, Kovvur Assembly Constituency” at Sl. No.797 and also at Sl. No.802 of Part 50. Section 18 of Representation of the People Act, 1950 {“the 1950 Act”, for short), no doubt, provides that no person shall be entitled to be registered in the electoral roll for any constituency, more than once. But the question is whether the nomination of a candidate is liable to be rejected, if his name is entered in more than one place in the electoral roll. If the name of a voter is entered more than once, the consequence is that it can be corrected by the Electoral registration Officer under Section 22 of the 1950 Act either on an application or suo motu. Section 2(1)(e) of the Act defines “elector” in relation to a constituency as a person whose name is entered in the electoral roll of that constituency for the time being in force and who is not subject to any of the disqualifications mentioned in Section 16 of the 1950 Act. Double entry of the name of a citizen in the electoral roll of a constituency is not a ground of disqualification (for registration in an electoral roll) under Section 16 of the 1950 Act. Nor is it a ground for rejecting the nomination under Section 36(2) of the Act. 11. In this context, we may refer to a decision of this Court in Baburao v. Manikrao where a somewhat similar question was considered. In that case, a candidate's name was entered in the electoral rolls FAO No.5573 of 2009 (O&M) -10- ****** constituencies. This Court held that the mere fact that the person's name finds place in more than one constituency, does not automatically entail disqualification under Section 16 of the 1950 Act. Be that as it may, the High Court, therefore, rightly held that even if the allegations were accepted as true, that would not constitute improper acceptance of nomination and therefore, would not constitute a ground for declaring the election as void. Para 9 of the election petition was rightly struck off, as not disclosing a cause of action.” In the case of I. Vikheshe Sema (supra), the dispute was that if the name of a voter is included in electoral roll of more than one constituencies or at more than one places in the same constituency, it was held that it would not render his vote void if he chooses to vote only in one constituency or only once in the same constituency. It was observed that his vote would be void only if he votes more than once. In the present set of circumstances, it appears to the Court that Sections 16, 17 and 18 of the Act of 1950 and Sections 25, 26 and 27 of the Act are akin to each other and as it has been held by the Supreme Court in the case of Baburao (supra) that it would not be a disqualification because Section 2(1)(e) of the Representation of the People Act, 1951 refers to disqualification under Section 16 of the Act of 1950 alone while interpreting the word “elector” and has not maintained any contravention of Section 17 as disqualification. Similarly, Section 2(i) of the Act refers to Section 11 of the Act in which Section 25 of the Act does not find mention as a disqualification. In view of the aforesaid discussion, the first question posed in this appeal is answered in favour of the appellant and it is held that merely with the appearance of the name of a candidate in electoral roll of more than one constituencies would not disqualify him from contesting election from anyone of those constituencies. In respect to the second question “whether the election petition was maintainable without impleading all the returned and contesting FAO No.5573 of 2009 (O&M) -11- ****** candidates in terms of Section 77(a) of the Act even if the said plea is not taken in the written statement by the appellant”, a bare reading of Section 77 (a) read with Section 80 of the Act provides that wherever the election petitioner prays for setting aside of the election of a returned candidate and seeks declaration that he should be replaced, he is required to implead all the contesting and returned candidates as party respondents and if it is not done, the Election Tribunal shall have to dismiss the election petition in terms of Section 80 of the Act and pronounce the order in terms of Section 87(a) of the Act even if this plea is not taken by the returned candidate in the written statement because it is mandatory and non-curative. Thus, the second question is also decided in favour of the appellant and against the respondent No.1. The upshot of the above discussion results into success of this appeal. Consequently, the appeal is allowed and the impugned order of the learned Election Tribunal is hereby set aside with costs throughout. November 29, 2010. (RAKESH KUMAR JAIN) vinod* JUDGE