FAO No.5685 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** FAO No.5685 of 2009 (O&M) DATE OF DECISION: 28.06.2010 **** Manjit Kaur and another . . . . Appellants VS. Paramjeet Kaur and others . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: - Mr.Kanwaljit Singh, Sr. Advocate with Mr.Ajay Singla, Advocate for the appellants. Mr.S.S. Salar, Advocate for the respondents. **** RAKESH KUMAR JAIN J. Manjit Kaur w/o Hakam Singh and Daljeet Kaur w/o Rajwant Singh (appellants) have assailed the validity of order dated 12.11.2009 passed by Deputy Commissioner-cum-Election Tribunal, Fatehgarh Sahib by which their election to the post of Panch (General Category) has been set aside and Paramjeet Kaur w/o Rachhpal Singh and Kulwinder Kaur w/o Phulwinder Singh (respondents No.1 and 2 respectively) have been declared elected. The relevant facts of the case are that election for the Gram Panchayat in village Sanipur, Tehsil and District Fatehgarh Sahib was held on 26.5.2008 in order to fill up 9 posts of Panches comprising of four seats for woman (General Category), one seat for Scheduled Caste FAO No.5685 of 2009 (O&M) -2- (male), one seat for Scheduled Caste (woman) and one seat for Backward Class. The appellants applied for two seats reserved for woman (General Category) and were elected whereas respondents No.1 and 2 who did not apply in the woman (General Category) were considered in the General category where they had lost. Thus, both the respondents filed an election petition under Section 76 of the Punjab State Election Commission Act, 1994 (for short ‘the Act’), challenging the election of the appellants. The averments made in the election petition are that the election petitioners /respondents No.1 and 2 had filed their nomination papers in the category of woman (General) whereas the appellants had also filed their nomination papers in the same category with them. All four of them were given election symbols in the category of Woman (General). The election petitioners had polled 29 and 20 votes respectively whereas, appellants No.1 and 2 had obtained 2 and 10 votes respectively but the Presiding Officer considered the nomination paper of the election petitioners in the General category and declared both the appellants elected in the woman (General category). Since, election petitioners had less votes than those who had contested in the General category, therefore, they were declared to have been defeated. As a matter of fact, the gist of the averments in the election petition is that the appellants had also filed their nomination papers in the Women General category and the only objection raised by the election petitioners is that their nomination papers have been wrongly considered in General category instead of Woman (General category). Election petition was contested by both the appellants by filing a joint written statement in which they had denied that the election petitioners/respondents No.1 and 2 had filed their nomination papers in FAO No.5685 of 2009 (O&M) -3- the Woman (General category). In the written statement filed by respondent No.9-Returning Officer, it was alleged that the election petitioner had filed nomination paper only in General category and not in the Woman (General category). After completion of the pleadings, issues were framed. Both the partied led their evidence. The Election Tribunal allowed the election petition observing that word woman General in the nomination paper of the appellants, which are Ex.R1 and Ex.R2 on record, has been added later and is in a different handwriting. It was also observed that if the election petitioners had not contested in the woman (General category) then there was no occasion for the Returning Officer to allot election symbols to the election petitioners as well as to the appellants because in that circumstances, both the appellants, who were the only candidates in the woman (General category) should have been elected unopposed. Learned counsel for the appellants, while assailing the aforesaid findings has drawn the attention of this Court to the nomination papers, which are attached as Annexure P-4, A, B and C with the present appeal in which election petitioners Paramjeet Kaur and Kulwinder Kaur did not mention their choice in the column of office to which they were contesting as they had simply mentioned as Panch whereas the appellants Manjit Kaur and Daljeet Kaur have specifically mentioned Woman (General category) in their nomination papers. He has also drawn the attention of this Court to a document Annexure R-7, which has been placed on record by respondent No.1 with CM No.5382- CII-2010. This document is a letter written by Returning Officer to the Sub Divisional Magistrate, Fatehgarh Sahib in respect of a complaint regarding decision taken by the Presiding Officer at the time of scrutiny of nomination papers. In this regard, Returning Officer had informed FAO No.5685 of 2009 (O&M) -4- that both the election petitioners did not mention in their nomination papers that they were contesting for the post of Panch in the woman (General category), therefore, their nomination forms have been kept in General category whereas the other two forms filled up by Manjit Kaur and Daljeet Kaur (appellants), who had mentioned as Woman (General category) have been kept in the said category. He has also referred to the cross-examination of Parmjeet Kaur, who had stated that the nomination paper was filled up by some other person which she had signed without reading. Similarly, he also referred to the cross- examination of Kulwinder Kaur, who had stated that the nomination paper was filled up by some other person, which she had also singed but she also said that she had read female Panch in her nomination paper. Learned counsel for the appellant has submitted that the Election Tribunal has not opined any where that election petitioners had mentioned in their nomination papers as Panch (Woman General) rather the election of the appellants has been set aside on a ground which was not even pleaded nor proved that the appellants had mentioned in their nomination papers their category as Woman General later on. It is further submitted that in the entire election petition, it is not the case of the election petitioners that the appellants had committed some forgery in the nomination papers already submitted, by inserting the word Woman General, rather the election petitioners themselves have mentioned in the election petition that both the appellants contested the election with them in the woman (General category). It is also submitted that the election took place on 26.5.2008 whereas, as per Annexure R-7 on record, the Returning Officer brought to the notice of the Sub Divisional Magistrate, Fatehgarh Sahib vide his letter dated 24.5.2008 that the nomination papers submitted by election petitioners were not FAO No.5685 of 2009 (O&M) -5- disclosing woman (General category), therefore, they are kept in General category whereas, the nomination papers submitted by the appellants were showing their choice of woman (General category), therefore, they were kept in the said category. In these circumstances, it is argued that the findings recorded by the Election Tribunal are patently illegal as it has made out a new case without there being any pleadings or proof about the forgery of words Woman General by the appellants in their nomination papers after the elections were over. On the other hand, learned counsel for the respondents has argued that had the appellants contested the election in Woman (General category) and the election petitioners were in General category then the appellants were the only two candidates for the two seats meant for Woman (General category) and as such there was no need for issuing them election symbols in the Woman (General category) rather they should have been declared elected unopposed. He further submitted that Election Tribunal has rightly upset the election of the appellants as it has found that the Woman category has been added with different handwriting and is not mentioned in the affidavit supporting the nomination paper. I have heard both the learned counsel for the parties and have perused the record with their assistance. The Tribunal, while deciding issues No.1 and 2, has observed that if the appellants were the only contesting candidates in the category of General woman then there was no need to allot them election symbols as they could have been elected unopposed as there were two seats in the Woman (General category). It is also observed that word General Woman has been written later on because it was not mentioned in the FAO No.5685 of 2009 (O&M) -6- affidavit filed with the nomination papers. It was also observed that the election record was not sealed and the Returning Officer in connivance with the appellants had tempered with the record. The basic question involved in this appeal is as to whether the election petitioners had contested the election in the category of General woman as alleged. Except for bald assertions in the election petition, there is no evidence on record produced by the election petitioners from which it could be gathered that they had contested the election in the category of Panch General (woman category). Undisputedly the nomination papers on the prescribed Form No.4 filled up in terms of Section 38 of the Act and Rule 9(1) of the Punjab Panchayati Raj Election Rules, 1994 (for short ‘the Rules’) by both the election petitioners is silent in respect of their choice for Woman (General category). All that has been mentioned against the column of “name of office” is Panch and there is nothing more than that. There is no discussion in the impugned order as to how the learned Tribunal has considered both election petitioners to be in the category of Panch (General woman). When election petitioner No.1 Paramjeet Kaur was cross-examined, she had categorically stated that “I signed the nomination papers filled up by some other person. I do not read my nomination paper. I signed only.” The second election petitioner Kulwinder Kaur has stated in her cross-examination that “I had got prepared the nomination papers in the District Court Fatehgarh Sahib. Those were got filled by some other person. After filing the paper, I had signed them.” Then she said “I had signed the nomination paper after reading them. I have read female Panch in my nomination paper.” Now the first election petitioner-Pramjeet Kaur, did not even read the nomination FAO No.5685 of 2009 (O&M) -7- paper before signing it, which was not filled up by her and the second election petitioner-Kulwinder Kaur, though got the nomination paper filled up by somebody else said that she had read that ‘Woman Panch’ was mentioned in the nomination paper but in record Woman Panch is not there. Meaning thereby, she has made a false statement in her cross-examination because it is not the case of the election petitioners that the category of Woman Panch was rubbed off or deleted from her nomination paper at the instance of the appellants in connivance with the Returning Officer. Thus, she cannot be believed to have filled up her nomination form in the category of General woman. On the contrary, in their election petition, they have specifically mentioned that both the appellants had filed their nomination paper in the Woman General category. Again, it is not their case that the word Woman General has been incorporated by the appellants in connivance with the election staff or Returning Officer after the election was over as has been held by the Election Tribunal. Thus, the question would arise as to whether the Tribunal could decide an election petition on a point, which is neither pleaded nor there is any issue framed in this regard. The answer is emphatically no because Section 78 of the Act specifically provides as to what would be the contents of an election petition. Section 78 of the Act is reproduced as under: - “78. Contents of petition : (1) As election petition shall : - (a) Contains a concise statement of the material facts on which the petitioner relies; (b) Set forth full particulars of any corrupt practice that the petitioner alleges, including a statement as possible, of the names of the parties alleged to have committed such corrupt FAO No.5685 of 2009 (O&M) -8- practice or practices and the date and place of the commission of such practice; and (c) be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (Central Act 5 of 1908) for the verification of pleadings: Provided that where the petitioner alleges any corrupt practice, the petition shall be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the relevant particulars thereof. (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.: Section 78(a) provides that Election Petitioner shall contain a concise statement of the material facts on which he/she relies. This is so provided in order to give an opportunity to the elected candidate to defend accordingly and be not taken by surprise. It is also well settled that no amount of evidence can be looked into in the absence of the pleadings. Therefore, in my view, the learned Tribunal has erred in making out a new case of tampering of record at the instance of the appellants in connivance with the Returning Officer without there being any pleadings in this regard by the election petitioners, who had rather averred that both the appellants had contested the election against them by filing their nomination papers in the category of General woman. Insofar as, the allotment of symbol is concerned, Rule 12 of the Rules provides that the Returning Officer shall, on the expiry of the time fixed for withdrawal of the nomination paper, allot by draw of lot to each validly nominated cndidate, called contesting candidate, a symbol out of FAO No.5685 of 2009 (O&M) -9- the approved list of symbols which are so notified as per Rule 8 of the Rules. Since, the Returning Officer had found that both the election petitioners had filed their nomination form in the General category and the appellants had filed their nomination form in the General woman category, election symbols were allotted to them as they have been found validly nominated candidates. Thus, the allocation of symbols is only a procedural aspect, which are allotted to the validly nominated candidates and has nothing to do with the election of the appellant to hold that if they were the only candidates in their category, the Returning Officer should not have allotted them the symbols and once symbols have been allotted, it would mean that election petitioners were also contesting in the same category. To my mind, there is a total fallacy in the argument raised by learned counsel for the respondents and also in the decision of the Tribunal in this regard. Further, the Tribunal has also erred in observing that since the appellants had not mentioned their category in the affidavit filed with nomination paper, therefore, it is presumed that the nomination paper filed by the appellants has been tampered with. Learned counsel for the respondent has failed to point out any requirement of law of mentioning the category in the affidavit also if the category has been mentioned specifically in the nomination paper, which is on the prescribed Form No.4. In view thereof, I do not find any force in the reasoning adopted by the learned Tribunal in upsetting the election of the appellants. In view of the above discussion, the present appeal is allowed and the impugned order of the Tribunal is set aside, though, without any order as to costs. (RAKESH KUMAR JAIN) 28.06.2010 JUDGE FAO No.5685 of 2009 (O&M) -10- Vivek