F.A.O. No. 408 of 2010 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. F.A.O. No. 408 of 2010 Date of Decision: April 29, 2011 Hardip Kaur and another …..Appellants Vs. Baljit Kaur and another …..Respondents CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI. -.- Present:- Mr.Arvinder Singh, Advocate for appellant No.1. Mr. G.S. Sidhu, Advocate for respondent No.2. Mr.Binderjit Singh, Advocate for respondent No.1. -.- M.M.S. BEDI, J. Appellant No.1- Hardip Kaur and appellant No.2-Baljit Kaur wife of Balvir Singh, (hereinafter referred to as Baljit Kaur 2) have filed this first appeal under Section 100 of the Punjab State Election Commission Act, 1994, (for short ‘the Act’), challenging the order passed by SDM, Bathinda, exercising the powers of Election Tribunal, Bathinda, dated December 31, F.A.O. No. 408 of 2010 [2] 2009 allowing the election petition under Section 76 of the Act, field by Baljit Kaur wife of Baltej Singh (hereinafter referred to Baljit Kaur 1). Briefly stated the facts of the case are that the appellants were declared elected by the Presiding officer as winners against two out of five posts of Panches in election of Panches for Village Tangrali, Tehsil Talwandi Sabo, District Bathinda held on May 26, 2008. There were total five posts of Panches in the village out of which two were reserved for general category, two were reserved for women general and one post was reserved for SC category. Total nine persons contested the elections by specifying the category in their nomination forms. Their categories as per the nomination forms and number of votes polled in their favour and the category for which they were considered, is detailed as follows:- S. No. Name of the candidate The category mentioned in the nomination form. Category considered by election officer Vot es poll ed The result declared by election officer. 1. Sukhpal Singh S/o Sh.Sarwan Singh No category mentioned General 7 Not elected. 2. Gurjit Singh S/o Inder Singh Reserved for Women General 2 Not elected 3. Baljit Kaur-2 W/o Balvir Singh No category mentioned General 42 Elected 4. Hardeep Kaur W/o Nachhatar Singh General Category mentioned General 61 Elected. F.A.O. No. 408 of 2010 [3] 5. Jagir Kaur W/o Sarwan Singh No category mentioned Women (General) 94 Elected 6. Baljit Kaur Sidhu -3 W/o Gurjit Singh Mentioned Reserved for Women Women (General) 79 Elected. 7. Baljit Kaur-1 W/o Baltej Singh No category mentioned Women (General) 77 Not Elected 8. Sukhpal Singh S/o Faqir Singh SC SC 54 Elected 9. Darshan Singh S/o Bhan Singh SC SC 22 Not Elected. The abovesaid Baljit Kaur 1, mentioned at Sr. No. 7 had not mentioned any category in her nomination paper at the time of submitting the same and she got 77 votes in her favour. The candidate Baljit Kaur wife of Balvir Singh i.e. Baljit Kaur 2 mentioned at Sr. No.3 got 42 votes and she was declared elected. So far as Hardip Kaur, appellant No.1 mentioned at Sr. No.4, who secured 61 votes, is concerned had applied against general category, was also declared elected. As Baljit Kaur 1 had been considered by the Returning Officer against the women category and considered Jagir Kaur mentioned at Sr. No.5 also against general Women category, alongwith Baljit Kaur Sidhu, (hereinafter referred to as Baljit Kaur 3), mentioned at Sr. No.6 against women general category. In this manner by adopting an arbitrary approach, considering Baljit Kaur 3 and Jagir Kaur as women general category candidates declared elected Jagir Kaur and Baljit Kaur 3 elected, who secured 94 and 79 votes respectively against women F.A.O. No. 408 of 2010 [4] general category, though Baljit Kaur 1 who has secured 77 votes was at third number below the other two women general category candidates as such she was not declared elected. Baljit Kaur 2 was arbitrarily considered against general category and Hardip Kaur was also considered against general category and both of them were elected. No doubt, Hardip Kaur, appellant No.1, who had applied in general category and had secured 61 votes had to be considered against general category but there was no reasonable ground for considering Baljit Kaur 1 as women general category. Baljit Kaur 1 who had secured 77 votes would have been declared elected had she been considered against general category in place of Baljit Kaur 2. In view of the unreasonable and arbitrary approach of the Presiding Officer in selecting the categories of the candidates who had not mentioned any category, a petition was filed by Baljit Kaur 1 challenging the election of Baljit Kaur 2 and Hardip Kaur. The Arbitral Tribunal allowed the election petition and the election of Baljit Kaur 2 i.e. appellant No.2 and that of Hardip Kaur, appellant No.1 were set aside holding that Baljit Kaur 1 was declared elected as member of Gram Panchayat in general category. It is not out of place to mention here that the Tribunal had relied upon the letter issued by the office of the Director Panchayat dated June 27, 2003 clarifying that the category in which the candidates files his nomination papers, his election result should be declared in that category only. In another letter dated June 26, 2003, it has been clarified that if any person files his nomination papers for the post of Panch for a reserved seat, then he could not be declared as elected against general category even if he F.A.O. No. 408 of 2010 [5] has secured more votes than the general category candidate. In view of the said notification, the Tribunal held that the candidates mentioned at Sr. No.3, (Baljit Kaur 2), Sr. No.5 (Jagir Kaur) and Sr. No.7 (Baljit Kaur 1) had not mentioned any special reserved category in their nomination papers, therefore, all the three candidates were considered as general category candidates. The findings of the Tribunal are reproduced as follows:- “In village Tangrali two posts of panches are for general category and two posts are reserved for women candidates and one post is for scheduled castes candidates. As far as the category of scheduled caste is concerned in this category there were only two candidates Sukhpal Singh son of Faqir Singh and Darshan Singh son of Bhan Singh. Out of which Sukhpal Singh having secured more votes was declared as winner. There is no dispute with regard to his election. In this way the quota of scheduled castes category is fulfilled. Second reserve category is woman against which only one candidate Baljit Kaur Sidhu wife of Gurjeet Singh filed her nomination papers. Though as per the rules she should have been declared as winner unopposed yet she has been made to contest election and she having secured 79 votes has already declared as winner. No other candidate has filled up his nomination F.A.O. No. 408 of 2010 [6] papers in the women category. In this way one post of women category falls vacant. Against the third general category the contest was between Sr. No.1 to 5 and 7. Out of them Sr. NO.5 Jagir Kaur wife of Sarwan Singh and Sr. No.7 Baljit Kaur wife of Baltej Singh secured maximum number of votes and they deserve to be declared elected candidates against general category. Out of them Jagir Kaur wife of Sarwan Singh has already been declared as elected. In these circumstances, Sr. No.7 Baljit Kaur of Baltej Singh should have been declared as elected instead of Sr. No.3 Baljit Kaur wife of Balvir Singh and Sr. No.4 Hardeep Kaur wife of Nachhatar Singh and the quota of general category should have been completed. Both these issues are being decided with this findings.” In view of the abovesaid directions, Baljit Kaur 1 was declared as elected member of the Gram Panchayat and Hardip Kaur having not been able to score in the contest was declared not elected declaring the post of one women panch vacant. Sh.Arvinder Singh, Advocate for appellant No.1 contended that as Baljit Kaur I- respondent had not mentioned any category, her nomination deserves to be rejected as the nomination paper was incomplete under Section 38 of the Act as such the same should have been rejected F.A.O. No. 408 of 2010 [7] under Section 41 (2) of the Act. He relied on Section 39 of the Act to submit that if inaccurate description has been given by Baljit Kaur I, she should not have been declared elected. Section 38 of the Act is produced as under:- “Section 38: Presentation of Nomination paper and requirements for a valid nomination— (1) On or before the date appointed under clause (a) of Section 35, each candidate shall, either in person or by his proposer, between the hours of eleven O’clock in the forenoon and three O’clock in the afternoon deliver to the Returning Officer at the place specified in this behalf in the notice issued under Section 36, a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer.” Section 41 of the Act reads as follows: “Section 41: Scrutiny of Nominations— (1) On the date fixed for the scrutiny of nominations under section 35, the candidates, their election agents, one proposer of each candidate and one other person duly authorized in writing by each candidate, but no other person, may attend at such time and place as the Returning Officer may appoint, and the Returning Officer shall give them all reasonable facilities for examining the nomination papers of all candidates which F.A.O. No. 408 of 2010 [8] have been delivered within the time and in the manner laid down in section 38. (2) The Returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination and may, if any, as he thinks necessary, reject the nomination on any of the following grounds, namely:-- (a) that on the date fixed for the scrutiny of nominations, the candidate either is not qualified or is disqualified for being chosen to fill the seat under this Act; or (b) that there has been a failure to comply with any of the provisions of section 38 or section 39. (3) Nothing contained in clause (b) of sub-section (2) shall be deemed to authorize the rejection of the nomination of any candidate on the ground of any irregularity in respect of a nomination paper, if the candidate has been duly nominated by means of another nomination paper in respect of which no irregularity has been committed. (4) The Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character. F.A.O. No. 408 of 2010 [9] (5) The Returning Officer shall endorse on each nomination paper his decision accepting or rejecting the same and, if the nomination paper is rejected, shall record in writing a brief statement of his reasons for such rejection. (6) For the purposes of this section, a certified copy of an entry in the electoral roll for the time being in force of the constituency shall be conclusive evidence of the fact that the person referred to in that entry is an elector for that constituency, unless it is proved that he is subject to a disqualification specified under this Act. (7) Immediately after all the nomination papers have been scrutinized and decisions accepting or rejecting the same have been recorded, the Returning officer shall prepare a list of validly nominated candidates, that is to say, candidates whose nominations have been found valid, and affix it to the notice board of his office.” Mr.Arvinder Singh argued that as the nomination form of Baljit Kaur 1 was incomplete and she had not mentioned any category in her nomination form, the same was liable to be rejected under Section 41 (2) (b) of the Act on account of failure to comply with the provisions of Section 38 of the Act. I have carefully considered the said contention but I am of the opinion that no doubt the nomination paper has to be completed in the F.A.O. No. 408 of 2010 [10] prescribed form and has to be signed by the candidate and by an elector of the constituency as proposer and the objections submitted by the objectors are required to be considered by the Returning Officer. As per Section 41 (2) of the Act, the Returning Officer has to examine the nomination papers and decide all the objections which may be made to any nomination and he has got a discretion to reject the nomination on the grounds mentioned in Section 41 (2) (a) and (b) of the Act i.e. (a) when the candidate is not qualified or is disqualified for being chosen or on account of his failure to comply with any of the provisions of Sections 38 or 39 of the Act. Section 41 (4) of the Act provides that the Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character. If a candidate does not mention any category of reservation against which he seeks election, he or she will be deemed to be a candidate in general category. Any candidate applying for nomination is considered to be a general category unless or until he/ she specifies his/ her category for seeking any reservation. In the present case, the candidate Baljit Kaur 2 mentioned at Sr. No.3 had not mentioned any category as such she had been rightly treated as a general candidate. Appellant No.1 Hardip Kaur mentioned at Sr. No.4 above had contested against general category as such she had to be considered against general category. Jagir Kaur had not mentioned any category in her nomination form and she had secured 94 votes as such she should have been considered against general category and not special category of women general. Baljit Kaur 3 mentioned at Sr. No.6 had applied against reserved category for Women and she had been rightly F.A.O. No. 408 of 2010 [11] considered as Women General Category. She was entitled to be elected as she was the only candidate against women general category. So far as Baljit Kaur 1 is concerned, she had not mentioned any category she should also have been considered as candidate of general category. Sukhpal Singh at Sr. No.8 had applied his category as Scheduled Castes; he has rightly been considered as a Scheduled Caste candidate alongwith Darshan Singh who has been similarly circumstanced. The arbitrary approach of the Returning Officer in considering Jagir Kaur against women general category, despite the fact that she did not opt to be considered for said category has rightly been held bad by the Tribunal. Baljit Kaur 3 who had applied against reserved category of women had to be considered as a women reserved category. Since Hardip Kaur, appellant No.1 had applied against general category and had not sought any reservation, she has rightly been considered against general category. In view of Baljit Kaur 1 having secured more votes than appellant No.1 she will not be able to make a mark. In view of the above circumstances, no ground is made out for interference in the order passed by the Tribunal. Dismissed. April 29, 2011 (M.M.S.BEDI) sanjay JUDGE