FAO No. 7355 of 2010 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 7355 of 2010 (O&M) Date of decision: 9.2.2011 Balwinder Singh @ Pilli and others .. Appellant v. Gian Kaur and others .. Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Rajesh Bhatheja, Advocate for the appellants. Mr. Vikas Cacria, Advocate for respondents No. 1 to 5. Mr. Yatinder Sharma, Deputy Advocate General, Punjab. ... Rajesh Bindal J. Challenge in the present appeal is to the order dated 4.11.2010, passed by Presiding Officer, Election Tribunal, Moga (for short, `the Tribunal') accepting the election petition filed by respondent No. 1 and while setting aside the election of the appellants, a direction was issued for holding fresh election. Learned counsel for the appellants submitted that election of the appellants in the present case has been wrongly set aside by the Tribunal in the election petition filed by respondent No. 1, which was barred by time and could not have been entertained as such. In the present case, the elections were held on 26.5.2008. The election petition was filed by respondent No. 1 on 22.12.2008, whereas in terms of the provisions of Section 76 of the Punjab State Election Commission Act, 1994 (for short, `the Act'), such an election petition could be filed within 45 days of the date of election. The issue of limitation raised by the appellants before the Tribunal was just brushed aside while noticing that earlier respondent No. 1 had approached this court by filing a writ petition challenging the election FAO No. 7355 of 2010 [2] of the appellants, which cannot be a cause for entertaining a belated petition, as there is no provision under the Act to condone the delay. He further submitted that in terms of the provisions of Section 76 of the Act, an election petition was required to be presented by the candidate himself and in case of violation of the aforesaid provision of the Act, the same was required to be dismissed. In support of the aforesaid submissions, reliance was placed upon Bagicha Singh (Ex-Sarpanch) v. Punjab State Election Commission, Punjab, 2001(3) RCR (Civil) 526 Joginder Singh v. Baldeep Singh and others, 2010(1) RCR (Civil) 78; Gurvinder Singh v. Presiding Officer, Election Tribunal (SDM), Dhuri, District Sangrur and others, 2010 (5) RCR (Civil) 930; Gurlal Singh v. Presiding Officer, Election Tribunal, Block Lehra, District Sangrur and others, 2010(5) RCR (Civil) 474; Manjit Kaur v. Deputy Commisioner-cum-Election Tribunal, Fatehgarh Sahib and others, 2010(4) RCR (Civil) 784. On the other hand, learned counsel for the respondents submitted that in the present case, the nomination papers of respondent No. 1 were wrongly rejected on 20.5.2008. As respondent No. 1 sought to challenge the elections, which were held after wrongly rejecting her nomination papers, she filed C.W.P. No. 10801 of 2008 in this court. The aforesaid writ petition was wrongly rejected on 12.6.2008. Application for re-calling the order was filed. Ultimately on 21.11.2008, respondent No. 1 was permitted to withdraw the writ petition with liberty to file the election petition. The election petition was filed on 22.12.2008. If the period is counted from the date respondent No. 1 was permitted to withdraw the writ petition with liberty to file election petition, the same was within limitation and in fact, it should have been considered from that date, as this court had granted liberty to respondent No. 1 to file election petition. However, on the asking of the court, as to why the application for re-calling an order, which was passed on 12.6.2008 dismissing the writ petition, was filed so late, learned counsel for respondents No. 1 to 5 submitted that the application was filed within 30 days from the date of receipt of copy of the order dated 12.6.2008. However, he could not furnish any definite date of receipt of certified copy of the order and also filing of application. As far as presentation of the election petition by the counsel is concerned, learned counsel for respondents No. 1 to 5 could not dispute the FAO No. 7355 of 2010 [3] fact that the election petition was presented before the Tribunal by her counsel and not in person. He could neither dispute any of the judgments referred to by learned counsel for the appellants nor produce any judgment in support of the contentions raised by him. Heard learned counsel for the parties and perused the relevant referred record. Section 76 of the Act, which is reproduced hereunder, deals with the presentation of the election petition and also the period within which the same can be filed: “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.” In the present case, the undisputed facts, which are on record, are that elections were held on 26.5.2008. Respondent No. 1 filed a writ petition in this court on 11.6.2008. The same was dismissed as withdrawn on 21.11.2008 with liberty to file election petition and the same was filed on 22.12.2008. The issue under consideration is as to whether the period spent by respondent No. 1 before this court in pursuing the extra-ordinary remedy can be excluded for the purpose of consideration of the fact as to whether the election petition was within limitation or not. A perusal of the order passed by this court in the writ petition would be relevant, which reads as under: “Heard learned counsel for the petitioner and considered the submissions made in the application for recalling modification of the order dated 12.6.2008 and perused the main FAO No. 7355 of 2010 [4] writ petition. We are of the considered opinion that the order impugned is liable to be set aside on account of an error apparent on the face of record. The sole ground for seeking the relief in the writ petition is that the nomination paper of the petitioner was rejected. Petitioners accordingly prayed that they may be permitted to contest the elections by issuing a fresh notification. It appears that due to some mistake impugned order has been typed. The impugned order dated 12.6.2008 is accordingly set aside and the writ petition revived and taken up for consideration. At this stage, learned counsel for the petitioner made submission that the petitioner may be permitted to withdraw the present writ petition with liberty to file the Election Petition. Prayer allowed, petition dismissed as withdrawn with liberty, prayed for.” A perusal of the aforesaid order shows that all what this court had permitted respondent No. 1 was to withdraw the writ petition with liberty to file election petition. That would necessarily mean that the election petition to be filed by respondent No. 1 was to be considered in terms of the provisions of the Act. There was no prayer made before this court at the time of withdrawal of the writ petition for permitting respondent No. 1 to file the election petition within certain specified time considering the fact that respondent No. 1 was availing the remedy of writ. No prayer was made for condoning the delay in filing of the election petition. Mere liberty to file election petition does not condone the delay in filing thereof. An issue similar to the one in hand was considered by this court in Joginder Singh's case (supra); Gurvinder Singh's case (supra) and FAO No. 2749 of 2009—Smt. Gurdev Kaur v. Smt. Surjit Kaur and others, decided on 7.2.2011, and it has been consistently opined that delay in filing of election petition cannot be condoned and also that the election petition filed under the circumstances, as are in the case in hand, cannot be said to be within limitation. Accordingly, it can safely be opined that the election petition filed by respondent No. 1 was beyond limitation and was required to be FAO No. 7355 of 2010 [5] rejected. Though the finding on the aforesaid issue is sufficient for acceptance of the appeal in question, however, still as the appellants had raised another issue, this court deems it appropriate to deal the same as well. The contention raised by learned counsel for the appellants was that the election petition having not been presented by respondent No. 1 herself, was required to be dismissed as not maintainable. It is not in dispute that the election petition was presented by the counsel of respondent No. 1 before the Tribunal. The consequences for non-compliance of the provisions of Section 76 of the Act regarding presentation of the election petition have been provided for under Section 80 of the Act and in terms thereof, the same was required to be dismissed. This issue was considered by this Court in Gurlal Singh's case (supra) and Manjit Kaur's case (supra) and it was held that on account of non-compliance of the provisions of Section 76 of the Act with regard to presentation of the election petition, the same was required to be dismissed. For the reasons mentioned above, the present appeal is accepted. The impugned order passed by the Tribunal is set aside and the election petition filed by respondent No. 1 is dismissed. ( Rajesh Bindal ) Judge 9.2.2011 mk