CM No.13452-CII of 2010 and -1- FAO No.2848 of 2010 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH CM No.13452-CII of 2010 and FAO No.2848 of 2010 (O&M) Date of decision : 30.6.2010 Manjit Kaur ..Appellant. Vs. Mahinda and another ..Respondents. CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present : Mr.D.S.Virk, Advocate for the appellant. RAKESH KUMAR JAIN, J. CM No.13452-CII of 2010 For the reasons mentioned in the application, delay of 146 days in re-filing of the appeal is hereby condoned. CM stands disposed of. Main Case This appeal is directed against the order dated 30.9.2009 passed by Additional Deputy Commissioner (exercising the powers of Election Tribunal), Faridkot by which the election petition filed by the appellant under the Punjab State Election Commission Act, 1994 (for short `the Act') for setting aside the election of respondent No.1 and praying for herself to be declared elected in her place, has been dismissed. The appellant challenged the election of respondent No.1 for CM No.13452-CII of 2010 and -2- FAO No.2848 of 2010 the post of Panch on the ground that she had contested the election by producing a false certificate of Scheduled Caste. The election petition was filed only by impleading respondent No.1 and the Returning Officer. The election petition was contested by respondent No.1 whereas respondent No.2/Returning Officer was proceeded against ex parte as he did not choose to appear. Three issues were framed by the Election Tribunal, which are as under: (i)Whether the election of respondent No.1 is liable to be set aside on the grounds mentioned in the election petition? OPP. (ii)Whether the election petition is not maintainable in the present form? OPR. (iii)Relief. The election petition has been dismissed by the learned Tribunal on the ground that respondent No.1 has contested the election on the basis of Scheduled Caste certificate issued by Tehsildar dated 27.5.2002 which has been proved from the record and as such, the election petitioner was found not to have produced any evidence from which it could be gathered by the Election Tribunal that the Scheduled Caste certificate was false. Moreover, the election petitioner did not implead all the necessary parties as envisaged under Section 77 of the Act. Learned counsel for the appellant has vehemently argued that respondent No.1 alone, who is the necessary party, was rightly impleaded, therefore, there is no violation of Section 77 of the Act. I have heard learned counsel for the appellant. Before adverting to the facts of the case, I want to refer to Section 77 of the Act, which reads as under : CM No.13452-CII of 2010 and -3- FAO No.2848 of 2010 Section 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 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.” According to the aforesaid provision, the election petitioner is required to join all the returned candidates where he is challenging the election of the returned candidate to be void and where he claims a further declaration that he himself or any other candidate should be declared as duly elected then, all the contesting candidates should be impleaded. In the present case, the election petitioner/appellant has not only challenged the election of the returned candidate/respondent No.1 to be void but also claimed herself to be declared elected in her place as a Panch. Therefore, in my view, the present election petition has not been filed in accordance with Section 77 of the Act, therefore, in terms of Section 80 of the Act, the election petition deserves to be dismissed because Section 80 of the Act provides that in case of non-compliance of provisions of Sections 76, 77, 103 of the Act, the Election Tribunal shall dismiss the election petition. The Explanation under Section 80(1) provides that any such order passed by the Election Tribunal shall be deemed to be an order passed under clause (a) of Section 87 of the Act. In view of the above discussion, I do not find any merit in the CM No.13452-CII of 2010 and -4- FAO No.2848 of 2010 present appeal and as such, the same is hereby dismissed. (RAKESH KUMAR JAIN) 30.6.2010 JUDGE Meenu