FAO No.4494 of 2009 (O&M) -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH FAO No.4494 of 2009 (O&M) Date of decision : 27.1.2010 Malkeet Kaur ..Appellant. Vs. Bhupinder Pal and others ..Respondents. CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present : Mr.B.S.Sidhu, Advocate for the appellant. Mr.Rajinder Goyal, Advocate for the respondents. RAKESH KUMAR JAIN, J. This appeal is directed against order of the Election Tribunal, Muktsar, dated 5.2.2009 whereby an Election Petition filed by the appellant was dismissed. The case set up by the appellant is that she filed her nomination paper on 16.5.2008 for election to the office of lady Panch (General Category) of Gram Panchayat Sikhwala, Tehsil Malout, District Muktsar. Her nomination paper was complete in all respects and her name appeared in the list of candidates, however, vide order dated 19.5.2008, the Returning Officer passed an order illegally regarding withdrawal of the nomination paper by her. It is alleged that the appellant made a complaint to the Higher Authorities i.e. Deputy Commissioner Muktsar, S.D.M. Malout and to the State Election Commissioner, Punjab, but to no avail and at last, she had to file an Election Petition. It is also alleged that her nomination papers were FAO No.4494 of 2009 (O&M) -2- found to be in order, her name was displayed on the Notice Board in Form V as required under Rule 13 and Section 43 of The Punjab Panchayat Election Rules, 1994 (for short `the Rules) and Section 73 of The Punjab State Election Commission Act, 1994 (for short `the Act'). It is also alleged that the appellant was allotted the election symbol of `Scissors'. But the learned Tribunal dismissed the Election Petition by observing as under: “I have heard the arguments of the learned counsels for both the parties and perused the record on the file together with the replies to the petition submitted by them carefully. The original record of the election was summoned and in this connection the statement of the respondent No.18 Sh.Sanjeev Kumar Jolly, S.D.E., PSEB Malout, Returning Officer of village Sikhwala Tehsil Malout was recorded on 5.2.2008. He stated that the petitioner herself withdrew her nomination paper on 19.5.2008. He produced the photostat attested copy of the nomination and withdrawal form no.4-B of the petitioner. The perusal of the nomination paper shows that no election symbol was allotted to her as alleged in the complaints presented to the State Election Commissioner, Punjab. It is also seen that thumb impression of the petitioner exist in form 4B i.e. Of withdrawal. No evidence has been provided by the petitioner to disprove her thumb impression on the Form of withdrawal. It is pertinent to note that the allocation of election symbols take place after the last date and hour of withdrawal. So, when a candidate has already withdrawn her nomination there is no reason for allotment of election symbol. No evidence, whatsoever, has been produced by the petitioner in support of her contention that election symbol was issued to her. On the strength of the arguments of the learned counsels for the respondents and other facts mentioned above, the petition is seems devoid of merits. Hence the petition is, hereby dismissed. Announced in FAO No.4494 of 2009 (O&M) -3- the open court. The file be consigned to the record room after due compliance.” Learned counsel for the appellant has vehemently argued that the Tribunal has committed an error of law by not adhering to the provisions of Section 81 of the Act, which provides that the Tribunal shall try the Election petition, as nearly as may be, in accordance with the procedure contained in the Code of Civil Procedure, 1908 (for short `CPC') and since on the pleadings of the parties, neither any issue has been framed nor opportunity was given to the appellant to lead her evidence in order to prove her case, the Tribunal has committed a serious error causing manifest injustice to her in this regard. On the other hand, learned counsel for the respondents has argued that the appellant has miserably failed to prove that thumb impression appearing on Withdrawal Form does not belong to her. He submits that the appellant had the opportunity to lead her evidence but no evidence was led, therefore, no complaint could be made at this stage. I have heard learned counsel for the parties and have perused the record with their assistance. Section 81 of the Act, which has been invoked, reads as under: “Procedure before the Election Tribunal – (1) Subject to the provisions of this Act and of the rules made thereunder, every election petition shall be tried by the Election Tribunal, as nearly as may be, in accordance with the procedure contained in the Code of of Civil Procedure, 1908, (Central Act 5 of 1908) to the trial of suits: Provided that the Election Tribunal shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witness or witnesses is not, if it is of the opinion FAO No.4494 of 2009 (O&M) -4- that the evidence of such witness or witnesses is not material for the decision of the election petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings of the election petition. (2) The provisions of the Indian Evidence Act, 1872 (Central Act 1 of 1872) shall, subject to the provisions of this Act, be deemed to apply in all respects to the trial of an election petition.” A perusal of the aforesaid Section shows that every election petition has to be tried by the Election Tribunal, as nearly as may be, in accordance with the procedure contained in the CPC. However, in this case where the dispute rests on the facts as to whether the nomination paper was withdrawn by the appellant by putting her thumb impression on Form 4B or not, learned Tribunal was expected to atleast frame an issue in this regard and allowed the parties to lead their evidence. Learned counsel for the respondents has failed to point out any date on which the appellant was granted opportunity for the purpose of leading evidence in this regard to prove that thumb impression of the appellant on Form 4B does not belong to her or it is forged. After hearing the learned counsel for the parties and keeping in view of the facts and circumstances of the case, I am of the view that the procedure adopted by the Tribunal, is contrary to Section 81 of the Act and as such, the order deserves to be set aside. In view of above, the present appeal is allowed and the matter is remanded back to the Election Tribunal to decide the petition in accordance with law after framing issues and granting adequate opportunities to the parties to lead their evidence. FAO No.4494 of 2009 (O&M) -5- The parties are directed to appear before the Election Tribunal on 22.2.2010. At this stage, counsel for the appellant prays that an appropriate direction be also issued to the Election Tribunal to decide the Election Petition within a specified time. This Court finds that the request made is not unreasonable, therefore, the Tribunal is further directed to decide the Election Petition, as early as possible, preferably within a period of three months, from the date of appearance of the parties before it with a certified copy of this order. No costs. (RAKESH KUMAR JAIN) 27.1.2010 JUDGE Meenu