F.A.O No.4011 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. F.A.O No.4011 of 2009 Date of Decision: 21.10.2009 Shinder Kaur ....Appellant Versus Deputy Commissioner-cum-Presiding Officer, Election Tribunal, Bathinda & Ors. ...Respondents CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. B.S. Sidhu, Advocate for the appellant. Mr. Navdeep Sukhna, A.A.G., Punjab Mr. Binderjit Singh, Advocate for respondent No.3. ***** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? ** NIRMALJIT KAUR, J. This is an appeal under Section 101(2) of the Punjab State Election Commission Act, 1994 against the impugned order dated 10-07-2009 passed by the Election Tribunal, Bathinda. The respondent-Jasvir Kaur filed the election petition challenging the election of the present appellant-Shinder Kaur, on the ground that the nomination paper of the appellant was neither signed by the proposer nor the Form 4-A was signed by the appellant. F.A.O No.4011 of 2009 2 Following three issues were framed :- 1. Whether the nomination papers of respondent No.1 were properly accepted as alleged by the petitioner? 2. Whether the petition is liable to be dismissed as it does not comply with the mandatory provisions of Section 13-A and 23? 3. Whether the petition is bad for non-joinder of necessary parties? The election petition was accepted by holding as under :- “ There is no signature/thumb impression on the form 4-A but the thumb impression of first page has come during photostat to which the respondent side is stating to be a thumb impression. Now, it is clear that the signature/thumb impression is not there on the Form 4-A but the point to be decided is as to whether it is necessary sign/thumb mark the form 4-A. The position is made clear in rule 9(2) of the Punjab Panchyat Election Rules. For convenience, the rule 9(2) of the Punjab Panchayat Election Rules is as following :- “9(2) The nomination papers of a member of scheduled caste or backward class shall also be accompanied by a declaration in Form 4-A-1.” As per the said Clause of the Act, it is necessary to sign/thumb mark the declaration of Caste in Form 4-A. This can't be considered a mere technical mistake. In this way the nomination paper of the respondent was liable to be rejected due to non-compliance of the said clause which was wrongly accepted. Hence, while deciding this issue against the respondent No.1, her nomination papers are rejected.” Accordingly, the present appeal has been filed. Learned counsel for the appellant, while challenging the said order, argued that the impugned order has been passed on the sole ground that FORM 4 A was not signed/thumb marked by the appellant. It was stated that this finding is totally wrong because the form 4 A was thumb marked by the appellant and that the same was clear from the nomination papers. While making this submission, learned counsel for the appellant stated that Form 4 A was F.A.O No.4011 of 2009 3 submitted in original and the finding recorded by the Tribunal that there was no thumb impression of the appellant on Form 4 A was incorrect. The submission of the learned counsel at the first instance was accepted at the time of motion hearing and the impugned order was also stayed. However, in order to ascertain the correction position, the records were summoned by this Court. On perusing of the record, it was found that the finding recorded by the Tribunal was indeed correct. It was found that there was no thumb impression or signatures of any seconder to support the candidature of the appellant. Besides, there was no thumb impression or signatures on Form 4 A, which were required as per Rule 9 (2) of the Punjab Panchayat Election Rules. The impression on the left side of the form is in fact the image of the thumb impression made on the first page of Form 4-A. The submission made on behalf of the appellant at the time of motion hearing was, therefore, incorrect. Thus, it is apparent that the nomination papers of the appellant were wrongly accepted by the Returning Officer. The said lapse cannot be overlooked only on the ground that the appellant is not educated. Learned counsel for the appellant, thereafter, raised yet another argument that the mandatory provisions of Section 77 of the Punjab State Election Commission Act, 1994 (here-in-after referred to as `the Act'), has not been complied with. It was stated that as per Section 77 of the Act, the appellant was required to join all the contesting candidates as respondents but the same was not done while filing the election petition and, therefore, the order was bad in law because as per Section 81 of the Act, the petition should be dismissed by the Tribunal, if it does not comply with the provisions of Section 77. This argument of learned counsel for the appellant deserves to be rejected, in view of the fact that specific issues No.2 and 3 to this effect were framed. These issues have already been reproduced above. The parties did not press for these issues and no F.A.O No.4011 of 2009 4 evidence or argument was raised by learned counsel for the respondent before the Election Tribunal with respect to these issues. Hence, these issues were decided to be left alone. The election petition was decided on issue No.1 alone. The appellant, therefore, cannot be allowed to raise the issue which was given up before the Election Tribunal. The appeal is, accordingly, dismissed. (NIRMALJIT KAUR) 21.10.2009 JUDGE gurpreet