CR No.6455 of 2007 -1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.6455 of 2007 Date of Decision: 5.9.2008 Jaibir ...Petitioner. Vs. Chand and others ..Respondents. CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.Arun Bansal, Advocate for the petitioner. Mr.R.S.Chahar, Advocate for the respondents. RAKESH KUMAR JAIN, J. This is a petition under Article 227 of the Constitution of India praying for modification of the order dated 16.11.2007 (Annexure P-1) passed by the Civil Judge (Sr.Divn) -cum-Election Tribunal, Jhajjar. Tersely, the facts of the case are that election to the post of Sarpanch of Gram Panchayat Samastpur Majra, Block Salhawas, was held on 9.4.2005 in which the petitioner Jaibir had emerged as a winning candidate. Respondent No.1 Chand son of Har Sarup challenged the election of the petitioner under Section 176 of the Haryana Panchayati Raj Act, 1994 (for short `the Act') before the Civil Judge (Sr.Divn.)-cum- Election Tribunal, Jhajjar after impleading as many as 8 respondents. Respondents No.2 to 7 were proceeded against ex parte. Only respondents No.1 and 8 contested the Election petition and took an objection that the petition is bad for non joinder and misjoinder of necessary parties. On CR No.6455 of 2007 -2 - 2.8.2005, eight issues were framed including issue No.4 “as to whether the petition is bad for non joinder and misjoinder of necessary parties”. Respondent No.8 filed an application before the Tribunal to treat issue No.4 as preliminary issue but his application was dismissed on 23.8.2006 against which respondent No.8 filed Civil Revision No.6064 of 2006 titled as Mukhtiar Singh Vs. Chand and others which was allowed by this Court on 23.1.2007 and it was directed therein that the Tribunal should treat issue No.4 as preliminary issue. On behalf of the respondents, it was argued before the Tribunal that as per Section 176 of the Act, respondent No.8 being the Returning officer in the election cannot be joined as respondent and his name was liable to be struck off from the array of the respondents. The relevant portion of Section 176 (2) is reproduced as under : “(a) Where the petitioner in addition to challenging the validity of the election of all or any of the returned candidates claims a further relief that he himself or any other candidate has been duly elected, all the contesting candidates, other than the petitioner and where no such further relief is claimed, all the returned candidates. (b) Any other candidate against whom allegations of any corrupt practices are made in the election petition.” The trial Court vide its order dated 16.11.2007 found that in para Nos. 5 to 10 of the election petition, no allegations of corruption have been levelled against respondent No.8 and even if, assuming the allegations to be true then it is the misconduct and the election petitioner had an alternative efficacious remedy to report the matter to the competent Authority and if respondent No.8 is alleged to have committed any act CR No.6455 of 2007 -3 - which amounts to corrupt practices within the meaning of Section 176(5) of the Act, even then no action can be taken against him by the Tribunal. Therefore, it was found that respondent No.8, being the Returning Officer cannot be joined as respondent in the array of respondents in the election petition under the provisions of the Act and as such, his name was ordered to be deleted and it was held that the said issue goes in favour of the respondents. The only argument raised by the counsel for the petitioner is that while passing the impugned order, the Tribunal has not decided the effect of misjoinder of respondent No.8, who has been ordered to be deleted from the array of the parties. Counsel for the petitioner has argued that the issue before the trial Court was not that as to whether the Returning Officer has been wrongly arrayed as respondent No.8 rather the issue was as to whether the petition is bad for misjoinder and non-joinder of necessary parties, therefore, the trial Court should have, while deleting the name of respondent No.8 from the array of the respondents, observed with regard to its effect, instead of observing “Issue goes in favour of the respondents”. On the other hand, learned counsel for respondent No.1 has submitted that import of the order under challenge is the same what the counsel for the petitioner has prayed for. After hearing the learned counsel for the parties, I am of the view that the trial Court has erred in not deciding the effect of its finding by deleting the name of respondent No.8 from the array of the respondents and has erroneously observed that the issue goes in favour of the respondents. Once the trial Court is dealing with a particular issue, then it is incumbent upon it observe in respect of its effect on the basis of the finding arrived at. CR No.6455 of 2007 -4 - Thus, the trial Court is directed to give a finding on issue No.4 as to what would be the effect of deletion of the name of respondent No.8 from the array of the respondents whether the petition would be bad for non-joinder and misjoinder of necessary parties? With these observations, the present petition is allowed and the order of the Tribunal dated 16.11.2007 is set aside. (Rakesh Kumar Jain) 5.9.2008 Judge Meenu