FAO No.3939 of 2009 (O&M) -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH FAO No.3939 of 2009 (O&M) Date of decision : 27.1.2010 Satnam Singh ..Appellant. Vs. Amrik Singh and others ..Respondents. CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present : Mr.Bhoop Singh, Advocate for the appellant. Mr.Sushil Gautam, Advocate for the respondents. RAKESH KUMAR JAIN, J. This appeal is directed against the order of Election Tribunal, Moga, dated 20.7.2009 whereby an Election Petition filed by Amrik Singh (respondent No.1 herein) has been allowed, the appellant has been unseated and Amrik Singh has been declared to have been elected on the post of Panch reserved for Backward Class. Learned counsel for the appellant has submitted that election of the Panches for Gram Panchayat, Thooth Garh, was held on 26.5.2008 and result was declared on the same day in which appellant was declared as Panch of the Gram Panchayat and his election was challenged by way of an election petition filed under Section 76 of The Punjab State Election Commission Act, 1994 (for short `the Act') on 25.7.2008. It is submitted that in terms of Section 76 of the Act, the Election Petition could have been filed within 45 days from the date of declaration of the result of returned candidates and if Election Petition is not filed within 45 days as provided FAO No.3939 of 2009 (O&M) -2- under Section 76 of the Act, then in view of Section 80 of the Act, the Election Petition has to be dismissed by the Election Tribunal as not maintainable. After notice of motion, Sh.Sushil Gautam, Advocate has put in appearance on behalf of respondent No.1 and has argued with equal vehemence that no relief could be granted by this Court to the appellant because he does not belong to Backward Class and has illegally contested in that category without any legal right. It is submitted that though, technically the appellant may be correct, but substantially his candidature in the category of Backward Class was patently illegal from the beginning. However, he did not dispute that the election was held on 26.5.2008, result was declared on the same day and the Election Petition was filed on 25.7.2008. I have heard learned counsel for the parties and have perused the record with their assistance. Before adverting to the facts of this case, Sections 76 and 80 of the Act are required to be referred to, which are reproduced as under: “Section 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 date 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 FAO No.3939 of 2009 (O&M) -3- petition and every such copy shall be attested by the petitioner under his own signatures to be a true copy of the petition.” Section 80: Trial of election petitions – (1) The Election Tribunal shall dismiss an election petition which does not comply with the provisions of section 76 or section 77 or section 103. Explanation – An order of the Election Tribunal dismissing an election petition under this sub-section, shall be deemed to be an order made under clause (a) of section 87. (2)Whether more than one election petitions are presented to the Election Tribunal in respect of the same matter, the Presiding Officer of the Election Tribunal may, in his discretion, try them separately or in one or more groups. (3)Any candidate not already a respondent shall, upon application made by him to the Election Tribunal within fourteen days from the date of commencement of the trial of the election petition and subject to any order as to security for costs which may be made by the Election Tribunal, be entitled to be joined as a respondent. Explanation – For the purposes of this sub-section and of section 86, the trial of a petition shall be deemed to commence on the date fixed for the respondents to appear before the Election Tribunal and to answer the claim or claims, as the case may be, made in the petition. (4)The Election Tribunal may, upon such terms as to costs and otherwise, as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner, as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice which has not been previously alleged in the petition. (5)The trial of an election petition shall, so far as is practicable consistently with the interest of justice in respect of the trial be continued from day-to-day until the conclusion, unless the FAO No.3939 of 2009 (O&M) -4- Election Tribunal finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded in writing. (6)Every election petition shall be tried as expeditiously as possible and every endeavour shall be made to conclude the trial within a period of six months from the date on which the election petition is presented to the Election Tribunal for trial.” According to the arguments raised by learned counsel for the appellant, against declaration of the result of the appellant, respondent No.1 could have filed Election Petition up to 10.7.2008, which admittedly has been filed on 25.7.2008, after the expiry of period of 45 days. In the Election matters, the provisions are to be strictly adhered to. Section 76 of the Act, categorically provides that in order to challenge the election of a returned candidate under Section 89(1) of the Act, the Election Petition has to be filed within 45 days from the date of election of the returned candidate. Similarly, Section 80 of the Act mandates that in fact, if there is a violation of Section 76 of the Act, then Election Tribunal shall have no alternative but to dismiss the Election Petition. In this case, there is a clear violation of Section 76 of the Act. In view of the above, I find force in the argument raised by learned counsel for the appellant and consequently, the appeal is allowed and order of the Election Tribunal dated 20.7.2009 is set aside though without any order as to costs. (RAKESH KUMAR JAIN) 27.1.2010 JUDGE Meenu