FAO No.96 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** FAO No.96 of 2010 (O&M) DATE OF DECISION: 17.03.2010 **** Nathu Singh . . . . Appellant VS. Presiding Office Election Tribunal, SDM, Zira Distt. Ferozepur and others . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: Mr.O.P. Kamboj, Advocate for the appellant. Mr.Rishi Kaushal, Advocate for the respondents. **** RAKESH KUMAR JAIN J. (ORAL) This appeal is directed against the order passed by SDM- cum-Election Tribunal, Zira dated 15.12.2009 whereby, election of the appellant has been set aside on an election petition filed by respondent No.2. In brief, the facts of the case are that general elections to constitute Panchayats in the State of Punjab, were held on 28.5.2008, including the Gram Panchayat, Ramkot, Block Khuian Sarwar, Tehsil Fazilka district Ferozepur. The Panchayat consists of 9 Panches out of which 4 Panches were elected from General categary, 2 from General Category (Ladies), 1 from Scheduled Caste category, 1 from Scheduled Caste (Lady) and 1 from Backward Class. Respondent No.2 FAO No.96 of 2010 (O&M) -2- challenged the election of the appellant on the ground that his nomination paper was fraudulently withdrawn at the instance of appellant. The learned Tribunal, after examining the evidence, available on record, allowed the case set up by respondent No.2/election petitioner. Aggrieved against the said order, the appellant has preferred this appeal, in which, it is, inter alia, contended that initially the election petition was filed on 24.6.2008, which was later on amended vide order dated 18.3.2009. In the election petition, following prayer has been made: - “Hence, it is prayed that after holding enquiry the election of the respondent No.1 as elected panch of the Ramkot, Block Khuian Sarwar, Tehsil Fazilka, District Ferozepur be set aside and the petitioner be declared as elected panch village Ramkot, Block Khuian Sarwar, Tehsil Fazilka, District Ferozepur, with costs throughout.” In reply to the amended election petition, preliminary objection was taken that all the necessary parties have not been impleaded by the petitioner in the election petition. Therefore, election petition is bad for non-joinder of necessary parties and as such the present petition is liable to be dismissed. It is submitted that despite the fact that the aforesaid preliminary objection was taken, the Tribunal did not frame any issue and decided the election petition in contravention of Section 81 of the Punjab State Election Commission Act, 1994 (for short ‘the Act’), which provides that the election petition has to be decided subject to the provisions of this Act and of the rules made thereunder and shall be FAO No.96 of 2010 (O&M) -3- tried by the Election Tribunal, as nearly as may be, in accordance with the procedure contained in the Code of Civil Procedure, 1908, (Central Act 5 of 1908) for the trial of suits. It is further submitted that in case, where election petitioner prays that instead of the returned candidate, he himself be declared as elected candidate, he is required to implead all the contesting candidates in view of Section 77 of the Act. In the present case, all the contesting candidates have not been impleaded, therefore, in view of Section 80 of the Act, the Election Tribunal was required to dismiss the election petition. As against this, learned counsel for the respondent has submitted that the respondent has a good case on merit which should not have been dismissed on mere technicalities. I have heard both learned counsel for the parties and perused the available record with their assistance. It is now well settled that election law has to be strictly construed. But before adverting to the rival contentions of both the parties, it will be necessary to refer to the relevant provisions of law i.e. Sections 76, 77, 80 and 81 of the Act, which are reproduced as under: “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 FAO No.96 of 2010 (O&M) -4- candidates at the election and there are different dates 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 petition and every such copy shall be attested by the petitioner under his own signatures to be a true copy of the petition. 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. 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) Where more than one election petitions are presented to the Election Tribunal in respect of FAO No.96 of 2010 (O&M) -5- 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 Election Tribunal finds the adjournment of the trial beyond the following day to be FAO No.96 of 2010 (O&M) -6- necessary for reasons to be recorded in writing. (6) Every election petition shall be tried as expeditiously as possible and every endeavor 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. 81. 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 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 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.” As per Section 77 of the Act, petitioner shall join as respondent to his petition, where he, in addition to claiming declaration that the election of all or any of the returned candidates is void, claims FAO No.96 of 2010 (O&M) -7- 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. In the present case, admittedly, all the contesting candidates have not been impleaded as respondents in the election petition filed by the election petitioner. Therefore, it is clear violation of Section 77 of the Act. Section 80 of the Act further provides that in case, where there is a violation of Section 76 or Section 77 or Section 103 of the Act then election petition before the Tribunal deserves dismissal being not maintainable. Thus, in view of the aforesaid discussion, I have found force in the argument raised by counsel for the appellant. Hence, the appeal is allowed and the impugned order passed by the Election Tribunal is hereby set aside. The parties shall bear their own costs. (RAKESH KUMAR JAIN) 17.03.2010 JUDGE vivek