FAO No. 2749 of 2009 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 2749 of 2009 (O&M) Date of decision: 7.2.2011 Smt. Gurdev Kaur .. Appellant v. Smt. Surjit Kaur and others .. Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. O. S. Batalvi, Advocate for the appellant. Mr. S. S. Hira, Advocate for respondents No. 1 to 4 and 6. ... Rajesh Bindal J. The election petition filed by the appellant having been dismissed by Deputy Commissioner-cum- Election Tribunal, Hoshiarpur (for short, `the Tribunal') on account of delay, the order is impugned before this court. Briefly, the facts are that election for Sarpanch of village Sotla, Tehsil and District Hoshiarpur was held on 15.7.2008. The appellant, being aggrieved, challenged the same before the Tribunal on the ground that respondent No. 1 was not eligible to contest the election for the post of Sarpanch, as she had been elected as Panch against a seat reserved for Scheduled Caste Category, whereas the post of Sarpanch was reserved for General Female. The election petition having been filed belatedly, the same was dismissed on account of delay. It is this order, which is impugned before this court. Learned counsel for the appellant submitted that in fact, there was no delay in filing of election petition. The result of election was declared on 15.7.2008. The limitation to file appeal before the Tribunal was to expire on 2.9.2008. The appellant filed C.W.P. No. 12656 of 2008 before FAO No. 2749 of 2009 [2] this Court, which was dismissed as withdrawn with liberty to the appellant to file election petition on 11.9.2008 and immediately thereafter, on 18.9.2008, the election petition was filed before the Tribunal. When the appellant was pursuing her remedy before this court in writ jurisdiction, the period spent therein should have been excluded for the purpose of consideration of period for filing the petition before the Tribunal. On the other hand, learned counsel for the respondents submitted that the writ petition filed by the appellant before this court was dismissed as withdrawn on 11.9.2008 with liberty to her to file an election petition in accordance with law. This Court, at the time of passing of order on 11.9.2008, did not grant time to the appellant to file the election petition keeping in view the fact that time for filing the same had already expired. Under these circumstances, the delay in filing the election petition could not be condoned. He further submitted that even on merits, the case being set up by the appellant is totally mis-conceived as the election of the respondent as Sarpanch of the Gram Panchayat was held strictly in accordance with law. Reliance was placed upon Bagicha Singh (Ex-Sarpanch) v. Punjab State Election Commission, Punjab, 2001(3) RCR (Civil) 526; Joginder Singh v. Baldeep Singh and others, 2010(1) RCR (Civil) 78 and order dated 27.1.2010, passed in FAO No. 3939 of 2009 –Satnam Singh v. Amrik Singh and others. Heard learned counsel for the parties and perused the relevant referred record. The undisputed facts on record are that result for the election of Sarpanch of Gram Panchayat, Sotla was declared on 15.7.2008. In terms of the provisions of Section 76 of the Punjab State Election Commission Act, 1994 (for short, `the Act'), an election petition to challenge the election could be filed within 45 days thereof. The appellant filed the same on 18.9.2008, which was apparently delayed. The reason sought to be pleaded by the appellant that the matter in dispute remained pending before this court in a writ petition and the period spent therein should be excluded has no merit. This court, while permitting the appellant to withdraw the petition to avail of her alternative remedy, passed the following order on 11.9.2008: FAO No. 2749 of 2009 [3] “After arguing for some time, counsel for the petitioner wants to withdraw this petition with liberty to challenge the election of respondent No. 5 as Sarpanch of Gram Panchayat of village Sotla by filing an election petition in accodance with law. Dismissed as withdrawn with the aforesaid liberty.” A perusal of the aforesaid order shows that the writ petition was simply withdrawn with liberty to challenge the election by filing an election petition in accordance with law. That would necessarily mean that the Tribunal was to consider whether in terms of the provisions of the Act, the election petition was maintainable or not. If considered with reference to Section 76 thereof, the election petition filed by the appellant was clearly beyond 45 days, which is the period of limitation provided for the purpose of filing the election petition and had to be dismissed as time-barred. The consequence of filing of an election petition in violation of the provisions of Section 76 of the Act have been provided for in Section 80 thereof, which mandates that the Election Tribunal shall dismiss an election petition which does not comply with the provisions of Sections 76, 77 or 103 of the Act. An identical issue came up before this Court in Bagicha Singh's case (supra), wherein it was held that an election petition filed beyond 45 days of the date of order of the Tribunal, even if filed after withdrawal of the writ petition challenging the same very election would be beyond limitation and consequently was directed to be dismissed. For the reasons mentioned above, I do not find any merit in the present appeal and the same is dismissed. ( Rajesh Bindal ) Judge 7.2.2011 mk