FAO No.1562 of 2009 (O&M) 1 In the High Court for the States of Punjab and Haryana at Chandigarh. FAO No.1562 of 2009 (O&M) Decided on 22.9,2010. Swaran Singh @ Sarwan Singh -- Appellant vs. Deputy Commissioner-cum-Presiding Officer,Election Tribunal, SAS Nagar,Mohali and others -- Respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.B.S.Sidhu,Advocate,for the appellant Mr.R.L.Gupta,Addl.A.G.Punjab Mr.Harmanjit Singh,Advocate,for respondent No.9 Rakesh Kumar Jain, J, (Oral) Challenge in this appeal is to the order dated 18.12.2008 passed by Deputy Commissioner-cum-Presiding Officer, Election Tribunal, SAS Nagar, Mohali (for short,”the Tribunal”) by which the election petition filed by Jagdish Singh-respondent No.9, under Sections 74 and 76 of the Punjab State Election Commission Act, 1994 (for short 'the Act') read with Rule 51 of the Punjab Panchayat Election Rules, 1994 (for short, “the Rules”) assailing the election of Swaran Singh (appellant) has been allowed. FAO No.1562 of 2009 (O&M) 2 At the outset, learned counsel for the appellant has submitted that the election petition was filed only against Returning Officer and the appellant, whereas there were total 8 candidates in fray for 7 seats of Gram Panchayat which included 3 for general, one for general (Woman), 2 for Scheduled Caste and 1 for Scheduled Caste (Woman). He submits that the election petitioner/respondent No.9 has made a prayer in the election petition that the election petition be allowed and entire election of Gram Panchayat village Bhago Majra, Tehsil Kharar, District Mohali, be declared illegal. He further asserts that where the election petitioner challenges the election of the returned candidate, he is required to implead all the contesting candidates as parties and if he prays for himself to be declared as elected in place of the returned candidate, he is required to implead all the returned candidates. Learned counsel for the appellant has referred to Sections 77 and 80 of the Act and also a Full Bench decision of this Court in the case of Zile Singh and others Vs. The State of Haryana and others 1974 P.L.J. 513 and a Single Bench decision of this Court in the case of Amarjit Kaur & Ors Vs. Raj Kaur & Anr. 2010 (3) Law Herald (P&H) 2443. In reply, learned counsel for the respondent has submitted that the appellant did not take this objection of mis-joinder and non-joinder of necessary parties in the written statement, therefore, he cannot be allowed to take this plea in appeal for the first time and the election petition which is otherwise meritorious, should not be dismissed on technical ground. I have heard learned counsel for the parties and perused the record with their assistance. FAO No.1562 of 2009 (O&M) 3 Before adverting to the respective contentions of learned counsel for the parties, it would be relevant to refer to Sections 77 and 80 of the Act which have been invoked by the learned counsel for the appellant and are reproduced below:- Sec 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; Sec. 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. (2) Where 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. (4) The Election Tribunal may, upon such terms as a costs and otherwise, as it may deem fit, allow to 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 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 FAO No.1562 of 2009 (O&M) 4 within a period of six months from the date on which the election petition is presented to the election Tribunal for trial. Admittedly,election petitioner/respondent No. 9 has impleaded only the Returning Officer and the appellant as the parties and the prayer made in the election petition is not in consonance with law because in the election petition, he has prayed for setting aside the entire election of the Gram Panchayat and not the election of the appellant alone. But in any case, once a prayer is made for setting aside the election of the entire Gram Panchayat which included the setting aside the election of the appellant, the question would arise as to whether the election petitioner was required to implead all the returned candidates or not. Section 77 (a) of the Act provides that “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 are required to be impleaded”. Section 80 of the Act provides that “the Election Tribunal shall dismiss an election petition which do not comply with the provisions of Sections 76, or 77 or 103 of the Act. Now the question arises as to whether this aspect could be looked into by this Court even if it is not taken as a plea before the Election Tribunal by the appellant. In this regard, learned counsel for the appellant has relied upon a decision of this Court in Amarjit Kaur's Case (Supra), in which it is held that “it is also to be noticed that Section 80(1) of the Act is indicative of a non-curable defect. If an election petition is filed in violation of Section 76 or Section 77 or Section 103, the Election FAO No.1562 of 2009 (O&M) 5 Tribunal ,therefore, has no choice but to evaluate the election petition and to see that if it is not in conformity with the provisions of Section 76 or Section 77 or Section 103, then to pass an order dismissing it at the threshold. It has no power to offer curative action to the person who has filed a petition lacking in inherent particulars mentioned in Sections 76,77 and 103 of the Act”. The judgment relied upon by the appellant in Amarjit Kaur's Case (Supra) squarely covers the case in hand and it is held that the election petition filed by respondent No.9 was suffering from inherent defects which are incurable and these defects can even be taken care of in appeal by this Court and the election petition is to be dismissed for non- compliance of Section 77 read with Section 80 which provides that it is for the Election Tribunal to see the defects in the election petition and shall dismiss the same if it is not in conformity with the provisions of Sections76,77 or 103 of the Act. No other point has been raised by the learned counsel for the appellant. In view of the above, the present appeal is allowed and the impugned order is set aside. No costs. 22.9.2010 (Rakesh Kumar Jain) RR Judge FAO No.1562 of 2009 (O&M) 6