FAO No.1292 of 2010 - 1 - ******* IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.1292 of 2010 Date of decision:17.08.2010. Manjit Kaur ...Appellant Versus Deputy Commissioner-cum-Election Tribunal, Fatehgarh Sahib, and others ...Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. M.K.Singla, Advocate, for the appellant. Mr. H.S.Diwana, Advocate, for the respondents. ***** RAKESH KUMAR JAIN, J. By this common order, I shall be disposing of two appeals bearing FAO No.1292 of 2010 `Manjit Kaur v. Deputy Commissioner-cum-Election Tribunal, Fatehgarh Sahib and others' and FAO No.1382 of 2010 `Jasmel Kaur v. Deputy Commissioner- cum-Election Tribunal, Fatehgarh Sahib and others' because in both the appeals the facts are almost similar and the questions of law are identical. In brief, elections were held on 26.05.2008 in order to FAO No.1292 of 2010 - 2 - ******* constitute 7 members Panchayat of Gram Panchayat Tarkhan Majra, Block Sirhind, Tehsil and District Fatehgarh Sahib, out of which 4 seats were meant for General category, one for General (women) category, one for S.C. category and one for S.C. (Women) category. There were 13 candidates in fray, out of which 5 had contested in the S.C. Category, 6 in General category, one in S.C. (Women) category and one in General (Woman) category. Manjit Kaur wife of Harjit Singh was elected to the post of Panch from General (Woman) category and Jasmel Kaur wife of Jasbir Singh from S.C.(Woman) category. Election of Manjit Kaur wife of Harjit Singh is challenged by Manjit Kaur wife of Gurnam Singh by way of an election petition, whereas election of Jasmel Kaur wife of Jasbir Singh is challenged by Jinder Kaur wife of Pal Singh. Both the election petitions were allowed vide order dated 21.01.2010 by the Deputy Commissioner-cum-Election Tribunal, Fatehgarh Sahib [for short “Election Tribunal”]. Aggrieved against the said order dated 21.01.2010 of the Election Tribunal, Manjit Kaur wife of Harjit Singh filed FAO No.1292 of 2010 in which notice of motion was issued by this Court on 15.03.2010 and Jasmel Kaur wife of Jasbir Singh filed FAO No.1382 of 2010 in which notice of motion was issued on 18.03.2010. In both the cases, operation of the impugned order of the learned Election Tribunal was stayed. Learned counsel for the appellant has submitted that the impugned order passed by the learned Election Tribunal deserves FAO No.1292 of 2010 - 3 - ******* to be set aside due to the violation of many mandatory provisions of law. He summarized his submissions under the following heads: - (i) The election petition was not maintainable as it was not filed by the election petitioner herself rather it has been filed by the Advocate which violates the provisions of Section 76(1) of the Punjab State Election Commission Act, 1994 [for short “the Act”]. (ii) The election petition is bad for non-joinder and mis-joinder of the necessary parties because election petitioner has neither impleaded all the contesting candidates nor all the returned candidates and has violated the provisions of Section 77(a) of the Act. (iii) Copy of the election petition supplied to the appellant was not attested to be a true copy by the election petitioner under her own signatures and, in this way, the election petitioner has violated Section 76(2) of the Act. (iv) The election petition is not verified in accordance with the provisions of the Code of Civil Procedure, 1908 [for short “CPC”] as provided under Section 78(c) of the Act. FAO No.1292 of 2010 - 4 - ******* (v) The election petitioner has not deposited the security for the cost of the election petition in terms of Section 103 of the Act as the same has been deposited through her Advocate to whom power of attorney was not given by that time by the election petitioner. Learned counsel for the appellant has submitted that Section 80 of the Act provides that if there is violation of Section 76 or Section 77 or Section 103 of the Act, the Election Tribunal shall dismiss the election petition. In order to substantiate the first point raised before this Court about non-presentation of election petition by the election petitioner herself, learned counsel for the appellant has drawn the attention of this Court to the impugned order in which it has been mentioned that “petitioner has filed the present petition through his counsel Shri Harnek Singh Diwana.” He has also submitted that the election petitioner had filed an application on 29.03.2010 before the Election Tribunal in order to seek clarification as to whether the election petition has been filed by the candidate or the Advocate, on which the Election Tribunal has passed an order dated 13.04.2010 observing thus, “from perusal of the order dated 21.01.2010 of this Tribunal, it is clear that petitioner has filed petition through Advocate Shri Harnek Singh Diwana”. He has also pointed out that counsel for the election petitioner had filed CM No.10076-CII of 2010 in FAO No.1292 of 2010 under Section FAO No.1292 of 2010 - 5 - ******* 151 of the CPC for sending record of the election petition to the Election Tribunal and a similar application, i.e. CM No.10078-CII of 2010, was filed in FAO No.1382 of 2010. However, both the applications were withdrawn by the election petitioners on 30.07.2010. Learned counsel for the appellant has submitted that if an election petition is filed by the Advocate and not by a candidate, then the election petition is not maintainable in terms of Section 76 (1) of the Act. In support of his submission he has relied upon a decision of the Supreme Court in the case of G.V.Sreerama Reddy and another v. Returning Officer and others, 2009(3) R.C.R. (Civil) 937 and a decision of this Court in FAO No.1012 of 2010 'Gurlal Singh v. Presiding Officer, Election Tribunal, Block Lehra, District Sangrur and others', decided on 26.03.2010. In respect of second point that the election petition was bad for non-joinder and mis-joinder of necessary parties, learned counsel for the appellant has drawn the attention of this Court to the preliminary objection No.2 of the written statement, wherein it is alleged that the election petition is bad for non-joinder and mis- joinder of the necessary parties. It is submitted that the election petitioners in both the election petitions have prayed for setting aside the election of the appellant(s) and also to declare the election petitioner(s) as duly elected Panch(s) in her/their place. Learned counsel for the appellant(s) has submitted that the election petitioners have neither impleaded all the contesting candidates nor FAO No.1292 of 2010 - 6 - ******* all the returned candidates as is evident from the memo of parties of the election petitions in which except for the returned candidates, all the official respondents have been impleaded. It is thus submitted that the election petition deserves to be set aside on this count also and in support of his argument he has relied upon a decision of this Court in FAO No.96 of 2010 'Nathu Singh v. Presiding Officer, Election Tribunal, SDM, Zira, District Ferozepur and others, decided on 17.03.2010. In respect of third point, learned counsel for the appellant has shown to this Court, in the presence of learned counsel for the election petitioners, copy of election petition supplied to the appellant which is signed by the election petitioner as well as her Advocate Shri Harnek Singh Diwana, but it is not attested to be a true copy as required under Section 76(2) of the Act. In this regard, he relies upon a decision of the Supreme Court in the case of Sharif-ud-Din v. Abdul Gani Lone, AIR 1980 Supreme Court 303. In respect of fourth point about verification of the election petition, learned counsel for the appellant has drawn attention of this Court to the election petition which has been verified by the election petitioner as “it is verified that all the contents of petition from para Nos.1 to 11 are true and correct to the best of my knowledge.” In this regard, it is submitted that Section 78(c) of the Act provides that the procedure of CPC would FAO No.1292 of 2010 - 7 - ******* apply, in which Order 6 Rule 15(2) provides that “the person verifying shall specify, by reference to the numbered paragraphs of the pleadings, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.” He relies upon a decision of the Supreme Court in the case of Baldev Singh v. Shinder Pal Singh and another, 2006(4) R.C.R. (Civil) 891. Lastly, it is submitted that there is clear violation of Section 103 of the Act. He drew attention of the Court to the record of the Election Tribunal in which application dated 07.07.2008 was filed by the election petitioner through her Advocate in order to deposit Rs.200/- as security of the election petition, whereas the Advocate, who had filed the application, was engaged on 08.07.2008 in view of the date appearing on the power of attorney. It is submitted that if the Advocate was engaged by the election petitioner on 08.07.2008 then under what authority he had filed the application on 07.07.2008 in order to deposit Rs.200/- as security of the election petition on behalf of the election petitioner. It is also submitted that an act of the Advocate, without there being any authority in his favour, is nonest in the law. In reply to the first point, learned counsel for the respondents has argued that decision in the case of G.V.Sreerama Reddy and another v. Returning Officer and others (supra) would not be applicable because in that case election petition was FAO No.1292 of 2010 - 8 - ******* presented before the Registry of the High Court who had raised an objection that the petition has not been filed by the candidate and then it was placed before a Single Judge of the High Court for orders, whereas in the present case election petition has been presented to the Election Tribunal wherein no objection was raised about its presentation in terms of Section 76(1) of the Act. Therefore, the said objection cannot be raised by the appellant before this Court for the first time and it is deemed to have been waived. It is also submitted that had there been any objection before the Election Tribunal, the election petitioner would have replied it and had sought an issue on it which would have been proved by the election petitioner by leading evidence that when the election petition was filed the election petitioner was also at the side of the Advocate or the election petition was filed by the Advocate in the presence of the election petitioner. In respect of the second point, learned counsel for the respondents has submitted that the Panchayat has been constituted from the Panches coming from various categories. The election petitioner was only concerned with the candidate who was directly in contest with her in her category, therefore, neither all the contesting candidates nor all the returned candidates were required to be impleaded as party. It is submitted that there is no violation of Section 77(a) of the Act on the part of the election petitioner. Regarding third point raised by learned counsel for the appellant, it is submitted that copy of the election FAO No.1292 of 2010 - 9 - ******* petition was admittedly supplied to the appellant under the signatures of the election petitioner and her counsel, therefore, it cannot be said that the same was not under the signatures of the election petitioner. Moreover, there was no objection raised in this regard and as such, it could not be raised as an objection before this Court for the first time. In respect of fourth point, learned counsel for the respondent has submitted that this objection could also not be taken for the first time in appeal as it was not taken before the Election Tribunal. Finally, in respect of fifth point that the application was filed for deposit of security fee of Rs.200/- on 07.07.2008 by the Advocate of the election petitioner, whereas he was engaged on 08.07.2008, it is submitted that although the election petitioner had engaged the counsel before the Election Tribunal on 07.07.2008, but formally the date in the power of attorney was filled up as 08.07.2008. I have heard both the counsel for the parties and have scrutinized the record with their help. Since there are various objections raised by learned counsel for the appellant on the basis of the provisions of the Act, therefore, it would be relevant to refer to the relevant provisions of the Act before examining them one by one. Section 76, 77, 78, 80 and 103 of Act 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 FAO No.1292 of 2010 - 10 - ******* (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 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. “78. Contents of petition : (1) As election petition shall : - (a) Contain a concise statement of the material facts on which the petitioner FAO No.1292 of 2010 - 11 - ******* relies; (b) Set forth full particulars of any corrupt practice that the petitioner alleges, including a statement as possible, of the names of the parties alleged to have committed such corrupt practice or practices and the date and place of the commission of such practice; and (c) be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (Central Act 5 of 1908) for the verification of pleadings: Provided that where the petitioner alleges any corrupt practice, the petition shall be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the relevant particulars thereof. (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as 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 the same matter, the presiding Officer of the Election FAO No.1292 of 2010 - 12 - ******* 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 necessary for reasons to be recorded in writing. FAO No.1292 of 2010 - 13 - ******* (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. 103. Security for costs. -- (1) At the time of presenting an election petition, the petitioner shall deposit in the Election Tribunal such sum, as may be prescribed as security for the costs of the petition. (2) During the course of the trial of an election petition, the Election Tribunal may, at any time, call upon the petitioner to give such further security for costs, as it may direct.” Indubitably, Section 76(1) of the Act provides that in order to challenge the election of a returned candidate, the election petition has to be presented by a candidate to such election or by any elector. It nowhere provides that the election petition could be filed by a candidate or any elector through an Advocate. The law in this regard is very much clear as in the case of G.V.Sreerama Reddy and another v. Returning Officer and others (supra). The question raised before the Supreme Court was also similar “whether the election petition as presented was in accordance with Section 81(1) of the Representation of the People Act, 1950 and whether the High Court was right in dismissing the same as it was not presented by the candidate or elector?” This question has been answered by the Apex Court by observing as under: - FAO No.1292 of 2010 - 14 - ******* “While interpreting a special statute, which is a self-contained code, the Court must consider the intention of the Legislature. The reason for this fidelity towards the Legislative intent is that the statute has been enacted with a specific purpose which must be measured from the working of the statute strictly construed. The preamble of the Representation of the People Act makes it clear that for the conduct of elections of the Houses of Parliament or the Legislature of each State, the qualification and disqualification for membership of those Houses, the corrupt practice and other offences in connection with such allegations the Act was enacted by the Parliament. In spite of existence of adequate provisions in the Code of Civil Procedure relating to institution of a suit, the present Act contains elaborate provisions as to disputes regarding elections. It not only prescribes how election petitions are to be presented but it also mandates what are the materials to be accompanied with the election petition, details regarding parties, contents of the same, relief that may be claimed in the petition. How trial of election petitions are to be conducted has been specifically provided in Chapter III of Part VI. In such circumstances, we are of the view that the provisions have to be interpreted as mentioned by the Legislature. On can discern the reason why the FAO No.1292 of 2010 - 15 - ******* petition is required to be presented by the petitioner personally. An election petition is a serious matter with a variety of consequences. Since such a petition may lead to the vitiation of a democratic process, any procedure provided by an election statute must be read strictly. Therefore, the Legislature has provided that the petition must be presented “by” the petitioner himself, so that at the time of presentation, the High Court may make preliminary verification which ensure that the petition is neither frivolous nor vexatious.” Insofar as the question raised by learned counsel for the election petitioner that by not raising this objection before the Election Tribunal the appellant has waived his right to raise this objection before this Court in appeal is concerned, this Court in the case of Gurlal Singh v. Presiding Officer, Election Tribunal, Block Lehra, District Sangrur and others (supra) has dealt with this point in detail and has held that it cannot be waived. Thus, the first point is decided in favour of the appellant and against the respondents and it is held that the election petition is bad in law as it offends Section 76(1) of the Act which further offends Section 80 of the Act. In respect of second point that the election petition was bad for non-joinder and mis-joinder of the necessary parties I do not agree with the submissions made by learned counsel for the FAO No.1292 of 2010 - 16 - ******* election petitioner that the election petitioner is not required to implead all the contesting candidates or all the returned candidates in terms of Section 77(a) if he/she has challenged the election of the returned candidate in her category only. Language of Section 77 is very clear that where election petitioner is challenging the election of a returned candidate as void then he/she has to implead all the returned candidate and if a further declaration is sought that he/she himself/herself or any other candidate has been duly elected, then all the contesting candidates are required to be impleaded. Indisputably, there were total 13 candidates in fray, out of whom 7 candidates were elected. According to prayer clause of the election petition, the election petitioner has made both the prayers of declaring election of the returned candidate to be void and also for declaring herself to be elected in her place. Thus, to my mind, the election petitioner was required to implead all the contesting candidates which would have included all returned candidates as well, but in the absence of the necessary parties, the election petition is definitely bad in law as it violates Section 77(a) and also Section 80 of the Act. The case of the appellant is squarely covered by a decision of this Court in the case of Nathu Singh v. Presiding Officer, Election Tribuna, SDM, Zira, District Ferozepur and others (supra). Thus, I hold the second point also in favour of the appellant and against the election petitioner. In respect of third point that the election petitioner has FAO No.1292 of 2010 - 17 - ******* not supplied attested copy of the election petition under the signatures of the election petitioner, it would be relevant to refer to provisions of Section 76(2) of the Act, which categorically provides that every copy of the election petition to be supplied to the respondents by the election petitioner shall be attested by the election petitioner under his/her own signatures to be a true copy of the election petition. There is no dispute on fact that the election petitioner did not supply copy of the election petition duly attested under her signatures to be a true copy of the election petition to the appellant herein. The argument raised by learned counsel for the respondent that no issue