Dalbir Kaur and Another vs Returning Officer and Others

Rakesh Kumar Jain, J.—This appeal is directed against the order of Deputy Commissioner-cum-Presiding Officer, Election Tribunal, Tarn Taran dated 30.09.2009 vide which election petition filed by the appellants Dalbir Kaur and Mukhtar Singh has been dismissed.

At the very outset, learned Counsel for the respondents has pointed out that the election petition is not maintainable in view of the provisions of Sections 77 and 80 of the Punjab State Election Commission Act, 1994 (for short "the Act").

Learned Counsel for the respondents submits that there were total 19 candidates in fray for 9 seats of Panches. The election-petitioners has prayed for setting aside the election of respondents No. 4 & 5, namely, Ranjit Kaur and Jasminder Kaur and has also prayed that they should be elected as Panches. He submits that in the cases where the election-petitioners challenges the election of winning candidates and also prays that they are to be replaced, they are required not only to implead all the contesting candidates but also all the returned candidates. He further submits that there are as many as 9 returned candidates whereas the appellants have impleaded only 3 returned candidates in the election petition.

In reply, learned Counsel for the appellants has submitted that the candidates who have been illegally elected in the election, have been impleaded as parties, therefore, there is no error in the election petition, which could attract Section 77 of the Act.

I have heard learned Counsel for the parties.

Before discussing the arguments, perusal of Sections 77 and 80 of the Act, which are invoked by learned Counsel for the respondents, are necessary to be referred to:

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.

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 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 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 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.

Section 77(a) of the Act provides that wherever the election petitioner challenges the election of returned candidates and also prays for himself to be declared as duly elected in his place, he must implead all the contesting candidates as well as returned candidates as party.

Section 80 of the Act provides that if there is a violation of Section 77, then the Election Tribunal has to dismiss the election and pass the order as per Section 87 of the Act.

It is well settled that provisions of Election law have to be strictly construed.

In view thereof, since appellants have not impleaded all the contesting as well as returned candidates in their election petition, therefore, the election petition by itself was not maintainable before the Tribunal in view of Sections 77 & 80 of the Act and as such, I do not find any merit in the present appeal and the same is hereby dismissed.

No costs.