Punjab-Haryana High Court
Smt. Bhajan Kaur And Another vs Gurmej Kaur And Another on 1 February, 2011
Author: Rajesh Bindal
Bench: Rajesh Bindal
FAO No. 4459 of 2009 (1)
IN THE PUNJAB AND HARYANA HIGH COURT
AT CHANDIGARH
FAO No. 4459 of 2009 (O&M)
Date of decision: 1.2.2011
Smt. Bhajan Kaur and another ...Appellants
vs
Gurmej Kaur and another ..Respondents
Coram: Hon'ble Mr. Justice Rajesh Bindal
Present: Mr. V. D. Sharma, Advocate for the appellants.
Mr. B. R. Mahajan, Advocate, for the respondents.
...
Rajesh Bindal, J.
1. Challenge in the present appeal is to the order dated 25.3.2009 passed by the Deputy Commissioner-cum-Election Tribunal, Shahid Bhagat Singh Nagar (for short, the Tribunal), dismissing the election petition filed by the appellants on the ground that the requisite security had not been deposited.
2. Briefly the facts of the case are that the election to the Gram Panchayat Sahiba, Tehsil Balachaur, District Shahid Bhagat Singh Nagar, was held on 26.5.2008. The election was challenged by the appellants before the Tribunal on the ground that immediately after the election they were declared elected, however, late in the evening, the result was manipulated and the respondents were declared elected. The prayer in the election petition was for setting aside of the election of the respondents as Panches of the Gram Panchayat and consequently declaring the appellants as the elected Panches.
3. After framing of issues on 16.10.2008, the Tribunal dismissed the election petition on the ground that requisite security as provided under Rule 52 of the Punjab Panchayat Election Rules, 1994 (for short, 'the Rules'), had not been deposited as the challenge in the petition was to the election of two panches and the petition had been filed by two defeated candidates, who were praying for declaring themselves as elected.
FAO No. 4459 of 2009 (2)4. Learned counsel for the appellants relied upon judgment of Full Bench of this court in Zile Singh and others vs The State of Haryana and others (AIR 1975 Punjab and Haryana 115) and subsequent Single Judge Bench judgment of this court in Mohan Singh and Rattan Singh vs The Executive Magistrate 1st Class, Jagraon and others (1981 All India Land Laws Reporter 135), to submit that a single Election Petition can be filed challenging the election of more than one panch or even a panch and a sarpanch in one petition. Under the circumstances a single security deposit was to be made. In the present case deposit of ` 200/- was required to be made, which was done. The ground on which the Election Petition was dismissed by the Tribunal is totally contrary to the provisions of the Punjab State Election Commission Act, 1994 (for short, 'the Act') and the Rules.
5. Learned counsel for the appellants further submitted that in terms of provisions of Section 81 of the Act, the procedure contained in CPC, pertaining to trial of suits, is applicable.
6. Taking his arguments further, it was submitted by learned counsel for the appellants that even in CPC, the civil suit is not rejected out rightly on account of deficiency in court fee. In case the Tribunal had come to the conclusion that the appellants were required to deposit more security, opportunity should have been afforded to them.
7. Learned counsel for the appellants further referred to Section 103 of the Act to submit that in addition to the security deposited at the time of filing of election petition, even during trial thereof, the Tribunal can call upon the petitioner therein to give such further security as it may direct. The aforesaid provision clearly means that time for deposit of security is not the essence and the Tribunal could very well grant time to the appellant to make good any deficiency in the security deposit.
8. In response to the contention raised by learned counsel for the appellants, learned counsel for the respondents submitted that in terms of provisions of Rule 53 of the Rules, an order passed by the Tribunal rejecting the election petition on account of deficiencies in terms of Rule 52 of the Rule is final and no appeal against the same would be maintainable before this court.
FAO No. 4459 of 2009 (3)9. As far as contention raised by learned counsel for the appellants pertaining to application of CPC and grant of time to make the good deficiency of security deposit, if any, learned counsel for the respondents fairly did not join the issue while stating that its deficiency can be made good.
10. Another contention raised by learned counsel for the respondents was that remand of the case to the Tribunal for a decision afresh after granting an opportunity to the appellants to make good the deficiency in security deposit would be an exercise in futility, as the election petition itself is not maintainable. It is on account of non-compliance of provisions of Section 77 of the Act, which provide that in case the election petitioner challenges the election of a candidate with a secondary prayer for declaring him as the elected candidate, all the persons who contested the elections are to be impleaded as party. In case the prayer is only for declaring the election of some of the respondents as void, only the elected candidates are required to be impleaded. In the present case, 13 candidates contested the election for the office of 7 panches and in the election petition filed by the appellant only two of the elected candidates were impleaded as party. In support of his arguments, reliance was placed upon Surjit Singh vs Additional Deputy Commissioner, Hoshiarpur cum Election Tribunal and others (2009 (3) PLR 409).
11. Rebutting the contention raised by learned counsel for the respondents regarding rejection of the appeal on the ground that election petition was not maintainable, learned counsel for the appellants submitted that let this issue be considered by the Tribunal after the appellants make good the deficiency in security deposit. The Tribunal after going into this issue record a finding thereon. This court in the present appeal should not consider the aforesaid issue.
12. Heard learned counsel for the parties and perused the paper- book.
FAO No. 4459 of 2009 (4)13. From the contentions raised by learned counsel for both the parties, in my opinion, the following three legal issues are required to be considered by this court:-
(i) Whether appeal is maintainable to this court against the order passed by the Election Tribunal rejecting an election petition on account of deficiency in security deposit?
(ii) Whether the election petitioner can be afforded an opportunity to make the deficiency in security deposit good in case it is found that there was some deficiency at the time of filing of election petition ?
(iii) Whether while hearing the appeal against the order passed by the Election Tribunal, this court can go into other legal issues and dispose of the election petition itself on the basis of admitted facts on record instead of remanding the case back to the Election Tribunal?
SCHEME OF THE ACT
14. Chapter 12 of the Act deals with the election petitions.
15. Under the Scheme of the Act, Section 73 thereof provides for setting up of Election Tribunal.
16. Section 74 of the Act provides that no election shall be called in question except by an election petition presented in accordance with the provisions of the Chapter 12.
17. As per Section 75 of the Act, it is only the Election Tribunal which has been conferred the power to adjudicate upon the election petition.
18. Section 76 of the Act provides that an election petition can be presented on one or more of the grounds specified in sub-section (1) of Section 89 by any candidate to such election or by any elector. Period of forty five days has been provided for filing such election petition.
FAO No. 4459 of 2009 (5)19. Sections 77 and 78 of the Act provide for parties to be impleaded in an Election Petition and contents thereof.
20. Section 79 of the Act provides for relief that can be claimed by an election petitioner.
21. Section 80 of the Act provides that the Election Tribunal shall dismiss an election petition which does not comply with the provisions of Section 76 or section 77 or section 103 of the Act.
22. Section 81 of the Act provides for procedure before the Election Tribunal. The provisions of CPC for the trial of the suits have been made applicable.
23. Section 87 and 88 of the Act, provides for orders which could be passed by the Tribunal after conclusion of trial.
24. Section 100 of the Act provides that any order passed by the Tribunal under Sections 87 and 88 of the Act shall be appealable to this court.
25. Section 102 of the Act provides for procedure in appeal. Here also the principles as are available in CPC have been made applicable.
26. Section 103 of the Act provides that at the time of presentation of an election petition, the petitioner shall deposit with the Election Tribunal such sum, as may be prescribed, as security for the costs of the petition. Additional security can also be asked for during the course of trial.
27. Rule 52 of the Rules provides that the amount of security to be deposited by an election petitioner shall be ` 200/-.
28. Rule 53 provides that if any of the provisions of the Rules 51 and 52 of the Rules and Section 76 of the Act, have not been complied with, the Election Tribunal shall pass an order dismissing the election petition and such order shall be final.
Issue no. (i) Whether appeal is maintainable to this court against the order passed by the Election Tribunal rejecting an election petition on account of deficiency in security deposit?.
FAO No. 4459 of 2009 (6)29. The relevant provisions for consideration of this issue are as under:-
Section 80 (1) of the Act
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.
xx xx xx xx
Section 87 of the Act
87. Decision of the Election Tribunal.-- At the conclusion of the trial of an election petition, the Election Tribunal may make an order for,-
(a) dismissing the election petition; or
(b) declaring the election of all or any of the returned
candidates to be void; or
(c) declaring the election of all or any of the returned
candidates to be void and the petitioner or any other candidate to have been duly elected.
Section 88 of the Act
88. Other orders to be made by the Election Tribunal.-- Where any charge is made in the petition of any corrupt practice having been committed at the election, the Election Tribunal shall also make an order at the time of making an order under section 87 indicating,-
(i) whether any corrupt practice has or has not been proved to have been committed at the election, and the nature of that corrupt practice;
(ii) the names of all persons, who have been proved at the trial to have been guilty of any corrupt practice;
and FAO No. 4459 of 2009 (7)
(iii) the total amount of costs payable and specifying the persons by whom these costs shall be paid and the persons to whom these costs shall be paid;
Provided that a person who is not a party to the petition, shall not be named in the order under sub-clause (ii) unless,-
(a) he has been given notice to appear before the Election Tribunal and to show cause why he should not be so named; and
(b) if he appears in pursuance of the notice, he has been given an opportunity of cross-examining any witness, who has already been examined by the Election Tribunal and has given evidence against him, of calling evidence in his defence and of being heard.
Section 100 of the Act
100. Appeal to High Court.-- (1) Notwithstanding anything contained in any other law for the time being in force, an appeal shall lie to the High Court on any question whether it pertains to law or fact from every order made by an Election Tribunal under section 87 or section 88.
(2) An appeal under this Chapter shall be preferred, within a period of thirty days from the date of the order of the Election Tribunal passed under section 87 or section 88.
Provided that the High Court may entertain an appeal after the expiry of the said period of thirty days, if it is satisfied that the appellant had sufficient cause for not preferring the appeal within such period.
Section 103 of the Act
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.
FAO No. 4459 of 2009 (8)(2) During the course of the trial of an election petition, the Election Tribunal may, at the time, call upon the petitioner to give such further security for costs, as it may direct.
30. Section 80 of the Act provides for trial of election petitions. In terms of this section, the Election Tribunal shall dismiss an election petition which does not comply with the provisions of section 76 or section 77 or section 103 of the Act. Explanation thereto provides that an order passed by the Election Tribunal under this sub-section shall be deemed to be an order made under clause (a) of section 87.
31. Section 87 of the Act provides that on the conclusion of trial of the election petition, the Election Tribunal may make an order for dismissing the election petition or declaring the election of all or any of the returned candidates to be void and further declare the petitioner or any other candidate to be duly elected.
32. Section 100 of the Act provides that an order passed by the Election Tribunal under Section 87 or section 88 of the Act shall be appealable to this court within thirty days from the date of such order.
33. Section 103 of the Act deals with the issue of deposit of security at the time of presentation of election petition as may be prescribed.
34. Rule 52 of the Rules prescribes the security as ` 200/-.
35. Rule 53 of the Rules provides that the petition which do not comply any of the provisions of Rules 51, 52 or Section 76 of the Act shall be dismissed and such an order shall be final.
36. From the Scheme of the Act as has been summed up above, it cannot be opined that an order passed by the Tribunal dismissing the appeal on account of non-compliance of provisions of Rule 52 of the Rules, which is subservient to Section 103 of the Act shall be considered to be final and not appealable to this court. Explanation to Section 80 (1) of the Act clearly provides that dismissal of election petition on account of non-compliance of the provisions of Section 76 or section 77 or Section 103 of the Act shall be deemed to be an order under clause (a) of section 87 of the Act and in terms of provisions of Section 100 of the Act appeal against the order passed by the Tribunal under Section 87 of the Act, is maintainable to this court.
FAO No. 4459 of 2009 (9)37. In the light of the aforesaid specific provisions of the Act providing for appeal against the rejection of an election petition on account of non-compliance of provisions of Sections 76, 77 or 103 of the Act, the provisions of Rule 53 of the Rules cannot be given over riding effect as the Rules are always subservient to the parent Act and cannot override the same.
38. For the reasons mentioned above, I am of the considered opinion that an appeal against the order of the Tribunal rejecting the election petition on account of non-compliance of provisions of Section 76, or Section 77 or Section 103 of the Act or Rule 52 of the Rules shall be maintainable under Section 100 of the Act.
Issue no. (ii) Whether the election petitioner can be afforded an opportunity to make the deficiency in security deposit good in case it is found that there was some deficiency at the time of filing of election petition?
39. The provisions which are relevant for consideration of this issue are extracted below:-
Section 81 of the Act
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, 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.FAO No. 4459 of 2009 (10)
(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.
Section 103 of the Act
103. Security for costs.--
(already reproduced in para 29 above) Rule 52 of the Rules
52. Deposit to be made.-- (1) At the time of, or before, presenting an election petition, the petitioner or petitioners shall deposit in the treasury or sub-treasury a sum of rupees two hundred in cash or in Government promissory notes of equal value, as security for all costs that may become payable by him or them.
(2) If the petitioner by whom the deposit referred to in sub-rule (1) withdraws his election petition, and in any other case, after final orders have been passed on the election petition, the deposit shall, after such amount as may be ordered to be paid as costs, charges and expenses has been deducted, be returned to the petitioner by whom it was made, and if the petitioner dies during the course of the enquiry into the election petition, any such deposit, if made by him, shall after the amount of such costs as may be ordered to be paid, have been deducted, be returned to his legal heirs.
(3) All applications for the refund of a deposit shall be made to the Election Tribunal who shall pass orders thereon in accordance with these rules.
Order VII Rule 11 (c) of the Code of Civil Procedure Rejection of plaint.-
11. The plaint shall be rejected in the following cases :-
(a) xx xx xx xx
FAO No. 4459 of 2009 (11)
(b) xx xx xx xx
(c) Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
xx xx xx xx"
40. A perusal of Section 81 of the Act shows that subject to the provisions of this Act and of the rules made thereunder, every election petition shall be tried by the Tribunal, as nearly as may be, in accordance with the procedure contained in the CPC for the trial of suits. However, proviso thereto provides that the Tribunal shall have the discretion to refuse, for reasons to be recorded in writing, examination of any witness, if in his opinion the evidence of such witness is not material for decision of the election petition or the same may delay the proceedings thereof.
41. Section 103 of the Act provides that at the time of presenting an election petition, the petitioner shall deposit with the Election Tribunal such sum, as may be prescribed as security for the costs of the petition. It further provides that during the pendency of the an election petition, the Election Tribunal can even ask the petitioner to deposit such further security as may be directed.
42. Rule 52 of the Rules provides that the amount of security to be deposited by the election petitioner shall be ` 200/-.
43. The procedure pertaining to trial of suits is provided in first schedule of the CPC. The election petition in the present case can be equated with a plaint. The provisions pertaining to rejection of a plaint are contained in Order VII CPC. Rule 11 thereof provides for various eventualities under which a plaint can be rejected. One of the eventualities is provided in clause (c), namely that the relief claimed has not been properly valued or the plaint is insufficiently stamped. However, it specifically provides that the plaint can be rejected for this deficiency only in case the plaintiff, on being required by the Court to supply the requisite stamp-paper within the time to be fixed by the Court, fails to do so.
FAO No. 4459 of 2009 (12)44. Section 81 of the Act makes the provisions of CPC applicable subject to the provisions of the Act and the Rules. No provision has been pointed out by learned counsel for the parties which debars the Tribunal to grant time for making the deficiency in the security deposit, good. The provisions only provide that at the time of filing of the election petition, a sum of ` 200/- is required to be deposited as security.
45. In my opinion, considering the principles laid down in Order VII Rule 11 (c) CPC, in case the Tribunal finds that the security deposited by the election petitioner is deficient, before passing any order rejecting the election petition on that ground, opportunity should have been afforded to make the deficiency good and it is only on failure to comply with the direction, that the election petition could be dismissed on that ground. Issue no. (iii) Whether while hearing the appeal against the order passed by the Election Tribunal, this court can go into other legal issues and dispose of the election petition itself on the basis of admitted facts on record instead of remanding the case back to the Election Tribunal?
46. The provisions which are relevant for the purpose of consideration of this are extracted below:-
Section 77 of the Act
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.FAO No. 4459 of 2009 (13)
Sections 80 (1), 87, 88, 100 of the Act
80. Trial of election petitions.--
(already reproduced in para 29 above)
87. Decision of the Election Tribunal.--
(already reproduced in para 29 above)
88. Other orders to be made by the Election Tribunal.--
(already reproduced in para 29 above)
100. Appeal to High Court.--
(already reproduced in para 29 above) Section 102 of the Act
102. Procedure in appeal.-- (1) Subject to the provisions of this Act and the rules made thereunder, every appeal against any order of the Election Tribunal, shall be heard and decided by the High Court as nearly as may be in accordance with the procedure applicable to the hearing and decision of an appeal from any final order passed by a Court subordinate to the High Court in the exercise of its original civil jurisdiction and all provisions of the Code of Civil Procedure, 1908 (Central Act 5 of 1908) and Rules and Orders of the High Court (including provisions as to the furnishing of security and the execution of any order of the Court), shall so far as may be, apply in relation to such appeal.
(2) As soon as an appeal is decided, the High Court shall intimate the substance of the decision to the Election Commission and as soon as may be thereafter, shall send to the Election Commission an authenticated copy of the decision.
(3) On the receipt of the decision, the Election Commission shall,-
(a) forward copies, thereof to the authorities to which copies of the order of the Election Tribunal were forwarded under section 92; and FAO No. 4459 of 2009 (14)
(b) cause the decision to be published in the Official Gazette.
Order XLI Rule 33 of the Code of Civil Procedure
33. Power of Court of Appeal.- The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection, and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees;
Provided that the Appellate Court shall not make any order under section 35-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.
47. Section 77 of the Act provides that where the election petitioner is claiming declaration that the election of all or any of the returned candidates is void, and claims a further declaration that he himself or any other candidate be declared as duly elected, all the contesting candidates and where no such further declaration is claimed, all the returned candidates and any other candidate against whom allegation of any corrupt practice is made in the petition, are the necessary parties, required to be impleaded as respondents in the petition.
48. Sections 87 and 88 of the Act provides for orders which could be passed by the Tribunal after conclusion of trial FAO No. 4459 of 2009 (15)
49. Section 100 of the Act provides that notwithstanding anything contained in any other law for the time being in force, an appeal against every order made by an Election Tribunal under section 87 or section 88 of the Act shall lie to this court, whether it pertains to law or fact. A period of thirty days has been provided as limitation.
50. Section 102 of the Act, which prescribes the procedure for filing appeal, provides that this court shall hear and decide the appeal against the order passed by the Election Tribunal as nearly as may be in accordance with the procedure applicable to the hearing and decision of an appeal from any final order passed by a Court subordinate to the High Court, in exercise of its original civil jurisdiction. The provisions of CPC pertaining thereto shall be applicable.
51. Order XLI of CPC provides for procedure for appeals from original decree whereas Order XLIII CPC provides for procedure for appeal from order. Order XLI Rule 33 CPC provides for powers of the court of appeal. It provides that the Appellate court shall have the power to pass any order which ought to have been passed and to pass such further order as the case may require. This power can be exercised by the Court irrespective of the fact that appeal has been filed by one party. The power can be exercised in favour all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection.
52. As the facts of the present case speak, election for Gram Panchayat, Sahiba, was held on 26.5.2008. Seven panches were to be elected. Thirteen candidates were the contestants. In the election petition filed by the appellants, who are two in number - the defeated candidates, only two out of the elected panches were impleaded as parties.
53. Section 100 of the Act provides that the appeal to this court against the order passed by the Tribunal shall be on law as well as on facts. It is settled law that the appeal is continuation of proceedings, where the question of fact can also be gone into by the Appellate Court. Order XLI Rule 33 CPC clearly provides that the Appellate Court can deal with the issues which may not have been raised in the appeal filed by the appellant and can grant relief even to the respondents or other party who may not have filed appeal.
FAO No. 4459 of 2009 (16)54. If undisputed facts of the present case are considered, in terms of the provisions of Section 77 of the Act, the appellants having not impleaded all the contesting candidates as respondents in the election petition, the same is liable to be rejected. This has been opined by this court in Surjit Singh's case (supra).
55. The contention raised by learned counsel for the appellants that this issue should not be dealt with by this court and after granting time to make the deficiency in security deposit, good, the matter be remanded back to the Tribunal for fresh consideration, is merely to be noticed and rejected. Once on the basis of admitted facts on record if the election petition filed by the appellants itself is not maintainable, I do not find any reason to remit the case back to the Tribunal for consideration of the issue as the same would result in wastage of precious time and energy of the Tribunal and also the principles settled therefor.
56. To sum up, it is held that
(i) an appeal against the order of the Tribunal rejecting the election petition on account of non- compliance of provisions of Section 76, or Section 77 or Section 103 of the Act or Rule 52 of the Rules shall be maintainable under Section 100 of the Act;
(ii) as per the principles laid down in Order VII Rule 11 (c) CPC, in case the Tribunal finds that the security deposited by the election petitioner is deficient, before passing any order rejecting the election petition on that ground, opportunity should have been afforded to make the deficiency good and it is only on failure to comply with the direction, that the election petition be dismissed on that ground; and FAO No. 4459 of 2009 (17)
(iii) once on the basis of admitted facts on record if the election petition filed by the appellants itself is not maintainable, the case should not be remitted back to the Tribunal for consideration of the issue as the same would result in wastage of precious time and energy of the Tribunal and also the principles settled therefor.
57. The appeal stands disposed of accordingly.
1.2.2011 (Rajesh Bindal)
vs Judge
(Refer to reporter)