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Punjab-Haryana High Court

Balvir Singh vs Karnail Singh And Others on 8 December, 2008

Author: T.P.S.Mann

Bench: T.P.S.Mann

FAO No.3633 of 2008                            -1-


     IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                    CHANDIGARH


                                                  FAO No. 3633 of 2008
                                    Date of decision: December 08, 2008

Balvir Singh

                                                        .....APPELLANT
Versus


Karnail Singh and Others

                                                     .....RESPONDENTS



CORAM:      HON'BLE MR JUSTICE T.P.S.MANN


PRESENT: Mr G.S.Gill, Advocate
         for the appellant.

            Mr Vikas Mehsempuri, Advocate and
            Mr Sanjiv Gupta, Advocate
            for respondent No.1.

T.P.S.MANN, J.

Election petition filed by Karnail Singh-respondent under Section 76 of the Punjab State Election Commission Act, 1994, (hereinafter referred to as "the Act"), read with Rule 50 of the Punjab Panchayat Election Rules, 1994 for setting aside the election of Balvir Singh-appellant as Panch of Village Dharmheri, Teshil and District, Patiala was accepted by the Election Tribunal, Patiala. The election of the appellant as Panch was set aside, whereas Karnail Singh-respondent was declared as elected Panch. Aggrieved of the same, the appellant filed the present appeal under Section 100 of the Act.

While setting aside the election of the appellant as Panch, learned Tribunal perused jamabandi and kahsra girdawari placed on the record and concluded that the appellant was in unauthorized occupation of shamlat land and, therefore, he could not have contested the election.

Learned counsel for the appellant submitted that the learned Tribunal allowed the election petition summarily without giving any opportunity to the appellant for leading evidence and to counter the case of Karnail Singh-respondent so as to establish that the appellant was not in unauthorized occupation of the shamlat land. It is further submitted that the learned Tribunal was required to follow the procedure as contained in Section 81 of the Act. Continuing the arguments further, learned counsel for the appellant submitted that the appellant was not in unauthorized occupation of shamlat land bearing Khasra Nos. 51//16 min (2-0), 17 (2-0), as the Gram Panchayat, Village Dharmheri through its SEPO had already filed a petition under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 against Kura Singh for his ejectment from the agricultural land bearing Khasra Nos. 51//16 (8-0), 17 (8-0), 18 (8-0), 19 (8-0), 20 (6-3), 52//19 (5-17) and 20 (8-0), total land measuring 52 kanals and therefore, it could not be said that the appellant was in unauthorized occupation of any panchayat land. This could have been established by the appellant only if the learned Tribunal had followed the prescribed procedure. However, no reason had been given as to why the required procedure was not followed.

Learned counsel appearing for respondent No.1 submitted that from the revenue record, it stood established that the appellant was in unauthorized occupation of the land belonging to the Panchayat and therefore, he was not eligible to contest the election to the post of Panch.

Section 81 of the Act reads as under:

"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 ground or with a view to delay the proceedings of the election petition.

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."

Admittedly, the procedure as required by Section 81 of the Act for trying the election petition has not been followed by the learned Tribunal. Such a procedure was to be in accordance with the procedure FAO No.3633 of 2008 -4- contained in the Code of Civil Procedure, 1908 to the trial of the suit. No reasons have been given as to why the prescribed procedure was not adopted. It was claimed on behalf of the appellant that he was not in unauthorized occupation of the panchayat land and in case he had been given an opportunity to lead his evidence, he would have established that the allegations levelled by respondent No.1 were false and baseless.

In Ajaib Singh vs. Arjun Singh, 2000 (3) RCR (Civil) 24, the Court did not approve of the procedure adopted by the Election Tribunal in not following the Code of Civil Procedure as prescribed under Section 81 of the Act. It held as under:

"7. Relying on the above section of the Act, the learned counsel for the appellant argued that as far as possible the procedure contained in the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code') has to be followed but the Tribunal has failed to follow the same. No reason is given by the Tribunal for not allowing the appellant to produce evidence.

8. In the above quoted part of the order of the learned Tribunal some findings relating to facts, have been given and inference have been drawn. This, learned Tribunal, could not have done without recording the evidence. Moreover, the Tribunal has held that the allegations are baseless and that they have no weight because the petitioner affixed his signatures on the result sheet. The petitioner could have shown in the evidence as to how his signature has appeared in the result sheet.

9. Because of the above reasons, I find that the learned Tribunal has erred in not following the Code as prescribed under Section 81 of the Act. The order of the Tribunal deserves to be set aside."

After the presentation of the election petition on 19.6.2008, it was fixed for pre-hearing on 24.6.2008, when after hearing learned counsel for the election petitioner, it was admitted and the respondents therein were summoned and so also the record for 8.7.2008. On 8.7.2008, learned counsel put in appearance on behalf of the present appellant and the petition was adjourned to 16.7.2008 for reply. An application was, thereafter, filed on behalf of the appellant for dismissal of the election petition but the said application was dismissed on 5.8.2008. After filing of the reply on behalf of the appellant, wherein he vehemently asserted that he was not in unauthorized occupation of any panchayat land, learned Tribunal proceeded to decide the election petition summarily by accepting the same.

For the foregoing reasons, this Court is of the view that the learned Tribunal erred in not following the procedure as prescribed by Section 81 of the Act for trying the election petition. Therefore, there is no other option with the Court but to set aside the impugned order.

The appeal is, accordingly, allowed. The order passed by the learned Tribunal is set aside and the case remanded to the Tribunal for disposal of the election petition afresh in accordance with law. FAO No.3633 of 2008 -6-

The parties along with their respective counsel shall appear before the learned Tribunal on 23.12.2008 for further proceedings and the learned Tribunal shall take all possible steps to conclude the trial of the election petition within a period of six months from the said date.

Nothing stated above shall be construed as an expression on the merits of the case.

December 08, 2008                                    (T.P.S.MANN)
Pds.                                                  JUDGE