Punjab-Haryana High Court
Smt. Varinder Kaur Alias Barinder Kaur vs Smt. Gurcharan Kaur And Another on 13 October, 2011
Author: Mohinder Pal
Bench: Mohinder Pal
In the High Court of Punjab and Haryana at Chandigarh
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F.A.O. No.3535 of 2009
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Date of decision:13.10.2011
Smt. Varinder Kaur alias Barinder Kaur
.....Appellant
v.
Smt. Gurcharan Kaur and another
.....Respondents
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CORAM : HON'BLE MR. JUSTICE MOHINDER PAL
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1. Whether reporters of local papers may be allowed to see the
judgment?
2. To be referred to the reporters or not?
3. Whether the judgment should be reported in the digest?
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Present: Mr. K.S. Boparai, Advocate for the appellant.
Ms. Priyanka Sharma, Advocate for Mr. Ashok Tyagi,
Advocate for respondent No.1.
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Mohinder Pal, J.
This order shall dispose of FAO No.3535 of 2009 which has been preferred against the order dated 7.1.2009 of the Deputy Commissioner-cum-Election Tribunal, Rupnagar (hereinafter referred to as `the Tribunal') whereby election petition filed by Smt. Varinder Kaur alias Barinder Kaur under the Punjab State Election Commission Act, 1996 (sic. - 1994) (hereinafter referred to as `the Act') for setting aside the election of Gurcharan Kaur (respondent No.1) from the post of Panch of Village Ramgarh, District Ropar has been dismissed.
The petitioner (appellant herein) and respondents No.1 to 7 had F.A.O. No.3535 of 2009 [2] contested the election held on 26.5.2008 to the Panchayat of Village Ramgarh. The appellant and respondent No.2 were defeated in the said election and respondents No.3 to 7 were declared elected. Respondent No.1 was not eligible for membership of the Panchayat as she was not residing in the village and had been residing in House No.28, Sector 15-A, Chandigarh. She was a voter at Chandigarh and her name was entered at serial No.104 in the voters' list at Chandigarh for the year 2008 and voter identity card bearing No.PBA 5128822 was issued to her. Respondent No.1 has exercised her right to vote in the Lok Sabha and Municipal Corporation election held at Chandigarh but her name was also entered in the voters' list for the year 2007 of Village Ramgarh, Block Morinda, Post Office Lutheri at serial No.352 and as such the nomination and election of respondent No.1 as a Member, Panchayat of Village Ramgarh was against the provisions of Sections 26 to 28 of the Act.
Aggrieved against the order of Tribunal, the appellant has preferred the present appeal wherein in the objection taken before the Election Tribunal has been reiterated. Learned counsel for the appellant has submitted that the procedure prescribed under the Civil Procedure Code for conducting election has not been followed in this case. It is submitted that the documents relied upon by the respondents required to be proved by producing cogent and convincing evidence and by affording reasonable opportunity to the opposite side to defend their claim. However, the Tribunal arbitrarily dismissed the petition. On the other hand, learned counsel for respondent No.1 by referring to Annexures-R.1 and R.2 and by relying upon the decision contained in by this Court in Budh Singh v. State F.A.O. No.3535 of 2009 [3] of Punjab and another, 1973 PLJ 535 has submitted that the Tribunal has rightly dismissed the petition of the petitioner-appellant Varinder Kaur.
I have heard learned counsel for the parties and perused the record. Section 81 of the Act is reproduced below:-
"81. Procedure before the Election Tribunal.-- (1) Subject to the provisions of this Act and 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. (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."
A perusal of this provision shows that the rule made thereunder, every election petition shall be tried by the Election Tribunal in accordance with the procedure contained in the CPC which means that an opportunity is required to be given to a person to defend his case. The issues are required F.A.O. No.3535 of 2009 [4] to be framed and both the sides are given further opportunity to lead their evidence and rebut the evidence adduced by the either side. The controversy in dispute is that in the present case respondent No.1 was a registered voter at Chandigarh at the time of her election in Village Ramgarh. Sections 26 to 28 of the Act read as under:-
"26. No person to be registered in more than one constituency.- No person shall be entitled to be registered in the electoral roll for more than one constituency.
27. No person to be registered more than once in any constituency.-- No person shall be entitled to be registered in the electoral roll for any constituency more than once.
28. Conditions of registration.- Subject to the foregoing provisions of this Chapter, every person who, -
(a) is not less than eighteen years of age on the qualifying date;
and
(b) is ordinarily resident in a constituency;
shall be entitled to be registered in the electoral roll for that constituency."
So, from a perusal of these sections it is clear that no person is eligible to contest the election if his/her name is registered in the electoral roll for more than one constituency. The appellant seems to have been placed on record sufficient evidence to prove that name of respondent No.1 was registered at more than one place at the time of election. On the other hand, respondent No.1 has relied upon Annexures-R.1 and R.2 according to which an application for cancellation of voter card has been moved to the concerned authority before the Election. These documents were required to F.A.O. No.3535 of 2009 [5] be proved as per the provisions of CPC which has not been done in the present case. Case Budh Singh (supra) is not applicable to facts of this case as this case was decided prior to 1996 i.e. before amendment when provisions of Sections 26 to 28 of the Act were not there. I am of the considered opinion that this is a fit case for remand to the Tribunal for deciding afresh by affording reasonable opportunity to both the sides to submit their claim. Since the election pertains to the year 2008, a sufficient period has gone up, every effort will be made to expedite the disposal of this case.
With these observations, the order passed by the Tribunal is set aside. The parties are directed to appear before the Tribunal on 2.11.2011 without any further notice.
Resultantly, the present appeal is allowed.
October 13, 2011. (Mohinder Pal) Judge *hsp*