Allowed

Palwinder Kaur v. Ranjit Singh and Ors.

Punjab & Haryana HC27 Jan 2010FAO/5655/2009

Case brief

AI extract

What is this about?

This appeal challenged an order where an election petition was dismissed without framing issues. The High Court held that once a Tribunal accepts pleadings and proposed issues, it must frame issues and provide an opportunity for evidence under the Code of Civil Procedure before dismissing on procedural grounds. The matter was remanded.

What did the court decide?

Impugned order set aside; case remanded to Tribunal to frame issues and provide opportunity for evidence; appearance fixed.

Palwinder Kaur Vs Ranjit Singh and Ors. — Election Law | Punjab & Haryana HC (2010)

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FAO No.5655 of 2009

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In the High Court for the States of Punjab and Haryana at Chandigarh.

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Decided on January 27,2010.

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Palwinder Kaur -- Appellant

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vs.

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Ranjit Singh and others --Respondents.

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CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN

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Present: Mr.Vikas Bahl,Advocate,for the appellant

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Mr.B.S.Jaswal Advocate,for respondent Nos. 1 to 3.

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Rakesh Kumar Jain, (Oral)

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This appeal is directed against order of Election Commission, Amritsar-I, dated 19.11.2009, whereby election of respondent No.1. (appellant) to the post of Sarpanch has been upset.

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Shorn of unnecessary details, election of Gram Panchayat Sidhwan, Block Chogawan, Tehsil Ajnala, District Amritsar, was held on 26.5.2008, in which Ranjit Singh, Pritam Singh and Sukhdev Singh were elected as Panches in the General Category, whereas Beero and Palwinder Kaur were elected as Panches (General Women). Respondent No.3– Sanjay Ratti, was appointed as Presiding Officer, for the purpose of election of Sarpanch, who issued notices on 12.7.2008 for the election to be held on 18.7.2008 at 10..AM. at Government Elementary School Bhangwan as

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FAO No.5655 of 2009

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there is no school in village Sidhwan. On 18.7.2008 at 10 a.m, all the Panches were present but due to breach of peace, the meeting was adjourned to 19.7.2008 to be held at 3.p.m in the office of BDPO, Chogawan, Tehsil Ajnala, District Amritsar. On the said date, four Panches except Ranjit Singh, were present but the election was held in which the appellant was elected as Sarpanch. On 20.7.2008, an application/representation was filed by Pritam Singh, Ranjit Singh and Beero for supplying certified copy of the proceedings dated 18.7.2008 and 19.7.2008 in respect of the election of Sarpanch. The election petitioner challenged the election of the appellant on the ground that the meeting was illegal.

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Upon notice, written statement was filed by the respondents taking preliminary objection that “ the petitioners have not complied with the provisions of Sections 76 to 78 of The Punjab State Election commission Act, 1994 and the copy of the election petition is not attested by the petitioners under their signatures nor the documents attached with the petition are attested and verified, hence the present petition is liable to be dismissed on this ground”

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Election petitioners then filed replication reiterating the stand taken in the election petition and denying the averments made in the written statement. The petitioners, namely Pritam Singh and Ranjit Singh framed the proposed issues which read as under:-

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Whether the election of the respondent No.1. is liable to be set aside on the ground that all the petitioners were present on 19.7.2008 in the office of BDPO Ajnala and Ranjit Singh was not allowed to sign and there was a valid and legal meeting on 19.7.2008 ? OPP

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FAO No.5655 of 2009

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2 Whether the present petition is liable to be dismissed as the petitioners have not complied with the provisions of Sections 76 to 78 of the Punjab State Election commission Act, 1994 ? OPR

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Relief:

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The following issues were proposed by Pritam Singh:-

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Whether the election of respondent No.1. Palwinder Kaur is liable to be set aside on the ground mentioned in the election petition ? OPP

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Whether the petitioner No.3. Beero Panch General (Women) can be declared as elected Sarpanch of village Sidhwan, Tehsil Ajnala, District Amritsar ? OPP

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Relief:

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The following issues were proposed by Ranjit Singh:-

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Whether the election of the respondent No.1. is liable to be set aside on the ground that all the petitioners were present on 19.7.2008 in the office of BDPO Ajnala and Ranjit Singh was not allowed to sign and there was a valid and legal meeting on 19.7.2008 ? OPP

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2 Whether the present petition is liable to be dismissed as the petitioners have not complied with the provisions of Sections 76 to 78 of the Punjab State Election commission Act, 1994 ? OPR

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3. Relief:

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Originally, though the issues were proposed by the election

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FAO No.5655 of 2009

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petitioners themselves yet the learned Tribunal did not frame any issue. However, preliminary objection raised by learned counsel for the appellant was noticed in the impugned order that the petition is not maintainable in the present form because copy of the election petition is not attested by the petitioners under their signatures nor the documents attached with the petition are attested and verified.

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Mr.Vikas Bahl, learned counsel for the appellant, inter-alia contends that the whole procedure adopted by the Election Tribunal is contrary to the provisions of Section 81 of the Punjab State Election Commission Act, 1994 ( for short, 'the Act') as it provides that 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 No.5 of 1908) for the trial of suits.

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It is further submitted that as per the procedure laid down in the CPC, after pleadings are complete, the Court has to frame issues and give opportunity to the parties to the lis to lead their respective evidence which is appreciated by the Court and on the basis thereof a Civil Suit is decided.

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In the present case, though preliminary objection raised in the written statement has been noticed by the learned Tribunal, and proposed issues were given by the parties, yet the issues were not framed. Hence, there was no question of providing opportunity to the parties to lead their respective evidence.

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Learned counsel for the appellant has submitted that as per the provisions of Section 76 (2) of the Act, every election petition shall be

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FAO No.5655 of 2009

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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. He further submits that non-compliance of provisions of Section 76(2) of the Act, shall entail dismissal of election petition as per Section 80 of the Act, which 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. It is further submitted that, had there been issues framed and opportunity given to the parties by the learned Tribunal, as to whether the election petition is bad being violative of Section 76 (2) of the Act, the appellant would have led evidence to prove this fact and on that basis, the election petition would have definitely been dismissed. It is also submitted that since due procedure has not been adopted, therefore, grave injustice has been caused to the appellant.

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In reply, learned counsel for the respondents submits that question of framing of issues would not arise if the petition could be decided without the evidence.

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I do not agree to this submission because once the Tribunal had proceeded to adopt the procedure of CPC by taking the pleadings of both the parties which ended up in filing of replication and even the proposed issues were taken then the learned Tribunal should have framed the issues and allowed the parties to lead their evidence focused on those issues.

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Hence, looking from any angle, I find that this case is liable to be remanded back to the learned Tribunal with a direction to frame issues on the basis of pleadings of the parties in that regard .

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FAO No.5655 of 2009

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Hence, the present appeal is allowed. The impugned order is set aside. This case is remanded back to the learned Tribunal for fresh decision after taking the pleadings of the parties into consideration, framing issues and after affording opportunities to them to lead their evidence in respect of their respective claims.

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Let the needful be done within three months from the date of appearance of both the parties along-with a certified copy of this order

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The parties through their counsel are directed to appear before the learned Tribunal on 23.3.2010.

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January 27,2010 RR

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(Rakesh Kumar Jain) Judge

Palwinder Kaur v. Ranjit Singh and Ors.

Case brief

What is this about?

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Palwinder Kaur v. Ranjit Singh and Ors.

Case brief

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