Guddi v. Vidya Devi & Ors.

CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Rishi Kaushal, Advocate, for the appellant. Mr. O.P.Kamboj, Advocate, for respondent No.1. ***** RAKESH KUMAR JAIN, J. This appeal is directed against the order of Sub Divisional Magistrate-cum-Election Tribunal, Zira [for short “Election Tribunal”] dated 15.12.2009 by which the election petition filed by the appellant challenging the election of Vidya Devi (respondent No.1), has been dismissed. The Gram Panchayat Ramkot, Block Khuian Sarwar, Tehsil Fazilka, District Ferozepur comprises of 9 Panches in which four Panches belong to General category, two are from General (Lady) category, one from S.C. Category, one from S.C. (Lady) category and one from B.C. category. Election to constitute the aforesaid Gram Panchayat was held on

28.05.2008, in which the appellant had allegedly contested the election for the post of Panch in the S.C. category but her allegation is that she was FAO No.1264 of 2010 (O&M) - 2 - ****** considered in the category of General (Lady) and had thus lost the election. She challenged the election of returned candidate Vidya Devi (respondent No.1) by way of Election Petition No.16 of 2009 on the ground that she had filed her nomination form in the S.C. category, but she has been wrongly considered in the General (Lady) category, whereas respondent No.1, who had filed her nomination form in the General (Lady) category, has been considered and declared elected in the S.C. category. It is submitted that she had filed a writ petition before this Court, in which direction was issued for holding an inquiry, which was conducted by Secretary, RTA, Ferozepur and submitted his report that the category of the appellant has been wrongly changed. On the contrary, finding has been recorded by the learned Election Tribunal that the appellant did not submit her certificate of Scheduled Caste with the nomination form, as a result of which his candidature was not considered in the Schedule Castes category. Moreover, she had deposited `100 as fee along with her nomination form, therefore, she has been rightly considered in the General (Lady) category because had she contested the election in S.C. category, she would have deposited `50 only. The Election Tribunal, on this premise, held that in the absence of Scheduled Castes Certificate, the Returning Officer had rightly considered the candidature of the appellant in General (Lady) category, and dismissed the election petition. In appeal, learned counsel for the appellant has vehemently argued that the learned Election Tribunal should have considered the inquiry report, which is attached as Annexure A-1 with the grounds of appeal, in its true perspective in which it was categorically held that the nomination form of the appellant has been wrongly rejected for want of Scheduled Castes Certificate. As against this, learned counsel for the respondent has argued that basically, the election petition was not maintainable as the appellant had neither impleaded all the contesting candidates nor all the returned candidates in the election petition despite the fact that she has challenged the election of respondent No.1 and had FAO No.1264 of 2010 (O&M) - 3 - ****** also prayed for herself to be declared as a Panch in her place. Learned counsel for the respondent has submitted that in view of Section 77 of the Punjab State Election Commission Act, 1994 [for short “the Act”], the election petition should have been dismissed by the Election Tribunal in terms of Section 80 of the Act. Besides this, he has also submitted that mere mentioning of caste in the nomination form is not sufficient until and unless a candidate claiming reservation has affixed his/her caste certificate as a prima facie proof. It is asserted that the very fact that the appellant had deposited `100 as fee instead of `50 in terms of Rule 9(5) of the Punjab Panchayat Election Rules, 1994 [for short “Rules”] would show that the appellant had deposited the election fee as a General category candidate and not as a Scheduled Castes reserved candidate. I have heard learned counsel for the parties and perused the record with their able assistance. In so far as the argument raised by learned counsel for the appellant that the Election Tribunal has committed an error in not appreciating the report of the Inquiry Officer, in which he had specifically held that the appellant had filed her nomination form as a Scheduled Castes candidate and she should have been considered in that category only, is concerned, that would not cut much ice because the election petition by itself is not maintainable in view of violation of Section 77 of the Act. Section 77 of the Act provides that where the election petitioner challenges the election of a returned candidate on the allegation other than corrupt practice, then he has to implead all the returned candidates and where a declaration is also sought for his/her election in place of the elected candidate, then all the contesting candidates. Section 80 of the Act provides that if there is a violation of Section 77 of the Act, the Election Tribunal shall dismiss the election petition. In the present case, the election petitioner had only arrayed respondent No.1 Vidya Devi and two official respondents as parties and has neither impleaded all the contesting candidates nor all the returned candidates to satisfy the provisions of Section 77(a) of the Act. Besides this, the appellant had only mentioned FAO No.1264 of 2010 (O&M) - 4 - ****** her caste to be Scheduled Castes in the nomination form, without supporting it with any prima facie evidence which is obviously the Scheduled Caste Certificate. Moreover, she has also deposited `100 towards election fee in terms of Rule 9(5) of the Rules which is meant for a General category candidate as in the case of Scheduled Castes candidate the law has provided concession of 50% towards election fee. All these facts cumulatively indicate that the appellant had not filed nomination form as a Scheduled Castes candidate but as a General category candidate and for that matter there is no error committed by the Election Tribunal in dismissing the election petition. No other point has been raised. In view of the above discussion, I have found the present appeal without any merit and as such, the same is hereby dismissed. The parties shall bear their own costs. September 16, 2010. vinod* (RAKESH KUMAR JAIN) JUDGE