BALWINDER SINGH @ PILLI Vs. GIAN KAUR

JUDGEMENT

(1.) Challenge in the present appeal is to the order dated 4.11.2010, passed by Presiding Officer, Election Tribunal, Moga (for short, 'the Tribunal') accepting the election petition filed by Respondent No. 1 and while setting aside the election of the Appellants, a direction was issued for holding fresh election.

(2.) Learned Counsel for the Appellants submitted that election of the Appellants in the present case has been wrongly set aside by the Tribunal in the election petition filed by Respondent No. 1, which was barred by time and could not have been entertained as such. In the present case, the elections were held on 26.5.2008. The election petition was filed by Respondent No. 1 on 22.12.2008, whereas in terms of the provisions of Section 76 of the Punjab State Election Commission Act, 1994 (for short, 'the Act'), such an election petition could be filed within 45 days of the date of election. The issue of limitation raised by the Appellants before the Tribunal was just brushed aside while noticing that earlier Respondent No. 1 had approached this Court by filing a writ petition challenging the election of the Appellants, which cannot be a cause for entertaining a belated petition, as there is No. provision under the Act to condone the delay. He further submitted that in terms of the provisions of Section 76 of the Act, an election petition was required to be presented by the candidate himself and in case of violation of the aforesaid provision of the Act, the same was required to be dismissed. In support of the aforesaid submissions, reliance was placed upon Bagicha Singh (Ex-Sarpanch) v. Punjab State Election Commission, Punjab, 2001 3 RCR(Civ) 526, Joginder Singh v. Baldeep Singh and Ors.,2010 157 PunLR 760, Gurvinder Singh v. Presiding Officer, Election Tribunal (SDM), Dhuri, District Sangrur and Ors., 2010 5 RCR(Civ) 930; Gurlal Singh v. Presiding Officer, Election Tribunal, Block Lehra, District Sangrur and Ors., 2010 5 RCR(Civ) 474; Manjit Kaur v. Deputy Commisioner-cum-Election Tribunal, Fatehgarh Sahib and Ors.,2010 160 PunLR 476.

(3.) On the other hand, learned Counsel for the Respondents submitted that in the present case, the nomination papers of Respondent No. 1 were wrongly rejected on 20.5.2008. As Respondent No. 1 sought to challenge the elections, which were held after wrongly rejecting her nomination papers, she filed C.W.P. No. 10801 of 2008 in this Court. The aforesaid writ petition was wrongly rejected on 12.6.2008. Application for recalling the order was filed. Ultimately on 21.11.2008, Respondent No. 1 was permitted to withdraw the writ petition with liberty to file the election petition. The election petition was filed on 22.12.2008. If the period is counted from the date Respondent No. 1 was permitted to withdraw the writ petition with liberty to file election petition, the same was within limitation and in fact, it should have been considered from that date, as this Court had granted liberty to Respondent No. 1 to file election petition. However, on the asking of the court, as to why the application for re-calling an order, which was passed on 12.6.2008 dismissing the writ petition, was filed so late, learned Counsel for Respondents No. 1 to 5 submitted that the application was filed within 30 days from the date of receipt of copy of the order dated 12.6.2008. However, he could not furnish any definite date of receipt of certified copy of the order and also filing of application.