RESHAM LAL Vs. SABEEL RAM AND OTHERS

JUDGEMENT

(1.) In the present appeal, the election petitioner challenges the order dated 12.10.2016 whereby, the Sub Divisional Judicial Magistrate, Jalandhar-cum-Election Tribunal has dismissed the election petition on the ground that it was beyond the period of limitation of 45 days which is the period prescribed under Section 76 of the Punjab State Election Commission Act, 1994 (in short 'the Act'). The Tribunal came to the conclusion that the matter was taken up before it on 02.09.2013 and, therefore, since the result had been declared on 03.07.2013, the petition filed as such was beyond the period of limitation and was accordingly dismissed. The contention of the counsel for the election petitioner that the petition was filed on 16.08.2013 and, therefore, within limitation accordingly was not accepted.

(2.) The case has a background to the extent that on the filing of the election petition, which according to the appellant was 16.08.2013, and the same was entered in the records of the register of the Tribunal at Sr. No. 24 (Annexure A-7), which also has been noticed by the Tribunal. The respondent-elected candidate while filing his written statement, had taken a plea that the petition was barred by time. Thereafter on 29.07.2015 (Annexure A-2), when the matter was taken up, counsel for the respondent was not present and in view of the fact that the appellant had earlier filed a CWP No. 16444 of 2013 which had been dismissed as withdrawn with liberty to file the election petition, the case was fixed for evidence of the appellant while rejecting the plea of the respondent regarding the limitation. The matter was challenged by the respondent by filing C.R. No. 6267 of 2015 before this Court wherein, in view of the fact that he was absent on that date, the said order was set aside and the matter was remitted to the Election Tribunal for deciding the issue of limitation afresh after hearing the parties in accordance with law. Resultantly, the impugned order has been passed.

(3.) Section 76 of the Act provides that an election petition may be presented on one or more of the grounds specified in sub-section (1) of Section 89 to the Election Tribunal by any candidate to such election or by any elector or within a period of 45 days from the date of election of the returned candidate. As noticed, it is the case of the appellant that the filing was done before the Tribunal on 16.08.2013 and, therefore, it would be within limitation from the date of declaration of result i.e. 007.201 Whereas, in contrast, the stand of the respondent is that the matter was presented on 02.09.2013 (Annexure A-10), which would go on to show that the Tribunal noticed that the election petition had been presented on the said day and the counsel for the applicant was present and resultantly notice was sent to the respondents through registered cover and the case was adjourned to 14.09.2013 for appearance. It is on this account the Tribunal had rejected the case of the appellant on the ground that it is barred by limitation. Section 80 of the Act provides that an Election Tribunal shall dismiss the election petition which does not comply with the provisions of Section 76, 77 or 103 of the Act. As noticed, the period of limitation is 45 days. Resultantly, the Act itself provides that the Tribunal will dismiss the petition if it is beyond the period of limitation.