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2000 DIGILAW 700 (PNJ)

Nazar Singh v. Dhanna Singh

2000-07-11

R.L.ANAND

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JUDGMENT R.L. Anand, J. - This is a Civil Revision filed by Shri Nazar Singh and it has been directed against the order dated 1.7.1999, passed by the Presiding Officer, Election Tribunal (Deputy Commissioner), Sangrur who, ordered for the recounting. 2. Some facts can be noticed in the following manner. The election of Sarpanch of village Dialgarh, took place in the year 1998. Votes were polled and finally Shri Nazar Singh was elected as Sarpanch with a minimum margin of one vote against the rival candidate Shri Dhanna Singh who was never satisfied with the declaration of the result and he filed the election petition before the Election Tribunal under the Gram Panchayat Act. It was alleged by Shri Dhanna Singh that after counting of the votes he was declared elected by a margin of five votes but Nazar Singh in connivance with respondent No. 2, Shri Gurcharan Singh, got the recounting of votes in his absence and got 50 votes declared as cancelled whereas in the earlier counting there were 40 votes as cancelled. Dhanna Singh has alleged that in his absence, 6 votes caste in his favour were cancelled and he was declared defeated by one vote. Dhanna Singh has also alleged the Nazar Singh has committed corrupt practice. 3. Notice of the petition filed by Dhanna Singh, before the Election Tribunal was given to the respondents. Respondents No. 2 and 3 were proceeded ex parte. The main contest was given by Nazar Singh (the present petitioner) who tried to justify the declaration of the result Replication was also filed by Dhanna Singh to the reply of Nazar Singh. 4. The parties produced evidence. The Presiding Officer of the Election Tribunal for the following reasons allowed the recounting and gave the direction to the S.D.M. to submit his report on the next date of hearing : "After hearing the arguments advanced by the learned Counsel for the parties and perusing the evidence on record, the authorities produced by respondents are not applicable to the present case because the petitioner has led evidence to prove his allegations. After perusing the statement of the witnesses produced by the petitioner it is found that firstly petitioner was declared elected and in the re-count Nazar Singh was declared elected by margin of one vote. There is difference of only one vote in this case. After perusing the statement of the witnesses produced by the petitioner it is found that firstly petitioner was declared elected and in the re-count Nazar Singh was declared elected by margin of one vote. There is difference of only one vote in this case. As per AIR 1992 Rajasthan page 90 where there was difference of 9 votes, the re-count was ordered. With the re-count real position would be known. Therefore, in the interest of justice and to know the truth, the votes cast in favour of the candidates for the post of Sarpanch are ordered to be re-counted. Recount be held on 14.7.199 at 10 A.M. in the Meeting Hall of the Deputy Commissioner office by S.D.M., Sangrur. At the time of re-count both the candidates can appoint one counting agent each. After re-count the S.D.M. Sangrur will submit his report before 11 A.M. on 15.7.1999." I have heard Shri J.S. Toor, Advocate, appearing on behalf of the petitioner, Shri A.S. Jattana, for respondent No. 1, Shri Rajivan Singh, for respondent No. 2 and Ms. Gurveen H. Singh, AAG, Punjab, appearing on behalf of respondent No. 3 and with their assistance have gone through the record of this case. 5. Before I deal with the submissions raised by the learned Counsel for the parties, it may be mentioned here that I have also examined Form No. IX which pertains to the declaration of the result. Against the name of Shri Dhanna Singh, it is mentioned that he got 423 valid votes and against the name of Shri Nazar Singh, it is mentioned that he got 424 votes. The third column of this Form is very relevant which states as follows :- "Bayan Karo Ki Auh Chunya Gaya Jan Nahin" It may be translated like this, "It may be mentioned by the Returning Officer whether he has been elected or not". The reading of the third column would show that the intent and expectation of the Legislature from the Returning Officer, was to write against the name of the candidate "Nahin" (No) or Chunya (elected). If this column is read, it is clearly mentioned against the name of Dhanna Singh "Nahi" (No). Dhanna Singh has signed in Punjabi. Against the name of Nazar Singh, the words are "Chunya Gaya" (elected). It is signed in Punjabi by Nazar Singh. If this column is read, it is clearly mentioned against the name of Dhanna Singh "Nahi" (No). Dhanna Singh has signed in Punjabi. Against the name of Nazar Singh, the words are "Chunya Gaya" (elected). It is signed in Punjabi by Nazar Singh. Thus, there is no manner or doubt that Dhanna Singh was never declared elected while Nazar Singh was declared elected by a margin of one vote. 6. So far as the position of law is concerned, the Honble Supreme Court in 2000(1) RCR (Civil) 314, Mehant Ram Parkash Dass v. Ramesh Chandra, laid down that while deciding the objections against the re-count of the votes, secrecy of the votes has to be maintained and demand for recount should not be ordinarily granted unless the election petitioner makes out a prima facie case with regard to error in counting of such magnitude that the result of the election of the returned candidate may be affected. Further it was observed by the Honble Supreme Court that smallness of victory margin by itself may not be a sufficient ground for recount. If enough opportunity was given to the agent/candidate towards the counting process before the result is declared and he had certified that the counting was proper and no irregularity is pointed out even in the election petition, it cannot be said that the counting was improper. 7. This court in 1999(4) RCR (Civil) 248, Kirpal Singh v. Preet Mohinder Singh, while disposing the same matter had stated that recount of votes cannot be ordered as a matter of course on mere asking. Secrecy of ballot is paramount. Sanctity of secrecy of votes has to be preserved and a very strong ground should be made out by the person seeking recount of votes. If on even the allegation regarding rejection of votes prima facie taken to be correct, it does not have the effect of changing the result. 8. The case set up by the Dhanna Singh is that earlier he was declared elected by five votes. I do not find any prima facie evidence. Though the learned Counsel for Dhanna Singh has tried to rely upon the statement of the Returning Officer before the Tribunal. In that statement it was never admitted by the Returning Officer that at any point of time Shri Dhanna Singh was declared elected. I do not find any prima facie evidence. Though the learned Counsel for Dhanna Singh has tried to rely upon the statement of the Returning Officer before the Tribunal. In that statement it was never admitted by the Returning Officer that at any point of time Shri Dhanna Singh was declared elected. Even on the date of the declaration of the result, Shri Dhanna Singh never gave any telegram to the Deputy Commissioner that the Returning Officer has bungled with the recounting of the votes. The total number of the valid votes is 897. The margin of the victory is bound to be narrow. In such elections, victory and defeat are the inevitable results. It is true that Shri Nazar Singh has won the election of sarpanch by margin of only one vote but that does not mean that the secrecy of the votes should be disturbed by the Presiding Officer of the Tribunal as contained (contended ?) in the present case. Shri Dhanna Singh has not been able to make out any strong ground to justify the recounting. 9. In this view of the matter, I allow this revision-petition and set aside the impugned order dated 1.7.1999 passed by the Presiding Officer, Election Tribunal, Sangrur, with no order as to costs. The record of the case has been returned to the counsel appearing on behalf of the State. Revision allowed.