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2000 DIGILAW 866 (PNJ)

Satnam Singh v. Kamaljeet Singh

2000-08-04

S.S.SUDHALKAR

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JUDGMENT S.S. Sudhalkar, J. - The appellant Satnam Singh was declared elected in the election to the post of Sarpanch, Gram Panchayat Bir Behman, the election of which took place on 21.6.1998. Two persons had contested the election, one the appellant - Satnam Singh and the second was respondent No.1 - Kamaljit Singh. Kamaljit Singh filed election petition before the Election Tribunal, Bhatinda. Election Tribunal, Bathinda ordered re-counting of votes by its order dated 6.4.1999. The same order was challenged in revision before this Court vide Civil Revision No. 2030 of 1999. The revision was dismissed by this court. Meanwhile, a transfer application was filed and the election petition was transferred to Election Tribunal, Sangrur. The Election Tribunal, Sangrur allowed the election petition, and set aside the election of the petitioner and respondent No. 1 Kamaljit Singh was declared elected. Being aggrieved by the said judgment of the Election Tribunal, this appeal has been filed. 2. I have heard learned counsel for the parties. 3. The factual position regarding votes counted at the time of counting and counted at the time of re-counting can be mentioned as below :- Satnam Singh (appellant) : 715 Kamaljit Singh (respondent) : 713 Blank : 50 Doubled stamped : 14 Total : 1492 In the recounting :- Satnam Singh (appellant) : 720 Kamaljit Singh (respondent) : 707 Blank : 43 Doubled stamped : 22 Total : 1492 4. Learned counsel for the appellant argued that the specific provisions of the Punjab State Election Commission Act, 1994 (hereinafter referred to as the Act) have been violated and therefore, the election petition should have been dismissed. He has argued that the copy of the petition attested by the petitioner was not given to him. He has relied on the provisions of Section 76(2) of the Act, which is as under :- " (2) Every election petition shall be 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 has also argued that the election petition has to be signed and verified in the manner provided in Code of Civil Procedure and the schedule annexed to the petition shall also be signed by the petitioner and verify in the same manner as the petition. For this, he has relied on Section 78 of the Act contending that respondent No. 1 had not followed the provisions. He has relied on Section 80 of the Act which mentions that the Election Tribunal shall dismiss the Election Petition which is not complying with Sections 76, 77 and 103 of the Act. 5. So far as non-supply of attested copy of the petition by the petitioner is concerned, the Election Tribunal, Bathinda has held that respondent No. 1 failed to annex the unsigned copy of the petition and affidavit with the reply. This position is not controverted during arguments by the learned counsel for the appellant. When this is the position, the question of non- compliance of Section 76 of the Act does not arise. 6. So far as non-compliance of provisions of Section 78 are concerned, it can be seen that it may not be fatal to the Election petition in view of provisions of Section 80 of the Act because Section 80 deals with non- compliance of Section 76, 77 or 103 of the Act. It does not mention about non-compliance of Section 78 of the Act. Counsel for the appellant argued that part of the Judgment was written by the Election Tribunal, Bathinda and the rest by Election Tribunal, Sangrur and Election Tribunal Sangrur had not considered his argument. However, when in this appeal, the appellant is not able to controvert the finding of non-production of the copy of the petition by the appellant (considered in the first judgment), I find that the judgment need not be disturbed on this ground. This Judgment also need not be disturbed on the ground that there is an allegation that provisions of Section 78 of the Act are not complied with. 7. The next argument before me is that re-counting was not proper. Counsel for the appellant argued that when there were 50 blank votes and 14 doubled stamp votes and while counting at the time of election and number of blank votes decreased to 43 and doubled stamped votes increased to 22, its counting was not proper. 8. Counsel for respondent No. 1 argued that it was only because of recounting of votes that this difference had arisen. Regarding re-counting, another argument is advanced by learned counsel for the appellant. 8. Counsel for respondent No. 1 argued that it was only because of recounting of votes that this difference had arisen. Regarding re-counting, another argument is advanced by learned counsel for the appellant. It is that though the re-counting was ordered, the Election Tribunal itself did not carry out the re-counting but it was done by Additional Deputy Commissioner, Sangrur and that the Election Tribunal had no right to entrust this work of recounting to Additional Deputy Commissioner and the re-counting being not done by the Election Tribunal itself or under its supervision, cannot be said to be legal. So far as the difference in counting of votes is concerned, I express no opinion because the second argument regarding re-counting advanced by the learned counsel for the appellant, seems worth considering. On questioning the counsel for the respondents, he could not show that Additional Deputy Commissioner was a part of the Election Tribunal though the Presiding Officer of the Election Tribunal is Duty Commissioner. According to Section 73, the Election Tribunal is constituted by the State Government in consultation with the Election Commission, for each district or part thereof. Section 73(2) of the Act provides that the State Government shall, by notification, appoint an IAS or PCS or Class I officer of the State Government having adequate administrative, legal or magisterial experience, as the Presiding Officer of an Election Tribunal, Therefore, though the Deputy Commissioner was (admittedly) entrusted the powers of Election Tribunal, and the Additional Deputy Commissioner was not entrusted with the same, I find that it was not proper for the Election Tribunal to have entrusted the duty of re-counting to a person outside the Tribunal. For verifying the position, whether the Additional Deputy Commissioner forms part of Election Tribunal, I had called the advocates again for further arguments and counsel for the respondent could not show that the Additional Deputy Commissioner was entrusted the power of Election Tribunal. This being the position, this appeal succeeds on the last ground i.e. recounting was not done by the Election Tribunal. 9. As a result, this appeal is partly allowed. The re-counting made by Additional Deputy Commissioner is set-aside. Consequently the order and judgment dated 2.8.1999 are set-aside. The case is remanded to the Election Tribunal. The Election Tribunal is directed to carry out recounting and dispose of the Election petition in accordance with law. Appeal partly allowed.