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2006 DIGILAW 3054 (PNJ)

Sukhchain v. Election Tribunal, Muktsar

2006-07-31

VINOD K.SHARMA

body2006
JUDGMENT Vinod K. Sharma, J. - The present revision has been filed against the order dated 29.9.2005 passed by the Election Tribunal which reads as under :- "In this petition counsel for both the parties have been heard. Counsel for the petitioner told that there was bungling in the counting of votes. Respondent No. 1 got 1271 votes and the petitioner got 1261 votes. In this way, petitioner lost the election with the margin of 10 votes. On perusal of form No. 9, it has come to notice that in this election 105 votes were rejected, which are large in number. Therefore, it is necessary to look into these votes. It has direct bearing on the result of the election whether these votes were rejected rightly or wrongly. Therefore, bundle of the rejected votes be summoned and case be decided accordingly." 2. Learned counsel for the petitioner has challenged the order on the ground that recounting has been ordered by the Election Tribunal without referring to any material on record. The contention of the learned counsel for the petitioner was that merely because out of 3566 votes, 105 votes were rejected, it was no ground for recounting. In support of his contention, the learned counsel for the petitioner placed reliance on the judgment of the Honble Supreme Court in the case of M. Chinnasamy v. K.C. Palanisamy and others, 2004(1) RCR(Civil) 303, wherein it has been held as under :- "The requirement of laying foundation in the pleadings must also be considered having regard to the fact that the onus to prove the allegations was on the election petitioner. The degree of proof for issuing a direction of recounting of votes must be of a very high standard and is required to be discharged. [See Mahender Partap v. Krishan Pal and others, 2003(1) SCC 3390]." 3. Learned counsel for the petitioner has also placed reliance on the Division Bench judgment of this Court in Pardaman Singh v. State of Punjab, 1996(3) RCR(Civil) 35 to contend that no recounting can be ordered on the vague plea without framing an issue. The contention of the learned counsel was that merely on an oral request and without taking any evidence, further without holding that it would in the interest of justice and to maintain the purity of election and further that it would not harm any body, the recounting was ordered. The contention of the learned counsel was that merely on an oral request and without taking any evidence, further without holding that it would in the interest of justice and to maintain the purity of election and further that it would not harm any body, the recounting was ordered. Therefore, in the present case, the authority had acted in totally arbitrary manner. 4. It may be noticed that in pursuance to the pleadings of the parties, it was incumbent upon the Election Tribunal to frame issues and, thereafter, it was open to the Tribunal to allow the parties to lead evidence. However, it was not open to the Election Tribunal to look into the rejected votes merely because 105 votes were rejected. Learned counsel for the petitioner further placed reliance on the judgment of this Court in Radha Krishan v. The Election Tribunal-cum-Sub Judge Ist Class, Hisar and other, 2001(1) CLJ 235. 5. Learned counsel for the respondent No. 2 by relying on the judgment of this Court in Gurtej Singh v. Darbara Singh and other, 2000(2) PLJ 559 contended that in the present case there was violation of Rule 33 of the Punjab Panchayat Election Rules, 1994 and, therefore, the fact regarding improper rejection could only be verified after seeing the ballot papers and recount thereof. Rule 33 reads as under :- "Counting of votes (Section 66) - (1) In a Sabha area where there is only one poling station, the Returning Officer shall follow the following procedure for the counting of votes and declaration of the result for election to the Gram Panchayat. Rule 33 reads as under :- "Counting of votes (Section 66) - (1) In a Sabha area where there is only one poling station, the Returning Officer shall follow the following procedure for the counting of votes and declaration of the result for election to the Gram Panchayat. (2) The President Officer shall, as soon as practicable, after the close of the poll and in the presence of any candidate or polling agent who may be present : (a) inspect and also allow an opportunity to candidates or their polling agents to inspect the ballot-box and their seals to satisfy themselves that they are in order; (b) open the ballot-box, after checking the mark or marks on the box and the label fixed, take out the ballot-papers from the box and arrange them in convenient bundles, separating the ballot-papers which he deems valid from those he rejects; (c) allow the candidates and their agents who may be present, reasonable opportunity to inspect all ballot-papers, which in the opinion of the President Officer are liable to be rejected, but shall not allow them to handle those or any other ballot-papers. The Presiding Officer shall on every ballot-paper which is rejected endorse the word "rejected" and record briefly on such ballot-papers the grounds for rejection. A brief record shall be kept of the serial numbers of all the ballot-papers rejected; (d) count the valid votes given to each candidate with the aid of persons appointed to assist in the counting of votes and declare the election of the candidate who is found to have obtained the largest number of valid votes or if more than one member is to be elected for the Gram Panchayat, then the candidates who are found to have obtained the largest number of valid votes shall be declared to have been elected; (e) after the counting of ballot-paper contained in all the ballot- boxes has been completed, the Returning Officer shall record a statement in Form IX showing the total number of votes polled by each candidate." The interpretation of this rule was given by this Court in para 22 which reads as under :- "It is also a settled principle of law that where a statutory provision provides for things to be done in a particular way then things must be done in that manner alone or not. Mandate of Rule 33 places an obligation upon the Presiding Officer to reject a ballot paper in writing and for reasons to be recorded therein. Breach thereof would entitle the election petitioner to entitlement of the benefit for the same, if any accrues in his favour. There are pleadings and evidence with regard to such improper rejection and the learned Tribunal can only verify this fact by seeing the valid ballot paper and recount thereof. In the case of A. Neelalohithadasan Nadar (supra), the Honble Supreme Court after considering its judgment in the case of N. Narayanan (supra) itself held that order of inspection and recount passed by the High Court in consonance with the provisions of law for speedy trial and conclusion thereof was proper." 6. Learned counsel for the respondent also placed reliance on the judgment of this court in 2004(4) RCR(Criminal) 442 : CWP No. 9269 of 2004 titled Gursewak Singh v. State of Punjab and others, decided on 2.9.2004 to contend that recounting of the votes can be ordered. 7. There can be no dispute with the proposition of law laid down by these authorities. However, I find that it is only when on the basis of specific allegation by the respective parties the issues are framed and evidence is led on that point, it would be open to the Election Tribunal to look into those votes to satisfy itself. However, it was not open to the Election Tribunal to merely order the recounting or look into the votes on the ground that the rejected votes are large in number as has been done in the present case. 8. It may also be noticed here that the procedure prescribed under Rule 33 gives sufficient protection against rejection of votes as it is not open to the Presiding Officer to reject any vote without allowing an opportunity to the candidate or their polling agents to inspect the ballot-boxes. This rule also allows a candidate and their agents to inspect all the ballot-papers before they are rejected. Once this protection is given under the rule itself and no objections are raised by the candidate or his agent when the votes are rejected, then it is not proper for the Election tribunal to order the recounting of votes in the absence of evidence to show that the votes were not rejected validly. Once this protection is given under the rule itself and no objections are raised by the candidate or his agent when the votes are rejected, then it is not proper for the Election tribunal to order the recounting of votes in the absence of evidence to show that the votes were not rejected validly. The Election Tribunal can pass an order to inspect the rejected votes only after evidence is led by examining the agent or the candidate making out a case that there has been violation of Rule 33. In view of this, the impugned order cannot be sustained as there was no material before the Election Tribunal to form an opinion that the votes were illegally rejected. Thus, the power has been exercised by the Election Tribunal with a material irregularity and in arbitrary manner. Accordingly, this revision petition is accepted and the impugned order is set aside. However, it is made clear that in case after the parties have led their evidence and there is sufficient material before the Election Tribunal to form an opinion that there is a necessity to check the rejected votes, it would be open to him to call for the same at that stage. Petition allowed.