Research › Search › Judgment

Punjab High Court · body

2006 DIGILAW 684 (PNJ)

Subhash Chand v. Ramesh Kumari

2006-02-23

AJAY K.MITTAL, HARJIT SINGH BEDI

body2006
Judgment Ajay Kumar Mittal, J. 1. The petitioner has challenged order dated 24.8.2005, Annexure P-4, passed by respondent No. 2, whereby recount of the votes had been ordered. 2. Briefly stated the facts are that on 3.4.2005, the petitioner and respondent No. 1 contested the election for the post of Sarpanch and the petitioner was declared as elected. Respondent No. 1 filed an election petition challenging the election of the petitioner on the ground that the counting of votes was improper and valid votes of respondent No. l were illegally rejected whereas illegal votes of the petitioner had been accepted. In the election petition, respondent No. 1 filed an application for the summoning of the record of election for recounting of the votes. Respondent No. 2 accepted the said application and had ordered for recounting i.e. scrutiny and computation of votes. It is this order which has been impugned in the present petition. 3. Learned Counsel for the petitioner submitted that from the perusal of the election petition, it would be seen that it contains only vague assertions without reference to any material particulars and does not disclose any cause of action for the recounting of votes and, therefore, respondent No. 2 while ordering recounting of votes has acted with material irregularity and the order, thus, cannot be sustained. 4. Learned Counsel for respondent No. 1, submitted that the order of recounting had been validly passed and supported the order passed by respondent No. 2. 5. We have heard the learned Counsel for the parties and perused the record. 6. Section 176(4) of the Haryana Panchayati Raj Act, 1994 reads as under: - 176. Determination of validity of election enquiry by Judge and procedure. (1)XX XX XX (2) XX XX XX (3) XX XX XX (4)(a) If on holding such inquiry the Civil Court finds that a candidate has, for the purpose of election committed a corrupt practice within the meaning of Sub-section (5), he shall set aside the election and declare the candidate disqualified for the purpose of election and fresh election may be held. (b) If, in any case to which Clause (a) does not apply, the validity of an election is in dispute between two or more candidates, the court shall after a scrutiny and computation of the votes recorded in favour of each candidate, declare the candidate who is found to have the largest number of valid votes in his favour to have been duly elected; Provided that after such computation, if any, equality of votes is found to exist between any candidate and the addition of one vote will entitle any of the candidates to be declared elected, one additional vote shall be added to the total number of valid votes found to have been received in the favour of such candidate or candidates, as the case may be, elected by lot drawn in the presence of the Judge in such manner as he may determine. 7. Rule 69 of the Haryana Panchayati Raj Election Rules, 1994, also deals with recount of votes and reads thus: 69. Recount of votes.- (1) After the completion of the counting the Returning Officer (Panchayat) or such other officer authorized by him shall record in the result sheet in Forms mentioned in Sub-rule (2) of Rule 66 the total number of votes polled for each candidate and announce the same. (2) After such announcement has been made a candidate or, in his absence counting agent may apply in writing to the Returning Officer (Panchayat) or the other officer authorized by him, for recount of all or any of the ballot papers already counted stating the grounds on which he demands such recount. (3) On such an application being made the Returning Officer (Panchayat) or the officer authorized by him shall, decide the matter and may allow the application in whole or in part or may reject it in toto if it appears to him to be frivolous or unreasonable. (4) Every decision of the Returning Officer (Panchayat) or such other officer authorized by him, under Sub-rule (3) shall be in writing and contain the reasons therefor. (4) Every decision of the Returning Officer (Panchayat) or such other officer authorized by him, under Sub-rule (3) shall be in writing and contain the reasons therefor. (5) If the Returning Officer (Panchayat) or the officer authorized by him, decides under Sub-rule (3) to allow an application either in whole or in part, he shall - (a) count the ballot papers again in accordance with his decision; (b) amend the result sheet to the extent necessary after such recount; and (c) announce the amendment so made by him. (6) After the total number of votes polled for each candidates has been announced under Sub-rule (1) or Sub-rule (5) the Returning Officer. (Panchayat) or the officer authorized by him, shall complete and sign the result sheet and no application for recount shall be entertained thereafter: Provided that no step under this sub-rule shall be taken on the completion of the counting until the candidates and (counting) agents present at the completion thereof have been given a reasonable opportunity to exercise the right conferred by sub rule (2). 8. The aforesaid provisions came up for interpretation before Division Bench of this Court in Vidya Sugar v. The Additional Civil Judge (Senior Division), Kurukshetra (2001-2)128 P.L.R. 476, wherein in paras 8 and 9, it was held as under: - 8. A bare reading of both the relevant provisions show that under the Rules a recount is prescribed after the completion of the counting to the Returning Officer (Panchayat). Such an officer may allow the application and can even reject if it is frivolous and unreasonable. But the substantive provision is contained in Sub-section (4) to Section 176 of the Act. If the allegations are pertaining to corrupt practices, procedure is prescribed and election can be set aside if certain assertions in accordance with law are proved. But under Section 176(4)(b) of the Act, where the provisions of Section 176(4)(a) are not applicable and the validity of the election is in dispute, the Court after scrutiny and computation of the votes can pass appropriate orders. This is independent of Rule 69 of the Rules referred to above. 9. A Full Bench of this Court in the case of Radha Kishan v. Election Tribunal-cum-Sub Judge, Hisar has considered the relevant provisions. This is independent of Rule 69 of the Rules referred to above. 9. A Full Bench of this Court in the case of Radha Kishan v. Election Tribunal-cum-Sub Judge, Hisar has considered the relevant provisions. Specific note was taken of the expression "shall" occurring in Section 176(4)(b) of the Act and thereupon the Full Bench concluded as under: - The use of the word "shall" in our view is not without a purpose. The legislative purpose behind the provisions of Sub-section (4)(b) is to provide an expeditious disposal and relief to the candidate whose case falls within the limited scope of the grounds spelled out in the Section itself. To us it appears that the cases falling within the limited ambit and scope of Section 176(4)(b) and not falling under Sub-clause (a) of the same sub-section, it may not be necessary for the Court to hold a regular inquiry as postulated under the provisions of Sub-section 4(a) of the Act. The validity of the election is to be in dispute but only between two or more candidates. Upon being prima facie satisfied, it may be somewhat obligatory upon the Court of competent jurisdiction to order scrutiny and computation of votes recorded in favour of each candidate (and) upon passing such an order, the candidate who is found to have recorded the largest number of valid votes in his favour would be duly elected. The restricted and narrow scope of the cases falling under this category and application of these provisions thereto clearly indicate with definite clarity by the legislature in the language of these provisions. The opening words of the provisions of Sub-section (4)(b) indicate the exclusion of cases falling under Clause 4(a) and take within its ambit the cases of a very limited and only ground for computation and scrutiny of votes. If the complete procedure of holding an enquiry by filing the pleadings leading to onus based evidence, examination of number of witnesses and then hearing of lengthy arguments is to be adopted before appropriate orders are passed, it would frustrate the very object of this sub-section. Expeditious disposal of election matters so as to enable a successful candidate to utilize his complete tenure in terms of the statute would be the basic legislative object behind such provisions. This object alone can further the cause of the statute. Expeditious disposal of election matters so as to enable a successful candidate to utilize his complete tenure in terms of the statute would be the basic legislative object behind such provisions. This object alone can further the cause of the statute. Fine line of distinction between the expression "shall" and where shall be terminated as "may" must be clearly understood to avoid unnecessary impediments in disposal of such election petition. It also could not be contended that mere presentation of an application would compel the court to pass an order of recounting founded on computation and scrutiny of votes polled in favour of one candidates or the other automatically. 9. It has been authoritatively held by this Court that recounting of votes, cannot be directed on mere asking and in a routine manner. The recounting shall be made where there are specific averments on verification supported by unambiguous details in accordance with law and supported by the documents if any and at the same time, the applicants make out a prima facie case to the satisfaction of the Court. A reading of the election petition (Annexure P-1) shows the petition is vague and does not disclose any material particulars on the basis of which order for recounting of the votes without recording of any evidence can be made. 10. In view of the above, the order, Annexure P-4 cannot be legally sustained and is hereby quashed. However, liberty is granted to respondent No. 1 to adduce evidence for making out a case for recount by producing material before respondent No. 2. 11. The writ petition stands disposed of accordingly.