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2016 DIGILAW 1626 (PNJ)

Balwinder Singh v. Shinder Pal

2016-06-07

HARI PAL VERMA

body2016
JUDGMENT : HARI PAL VERMA, J. Petitioner – Balwinder Singh has filed the present revision petition under Article 227 of the Constitution of India seeking setting aside of order dated 13.5.2016 (Annexure P-1) passed by the Election Tribunal, Moga, whereby recounting of votes polled for the post of Sarpanch of Gram Panchayat, Channuwala has been ordered. Briefly stated, the election for the post of Sarpanch of Gram Panchayat, Village Channuwala was held on 3.7.2013, wherein the petitioner as well as respondents no.1 to 4 were the contesting candidates. On counting of votes, the petitioner was declared elected, as he secured 615 votes. Accordingly, he was administered the oath of the office of Sarpanch. However, respondent no.1, who was not satisfied with the result of the election, filed an election petition under Section 76 and other enabling provisions of the Punjab State Election Commission Act, 1994 (for short ‘the Act’) and rules made thereunder i.e. the Punjab Panchayat Election Rules, 1994 (for short, “the Rules”), challenging the election of the petitioner to the office of Sarpanch levelling various allegations. It was alleged that the polling staff including respondent No.5 i.e. Sh.Punjab Singh, the Returning Officer, had connived with the petitioner and thereby, wrong result was declared in his favour. Learned Presiding Officer, Election Tribunal, Moga after hearing both the parties and appreciating the evidence on record, ordered recounting of votes vide order dated 13.5.2016, on the ground that firstly, the Presiding/Returning Officer had declared Shinder Pal, respondent no.1, as winner, on securing 679 votes, but after some time, gave him 563 votes and declared Balwinder Singh, petitioner, as winner. The Returning Officer also did not accept the request of respondent no.1 for re-counting of votes. It has also been observed in the impugned order that during cross-examination, the petitioner has admitted that he had obtained 499 votes and was not present at the time of counting of votes but his agent was present. Moreover, as per Form IX, the petitioner and his witness Sh. Varinder Singh have admitted in their cross-examination that the result of counting of votes was correct and if recounting is done, then both of them should not have any objection. Moreover, as per Form IX, the petitioner and his witness Sh. Varinder Singh have admitted in their cross-examination that the result of counting of votes was correct and if recounting is done, then both of them should not have any objection. Learned Tribunal has taken into consideration Form IX, which was filled by the Returning Officer in his own hand writing, wherein the votes polled in favour of the petitioner and respondents no.1 to 4 were shown as under:- 1. Shinder Pal 563 Votes 2. Kartar Singh 159 Votes 3. Bishan Singh 118 Votes 4. Boota Singh 137 Votes 5. Balwinder Singh 615 Votes Meaning thereby, a total of 1592 votes were polled, however, the Form IX was not signed by any of the candidates. Moreover, the Presiding/Returning Officer had produced photocopy of a plain paper, which is available on the file, wherein it has been written that 1542 votes have been polled. Thus, there was a difference of 50 votes in this paper. Therefore, in order to know the truth, learned Election Tribunal vide order dated 13.5.2016 has ordered recounting of votes in the presence of the petitioner as well as respondent no.1 and their respective counsel in the Court of the Tribunal itself on 27.5.2016. The said order dated 13.5.2016 has been made subject matter of challenge in this petition. Learned counsel for the petitioner has contended that the impugned order dated 13.5.2016 suffers from material irregularities and perversities, as the same has been passed in an arbitrary manner without applying the judicial mind. No cogent reasons have been given for ordering recounting of votes. The Tribunal has ignored the fact that when respondent no.1 was declared the winner earlier, why he did not ask for recounting of votes to the Presiding/Returning Officer at that time. The Election Tribunal has erred in ignoring the fact that secrecy of ballot papers cannot be permitted to be tinkered lightly and recounting can only be ordered if a case is made out on the basis of material facts pleaded which are duly supported by contemporaneous evidence justifying recounting. There is no evidence that there is any error in counting of votes and only bald allegations have been levelled. There is no evidence that there is any error in counting of votes and only bald allegations have been levelled. Learned counsel for the petitioner has relied upon judgments of this Court in the case of Nazar Singh v. Dhanna Singh 2000(3) RCR (Civil) 583 and Rakhi Kaur v. Gurmail Kaur & others 2006(1) PLJ 613 to contend that on the date of declaration of result, respondent no.1 has never raised any objection regarding the votes polled in favour of the petitioner. Moreover, when no procedural illegality has been committed, mere breach of Rule 33 (2) (c) of the Rules is no ground for ordering recounting of votes. I have heard learned counsel for the petitioner and given thoughtful consideration to the arguments raised on behalf of the petitioner. Rule 33 of the Rules reads as under:- “33. Counting of votes (Section 66):- (1) In a Sabha area where there is only one polling station, the Returning Officer shall follow the procedure set out in sub-rule (2) for the counting of votes and declaration of result for election to the Gram Panchayat. (2) The Presiding 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 agent to inspect the ballot-boxes and their seals to satisfy themselves that they are in order; (b) open the ballot box, after checking the mark or marks made on the box and the labels affixed, takes 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 is in the opinion of the Presiding Officer, are liable to be rejected but shall not allow them to handle those there 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 its rejection. A brief record shall be kept of the serial number of all the ballot-papers rejected. 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 its rejection. A brief record shall be kept of the serial number of all the ballot-papers rejected. (d) count the valid votes given in 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; and (e) after the counting of ballot-papers 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.” In the election petition filed by respondent no.1, it has been specifically pleaded that at one point of time, the petitioner had obtained 499 votes whereas respondent no.1 had obtained 679 votes and another candidate namely Boota Singh, respondent no.4 had obtained 200 votes and thereby respondent no.1 was declared the winner. However, after some time, the petitioner was declared elected. Respondent no.1 has specifically pleaded that votes having packets of 50 votes each and a separate packet of 16 votes were wrongly counted in the votes of the petitioner. However, these facts have not been specifically responded to by the petitioner in his reply submitted before the Tribunal. The relevant pleadings filed by respondent No.1 in the election petition read as under:- “That at the time of counting when the polling staff was counting the votes, it was decided by the staff that a packet (GUTTI) of 50 votes will be prepared and accordingly after the counting, the petitioner was said to have obtained 679 votes and the other candidates including the polling staff started congratulating the petitioner. But after some time, the respondent no.5 at once declared the respondent no.1 is the winner and has obtained 615 votes. The said declaration by the respondent no.5 is wrong, against facts and even against the actual polled votes to the petitioner and other respondents no. 1 to 4. As a matter of fact, the respondent no.1 obtained 499 votes only and the petitioner obtained 679 votes. The said declaration by the respondent no.5 is wrong, against facts and even against the actual polled votes to the petitioner and other respondents no. 1 to 4. As a matter of fact, the respondent no.1 obtained 499 votes only and the petitioner obtained 679 votes. It is further submitted here that respondent no.4 Boota Singh was said to have obtained 200 votes, whereby he has been shown to have obtained 137 votes. Even some other candidates, respondents were said to have obtained less votes, but at the time of declaration of the result, they were said to have obtained more votes. Similarly, candidates/respondents who were said to have obtained more votes, at the time counting they declared to have obtained less votes. The pith & substance of what has been stated above is that in collusion with the election staff-specially the respondent no.5, there was a complete dishonesty & biasness in the conduct & counting of the votes in the election. Rather with malafide intention & ulterior motive, votes having packets of 50 votes each and a separate packet of 16 votes were wrongly counted in the votes of respondent no.1. Also the votes which were in fact polled in favour of Boota Singh respondent no.4 were counted in the votes of respondent no.1. In the said election Boota Singh respondent no.4 get 200 votes, whereas he has declared to have obtained 179 votes. It is further submitted that respondent no.2 Kartar Singh obtained only 137 votes, but he was wrongly declared to have obtained 159 votes. In other words in order to declare respondent no.1 as a winning candidate, there was a crystal clear biasness on the part of election. As such the petitioner wants that there should be re-counting of votes of all the candidates i.e. the petitioner and the respondents nos.1 to 4 and the allegations of the petitioner will be fortified and it will come to the knowledge of this Hon'ble Tribunal how dishonest was the election staff and what was the extent of collusion between the election staff and the respondent no.1. As such the respondent no.1 adopted corrupt practice and election staff-especially respondent no.5 helped the respondent no.1 to get his illegal goal achieved.” This Court in the case of Gurtej Singh v. Darbara Singh 2000(2) RCR (Civil) 525 had an occasion to deal with such like situation, wherein there were definite pleadings with regard to improper rejection of ballot papers and this Court held that in order to do complete justice between the parties and to avoid unnecessary prolongation of petition, order of recount is an effective and expeditious solution to the election petition. The relevant observations made by this Court in Gurtej Singh v. Darbara Singh (supra) read as under:- “17. xx xx xx xx Applying the above said settled principles to the facts of the present case, the Hon'ble Apex Court has clearly enunciated the principle that to do complete and effectual justice between the parties where the Tribunal or Court is satisfied that making an order of recount would be imperatively necessary, the Court should pass such an order. I have already discussed that there have been definite pleadings and the evidence in support thereof to justify the order of recount. Furthermore, the learned counsel for the petitioner has specifically stated that this recount would put an end to this litigation and would help in its expeditious disposal because he would not press any other grounds in the event of recounting being not favourable to the election petitioner. In other words, to do finally complete justice between the parties and to avoid unnecessary prolongation of this petition, the order of recount is an effective and expeditious solution to the election petition. 18. It is also 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 paper and recount thereof. 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 paper and recount thereof. In the case of A. Neelalohithadasan Nadar (supra), the Hon'ble 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. Similarly, in Civil Revision No.4358 of 2007 Sandeep Vs. Election Tribunal & others decided on 24.9.2007 (MANU/PH/0344/2007), it was observed by this Court that recounting of votes should not be ordered as a matter of course unless certain conditions exist. The relevant observations read as under:- “12. Hon'ble the Supreme Court in Baldev Singh v. Shinder Pal Singh 2006(4) RCR (Civil) 891 held that the recount of votes should not be ordered as a matter of course unless certain conditions exist, which justified such an order. In Chandrika Prasad Yadav v. State of Bihar & ors. 2004 (6) SCC 331 Hon'ble the Supreme Court held that order of recount of votes can be passed when the following conditions are fulfilled, namely: (i) a prima facie case; (ii) pleading of material facts stated irregularities in counting of votes; (iii) a roving and fishing inquiry shall not be made while directing re-counting of votes; and (iv) an objection to the said effect has been taken recourse to. 13. The judgment of the Full Bench in Radha Kishan v. Election Tribunal-cum-Sub Judge, Hisar 1999(4) RCR (Civil) 79 was followed by this Court in Subhash Chand v. Ramesh Kumari & anr. 2006 (2) RCR (Civil) 777 14. In view of the pleadings of the parties and material placed on record by them and the law laid down by Hon'ble the Supreme Court as referred to above, it is found that a prima facie case is made out for recounting of votes. It is not a case where merely fishing enquiry was being made. In view of the pleadings of the parties and material placed on record by them and the law laid down by Hon'ble the Supreme Court as referred to above, it is found that a prima facie case is made out for recounting of votes. It is not a case where merely fishing enquiry was being made. The glaring facts which emerged from the evidence led by the parties, which confirmed the contention of the respondents are that even though the result was stated to be declared at 5.30 P.M. and the Presiding Officer had gone but still the statement made by the respondent that infact after declaration of the result at 5.30 P.M., the same was changed at about 10.00 P.M. was supported with the statement of the petitioner that the Presiding Officer remained there till 10.00 P.M. This Court is not opining finally on the issue as to whether the presiding Officer factually remained at the spot till 10.00 P.M. or as to whether the result was tampered with or not. However, still keeping these facts in view and also another fact that out of total 2329 votes polled substantial number of 185 votes were declared to be invalid, I find that no illegality has been committed by the Tribunal while directing the recounting of votes polled in the election. 15. Accordingly, the revision petition is dismissed. The Tribunal may now fix a date for recount of votes after intimating both the parties.” Accordingly, in view of the pleadings of the parties and the law laid down by this Court, as referred to above, this Court finds that challenge laid by respondent no.1 to the election of Sarpanch in question, is not a mere fishing enquiry, especially when respondent no.1 has specifically pleaded the number of votes allocated to different candidates and has tried to project the difference in the votes shown to have been polled in favour of different candidates, apart from the fact that a difference of 50 votes has been shown in the paper produced by the Presiding/Returning Officer and the said paper has also not been signed by him. In order to do complete and fair justice, this Court finds that the controversy in the case can be sorted out in case re-counting of votes is ordered. In order to do complete and fair justice, this Court finds that the controversy in the case can be sorted out in case re-counting of votes is ordered. The cases of Nazar Singh (supra) and Rakhi Kaur (supra) as cited by learned counsel for the petitioner are not attracted in the peculiar facts and circumstances of the case, as there are specific pleadings in the present case, wherein defect of votes polled and difference in counting of such votes have been pleaded. Therefore, this Court has no hesitation to hold that no illegality has been committed by the Tribunal while directing recounting of votes in the presence of both the parties. Accordingly, the revision petition is dismissed.