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2017 DIGILAW 1719 (PNJ)

Veerpal Kaur v. Election Tribunal Mansa

2017-08-03

RAJ MOHAN SINGH

body2017
JUDGMENT Mr. Raj Mohan Singh, J.: - Petitioner has assailed the order dated 06.03.2017 passed by respondent No.1-Election Tribunal, Mansa-cum-Deputy Commissioner, Mansa titled ‘Maya Kaur v. Veerpal Kaur and others’ whereby order of re-counting of votes was made. 2. Brief facts are that respondent No.2 filed an election petition before respondent No.1 with the allegations that the election to the post of Sarpanch of the Gram Panchayat, Village Bappina took place on 03.07.2013 in which re-counting of votes was done on the same date and result was declared. Petitioner and respondent No.2 contested for the post of Sarpanch in the aforesaid election. Total 1480 votes were polled in the said election and out of which respondent No.2 was shown to have got 715 votes, whereas petitioner was shown to have got 731 votes. 34 votes were declared to be cancelled. It was alleged by respondent No.2 that in fact, she had won the election with a difference of 110 votes, but the election officers wrongly declared the petitioner as elected candidate with a difference of 16 votes. Firstly, the election officers had declared respondent No.2 elected with a margin of 94 votes on the basis of counting and later respondent No.2 was declared elected with a margin of 60 votes. But thereafter, they wrongly declared the petitioner as elected with a margin of 16 votes without any reasons. With these background the election petition was filed. 3. After completion of evidence of both the parties, respondent No.1 vide order dated 17.09.2014 passed the order of recounting of votes of Sarpanch of the Gram Panchayat between the parties. Para 16 of the said order is reproduced hereasunder:- “16. After hearing the arguments of both the counsel for the parties and perusal of record on case file and the evidence lead by both the parties the issue no.1 to 3 are decide in favour of petitioner. Although, there is difference of 16 votes between the petitioner and respondent about the result, but the rejected votes are 34. The respondent no.1 has not rebutted the plea of petitioner that she was earlier she was declared with margin on 94 votes and then with 60 votes and lateron respondent no.1 was declared winner with margin of 16 votes, is also not rebutted by the respondent no.1 in evidence. The respondent no.1 has not rebutted the plea of petitioner that she was earlier she was declared with margin on 94 votes and then with 60 votes and lateron respondent no.1 was declared winner with margin of 16 votes, is also not rebutted by the respondent no.1 in evidence. Therefore keeping in view the principle of natural justice, to satisfy the petitioner, there is no option to conduct the recounting of votes and by conducting the recounting the correct public opinion would also be known. Therefore it is ordered that keeping in view the prayer of the petitioner in this case recounting of votes of Sarpanch of Gram Panchayat, Bappiana, between petitioner and respondent No.1, held on 03.07.2014 shall be conducted on 26.09.2014.” 4. Feeling aggrieved against the aforesaid order, the petitioner filed Civil Revision No.6534 of 2014 before this Court. Vide order dated 24.09.2016 recounting of votes was stayed as an interim measure. Ultimately this Court after noticing the observation of respondent No.1 recorded in para 16 of order dated 17.09.2014, recorded that no reasons were given in the order for recounting of votes. The order of recounting of votes could not be made at the fag end for the sake and satisfaction of the petitioner as it would have the effect of roving and fishing inquiry. By relying upon ratio of Gursewak Singh v. Avtar Singh and others, 2006(2) RCR (Civil) 463, the order dated 17.09.2014 was set aside by this Court vide order dated 15.03.2016. Respondent No.1- Election Tribunal was directed to decide the election petition in accordance with law as the same had already reached the stage of arguments and not in the manner and mode as were adopted by respondent No.1. Obviously the reference was to the process of the recounting of votes as adopted by respondent No.1. 5. The matter was ultimately considered by respondent No.1, who passed order dated 06.03.2017 for recounting of votes on the ground that there was difference of 16 votes whereas 34 votes were cancelled. No reasons for cancellation of votes were given on the votes so cancelled by the Presiding Officer at the time of counting of the votes. Since no reasons were assigned for cancellation of votes, the process of counting was viewed with suspicion. No reasons for cancellation of votes were given on the votes so cancelled by the Presiding Officer at the time of counting of the votes. Since no reasons were assigned for cancellation of votes, the process of counting was viewed with suspicion. It was also noticed that at the time of counting of votes, both the candidates were not present, rather their agents were present. Respondent No.1 ultimately ordered for recounting of votes by way of computation and scrutiny vide order dated 06.03.2017. 6. Learned counsel for the petitioner submitted that the grounds on which the recounting of votes was ordered on second time by respondent No.1 were very much available to respondent No.2 before this Court. Taking cognizance of some facts and grounds which were available at the time of earlier decision by this Court is barred by constructive res judicata and the impugned order rather runs contrary to the earlier order dated 15.03.2016 passed by this Court in Civil Revision No.6534 of 2014, wherein it was specifically recorded that the order of recounting of votes was against the ratio desedendi of Gursewak Singh’s case (supra) and the Election Tribunal/respondent No.1 was specifically directed to decide the election petition in accordance with law as it had already reached the stage of arguments and not in the manner and mode as were adopted by respondent No.1. The obvious reason was referable to order of recount earlier made by respondent No.1. 7. Learned counsel for respondent No.2 by referring to Rule 33 of Punjab Panchayat Election Rules, 1994 contended that the Presiding Officer was bound to allow the candidates and their agents to inspect all ballot papers which in the opinion of the Presiding Officer were to be rejected. The Presiding Officer was required to make endorsement of word ‘rejected’ on the said rejected ballot papers. According to learned counsel in the earlier order of recounting of votes, no reasons were recorded. The candidates were not present at the time of counting of votes, therefore, the quashing order of recounting of votes vide order dated 15.03.2016 cannot be reconsidered. 8. I have heard learned counsel for the parties. 9. In my considered opinion, the order dated 15.03.2016 passed by this Court in Civil Revision No.6534 of 2014 has virtually sealed the fate of any further recounting of votes. 8. I have heard learned counsel for the parties. 9. In my considered opinion, the order dated 15.03.2016 passed by this Court in Civil Revision No.6534 of 2014 has virtually sealed the fate of any further recounting of votes. The impugned order and the grounds taken for passing further order was barred on account of constructive res judicata as these very pleas were available at the time when the aforesaid revision petition was decided by this Court, wherein it was recorded that no roving and fishing inquiry was permissible as per ratio desedendi as culled out by the Hon’ble Apex Court in Gursewak Singh’s case (supra). 10. The Tribunal could not have passed the order for the satisfaction of the election petitioner. While parting with the order, it was specifically recorded by this Court by directing the Election Tribunal that the election petition had already reached the stage of arguments and the petition be decided in accordance with law and not in the mode and manner as has been adopted by the Election Tribunal. The use of words ‘manner’ and ‘mode’ in the earlier order dated 15.03.2016 were referable to the order of recounting of votes passed by the Election Tribunal at the very fag end of the election petition. 11. In view of above, I deem it appropriate to allow this revision petition. Consequently, the impugned order dated 06.03.2017 is set aside. The Election Tribunal shall decide the election petition on merits in accordance with law.