Punjab-Haryana High Court
Pardaman Singh vs State Of Punjab And Others on 30 May, 1996
Equivalent citations: AIR1996P&H280, (1996)114PLR396, AIR 1996 PUNJAB AND HARYANA 280, (1997) ILR 1 P&H 51, (1996) 3 RECCIVR 35, (1996) 114 PUN LR 396
Author: Ashok Bhan
Bench: Ashok Bhan
ORDER
1. Short point which falls for determination in this writ petition is that whether the prescribed authority in an election petition dispute can order recount of votes on a vague plea without framing an issue on an oral request without taking any evidence.
Evidence of the Gram Panchayut Lande-Ke, Tehisl Moga, District Faridkot, was held on 18-1-1993. Elections were held under the Punjab Gram Panchayat Act, 1952 (herein-
after referred to as 'the Act') Pardaman Singh, petitioner (hereinafter referred to as 'the petitioner') was declared elected having secured the highest number ot votes. Mohinder Singh, respondent No. 4 (hereinafter referred to as `respondent No. 4") obtained the second highest number of votes. Respondent No. 4 filed an election petition under Section 13-B of the Act on 29-1993, on the grourds on of commission of corrupt practices and polling of dead votes in favour of the petitioner. Prayer made was for setting aside the election of the petitioner and to hold a fresh election. No declaration under Section 13(00) of the Act that respondent No. 4 be declared elected in place of the petitioner was made in para 5-G of the election petition, Annexure P-l. Vaguely, it has been mentioned that a recount be ordered which would bring the truth on the surface. On 2-12-1993, respondent No. 4 made an oral request for recount of the votes and agreed to give up all other claims stated in the petition. Prescribed authority, after hearing the counsel for the parties and feeling satisfied that the request of respondent No. 4 was in the interest of justice for a fair election, ordered the recount of the votes. Block Development and Panchayat Officer, Moga, who was the Returning Officer was sent for alone with the relevant election record for 10-12-1993. The case could not be, taken up on the aforesaid date because the prescribed authority was busy with the visit of the Commissioner, Ferozepur Divi-sion, Ferozepur, to Moga. The case was adjourned for 14-12-1993. Block Development and Panchayat Officer produced the election record on 14-12-1993. In spite of the objections raised by the petitioner, rotes were recounted. Petitioner and his counsel refused to sign the proceedings of recount of votes. On a request made by the counsel for the petitioner, the case was adjourned for a further date. Petitioner moved an replication under Section 13-F of the Act, for transfer of the ekction petition to some other authority on which notice was issued by the Collector, Faridkot and further proceedings before the prescribed authority were stayed. Transfer application was finally dismissed by the Collector, Faridkot, on 22-2-1994. Respon-
dent No. 4 moved an application before the prescribed authority along with a certified copy of the order of the Collector to lake up the case and decide the same on merits. Election petition was taken up on that very day. Ex parte proceedings were ordered against the petitioner because neither he nor his counsel appeared. Impugned order, An-nexure P-2, setting aside the election of the elected candidate as a result of recount, declaring respondent No. 4 as elected in place of the petitioner was passed.
2. Petitioner had filed C. R. 763 of 1994 in this Court on the plea that the recount of the votes had been ordered without passing a written order. Revision petition came up for hearing on 28-2-1994. While issuing notice of motion for 19-4-1994, as an interim measure, it was ordered that the proceedings before the prescribed authority may go on but the final order be not passed. Petitioner produced this order before the prescribed authority in the evening but by that time, the prescribed authority had passed the impugned order, Annexure P-2. Petitioner filed an appeal along with an application for stay of the order, Annexure P-2. Petitioner prayed that charge of the office of Satpanch be not taken. Respondent No. 4 filed his reply claiming that he had already taken over the charge. In the light of conflicting claims of the parties, status quo was ordered to be maintained during the pendency of the appeal. Appeal was ultimately dismissed on 1-2-1995 vide order, Annexure P-3, which has been impugned in this writ petition along with order, Annexure P-2.
3. Two other facts which need to be noticed are that the petitioner filed a civil suit for permanent injunction restraining respondent No. 4 from denying the title of the office of Sarpanch of Gram Panchayat, Lande-ke to the petitioner on the ground that the appellate Court had ordered the maintenance of status quo and that respondent No. 4 be further restrained from taking charge forcibly of the office of the Sarpanch. Along with the suit, an application" under Order 39, Rules I and 2, Code of Civil Procedure was filed for temporary injunction during the pendency of the suit. Application for temporary injunction was dismissed on 1-8-1994 (Annexure R-2), holding that prima facie case for granting injunction was not made out. Election could be challenged only by filing an election petition and the same could not be called in 'quest'on otherwise than in the manner provided under Section 13-B of the Act. Another fact noticed by the trial Court was that the petitioner had already filed an appeal and the petitioner could,' if he so desired, could get the interim order as prayed for in the suit from the appellate Court. Appeal against this order was dismissed on 30-1-1995 (Annexure R-3).
4. Petitioner also filed a election petition challenging the election of respondent No. 4 before the prescribed authority as he had been declared elected by the impugned order, Annexure P-2. Respondent No. 4 took a preliminary objection that the election petition was not maintainable as he had been declared elected on an election petition filed by him and the order passed by the prescribed authority declaring him elected could only be challenged by filing an appeal and the same could not be challenged by filing an election petition. Thereafter, petitioner did not pursue the election petition filed by him, which was ultimately dismissed for non-prosecution. These two facts have not been mentioned in the petition. Respondent No. 4 has taken a preliminary objection that non-disclosure of these facts amounts to concealment of material facts and the writ petition be dismissed on the ground of concealment of relevant and material facts from the Court.
5. Procedure for holding of elections, declaration of result, filing of an election petition, contents of an election petition, grounds on which election can be set aside and the grounds on which a defeated candidate can be given a declaration of having been duly elected, have been given in Chapter II-A of the Act, which in turn is akin to the provisions of the Representation of the People Act, 1961.
6. It has been repeatedly held by the Supreme Court of India as well as this Court that an order of recount cannot be passed on the mere asking of a party. There have to be proper pleadings making out the case for recount, framing of an issue and contem-
poraneous evidence to substantiate the plea of recount. It would suffice to refer to the latest judgment of the Supreme Court on this point in Shri Satyanarain Dudhani v. Uday Kumar Singh, AIR 1983 SC 367 (sic), where their Lordships reiterated (he principles laid down in the earlier judgments of the Supreme Court that 'secrecy of the ballot' could not be permitted to be tinkered lightly and a recount can only be ordered on a prima facte case made out on the basis of material facts pleaded and duly supported by evidence justifying a recount. It was held:--
"Thus in the instant case only three line objection application was filed before the Returning Officer. No objection whatsoever was raised during the counting and no irregularity or illegality was brought to the notice of the Returning Officer. Even the material in the election petition, has been pleaded with the objection of having a fishing enquiry and it did not inspire confidence. A cryptic application claiming recount made by that contestant before the Returning Officer. No details of any kind was moved by the petitioner. Not even a single instance showing any irregularity or illegality in the counting was brought to the notice of the Returning Officer. Held, when there was no contemporaneous evidence to show any irregularity or illegality in the counting, ordinarily it would not be proper to order recount on the basis of bare allegations in the election petition."
7. This case was under the Representation of the People Act, 1961. A Division Bench of this Court in Bharat Singh v. Dalip Singh, (1996-1) 112 PLR 70, while dealing with the Haryana Panchayati Raj Act, 1994, and the Punjab State Election Commission Act, 1994, held that in an election dispute relating to Gram Panchayat, a recount cannot be ordered as a matter of course and the same can only be ordered on the basis of material facts stated in the petition duly supported by evidence making out a prima facie case for recount. Similar was the view taken by a learned single Judge of this Court in Mithu Singh v. Ranjit Singh, (1996-1) 112'PLR 217.
In the present case, recount has been 1 ordered on vague pleadings, without framing' an issue, on an oral request without taking any evidence whatsoever, holding that the same would he in the interest of justice and to maintain 'purity of the election' as it would do. no harm to anybody, thereby making a mockery of the basit; principles of lav. as laid down by Hon'ble the Supreme Court and this Court relating to the plea of recount of votes in an election dispute. Orders, Annexures P-2 and P-3. being against the provisions of the Act and the law laid down by the Supreme Court of India and this Court are unsustainable in law and deserve to be quashed.
8. Relying upon the observations of their Lordships in A. Neelalohithadasan Nadar v. George Mascrene, 1994 Supp (2) SCC 619 : (1994 AIR SCW 2198) that the principle of 'secrecy' of ballot has to give way to the principle of 'purity of elections', counsel appearing for respondent No. 4 contended that the earlier judgments of the Supreme Court were keeping in view the principle of 'Secrecy of the ballot' whereas in the present case, recount has already taken place which has conclusively proved that respondent . No. 4 obtained the highest number of votes and, therefore, to maintain the 'purity of the. election', the orders passed by the authorities below be not set aside; that the principle of 'secrecy of the ballot' has to yield to the principle of 'purity of elections'.
9. We do not find substance in this submission. In A. Neelalohithadasan Nadar's case (1994 AIR SCW 2198} (supra), their Lordships found that there were pleadings for recount, an issue had been framed and the parties had led their evidence. Affirming the findings recorded by the High Court that the case for recount had been made, their Lordships observed that the principle of 'secrecy of the ballot' has to give way to the principle of 'purity of the elections'. The facts in A. Neelalohithadasan Nadar's case (1994 AIR SCW 2198) (supra) are distinguishable and the ratio of the law laid down in the above case would not be applicable to the facts of the present case where there are practically no pleadings and evidence and even a prayer for declaration that the election petitioner be declared elected after recount under Section 13(oo) of the Act has not been made. It has not been held in A. Neelalohrthadasan Nadar's case (supra) that the end result can justify the recount. Justification has to precede the order of recount and cannot be offered as a defence after the recount has taken place as held by their Lordships in P.K.K. Shamsudeen v. K.A.M. Mappillai Mohindeen, AIR 1989 SC 640, as under:--
"The settled position of law is that the justification for an order for examination of ballot papers and recount of votes is not to be derived from hind sight and by the result of the recount of votes. On the contrary, the justification for an order of recount of votes should be provided by the material placed by an election petitioner on the threshold before an order for recount of votes is actually made. The reason for this salutary rule is that the preservation of the secrecy of the ballot is a sacrosanct principle which cannot be lightly or hastily broken unless there is a prima facie genuine need for it. The right of a defeated candidate to assail the validity of an election result and seek recounting of votes has to be subject to the basic principle that the secrecy of the ballot is sacrosanct in a democracy and hence unless the affected candidate is able to allege and substantiate in acceptable measure by means of evidence that a prima facie case of a high degree of probability existed for the recount of votes being ordered by the Election Tribunal in the interests of justice, a Tribunal or Court should not order the recount of votes."
10. We shall now take up the preliminary objection regarding non-disclosure of fact of filing a suit and the election petition by the petitioner. Relying upon Chiranji Lal v. Financial Commissioner Haryana, (1978) 80 PLR 582: (AIR 1978 Punj & Har 326) (FB). The Chancellor v. Dr. Bijayananda Kar and Dr. Prafulla Kumar Mohapatra v. Dr. Bijayananda Kar, AIR 1994 SC 579, M/s. Kaka Ram Paras Ram v. State of Punjab, (1996-1) 112 PLR 691, Pawan Kumar v. State of Haryana, 1994 (5) SLR 73, Karan Singh v. State of Haryana, (1996-1) 112 PLR 686 and Chint Ram Ram Chand v. State of Punjab, 1996 (1) Rev LR 262, it was contended by the counsel appearing for respondent No. 4 that the non-disclosure of facts regarding filing of -
suit and an election petition is fatal and the writ petition deserves to be dismissed for concealment of material facts. It was argued that had these facts been disclosed, then the Court may not have entertained in writ petition.
11. It is true that these facts have not because disclosed by the petitioner but non-disclosure of these facts does not make any difference or alter the decision. In the written statements filed in the suit as well as in the election petition, respondent No. 4 had taken the objection that the same were not maintainable and the order of the prescribed authority could only be challenged by filing an appeal. Petitioner had filed the suit that respondent No. 4 be restrained from taking charge of the office of Sarpanch because of the interim order of maintenance of status quo passed by the appellate Court. Civil Court, while denying the injunction, held that the election could only be challenged by filing an election petition as prescribed under the Act and no suit was maintainable. Similarly, in the election petition, on an objection taken by respondent No. 4 that it was not maintainable, petitioner did not pursue that remedy. We concur with the reasoning recorded by the Court in the civil suit as well as the preliminary objection which had been taken by respondent No. 4 in the election petition filed by the petitioner challenging his election as Sarpanch. Neither the suit nor the election petition was maintainable in the given facts and circumstances of the case. The only course open to the petitioner was to file an appeal against the order passed by the prescribed authority, which the petitioner has done. Even if the petitioner had disclosed.-these facts, it would not have in any way altered the decision of this Court.
12. We are also dissuaded to accept the contention of the counsel for respondent No. 4 by the fact that the petitioner had filed CWP 13838 of 1994 challenging the election of respondent No. 4 as Sarpanch and, thereafter as a member of the Panchayat Samiti to which office he had been elected, he having been declared a duty elected Sarpanch. Respondent No. 4 had taken similar preliminary objection regarding non-disclosure of material facts which was not accepted and the petition was disposed of by passing the following interim order:--
"After hearing the counsel for the parties, we are of the opinion that ends of justice would be met if we direct the learned Disirict Judge, Faridkot, to dispose of the civil appeal, No. nil dated March 7, 1994, Par-daman Singh S/o Kehar Singh v. Mohinder Singh S/o Jhirmai Singh and nine others, on January 30, 1995. We are told that the said appeal has been fixed for January 30, 1995. The learned District Judge should take every step that the appeal is disposed of on the aforesaid date and in the event of any difficulty beyond his control, the same may be disposed of within 15 days therefrom. The parties before us agree that they will remain present before the District Judge for arguments in the appeal on January, 30, 1995. In view of the above order, Mr. Mattewal, the learned counsel, does not press the writ petition at this stage. Dismissed."
13. Parties appeared before the appellate authority in pursuance to the above cited directions. After the appeal was decided, present petition has been filed challenging the order passed by the prescribed authority as well as the appellate authority. Petitioner, under these circumstances; may have bona fide belief that these facts were neither necessary nor material to be mentioned in the present writ petition.
14. Another disturbing fact which we notice is that respondent No. 4 has been declared elected without even a prayer in terms of Section 13(oo) of the Act for declaring him elected in place of the elected candidate. We fail to understand how the prescribed authority could declare respondent No. 4 elected without a case having been set out to that effect in the pleadings.
15. For the reasons stated above, we accept this petition with costs and set aside the impugned orders, Annexures P-2 and P-3, and remand the case to the prescribed authority, respondent No. 3, for deciding the election petition in accordance with law.
Parties, through their counsel, are directed to appear before respondent No. 3 (prescribed authority) on July 10, 19S6. Costs are determined at Rs. 1,000/- payable by respondent No. 4.
16. Order accordingly.