Punjab-Haryana High Court
Gurnam Bindra Singh vs Kulwant Singh And Others on 10 September, 2010
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
FAO No.5567 of 2009 -1-
******
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO No.5567 of 2009
Date of decision:10.09.2010.
Gurnam Bindra Singh ...Appellant
Versus
Kulwant Singh and others ...Respondents
CORAM: HON'BLE MR. JUSTICE RAKESH KUMAR JAIN
Present: Mr. Bhoop Singh, Advocate,
for the appellant.
Mr. Kanwaljit Singh, Senior Advocate, with
Mr. H.S.Sethi, Advocate, for respondent No.1.
Mr. R.L.Gupta, Addl. Advocate General, Punjab,
for respondent No.2 to 6.
*****
RAKESH KUMAR JAIN, J.
This case has witnessed a see-saw battle in Court of two political aspirants as various petitions have been filed in order to grab the power after the election was over. Gurnam Bindra Singh (appellant) and Kulwant Singh (respondent No.1) were pitted against each other in the election for the post of Municipal Councillor from ward No.15, SAS Nagar, Mohali which was held on 30.07.2006 under the provisions of the Punjab State Election Commission Act, 1994 [for short "the Act"]. Ward No.15 comprises of three booths i.e. booth Nos.47, 48 and 49. The appellant polled 290, 351 and 517 votes in booth Nos.47, 48 and 49 respectively, total 1158 votes, whereas respondent No.1 polled 425, 392 and 289 in booth Nos.47, 48 and 49 respectively, total 1106 votes and 26, 54 and 5 votes in booth Nos.47, 48 and 49 respectively, total 85 votes FAO No.5567 of 2009 -2- ****** were cancelled. The appellant was declared as elected by a margin of 52 votes as Municipal Councillor from ward No.15 of the Municipal Council, SAS Nagar, Mohali. The respondent No.1 challenged the election of appellant by way of Election Petition dated 29.08.2006 filed under Section 76 of the Act. When the case was listed before the Election Tribunal on 17.04.2007, respondent No.1 filed an application for summoning the election record including the cancelled/rejected votes in all the aforesaid three booths. The Election Tribunal ordered for summoning of record and adjourned the case to 24.04.2007. The appellant came to know on 18.04.2007 from the news reports appearing in the "Chandigarh Tribune"and the "HT Chandigarh Live" that the Election Tribunal/Deputy Commissioner had ordered for re-counting of votes on 24.04.2007. In utter panic, the appellant filed CWP No.5874 of 2007 titled as 'Gurnam Bindra Singh vs. State of Punjab and others' seeking quashing of Annexure P-7 and Annexure P-8 therein, namely, the news paper reports as per which re-counting was ordered to be held on 24.04.2007 in respect of the votes of all the aforesaid three booths of ward No.15 and in the alternative, in the nature of prohibition for staying the order of re- counting. Initial order in the said Civil Writ Petition was passed on 23.04.2007, which reads as under: -
"Notice of motion for April 26, 2007, accepted by Mr. Vivek Sood, Advocate, on behalf of respondent No.4.
Copy of Order dated April 17, 2007 where under recount has been ordered for tomorrow, has been delivered to the learned counsel for the petitioner today in Court.
In the meanwhile, proceedings for recount which are scheduled for April 24, 2007 at 2.00 P.M. shall continue but shall be subject to any order passed in this petition. However, in the event of recount going against the petitioner, no FAO No.5567 of 2009 -3- ****** further order shall be passed by the Election Tribunal as a result of the said recount.
Copy of this order be given dasti under the signatures of the Special Secretary of this Bench."
On the next date, i.e. 24.04.2007, the above said Writ Petition was withdrawn by the appellant with the following order: -
"This case came up yesterday. A copy of order dated April 17, 2007 was delivered by the learned counsel for respondent No.4 to the learned counsel for the petitioner.
Today, the learned counsel for the petitioner has argued that after reading the order dated April 17, 2007, it has been discovered that as a matter of fact no recount was ordered. The confusion resulted on account of the fact that no one bothered to read the order, which was in illegible Punjabi. Therefore, the counsel for the petitioner alleges that the recount has now been ordered on the basis of the order that was passed by this Bench yesterday.
Learned counsel submits that the relief he had sought was on the basis of press reports (Annexures P-7 and P-8).
Be that as it may, since no recount has been ordered, the petitioner wishes to withdraw this petition.
The prayer is allowed. The petition is dismissed as withdrawn with liberty to file a fresh petition at a later stage on the same or fresh cause of action.
Copy of this order be given Dasti under the signatures of the Special Secretary of this Bench."FAO No.5567 of 2009 -4-
****** After the aforesaid Writ Petition was over, the appellant filed Civil Revision No.2449 of 2007 dated 05.05.2007 under Article 227 of the Constitution of India for transfer of the election petition to any other Election Tribunal in the State of Punjab or Haryana. The said revision petition came up for preliminary hearing on 07.05.2007 in which following order was passed by this Court: -
"Notice of motion for 20.08.2007. Meanwhile, passing of the final order is stayed.
Dasti on payment."
The aforesaid interim order was allegedly disobeyed by the Election Tribunal, consequently the appellant filed COCP No.777 of 2007 under Section 12 of the Contempt of Courts Act, 1971 in which, vide order dated 31.05.2007, it was observed by the learned Single Bench of this Court that "therefore, I am satisfied that prima facie, the allegations, disclose commission of a criminal contempt within the meaning of Section 2(c) of the Contempt of Courts Act, 1971 and, therefore, I hereby take suo- motu notice of the contempt. Accordingly, I order that the present petition be treated as a criminal contempt petition. The papers of the present case be placed before the Hon'ble Chief Justice, for placing it before the appropriate Bench." After having treated the COCP No.777 of 2007 as criminal contempt, it was renumbered as Crl. O.C.P. No.8 of 2007 and was placed before the Division Bench of this Court. The Crl. O.C.P. No.8 of 2007 was ultimately disposed of by the Division Bench on 02.11.2007 with the following order: -
"Arguments heard.
The contemner H.I.S. Grewal who is at present the Deputy Commissioner, S.A.S. Nagar, Mohali, in his affidavit filed in this Court dated 27.09.2007, has tendered an unconditional apology apart from narrating the whole incident as to what had happened on that FAO No.5567 of 2009 -5- ****** day.
After hearing the the arguments, going through the petition and averments of the affidavit of Sh. H.I.S. Grewal, Deputy Commissioner-cum-Election Tribunal, S.A.S. Nagar, Mohali, we think it in the fitness of things that the notice given for contempt be withdrawn and the apology of the officer as tendered in his affidavit, be accepted.
Petition is disposed of as such."
It is also pertinent to mention that Civil Revision No.2449 of 2007 was admitted on 20.08.2007 and was ordered to be heard with Civil Revision No.3220 of 2007. Following order was passed in Civil Revision No.2449 of 2007: -
"Counsel for the parties have agreed that this revision be heard with C.R. No.3220 of 2007, which has been filed by the petitioner against the order of recounting.
Admitted.
To be heard with C.R. No.3220 of 2007."
Ultimately on 04.08.2008, C.R. No.2449 of 2007 was rendered infructuous and following order was passed: -
"Learned counsel for the parties state that this petition has been rendered infructuous.
Disposed of accordingly."
On 08.05.2007, the Election Tribunal, despite the stay granted by this Court on 07.05.2007, passed the following order: -
"After having read the contents of the Election Petition, the reply of the respondent very carefully and giving very thoughtful consideration to the arguments advanced by the learned counsel for the petitioner and the respondent, I do not find FAO No.5567 of 2009 -6- ****** the reason as to why respondent No.1 is shying away from the recount. The hallmark of Parliamentary democracy is the ascertainment of will of the people which in this case can only be done through recount. In view of facts and circumstances set out supra in the interest of justice, equity and fair play it is imperatively essential that the votes polled for the election of Ward No.15, Municipal Council, SAS Nagar, be recounted.
The recounting took place at 3.30 PM today i.e. 08.05.2007 and was conducted under my direct supervision by Mrs. Navjot Kaur, PCS, AC (Grievances), Sh. P.S.Virk, District Development and Panchayat Officer and Sh. Hardip Singh, Election Tehsildar, Mohali. The result of the recounting has been put in a sealed cover in the sealed trunk in the treasury at Kharar."
The order dated 08.05.2007 of the Election Tribunal was challenged by the appellant by way of Civil Revision No.3220 of 2007 which was admitted on 02.07.2007 and further proceedings before the Election Tribunal were stayed. Ultimately, the aforesaid Civil Revision No.3220 of 2007 was allowed by a Single Bench of this Court with detailed order dated 27.08.2008. The relevant part of the order reads as under: -
"On consideration of the matter, I find force in the contention raised by the learned counsel for the petitioner. Para 6 of the Election Petition on which strong reliance has been placed would show that the allegations levelled by respondent No.4 were vague allegation without specific particulars. Neither the name of the Polling FAO No.5567 of 2009 -7- ****** Officer or team was mentioned, who was said to have illegally rejected and cancelled the votes as claimed by respondent No.4. There are allegations that the Polling Officer was won over by the petitioner herein. The allegations were required to be substantiated by summoning the witness and thereafter making a case for recount. The reading of the law referred to above, which has been relied upon by the petitioner as well as by respondent No.4 leads to only one conclusion that recount cannot be ordered on the merely asking of a party. There have to be a proper pleading making out a case for recount. In dealing with such allegations it is the responsibility of the Election Tribunal to maintain the secrecy of ballot papers. The conduct of the Election Tribunal in this case was also not above board. Even prior to ordering the recount the anticipated order was published in the newspapers even before the said order was passed on the judicial side, which compelled the petitioner to file writ petition in this Hon'ble Court. When the petitioner had moved an application for transfer of the case and the notice had been issued by this Court still the Election Tribunal proceeded to order recount in absence of the petitioner of his counsel.
Be that as it may, the impugned order cannot be sustained as respondent No.4 had failed to prima facie establish the case for recount as allegations were too general in nature required to be proved by evidence. Nothing has been placed FAO No.5567 of 2009 -8- ****** on record as to whether any written complaint was made by respondent No.4 before the Polling Officer immediately after the election. Even after filing of the Election Petition different dates were given and only when there was change of officer holding the post, decision was taken to order the recount. The reading of the order shows that much reliance has been placed on averments made in para 6 of the petition which has been reproduced above.
As already observed, the allegations lack the material particulars. It was incumbent upon the Election Tribunal to first prima facie satisfy itself on the material produced regarding truth of the allegations made for recount. The learned Tribunal even did not think it proper to summon the Polling Officer or other officials against whom serious allegations were made.
It may also be noticed that the learned Tribunal has taken the averments to be gospel truth without examining the officials. The learned Election Tribunal ordered the recount of observing that it see no reason why the petitioner was shying away from recount. In the present case, once the matter for transfer was pending before the Court, it was for the Election Tribunal to stay his hand and to wait the decision of this Court.
In any case, the order passed is contrary to the settled law that in absence of evidence to prove prima facie allegations the recount could not be ordered on the basis of vague allegations.FAO No.5567 of 2009 -9-
****** Thus, the impugned order cannot be sustained. Consequently, this revision is allowed. Order passed by the learned Election Tribunal is ordered to be set aside."
The appellant again filed Civil Revision No.5030 of 2009 challenging the order of the Election Tribunal dated 25.08.2009, which reads as under: -
"Case filed presented. Learned counsel of both the parties came present. The counsel for the petitioner requested that application dated 25.05.2009 of learned respondent stating therein that in view of the order dated 27.08.2008 passed in Civil Revision No.3220 of 2007 the election petition cannot proceed further, to which reply was filed on 05.06.2009. On submission of reply by the counsel for the petitioner and after hearing both the counsel of the parties and going through the written arguments of the counsel for the respondent and on going through the petition it was found that the counsel for the respondent challenged the order dated 08.05.2007 passed by election tribunal (Deputy Commissioner-cum- Election Tribunal) SAS Nagar by filing Civil Revision No.3220 of 2007 before Punjab and Haryana High Court. The Hon'ble High Court vide order dated 27.08.2008 set aside the order of Election Tribunal dated 08.05.2007. As far as the election petition is concerned, it can only be decided after calling for the evidence from the parties. As such the application of the respondent dated 25.05.2009 is hereby dismissed. The counsel for the petitioner is directed to produce FAO No.5567 of 2009 - 10 - ****** the evidence. The case be listed for petitioner's evidence on 04.09.2009."
In the above revision petition, notice of motion was issued on 03.09.2009 for 05.11.2009 and the proceedings before the Election Tribunal was stayed, however, an application i.e. CM No.22831-CII of 2009 filed at the instance of the appellant was listed and allowed for preponment of hearing of the revision petition and the main revision petition was withdrawn vide order dated 25.09.2009, which reads as under:
"CM No.22831-CII of 2009 CM is allowed. The hearing of the revision is preoponed to today.CR No.5030 of 2009
Dismissed as withdrawn."
Ultimately, in terms of the order dated 27.08.2008 passed by this Court in Civil Revision No.3220 of 2007, the Election Tribunal framed the issue "whether recount of votes for the election to the Municipal Council, Mohali for ward No.15 held on 30.07.2006 is warranted in the interest of equity, justice and fair play." The election petitioner (respondent No.1 herein) in order to prove his case examined the following witnesses: -
i) Shingara Singh as PW1 and tendered his affidavit as Ex.PW1/A,
ii) Tarsem Singh as PW2 and tendered his affidavit as Ex.PW2/A,
iii) Ram Parkash as PW3 and tendered his affidavit as Ex.PW3/A, and
iv) Kulwant Singh (election petitioner) as PW4 and tendered his affidavit as Ex.PW4/A. Out of the above, PW1 Shingara Singh was the counting agent at booth No.48, Tarsem Singh PW2 was counting agent at booth No.47 and Ram Parkash was counting agent at booth No.49. On the other hand, the appellant alone appeared as his own witness and tendered his affidavit FAO No.5567 of 2009 - 11 - ****** Ex.PW1/R. The learned Election Tribunal, vide impugned order dated 01.10.2009, allowed the election petition, ordered re-counting of votes and set aside the election of the appellant after observing thus: -
"After hearing the arguments of learned counsel for both the parties and on examination of the case file, it has been found that the counsel for the respondent has failed to disprove the evidence produced by the petitioner. The petitioner has also failed to produce any sold evidence proved the connivance of the polling staff with the respondent, thus, in view of equity and natural justice, in order to reach the right conclusion, it shall be lawful to hold recounting of votes in booth No.47, 48 and 49 of ward No.15 regarding which the counsel for the respondent also could not produce any sold evidence. Thus, it was ordered to recount the votes in this case and Tehsildar, SAS Nagar was directed by this Court to secure the election record/votes from the concerned Treasury Officer, Kharar. At this, the Tehsildar complied with the directions and obtained a sealed box from Treasury Officer, Kharar and produce the same. The seal of the box was broken in the presence of the counsel for both the parties and recounting of votes was got done in the presence of this court through Smt Navjot Kaur, PCS, Assistant Commissioner (Grievances), Sh. Amarbir Singh Sidhu, Secretary, Zila Parishad and Sh. Rajinder Oberoi, Tehsildar, SAS Nagar with the help of officials appointed for this purpose. As per the result declared by these officers out of total 2349 votes, Kulwant Singh -FAO No.5567 of 2009 - 12 -
****** petitioner obtained 1033 valid votes and Gurnam Singh respondent No.1 obtained 1008 valid votes while 308 votes were rejected. In this way, Kulwant Singh petitioner got 25 votes more than the votes of the respondent. The recounting sheet/result sheet has been signed by counsel for both the parties who have shown their agreement to the counting and no objection of any type has been raised by them on asking from which it is clear that they are satisfied with the counting and they do not want to say any further. Thus, the petition of the petitioner is accepted under the provisions of Section 87(C), Section 89(D)(iii) and Section 90(A) and the election of Sh. Gurnam Bindra Singh - respondent is declared to be illegal (void) and Sh. Kulwant Singh - petitioner is declared to have been lawfully elected from ward no.15, Municipal Council, Mohali."
Shri Bhoop Singh, learned counsel appearing on behalf of the appellant, while assailing the impugned order, has basically raised following two questions:
i) Whether recounting can be ordered on equity and natural justice or the election petitioner has to make out a prime facie case for recount on the basis of particulars averred in the election petition and the evidence led in that behalf.
ii) Whether the Election Tribunal can delegate its power of recount to a panel of officers appointed by the Election Tribunal who were not a part of the election process.
At this stage, Shri Kanwaljit Singh, learned Senior counsel appearing on behalf of respondent No.1, has also raised a question to the FAO No.5567 of 2009 - 13 - ****** effect that "whether the appellant is estopped to challenge the impugned order after recording his satisfaction in writing to the re-count."
I would deal all the three questions raised by both learned counsel for the parties on the basis of pleadings, evidence, provisions of law and the judgments cited by them.
In respect to the first point, learned counsel for the appellant has submitted that as per Rule 88 of the Punjab Municipal Election Rules, 1994 [for short "the Rules"], the election petitioner is required to set forth in the petition full particulars of any material irregularities which he alleges, including as full a statement as possible with regard to the commission of each such irregularity and in absence of the details of the particulars, no relief can be granted to the election petitioner. It is submitted that the election petition is as vague as it could be as it is sans material particulars which could attract the attention of the Court for the purpose of ordering re-count of votes. In this regard, he has referred to the grounds taken in the election petition, which are reproduced as under: -
(i) That the counting agents of the petitioners in all the booths having been repeatedly telling the polling officer and his team that the votes are being illegally rejected/cancelled which should have been counted in favour of the petitioner and were not liable to be cancelled or rejected in favour of the petitioner.
(ii) That similarly, many-many votes which were liable to be rejected and could not be considered in favour of the respondent No.1 were illegally accepted and were counted for the respondent.
(iii) That though this objection and protest was raised by the counting agents again and again but since the polling officer/presiding officer had already been won over by the respondent No.1 in FAO No.5567 of 2009 - 14 - ****** such a manner that they refused to listen to any genuine and reasonable request of the petitioner and his agents. So much so that when a demand was made immediately that let the returning officer respondent No.5 be called and votes be re-checked, the same was rejected.
(iv) That the illegal rejection of votes which should have been validly considered for petitioner and similarly illegal acceptance of votes for the respondent No.1 which should have been rejected has made the difference of 80 votes illegally which has ultimately materially effected the election result. If these 80 votes would not have been illegally accepted or rejected as mentioned above, the difference of 52 votes by which the petitioner has lost would not have come and thus the illegal action on the part of the polling/counting officer in connivance of the respondent No.1 who had won them over has materially effected the result of this case."
Learned counsel for the appellant has further submitted that as per the aforesaid averments, the counting agent of the election petitioner/respondent No.1 alleged to have repeatedly asked the polling officer that the votes have been illegally rejected/cancelled which should have been counted in favour of the election petitioner and in that process many-many votes, which were even liable to be rejected, were counted/considered in favour of the appellant, but as the Returning Officer was won over by the appellant, he refused to accede to the genuine request of the election petitioner/respondent No.1 so much so the prayer for re- checking of the votes was rejected. It is also alleged that due to this malpractice, there occurred a difference of 80 votes and the difference of 52 votes, by which the election petitioner had lost the election, would not FAO No.5567 of 2009 - 15 - ****** have arisen. Thus basically, the question has been raised about the working of the election staff at the time of counting that they had illegally rejected the votes which should have been counted in favour of the election petitioner/respondent No.1 and accepted the rejected votes in favour of the appellant which should have been ignored and had also not taken into consideration the objection raised at that time by the counting agent of the election petitioner/respondent No.1. It is submitted that Section 80 of the Rules deals with counting of votes, whereas Section 82 deals with re-counting of votes. The election petitioner/respondent No.1 has not led any evidence much-less cogent except for producing his counting agents namely Shingara Singh (PW1), Tarsem Singh (PW2) and Ram Parkash (PW3). The learned Election Tribunal had also found that there is no cogent evidence led by the election petitioner for the purpose of proving a prima facie case for re-count, yet re-counting has been ordered on the basis of equity and the principle of natural justice. Learned counsel for the appellant has relied upon decisions of the Supreme Court in the cases of M. Chinnasamy vs. K.C.Palanisamy and others, AIR 2004 Supreme Court 541, P.K.K. Shamsudeen Vs. K.A.M. Mappillai Mohindeen and others, AIR 1989 Supreme Court 640, Ram Sukh Vs. Dinesh Aggarwal, 2009(4) R.C.R. (Civil) 585 (SC) and Sadhu Singh Vs. Darshan Singh and another, 2006(4) RCR (Civil) 55 (SC).
In reply, learned counsel for respondent No.1 has submitted that re-counting has been ordered by the learned Election Tribunal on the basis of evidence which does not call of any judicial review by this Court because after re-counting, respondent No.1 Kulwant Singh is found to have got 25 votes more than the appellant and the recounting result sheet was signed by the appellant after having been satisfied with the recounting.
I have heard both the learned counsel for the parties on the first point.
Before adverting to the submissions of the learned counsel for the parties, it would be relevant to refer to various provisions of law. The Rules have been framed in terms of the powers exercised under Section FAO No.5567 of 2009 - 16 - ****** 139 of the Act No.19 of 1994. The relevant provisions are contained in Rules 80, 82 and 88, which are reproduced as under: -
"80. Counting of votes. - (1) The ballot paper taken out of each ballot box shall be arranged in convenient bundles and scrutinized. (2) The Returning Officer shall reject a ballot paper,-
(a) if it bears any mark or writing by which the elector can be identified, or
(b) if it bears no mark at all or, to indicate the vote if it bears a mark elsewhere than on or near the symbol of one of the candidates on the face of the ballot paper, or
(c) if it bears a mark made otherwise than with the instrument supplied for the purpose, or
(d) if votes are given on it in favour of more than one candidate, or
(e) if the mark indicating the vote thereon is placed in such manner as to make it doubtful as to which candidate the vote has been given, or
(f) if it is a spurious ballot paper, or
(g) if it is so damaged or mutilated that its identity as a genuine ballot paper can not be established, or
(h) if it bears a serial number, or is of a design, different from the serial numbers, or as the case may be, the design of the ballot papers authorized for use at the particular polling station; or FAO No.5567 of 2009 - 17 - ******
(i) if it does not bear both the mark and the signature which it should have borne under the provisions of rule 52 :
Provided that where the Returning Officer is satisfied that any such defect as is specified in clause (h) or clause (i) has been caused by any mistake or failure on the part of a Presiding Officer or Polling Officer, the ballot paper shall not be rejected on the ground of such defect: Provided further that a ballot paper shall not be rejected merely on the ground that the mark indicating the vote is indistinct or is made more than once, if the intention that the vote shall be for a particular candidate clearly appears from the way the ballot paper is marked.
(3) Before rejecting any ballot paper under sub-rule (2), the Returning Officer allow each counting agent present a reasonable opportunity to inspect the ballot paper but shall not allow him to handle it or any other ballot paper. (4) The Returning Officer shall endorse on every ballot paper which he rejects the word "Rejected" and the grounds of rejection in abbreviated form either in his own hand or by means of a rubber stamp and shall initial such endorsement.
(5) All ballot papers rejected under this rule shall be bundled together.
(6) Every ballot paper which is not rejected under this rule shall be counted as one valid vote:
Provided that no cover containing
FAO No.5567 of 2009 - 18 -
******
tendered ballot papers shall be opened and no such ballot paper shall be counted. (7) After the counting of all ballot papers contained in all the ballot boxes used at a polling station has been completed, -
(a) the Returning Officer shall fill in and sign Part II Result of Counting in Form 33, and
(b) the Returning Officer shall make the entries in a result - sheet in Form 35 and announce the votes polled by each candidate."
"82. Recount of votes.- (1) A candidate or, in his absence, his election agent or any of his counting agents may apply in writing to the Returning Officer to recount the votes either wholly or in part stating the grounds on which he demands such recount.
(2) On such an application being made, the Returning Officer 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.
(3) Every decision of the Returning Officer under sub-rule (2) shall be in writing and contain the reasons therefor.
(4) If the Returning Officer decides under sub-
rule (2) to allow a recount of the votes either wholly or in part, he shall -
(a) do the recounting in accordance with rule 80, or rule 81, as the case may be;
(b) amend the result sheet in Form 35 to the
extent necessary after such recounting;
and
FAO No.5567 of 2009 - 19 -
******
(c) announce the amendments so made by
him.
(5) After the total number of votes polled by each candidate has been announced under sub-
rule (7) of rule 80, or sub-rule (5) of rule 81 or sub-rule (4) of this rule, the Returning Officer shall complete and sign the result sheet in Form 35 and no application for a 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 election agents present at the completion thereof have been given reasonable opportunity to exercise the right conferred by sub-rule (1) of this rule."
"88. Contents of the Petition. - (1) The petitioner shall set forth in the petition full particulars of any material irregularities or corrupt practices which he alleges, including as full a statement as possible with regard to the commission of each such irregularity or corrupt practice.
(2) Where any corrupt practice is alleged in an election petition, the petition shall be accompanied by an affidavit in Form 39 in support of the allegations of such corrupt practice and the particulars thereof."
Admittedly, there is an inbuilt mechanism for re-count of votes in Rule 82 of the Rules, but before that it would be pertinent to mention that whole case set up by the election petitioner is on the statements of his counting agents. Shingara Singh, who was counting agent of respondent No.1 at booth No.48, had filed two affidavits. In one FAO No.5567 of 2009 - 20 - ****** affidavit dated 18.12.2008, he had alleged that in case of re-checking, the difference of at least 250 votes would be found, whereas in his second affidavit dated 04.09.2009 it is alleged that the difference of votes would be more than 60 votes. The other two counting agents, namely, Tarsem Singh and Ram Parkash, who were counting agents of the respondent No.1 at booth Nos.47 and 49 respectively, had also alleged that applications were given by them, raising objection at the time of irregularities committed in the counting, to the Returning Officer, but the same were not taken. Interestingly, the alleged complaints/applications made to the Returning Officer at the counting booths have neither been made part of the record of the election petition nor the same have been produced before this Court. The question is thus whether the Court should believe the statement of the counting agents. At the time of counting of votes, the Returning Officer has the power to reject any ballot paper if it falls in any of the Clauses provided in Rule 80(2) of the Rules. However, before rejecting any vote, the Returning Officer is required to allow each counting agent present, an opportunity to inspect the ballot paper but he will not allow them to handle it. At the time of rejection, he would also mention the word "Rejected" and the grounds of rejection in abbreviated form either in his own hand or by means of a rubber stamp and shall initial the same. The ballot paper which is not rejected is then counted as one valid vote and rejected ballot papers have to be put in a separate bundle. After the process of counting of the votes polled and also the votes received by post under Rule 81 of the Rules is over, the Returning Officer shall announce the result, but after the counting is over, the candidate or his election agent or any of his counting agents could apply in writing to the Returning Officer to recount all the votes or some of them on the grounds mentioned in the application. The Returning Officer then shall have the jurisdiction to decide the matter and may allow the application in whole or in part or may reject it in toto and for that he has to give reason in writing and if he decides to recount the votes, then the recounting shall have to be done in accordance with Rules 80 and 81 of the Rules and after FAO No.5567 of 2009 - 21 - ****** recounting, the Returning Officer shall have to amend the result sheet accordingly. It is also pertinent to mention here that an agent, as defined under Rule 2(a) of the Rules, means any person appointed, in writing, by a candidate at an election to be his agent for the purpose of these rules which includes an election agent appointed under Rule 45, polling agent appointed under Rule 46 and a counting agent under Rule 76. In the present case, the election petitioner has relied upon the statement of counting agents who are allegedly present at the time when the votes were initially counted because he himself did not enter the premise where the counting had taken place. In the absence of complaints alleged to have been made to the Returning Officer by the counting agents or the election petitioner, it would be hard to believe that any objection was raised after the counting was over because in those objections, the counting agent of the election petitioner had to specifically mention the number of ballot papers which were allegedly polled in favour of the election petitioner, but were illegally rejected or the ballot papers which were worth rejection were illegally counted in favour of the appellant. Since there is no material with the election petitioner/respondent No.1, therefore, he chose not to produce on record any such application which is allegedly given by his counting agents to the Returning Officer at the time of making a prayer for recounting. The question then arises as to whether the Court should believe the ipsi dixit of the election petitioner for the purpose of ordering recounting or the recounting can be made only on the basis of material particulars which are prima facie proved. At this stage, it would be relevant to refer to Rule 88 of the Rules which provides that the election petitioner shall set forth in the petition full particulars of any material irregularities which he alleges including as full, a statement as possible, with regard to the commission of each such irregularity, but the averments made in the election petition are totally vague as has been held by this Court in CR No.3220 of 2007 with the following observations: -
"Nothing has been placed on record as to whether any written complaint was made by FAO No.5567 of 2009 - 22 - ****** respondent No.4 before the Polling Officer immediately after the election. Even after filing of the Election Petition different dates were given and only when there was change of officer holding the post, decision was taken to order the recount. The reading of the order shows that much reliance has been placed on averments made in para 6 of the petition which has been reproduced above. As already observed, the allegations lack the material particulars."
Learned counsel for the appellant has rightly submitted that besides examining all the three counting agents and election petitioner, no other evidence has been brought on record which could advance the case of the election petitioner as the particulars mentioned in the election petition remained the same about which a finding has already been recorded in the order dated 27.08.2008 passed in CR No.3220 of 2007. It is needless to mention here that in the case of Chandrika Prasad Yadav Vs. State of Bihar and others, AIR 2004 Supreme Court 2036 it has been held that "ordinarily, thus, it is expected that the statutory remedies provided for shall be availed of. If such an opportunity is availed of by the Election Petitioner, he has to state the reasons therefor. If no sufficient explanation is furnished by the Election Petitioner as to why such statutory remedy was not availed of, the Election Tribunal may consider the same as one of the factors for accepting or rejecting the prayer for recounting. An order of the prescribed authority passed in such application would render great assistance to the Election Tribunal in arriving at a decision as to whether a prima facie case for issuance of direction for recounting has been made out." Moreover, it has been observed that "the appellant in paragraph 11 of the election petition categorically stated that a request was made to the Returning Officer for recounting of the votes but he did not pay any heed thereto. In the aforementioned situation, it was obligatory on the part of the appellant to FAO No.5567 of 2009 - 23 - ****** prove the said fact. The averments made in the election petition clearly go to show that the appellant was aware of his right to file an appropriate application before the Returning Officer praying for a recounting. If the said application was not entertained, he should have proved the said fact by bringing on record the original application which was refused to be accepted or a copy thereof. He should have also adduced evidence in that behalf before the learned Munsif." In the case of Jitendra Bahadur Singh Vs. Krishna Behari and others, AIR 1970 Supreme Court 276, it has been held that "the basic requirement to be satisfied before an election tribunal to permit the inspection of ballot papers, are (1) that the petition for setting aside the election must contain an adequate statement of the material facts on which the petitioner relies in support of his case and (2) the tribunal must be prima facie satisfied that in order to decide the dispute and to do complete justice between the parties, inspection of the ballot papers is necessary. The material facts required to be stated are those facts which can be considered as materials supporting the allegations made. In other words, there must be such facts as to afford a basis for the allegations made in the petition. If an election petitioner in his election petition gives some figures as to the rejection of valid votes and acceptance of invalid votes, the same must not be considered as an adequate statement of material facts when the petitioner has not disclosed in the petition the basis on which he arrived at those figures. His bald assertion that he got those figures from the counting agents of the unsuccessful candidate cannot afford the necessary basis. It was also observed that "similarly, as to the rejection of the votes polled in favour of the unsuccessful candidate, under the rules before a vote is rejected, the agents of the candidates must be permitted to examine the concerned ballot paper. Therefore, it is quite easy for them to note down the serial number of the concerned ballot papers. Therefore, if the election petition is silent as to the inspection of the ballot papers or whether the counting agents had noted down the serial numbers of those ballot papers or whether those agents raised any objection relating to the validity of those FAO No.5567 of 2009 - 24 - ****** ballot papers; if so who those agents are and what are the serial numbers of the ballot papers to which each one of them advanced their objections; the material facts required to be stated, are not satisfied and hence, scrutiny of ballot papers should not be ordered. Similarly, in the case of Preet Mohinder Singh Vs. Kirpal Singh, 2001(2) R.C.R. (Civil) 647, the Supreme Court had observed that in absence of material facts and particulars which are sine qua non for letting on election petition proceed to trial, the Tribunal was not justified in ordering recount of votes. The other judgments cited by learned counsel for the appellant in the cases of Udey Chand Vs. Surat Singh and another, 2010(1) L.A.R. 178, Arun Kumar Bose Vs. Mohd. Furkan Ansari and others, AIR 1983 Supreme Court 1311 and M. Chinnasamy (supra) are all to the same effect.
Thus, from the aforesaid discussion, I have come to the conclusion on the first point that in order to succeed for the purpose of claiming recount of votes, the election petitioner is required to make categoric averments in the election petition and make out a prima facie case which can win the confidence of the Court for the purpose of ordering for recount of votes because in the case of Sadhu Singh (supra), the Supreme Court has held that the following factors are relevant for directing recounting of votes: -
"(1) prima facie case must be established; (2) material facts must be pleaded stating irregularities in counting of votes; (3) a roving and fishing inquiry shall not be directed by way of an order for recounting of votes;
(4) an objection to the said effect should be raised;
(5) secrecy of ballot papers should be maintained."
Thus, in any case, the recount cannot be ordered on the ground of equity and natural justice as held by the learned Election FAO No.5567 of 2009 - 25 - ****** Tribunal who has itself given a finding that the election petitioner has failed to lead cogent evidence for the purpose of recounting. Thus, the first point is decided in favour of the appellant and against the respondent No.1.
In respect of the second point, learned counsel for the appellant has submitted that the learned Election Tribunal had no jurisdiction to delegate its power of recount of votes to a panel of officers who are not part of the election process. He has drawn the attention of this Court to the finding recorded in the impugned order in which it is categorically mentioned that recounting was done by Navjot Kaur, PCS, Assistant Commissioner (Grievances), Amarbir Singh Sidhu, Secretary, Zila Parishad and Rajinder Oberoi, Tehsildar, SAS Nagar, meaning thereby the recount was not done by the learned Election Tribunal itself. In this regard, learned counsel for the appellant has relied upon the judgments rendered in the cases of Darshan Singh Vs. Deputy Commissioner-cum-President Officer, Election Tribunal and others, 2000(3) RCR (Civil) 271, Satnam Singh Vs. Kamaljeet Singh, 2000(4) RCR (Civil) 525 and Jalaur Singh Vs. Balwinder Singh and others, 2010 (2) R.C.R. (Civil) 519. As against this, learned counsel for the respondent has submitted that the recounting was done by the Election Tribunal with the assistance of the aforesaid officers and it is not correct to suggest that the Election Tribunal was not present at the time when the recounting was done, therefore, there is no error in the process having been adopted for the recounting.
In the case of Darshan Singh (supra), this Court had held that "it is a settled principle of law that the power vested in the Tribunal cannot be delegated. The power to order recount is not a power which can be delegated by the Tribunal to a 3rd person. Directing recount of votes is a serious order and it has to be passed and compliance recorded by due application of mind by the concerned Tribunal. The statutory provisions neither prescribe nor justify implied delegation on the principle of necessity or otherwise, if the counting of votes is irregular or FAO No.5567 of 2009 - 26 - ****** defective and the order of recounting is passed by the Tribunal it could finally result in setting aside the election of the elected candidates. Thus, recount has to be done by the Tribunal itself." In the case of Satnam Singh (supra), it was held that "the Election Tribunal itself did not carry out the re-counting but it was done by Additional Deputy Commissioner, Sangrur and that the Election Tribunal had no right to entrust this work of recounting to Additional Deputy Commissioner and the recounting being not done by the Election Tribunal itself or under its supervision, cannot be said to be legal. So far as the difference in counting of votes is concerned, I express no opinion because the second argument regarding recounting advanced by the learned counsel for the appellant, seems worth considering. On questioning the counsel for the respondents, he could not show that Additional Deputy Commissioner was a part of the Election Tribunal though the Presiding Officer of the Election Tribunal is Duty Commissioner. According to Section 73, the Election Tribunal is constituted by the State Government in consultation with the Election Commission, for each district or part thereof. Section 73(2) of the Act provides that the State Government shall, by notification, appoint an IAS or PCS or Class I officer of the State Government having adequate administrative, legal or magisterial experience, as the Presiding Officer of an Election Tribunal. Therefore, though the Deputy Commissioner was (admittedly) entrusted the powers of Election Tribunal, and the Additional Deputy Commissioner was not entrusted with the same, I find that it was not proper for the Election Tribunal to have entrusted the duty of recounting to a person outside the Tribunal." In the case of Jalaur Singh (supra), this Court had relied upon aforesaid two decisions of this Court in a case where there was a difference of only two votes but the recounting was not done by the learned Election Tribunal itself which was found to be illegal.
In the absence of any judgment to the contrary, I have no option but to accept the contention of learned counsel for the appellant to hold that there was apparent error of law in the recounting of votes by FAO No.5567 of 2009 - 27 - ****** which the election petitioner has been declared elected because the learned Election Tribunal had delegated its powers of recounting of votes to a panel of officers who were not a part of the election process. Thus, the second point raised by learned counsel for the appellant is also decided in favour of the appellant and against the respondent No1.
Insofar as the third point which has been raised by learned counsel for the respondent No.1 is concerned, that de-hors the aforesaid finding, the appellant had no right to file the present appeal as he is estopped by his own act and conduct because he had, after recount, recorded his satisfaction in writing and had also signed it, therefore, the present appeal by itself is not maintainable for the purpose of assailing the impugned order. In this regard, learned counsel for the respondent has relied upon the Division Bench judgment of this Court in the case of Karam Singh Vs. The Additional District Judge, Yamunanagar, 1997(2) P.L.R. 692 and a Single Bench judgment of this Court in the case of Chandan Singh Vs. Virender Raj and others, 2009(3) P.L.R. 207. On the contrary, learned counsel for the appellant has relied upon the case of P.K.K. Shamsudeen (supra).
I have heard both learned counsel for the parties on this point as well.
Insofar as the facts of this case are concerned, it may be clarified that there is a difference between consent for recounting and the satisfaction to the result of recounting. The appellant has not challenged his satisfaction to the result of recounting but has challenged the order of recounting itself. In the case of Karam Singh (supra), the recount was ordered on the basis of an agreement of recount between the parties. One party agreed to the offer of the other party for recount of votes but after losing the election in the recount, the other party filed the election petition in which this Court has held that the said party cannot be allowed to turn around and say that recount cannot be ordered on the basis of an agreement. Similarly, in the case of Chandan Singh (supra), this Court had held that consent by a party is sufficient for the purpose of passing of FAO No.5567 of 2009 - 28 - ****** an order for recount of votes and the said party shall be estopped from challenging the order of recount or the result thereof. But in the case of P.K.K. Shamsudeen (supra), the Supreme Court had held that "factors such as that the elected candidate had accepted the correctness of the recount, and that he had conceded his defeat and wanted a re-election to be held cannot constitute justifying materials in law for the initial order of recount of votes made by the Tribunal." Thus, the fallacy in the argument raised by learned counsel for the respondent No.1 is that there was no consent of the appellant for the purpose of recount, rather he has been challenging the order of recount every now and then. It is only after the recount was over that he had put his signatures on the declaration sheet as a matter of his satisfaction about recount but insofar as the order of recount is concerned, he has challenged the same on the issues which have been raised in this appeal and have been found to be in his favour. Thus, the third point which has been raised at the instance of learned counsel for respondent No.1 is not found to be in his favour, rather it goes in favour of the appellant.
The upshot of the above discussion results into success of the present appeal and the same is, thus, hereby allowed and as such, the impugned order is set aside with costs throughout.
September 10, 2010 (RAKESH KUMAR JAIN) vinod* JUDGE