Punjab-Haryana High Court
Gurtej Singh vs Darbara Singh And Ors. on 3 February, 2000
Equivalent citations: (2000)126PLR344
Author: Swatanter Kumar
Bench: Swatanter Kumar
JUDGMENT Swatanter Kumar, J.
1. The settled canons relating to election jurisprudence, where attach definite sanctity to election process and secrecy of ballots, there it signifies the necessity of free and fair elections. Free and fair election is the essence of any democratic process and its infringement would normally result interference by the competent forum prescribed under the statute or by the Court. Every system despite its importance in a society ameliorate with the passage of time and as a result of it being subjected to judicial review. Thus an implied obligation is placed on the Tribunal or the Court, as the case may be, to discernly adjudicate whether the illegalities, irregularities and corrupt practices committed during the election process have materially affected the result's the election. A provocative approach founded on pro-active analysis in contrast to the existing status of the events may not provide answer to such a problem. Without exceeding the limits of the prescribed jurisdiction the Court has to make a clear attempt to decipher the skullduggery attempt by a candidate to an election by undermining the concept of fair and free election. De-hors the acts of commission and omission of an elected candidate, which would render his election bad or be a ground for recount the Tribunal in the larger interests of the electorate as to ensure maintenance of sanctity of fair and free election during the entire election process.
2. The learned counsel appearing for the petitioner, while relying upon the case of N. Narayanan v. S. Semmalai, A.I.R. 1980 Supreme Court 206, contended that the learned Tribunal has transgressed the limit of its prescribed jurisdiction under sections 66 and 74 of the Punjab State Election Commission Act, 1994 in passing the impugned order directing re-count of votes and as such order suffers from palpable error calling for interference by this Court in exercise of its jurisdiction under Article 227 of the Constitution of India.
3. On the other hand, learned counsel for the respondents defended the order of the learned Tribunal primarily for the reason that the order of the Tribunal is in consonance and conformity with the provisions of sections 66 and 87 of the Act and Rule 33(c) of the Punjab Panchayat Election Rules, 1994. For this purpose, he relied upon the judgment of Hon'ble Apex Court in the case of A. Neelalohithadassan Nadar v. George Mascrene, 1994 Supp(2) Supreme Court Cases 619.
4. In order to examine the merits of the reasoning given by the learned counsel for the parties in 'support of their afore-noticed submissions, references to the basic facts would be inevitable. Shri Gurtej Singh and Shri Darbara Singh contested the elections for the post of Sarpanch of village Nial, Tehsil Samana, District Patiala, which was held on 21st June, 1998. Darbara Singh was allotted election symbol "Charda Suraj" while Gurtej Singh was allotted election symbol "Cycle". It is stated that there are 1273 registered voters in village Nial, out of which 1183 voters polled their votes on that date. After counting of votes, Darbara Singh was declared winner by 16 votes, but later on Presiding Officer for the Election of the Gram Panchayat, in collusion with others, in a most illegal and improper manner declared Gurtej Singh as winner by 72 votes. The Election Officer declared the result and prepared the return in accordance with the provision of Rule 37 of the Punjab Panchayat Election Rules, 1994 (hereinafter referred as the Rules). In these circumstances, Darbara Singh filed an election petition before the Election Tribunal, Patiala under Section 74 of the Punjab State Election Act, 1994 (hereinafter referred as the Act) praying for acceptance of his election petition with costs and for setting aside the election of Gurtej Singh and further praying that he be declared elected.
5. The election petition was contested by Gurtej Singh. The learned Tribunal, vide his order dated 4.5.1999 directed re-count of votes. This order was challenged by Gurtej Singh in F.A.O. No. 918 of 1999 in which the learned Single Judge of his Court held as under:-
"It is contended by the Ld. counsel appearing on behalf of the petitioner that the Presiding Officer Election Tribunal has ordered recount without recording any reason therefor. It is further contended that it is now well settled that recount cannot be ordered unless material for the same is provided that the case for recount is made out in the pleadings and substantiated by the evidence adduced by the parties to the petition. Counsel appearing on behalf of the respondent has fairly conceded that the order impugned cannot be sustained being a non-speaking one.
In view of the fair concession extended by the learned counsel appearing on behalf of respondent No. 1, namely, the election petitioner, order dated 4.5.1999 is set aside. The Presiding Officer Election Tribunal, Patiala is directed to decide the election petition in accordance of the parties before him."
6. The learned Tribunal, after remand of the case from the High Court, framed issues, heard the parties, examined the evidence documentary as well as oral brought on record and then passed a detailed speaking order on 7.12.1999 ordering re-count of votes to be held on 21st December, 1999 in the Court in the presence of the counsel for the parties. This order has been impugned in this revision by Shri Gurtej Singh.
7. It is commonly conceded position that if there are definite pleadings, parties have led evidence in support thereof and such matter would determine the controversy finally, the Tribunal would have the jurisdiction to pass an appropriate order in consonance with the provision of the Act and the Rules framed thereunder. Thus, reference to the basic pleadings of the parties, at the very outset, would be proper. The respondent-Darbara Singh in his election petition had stated as under:-
"3. That there are 1273 votes registered for village Nial out of which 1183 votes were polled. After counting the votes the petitioner was declared elected by 16 votes. But later on the the respondent No. 2 who was the Presiding Officer in connivance with respondents No. 1 & 3 without recounting the votes declared the respondent No. 1 as elected candidate. The respondents No. 2 and 3 conducted the election in most illegal and unlawful manner. The election of the respondent No. 1 to the office of Sarpanch Gram Panchayat village Nial held on 21.6.1998 is illegal, null and void, suffers from corrupt practice, against the principle of natural justice and the same is liable to be set aside on the following grounds:-
(i) that on 21.6.1998 after the election had been conducted and after counting the votes the petitioner was declared elected by 16 votes. In the meanwhile they switched off the light of the booth and the respondents No. 2 and 3 in connivance with respondent No. 1 declared the 72 votes invalid in absolutely illegal and unlawful manner and respondent No. 1 was shown declared elected.
(ii) That the respondents No. 2 and 3 were won over by corrupt practice by respondent No. 1 at village Nial on 21.6.1998 with the result that 72 votes polled in favour of the petitioner were declared invalid, illegally and unlawfully without adopting the procedure prescribed by the Act.
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(vi) That the respondents in connivance and conspiracy with each other have wrongly and illegally made the votes invalid later on just to help the respondent No. 1. The ballot papers polled in favour of the petitioner have wrongly been rejected. No ground as required by rule 33(i)(c) of Punjab Panchayat Election Rules, 1994 has been assigned. Even no statement in Form-IX as required under Rule 33(i)(3)(e) of said Rule was prepared.
(vii) That the petitioner immediately wrote a letter to Returning Officer-cum-S.D.M., Samana. Not only this many other villagers brought it to the notice of S.D.O. (Civil) Samana regarding the illegalities and corrupt practice caused in the election by the respondents and the wrong declaration of the result. Inspite of this, neither the learned S.D.O. (Civil) nor any other higher authority has taken action against the respondents."
8. Alongwith this election petition, the respondents had also filed an application for re-count of votes. The above averments, of course, were denied by the respondents: In support of these allegations, the respondents herein had examined witnesses Gurbachan Singh Lambardar of the Village, who in his statement reiterated the facts averred in the petition. Piara Singh, another witness, stated that relations of Gurtej Singh were on election duty and he declared that he will succeed under any circumstances. Gama Ram, who was also a candidate for the post of Panch in the Panchayat election had corroborated the statement of other witnesses. He specially stated that there was no order of recount passed in this presence and the light went off and thereafter Gurtej Singh was declared elected. Another witness Darbara Singh supported the case of the petitioner. Darbara Singh even gave the particulars of relationship between the Presiding Officer and Gurtej Singh.
9. Under Section 87 of the Act, the Tribunal has been vested with the power of making different kinds of orders under clauses (a), (b) and (c) of that section depending on the facts of the case. This restricted powers is enlarged under the provision of section 88 of the Act. Provision of section 89 of the Act, empowers the Tribunal to declare election of a candidate as void for the grounds, which have been incorporated in that section. Section 89 of the Act reads as under :-
89. Grounds for declaring election to be void.
(1) Subject to the provisions of sub-section (2), if the Election Tribunal is of the opinion,
(a) that on the date of his election, a returned candidate was not qualified, or was disqualified to be chosen to fill the seat under the Constitution of India or under this Act; or
(b) That any corrupt practice has been committed by a returned candidate or his election agent
(c) (sic)
(d) that the result of the election, is so far as it concerns a returned candidate, has been materially affected:-
10. The votes are to be counted in furtherance to the legislative mandate under section 66 of the Act, which reads as under :-
"66. Counting of Votes.- At every election where a poll is taken, votes shall be counted by or under the supervision and direction of the Returning Officer, and each contesting candidate, his election agent and his counting agents, shall have a right to be present at the time of counting."
11. Rule 33 of the Rules further the cause of provision of section 66 of the Act. It imposes an obligation upon the Presiding Officer to record reason for rejection of each vote in the event of same being rejected and then to count the votes and declare the result in forms 9 and 12 prescribed under the rules. Reference to rule 33, thus would be useful.
"Counting of votes (Section 66) - (1) In a Sabha area where there is only one polling Station, the Returning Officer shall follow the following procedure for the counting of votes and declaration of the 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 agents 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 on the box and the label fixed, take 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 or any other 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 numbers of all the ballot-papers rejected.
(d) count the valid votes given to 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.
(e) After the counting of ballot-paper 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."
12. The specific provisions of the Act and the rules framed there-under vest, undoubtedly, a power in the Tribunal to direct re-count of the votes. The fate of a free and fair election would ultimately depend upon proper and unimpeachable process of counting and adherence to the provisions of the Act in that regard. The mandate contained in Section 66 of the Act for counting of votes in presence of the contesting candidate or his agent under the supervision and direction of the returning officer is indicative of the legislative intent to make counting of votes beyond any reasonable suspicion. A definite obligation has been placed on the presiding officer that when he rejects a ballot paper, he has to record rejection on the ballot paper while giving in brief the grounds of such rejection. This further indicates the protection provided to enhance the sanctity of a vote or the protection available to a candidate against wrongful rejection of the votes polled in his or her favour. The proper result of an election is obviously dependent, amongst others, on the correct unbiased (sic) votes, then it is primarily for the Tribunal to consider the facts and circumstances of the case and where-ever the ingredients specified in the law governing the subject are specified the Tribunal would be well within its jurisdiction to order recount of votes.
Admittedly, there is no provision in the Act or the Rules framed there-under which would provide a clear indication and the circumstances in which the Tribunal can direct recount of votes. The Court would have to depend upon the general circumstances enunciated for taking a decision in this regard on the alike statutes.
13. In the clause (iii) of sub-section (1) of Section 89 a specific ground has been provided for declaring the election to be void if there is improper receipt in, refusal or rejection of any votes or the reception of any votes which is void. The election of returned candidate in these circumstances would be declared to be void. Read with clause (d) of Rule 33 ibid there is greater importance of this ground if the result of election is materially effected. After having adjudicated upon with regard to the grounds under Sections 88 and 89 a power is vested in the Tribunal for declaring the petitioner or any other candidate to have been duly elected. A complete procedural code with effective powers have been provided in the Act and the Rules framed there-under on the basis of which the Tribunal is required to exercise its jurisdiction. To aid to the powers of the Tribunal and the procedure prescribed under the Act and the Rules, Section 81 of Punjab State Election Commission Act brings the provisions of the Code of Civil Procedure for trial of election petition and further the proper and fair adjudication of the disputes arising in an election petition.
14. In the light of the above provisions it will be appropriate now to look at the pleadings of the petitioner in the election petition. From the above narrated paragraphs of the petition it is clear that an averment has been made that the petitioner was winning by 16 votes and was even announced as the winner candidate. But suddenly the light went off and without any appropriate order of recount, by rejecting unlawfully the valid votes, the petitioner was declared to have lost the election by 72 votes. In addition to this a specific ground has been taken for non-compliance of the statutory provisions contained in Rule 33 of the Rules. In addition to this, general facts have also been pleaded. Instances of corrupt practices and omissions and commissions during the course of recounting have also been stated in the petition. These allegations have been denied without any further details or particulars in the reply filed by the respondents. The reply on behalf of the presiding officer is equally vague.
15. The Tribunal framed issues after the order of remand by the High Court and the parties led evidence in detail. Number of witnesses were examined. As already noticed, these witnesses supported the case of the petitioner and had given definite particulars with regard to irregularities and illegalities committed during the counting of votes which have materially affected the result of the election where the election petitioner had claimed to be winning by 16 votes, is stated to have lost by 72 votes. These witnesses further supported the case of the petitioner that the relations of the other winning candidates were incharge as presiding officers, with a particular reference to Hardev Singh, who is stated to be working as a lecturer in Samana and the relations of the petitioners in this petition are married in that village and they manipulated the recounting of the votes in the manner afore-indicated. It must be noticed that Hardev Singh, the pre-siding officer of booth No. 79 appeared as a witness and stated that counting of the votes was completed somewhere at 7.30 P.M. and nobody had objected to the counting.
16. The allegations made in the petition cannot be said to be vague or indefinite. There were invalid votes, is a fact which is not disputed by any of the parties. 1183 votes were poled while according to the presiding officer also, 72 votes were cancelled. There 72 votes have a very material bearing on the result of the election and the winning candidate is stated to have polled 570 votes and the lost candidate 541 votes. If these votes, as alleged by the petitioners, have been rejected illegally and without compliance of the provisions of Rule 33 and those were the votes of the petitioner as claimed by him or even major part thereof, the election petitioner could be declared a winning candidate.
17. In view of the pleadings and the documentary and oral evidence produced by the election petitioner-respondent herein a definite case has been made out casting a shadow on the entire process of counting of votes. Even if much importance is not attached to the averments in relation to other allegations in the petition, violation of the provisions of Rule 33 by the presiding officer per se would be a ground for ordering recounting of the votes. Despite the fact that a definite ground has been taken and it was so stated in the evidence, presiding officer of the relevant booth Shri Hardev Singh has nowhere mentioned in his statement that he had rejected 72 votes upon compliance of the said provisions. The Court cannot be stated to have fallen in error in coming to the conclusion that the votes have been improperly rejected. Compliance to the statutory provisions of Rule 33 would be a condition precedent to rejection of the votes and non-adherence to the prescribed procedure would render the action of the presiding officer invalid and improper.
18. No doubt the provisions of Section 83 of the Act are indication of secrecy of voting which ought not to be infringed, but this provision is obviously subservient to the primary fundamental rule of the election that its process be free and fair. The Hon'ble Supreme Court of India in the case of A. Neelalohithadasan Nadar v. George Mascrene and others, 2 1994 Supp(2) Supreme Court Cases 619 discussed this principle at some length and held as under:-
"The existence of the principle of "secrecy of ballot" cannot be denied. It undoubtedly is an indispensable adjunct of free and fair elections. The Act statutorily assures a voter that he would not be compelled by any authority to disclose as to for whom he has voted, so that he may vote without fear and favour and free from any apprehension of its disclosure against his will from his own lips. But this right of the voter is not absolute. It must yield to the principle of "purity of election" in larger public interest."
"The primary purpose thus was to purify the electoral process and not to hunt or hound the voter's choice, when exercised validly and freely. It is for that purpose that the Court in the interest of justice to facilitate a quick trial permitted the parties to inspect before hand the records but after the framing of the requisite issues arising from the pleadings of the parties and not earlier. This approach could not be termed as permitting a roving or fishing enquiry, as it is sometimes described in cases of a claim for recount."
"The election petitioner had specifically mentioned and in clear cut terms that 19 persons had doubt voted. The question was not resoluble merely on oral evidence, whether they had or had not, except to put those persons into the witness box, hear their version and confront them with the election papers. The sphere of enquiry at that stage is to the voting and not for discovering the name of the person to whom the vote was cast. That inevitably has to be found out after double voting or impersonated voting has been found out leading to the new step to trace them and nullify them. On the pleadings of the parties as such, on both sides, a case for inspection at the stage when it was done had been made out. Thus there is no error in the approach of the High Court."
"The High Court finally recorded its satisfaction or otherwise in the case of signatures resulting in doubt voting and impersonation, and signatures and thumb impression not tallying at all. No meaningful argument on facts in regard thereto was addressed before the Court except the approach of employing Section 73 of the Evidence Act on ground that the High Court should not have become an expert. When larger public interest is served by expeditious disposal of an election petition then the course adopted by the High Court is in conformity therewith. Although Courts should be slow in resorting to this method, the High Court had no faulted in this case."
19. The reliance by the learned counsel for the petitioner on the cases of Shri Satyanarain Dudhani v. Uday Kumar Singh and Ors., A.I.R. 1993 Supreme Court 367 and P.K.K. Shamsudeer v. K.A.M. Mappillai Mohamadeen and Ors., A.I.R. 1989 Supreme Court 640, is not of much help to the case of the petitioner. In these cases the Hon'ble Supreme Court of India had come to a definite conclusion that, "the petitioner has neither made such averments in the petition nor adduced evidence of such a compulsive nature as could have made the Tribunal reach a prima-facie suggestion that there was adequate justification for the secrecy of ballot being breached for petitioner's case."
20. Learned counsel for the petitioner (respondents in the election petition) has placed heavy reliance upon the case of N. Narayanan v. S. Setnmalai and others, A.I.R. 1980 Supreme Court 206. In that case, after detailed discussion, the Hon'ble Apex Court at page 213 observed as under :-
"Finally, the entire case law on the subject regarding the circumstances under which recount could be ordered was fully summarised and catalogued by this Court in the case of Bhabhi v. Sheo Govind, 1975 Supp. SCR 202 to which one of us (Fazal Ali, J.) was a party and which may be extracted thus:-
"The Court would be justified in ordering a recount of the ballot persons only where:
(1) the election petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded.
(2) On the basis of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting; and (3) The Court trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties."
21. Applying the abovesaid 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 un-necessary prolongation of this petition, the order of recount is an effective and expeditious solution to the election petition.
22. It is also a 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. 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.
23. For the reasons afore-stated, I find no merit in this writ petition and the same is dismissed, however, without any order as to costs.