Ajit Singh vs Dhari and another

V.K. Jhanji, J.—Election to the Gram Panchayat of village Pahalwan visavis Panches and Sarpanch was held on 8th of August, 1988. The petitioner and respondent No. 1 were the candidates for the election of the Sarpanch. The petitioner was declared successful and was elected Sarpanch.

Respondent No. 1 filed an electionpetition under Section 13 of the Punjab Gram Panchayat Act, 1952 (Act No. 1V of 1953), challenging election of the petitioner. It was alleged by respondent No. 1 in his election petition that respondent No. 2 has taken into consideration wrong votes, therefore, there is necessity of recount of votes. It was also alleged that ballot papers which were not signed by the Presiding Officer ought to have been declared invalid but they have been counted in favour of respondent No. 1 has been declared to be invalid. It was thus prayed that the election petition be accepted that their recount be ordered and respondent No. 1 be declared as elected Sarpanch. Petitioner and respondent No. 2 contested the election petition and denied the allegations made by respondent No. 1 in his election petition. Illaqa Magistrate, Narwana, on the pleadings of the parties framed the following issues :

(1) Whether the counting has been done rightly OPP.

(2) Whether it is proper to treat unsigned ballot papers as valid ? OPP.

(3) Whether the result was with fraud ?

(4) Relief.

All the three issues were found in favour of the petitioner and against respondent No. 1. Illaqa Magistrate vide order dated 5th of July, 1989, dismissed the electionpetition. Being aggrieved of the order of the Illaqa Magistrate, respondent No. 1 filed an appeal before the Additional District Judge, Jind. The learned Additional District Judge vide impugned order accepted the appeal and remanded the case back to the Illaqa Magistrate for redecision. He further directed that the Illaqa Magistrate shall get all the votes recounted in his presence and decide the election petition according to law.

The petitioner has impugned the order of the learned Additional District Judge dated 1st of May, 1990, by way of this civil revision. The learned counsel for the petitioner has argued that the Appellate Authority had no jurisdiction to remand the case without considering the findings given by the Illaqa Magistrate on all the issues and before the case could be remanded, the order had to be set aside and reversed in appeal and without doing so, the case could not be remanded to the Illaqa Magistrate. He has further argued that there is no specific provision of recount and the direction given by the Appellate Authority for recount is absolutely illegal. Learned counsel for the petitioner in support of his arguments has relied upon two judgments of this Court Kartar Singh v. Punjab & Sind Bank and others, 1988(2) RRR 334: 1987 RLR 418 and Smt. Dhapan v. Vijay Singh and others, 1980 RLR 52.

On the other hand, the learned counsel for the respondent has contended though the Appellate Authority has not specifically set aside the findings of the Illaqa Magistrate on each issue but it is implicit that the findings of the Illaqa Magistrate were set aside as the Appellate Authority has allowed the appeal. He further contended that in the facts and circumstances of this case where the allegation is that certain votes have been improperly rejected or received, there is no way to decide the question of illegal rejection or acceptance of votes except to recount them.

After hearing the learned counsel for the parties at length, I find that the argument of the learned counsel for the petitioner that Appellate Authority had not set aside the findings of the Illaqa Magistrate on each issue after considering the same, has force. A bare reading of the order of the Appellate Authority shows that the learned Appellate Authority has not considered the findings of the Illaqa Magistrate on each issue not the findings on such issues have been reversed. The Appellate Authority while allowing the appeal and remanding the case has taken into consideration only one matter i.e. some of the votes which were not signed by the Presiding Officer has been improperly rejected and received. With this observation, the Appellate Authority has remanded the case with the direction to recount the votes and decide election petition afresh.

Under subsection (1) of Section 13 of the Act, it is provided that every election petition shall be tried by the Prescribed Authority, as nearly as may be, in accordance with the procedure under the Code of Civil Procedure, 1908. Order XLI, rule 23A of the Code of Civil Procedure, 1908, pre supposes that if the decree is reversed in appeal and if retrial is considered necessary, only then the power of remand is to be exercised by the appellate Court. In order to reverse a decree, the findings given by the Court on the issues are to be considered and could be reversed in appeal. In the instant case, the Illaqa Magistrate gave findings on three issues, which were framed on the pleadings of the parties, but the Appellate Authority has not considered the findings given by the Illaqa Magistrate on the issues. The Appellate Authority has also acted illegally in exercise of the jurisdiction in not setting aside findings given on each issue before allowing the appeal. For this proposition, I am supported by two judgments of this Court Kartar Singh''s case and Smt.. Dhapan''s case (supra). This being the position, the order of the Appellate Authority remanding the case without considering findings on each issue cannot be sustained in law, and the same is, hereby set aside.

As far as second argument of the learned counsel for the petitioner is concerned that the Appellate Authority has no jurisdiction to give direction for the recount of the votes, is devoid of any merit. In the present case, one of the allegations of the electionpetitioner is that some of the ballot papers which did not bear the signatures of the Presiding Officer, have been counted in favour of the petitioner but has been improperly rejected against respondent No. 1. When such an allegation has been made, then matter regarding illegal rejection of votes cannot be decided except to recount them, more so When respondent No. 1 has further sought a declaration in his election petition that he be declared Sarpanch. The judgment relied upon by the learned counsel for the petitioner Sheo Chand v. Sada Nand and others, 1965 PLR 1211 is clearly distinguishable on the facts of the present case. In Sheo Chand''s case (supra) on special circumstances were made out for the recount of the votes as only vague allegations of improperly rejecting or receiving of votes had been made in the said case. In view of this, it cannot be said that the Illaqa Magistrate or the Appellate Authority has no power to recount votes. However, such power can be exercised only when definite allegations of improper rejection or reception of votes have been levelled in the election petition and a definite case is made out which cannot be decided except by recount of votes. Consequently, revisionpetition is allowed. Order of the Appellate Authority is set aside. The Appellate Authority is directed to decide the appeal on merits and in case the Appellate Authority finds, in the facts and circumstances of this case, that recount of the votes is necessary, then the Appellate Authority may exercise the power of recounting of votes and decide the appeal in accordance with law. However, there shall be no order as to costs. Parties through their counsel are directed to appeal before the Appellate Authority, on 31st May, 1991.