Harbans Singh vs Sukhdev Singh

I.S. Tiwana, J. (Oral)

These cross petitions Nos. 2252 and 2416 of 1985 are directed against the same order of the appellate authority under section 13V of the Punjab Gram Panchayat Act as applicable to Haryana (for short, the Act) and thus deserve to be disposed of through this common order.

Election to the office of Sarpanch of village Jundla, Tehsil and District Karnal, was held on June, 25, 1985. The two petitioners, Harbans Singh and Sukhdev Singh, respectively, were the contestants. As a result of polling, the Presiding Officer declared Sukhdev Singh to have won the election, having polled 1478 votes. As against this Harbans Singh had polled only 1177 votes. Later Harbans Singh challenged this election through a petition under section 13C of the Act. The primary plea taken in the petition was that dead and absentee votes had been polled through impersonation and this had materially affected the result of the election. During the course of trial that followed, Harbans Singh made an application on March 18, 1985 that the votes polled in favour of the two contestants deserved to be recounted. After hearing the learned counsel for the parties on that application, the prescribed authority passed the following order of April 15, 1985 :

"Counsel for the parties are present. Argument on the application heard. The counsel for the respondent told that he has no objection if the recounting of the votes was done. So I order the recounting of the votes. The recounting would take place on 3.5.1985. The records be summoned from the record room''''.

The actual recounting of votes took place on May 7, 1985 and as a result thereof Harbans Singh was declared to have won the election by a margin of three votes only. He was held to have polled 1,314 votes as against 1,311 votes polled by Sukhdev Singh. The prescribed authority declared Harbans Singh as having been elected. Sukhdev Singh preferred an appeal against this order of the prescribed authority. The appellate authority while allowing the appeal on the ground that the relief of declaration, i.e., Harbans Singh stood elected as a result of the recount, could not be granted the same having not been prayed for in the election petition, directed a fresh election.

Harbans Singh now in this revision petition while impugning this order of the appellate authority contends that even if no specific prayer for his being declared as a Sarpanch as a result of the recount or otherwise was made in the election petition, the said relief had rightly been granted to him by the prescribed authority and the appellate authority could not upset that order merely on the ground that no such relief had been prayed for in the petition. On the other hand in Civil Revision No. 2416, the stand of Sukhdev Singh is that the recount of votes could not possibly be upheld by the appellate authority in view of the fact that there was a lot of tampering with the election record as well as the ballot papers cast in favour of the two contestants. Having given my thoughtful consideration to the entire matter in the light of the submissions of the learned counsel for the parties I am of the firm opinion that in the instant case the order of the appellate authority deserves to be upheld.

So far as the petition filed by Harbans Singh is concerned he, to my mind, could not be given the ''further relief'' of declaring him to have been elected as a result of the recount of votes by the prescribed authority. This ''further relief'' has been incorporated in section 13OO of the Act. As per this section the election petitioner has to specifically pray for this relief in addition to the relief that the election was either void or deserved to be set aside on any of the grounds specified in section 13O. This ''further relief'' cannot be treated as any other relief as is mentioned in the petitionbecause this has been made the subject matter of a separated and independent section. By virtue of this section the election petitioner is made entitled to seek the further relief of declaring himself to have been elected as a result of the setting aside of the election on any of the grounds specified in the preceding section, i.e., 13O and it does not mean that this relief has to be or may be granted even in the absence of any such prayer having been made by the election petitioner.

So far as the contention of Sukhdev Singh on the basis of any alleged tampering with the election records or the ballot papers is concerned the same deserves to be negatived on the ground that he having consented to the recount of votes as recorded in the order of the prescribed authority already reproduced above, he cannot now challenge that order. I have already ruled in Israil v. Hussain Khan and another, 1981 PLJ 430, and in the light of an earlier judgment of the Supreme Court in Sukhad Raj Singh v. Ram Harsh Misra and others, AIR 1977 SC 681, that such a recount of votes as agreed to by the parties does not violate any provision of the Act and the result declared on the basis of such a recount does not suffer from any infirmity. All this is in spite of the fact that no case had either been pleaded or made out for recount of votes. Mere allegations that the election record or the ballot papers had been tampered with at some stage subsequent to the date of polling did not call for any probe or fresh enquiry about the truthfulness of the same. In the given facts and circumstances of this case I am of the opinion that the order of the appellate authority directing a fresh election appears to be just and proper.

In the light of the above conclusion of mine both these petitions fail and are dismissed but with no order as to costs. It is needless for me to mention here that in the light of Rule 42 of the Gram Panchayat Election Rules as applicable to Haryana, the election to fill in the vacancy of the Sarpanch of village Jundla, Tehsil and District Karnal has to be held by the authorities concerned within the prescribed period of sixty days from today. To make the things more clear, it is directed that the Deputy Commissioner concerned would not resort to the proviso to this rule to extend this period of limitation under any circumstances. A copy of this order be sent direct to the Deputy Commissioner, Karnal, without undue loss to time.