Kirpal Singh vs Preet Mohinder Singh

R.L. Anand, J.—(Oral) Kirpal Singh son of Gurbax Singh has filed the present petition under Article 226 of the Constitution of India, against Preet Mohinder Singh, respondent No. 1 and respondents 2 and 3 (proforma respondents), for quashing of the order of the Election Tribunal (Deputy Commissioner, Sangrur), dated 6.7.1999 passed in Election Petition No. 77 of 1998, vide which the Tribunal ordered for the recount of the ballot papers.

The case set up by the petitioner is that the elections of the Gram Panchayat, BhaikeBhasaur, District Sangrur, took place on 21.6.1998. The petitioner and respondent No. 1 contested the office of the Sarpanch. The petitioner was declared elected by a margin of 27 votes. Respondent No. 1 filed an election petition No. 77 of 1998 before the Tribunal under Section 77 of the Punjab State Election Commission Act, 1994 (hereinafter referred to as `the Act''). Among the relief claimed, the respondent No. 1 further made a prayed that the result declared on 21.6.1998 declaring the petitioner as winning candidate for the post of Sarpanch be set aside and the election be declared void and he himself claimed to be declared as a winning candidate for the post of the Sarpanch. He claimed the recounting of the votes for the election of the Sarpanch. The Tribunal vide its order dated 6.7.1999 ordered the recount of the votes and directions were given to respondent No. 1 for recounting of the votes on 19.7.1999. The petitioner submits the order dated 6.7.1999, Annexure P1, is liable to be quashed because the Tribunal had exceeded its jurisdiction in passing the impugned order and that respondent No. 1 had not made out any case for recounting. It is alleged by the petitioner that the order, Annexure P1, is merely based on the report of the S.D.M., Patiala (S.D.M., Moonak, at the relevant time), which is totally based on conjectures and surmises. Even if the report of the S.D.M. is taken on its face value, still it does not help respondent No. 1 as the petitioner was declared Sarpanch with a margin of 27 votes whereas as per the report of the SDM, the votes of respondent No. 1 could be increased by 10 to 15 votes. The reliance placed by the Tribunal on Annexure P6 is wholly without jurisdiction and that respondent No. 2 had exercised his authority wrongly and illegally. At the time of declaring the result of the election, nobody objected regarding the seal and way of election. Rather, it has been admitted by respondent No. 1 that the election has been conducted in a proper and right way. So much so, he gave his signatures on the writing dated 21.6.1998. The impugned order, Annexure P1, has been passed in a very hasty manner without giving opportunity to the petitioner, who could not produce his counsel on the relevant date of the passing of the order because of the operation. Even the Returning Officer filed the written statement before the Tribunal and categorically stated that the election was conducted in a lawful manner and both the parties had inspected all the votes polled which were acceptable or rejectable. At the end of the counting of the votes Kirpal Singh and Preet Mohinder Singh and their agents had given in writing that they were satisfied with the conducting of the election process of the Gram Panchayat and that they had no objection to the same.

With the above main allegations, the petitioner has prayed for setting aside of the order, Annexure P1. Along with the petition, the petitioner has also filed an application for stay of the operation of the impugned order dated 6.7.1999, Annexure P1.

The matter came up for hearing before Hon''ble K.K. Srivastava, J. on 19.7.1999 who passed the following order :

"Learned counsel for the respondent seeks time to file reply to the C.M. Reply may be filed within ten days. The recount of the ballot papers, if not already commenced, shall not take place till further orders. To come up for hearing on the date already fixed i.e. 24.8.1999."

A detailed reply has been filed by respondent No. 1 to the C.M. and the reading of the same would show that this reply can also be taken as a reply depicting the stand of respondent No. 1 on merits.

According to respondent No. 1, the counting of votes regarding the election held on 21.6.1998 for the office of Sarpanch of village Bhaike Bhasaur, had not been conducted in a fair and just manner and material irregularities and illegalities were committed, therefore, the election of the petitioner was bad in the eyes of law. According to respondent No. 1, he made a specific averment that the petitioner and his brother Sohan Singh, in connivance with the Returning Officer, adopted corrupt practices of counting rejected votes in favour of the petitioner and illegally cancelled votes polled in favour of respondent No. 1. According to respondent No. 1, total number of votes polled were 1970 and he secured 861 votes and 166 votes were rejected but the Returning Officer under the undue influence of the petitioner and his brother wrongly and illegally changed the result by counting 109 rejected votes in favour of the petitioner and declared 57 votes as invalid. According to the respondent, 20 out of 57 rejected votes were actually polled to him and the petitioner has been wrongly declared elected. Sohan Singh, brother of the petitioner was a colleague of the Presiding Officer and was having a close relationship with him. Sohan Singh did not even attend his election duty on that day and he indulged in corrupt practice in connivance with the Presiding Officer to enable the petitioner to win the election. So much so, the respondent filed written objections against the illegal activities of the petitioner and the Presiding Officer, but no action was taken. Respondent No. 1 was not allowed to check the seals before opening of the ballot boxes and no reasonable opportunity was granted to him. After hearing the submissions of respondent No. 1, respondent No. 2 rightly passed the order dated 6.7.1999 for recounting of the votes. The respondent No. 1 has further relied upon the report dated 7.6.1999 given by the S.D.M., Moonak, and according to him it has been categorically mentioned by the S.D.M. that the inspection of 42 cancelled votes was done and out of those 42 votes, it was found that 10 to 15 votes actually were polled to respondent No. 1 and this clearly shows that counting of votes had not taken placed in a proper and legal manner necessitating the recount. Since the margin of votes between the petitioner and respondent No. 1 was very narrow, therefore, the recounting was rightly order by the Tribunal. The order was passed in order to get clarification as to whether the election was conducted in a fair and impartial manner or not. In other words, the stand of the respondent is that the order dated 6.7.1999, Annexure P1, is totally justified as a bungling had taken place at the time of counting of the votes by the Presiding Officer in connivance with the brother of the petitioner.

I have heard Mr. J.R. Mittal, Senior Advocate, with Mr. K.S. Chahal, Advocate, on behalf of the petitioner and Mr. G.S. Chadha, Advocate, counsel for the respondent No. 1 and with their assistance have gone through the record of this case.

Before I deal with the submissions raised by the counsel for the parties, it will be useful for me to incorporate the relevant portion of the order, Annexure P1, as it will supply us the basis and the parameters which were taken note of by the Tribunal in passing the order for recounting. The same reads as under :

"Arguments heard today. The counsel for the petitioner stated that the recounting of the votes in this case is necessary for deciding on merits, so, of all the arguments be heard on this. Counsel for the respondent is not present. So, the arguments on recounting are addressed by counsel for the petitioner and respondent No. 1 in person. Counsel for the petitioner stated that there is much trickery is committed at the time of counting of the votes. He produced Sh. Madan Lal and Bahal Singh witnesses to prove this allegations. He also stated that in the report of SDM it is written that he went at the spot as he remembered about 10/15 votes were liable to be put in favour of Preet Mohinder Singh. In the last he stated that from the report of SDM it is clear that trickery has been committed during the counting. So to know the true facts the recounting be ordered. Respondents stated that his counsel is on bed due to operation. He also produced one application written by the counsel in this context. Kirpal Singh respondent has been stated to produce his case. He stated that petitioner got embezzlement later on in the votes. So, recounting not be done. He also stated that petitioner has given written consent regarding the correct and right election photocopy of which is mark `A''.

I peruse the evidence on the file and considered the arguments advanced by both the parties. Both the parties admitted that as per the result Kirpal Singh Sarpanch secured 970 votes and petitioner secured 943 votes. So, there is difference of 27 votes secured by them. As per the report of SDM, Moonak, now at Patiala, 1015 votes had to be counted in favour of Preet Mohinder Singh. After perusing the evidence produced by the petitioner I feel that the counting has not been done rightly. So, to know the real facts the recounting of votes is necessary. So, it is ordered the SDM, Moonak, will be recounting the votes casted for the post of Sarpanch in the presence of the candidates on 19.7.1999 at 10 A.M. in the meeting hall of office of D.C. Candidates can appoint one counting agent. Report after recounting be sent immediately and file be produced on 20.7.1999. Order pronounced."

The learned Counsel for the petitioner submits that recounting could not be ordered as a matter of course. The order, Annexure P1, is based on Annexure P6 and if report, Annexure P6, does not provide good basis for the passing of the order, Annexure P1, then, on these circumstances, the order Annexure P1, cannot sustain in the eyes of law as it has disturbed the secrecy of the ballot. The counsel submitted that very strong and cogent grounds are required to be made out by a person who prays for recounting and who wants to give challenge to the result of the result on the ground of recount. The counsel also relied upon certain case law which I will deal with in the subsequent portion of this judgment.

The contentions raised by the counsel for the petitioner have been stoutly refuted by the learned Counsel for the respondent No. 1, who submitted that in the report, Annexure P6, it has been admitted by the S.D.M. that when he reached at the spot on the relevant date, he noticed that out of the rejected 42 votes, there was a margin of 10 to 15 votes which could be counted in favour of respondent No. 1 as the voter had expressed his intention to give the vote in favour of respondent No. 1. The counsel submitted that when such was the state of affairs, no sanctity can be granted to the result declared for the office of Sarpanch in favour of the petitioner and, in these circumstances, it was in the interest of justice and fair play that the recount of the votes had to be conducted and that is the reason that the order, Annexure P1, has been passed. The counsel also maintained that he has no objection if the recount is ordered by the High Court under its on supervision or directions so as to elicit the truth. The counsel submitted that there is no sanctity to the declaration of the result in view of the report, Annexure P6, given by the S.D.M. Finally, the learned Counsel for the respondent No. 1 submitted that an F.I.R. was lodged against the brother of the petitioner and in this regard reference has been made to Annexure R1, the copy of the F.I.R. suggesting that the brother of the petitioner did not attend his duties in the election of the Gram Panchayat and, in fact, he had been canvassing for his own brother and the possibility cannot be ruled out that the brother of the petitioner along with the Presiding Officer connived with each other and the votes in favour of respondent No. 1 were actually counted for the benefit of the petitioner.

I have considered the rival submissions of the parties and I am of the considered opinion that the impugned order, Annexure P1, is liable to be disturbed as in the opinion of this court, the learned Tribunal had exceeded its jurisdiction in such a manner that it has disturbed the confidence of the voter and it has violated the sanctity of secrecy of votes. Recounting of votes shall not be granted as a matter of course. A very strong ground should be made out by the person who seeks recounting of votes because recounting of the votes at the whims of a person will definitely disturb the secrecy of the ballot. We are in a democratic country. A voter expresses his faith or consent or his opinion through ballot papers either in favour of a particular candidate or in favour of a particular party. His confidence should not be disturbed so lightly that it may provide a handle to everybody for claiming recounting. I have already reproduced above the material portion of the order, Annexure P1. This order was passed on the report, Annexure P6. Even a reading of the same would show that it does not advance the case of respondent No. 1. Before passing the order, Annexure P1, the Tribunal sent for the report from the S.D.M. Patiala, who was posted as S.D.M., Moonak, at the relevant time. According to this officer, he received a wireless message on the date of the election that the result of the elections was not being announced on the completion of the counting of the votes because the concerned candidates were creating hurdles in announcing the result. This officer further states in his report that respondent No. 1 told him that about 40 votes were cancelled by the Returning Officer in a wrongful manner. He wanted to know about those facts but he was not permitted to do so. This officer further states in the report dated 7.6.1999 that he made an inquiry from the Returning Officer and from the other candidates with regard to the allegations of respondent No. 1 and as per his memory about 10 to 15 votes were to be given in favour of respondent No. 1 as those votes were marked and the opinion of the voter was decipherable. Apart from that, there was no grouse, which was raised before him by any candidate. Meaning thereby, that the grouse of respondent No. 1 was only with regard to 42 votes which were allegedly cancelled in a wrongly manner. The S.D.M. inspected those votes and according to him, a margin of 10 to 15 votes could be granted to respondent No. 1. Still, the case of respondent No. 1 does not improve. If the upper limit of 15 is taken, still, the respondent No. 1 is a loser.

Faced with this difficulty, the learned Counsel for the respondent submitted that once the S.D.M. came to the conclusion that some votes were wrongly rejected and those votes could be counted for the benefit of respondent No. 1, the sanctity of the ballot itself goes and, therefore, the order of recount was made out.

I am not convinced with this argument. The votes polled in this case were 1970. As per the declaration chart, the petitioner got 970 votes whereas the respondent No. 1 got 943 votes. There was a recognisable difference of 27 votes. The total rejected votes were 57. The dispute was with regard to 42 votes. The case of respondent No. 1 was that 42 votes perhaps could be counted in his favour. Out of those 42 votes, the S.D.M. in his report has given the concession of 10 to 15 votes, meaning thereby, that the lost of the respondent No. 1 would not go beyond 958 votes as against 970 votes which had been polled by the petitioner. There was no challenge to the votes which were counted in favour of the petitioner. The Tribunal, while passing the order, Annexure P1, has made out a case for respondent No. 1 by wrongly placing reliance on the report, Annexure P6, which per se also does not make out a case for recount.

In P.K.K. Shamsudeen v. K.A.M. Mappillai Mohindeen and others, AIR 1989 SC 640 it was held as follows :

"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 count 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 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 count of votes being ordered by the Election Tribunal in the interests of justice, a Tribunal or court should not order the recount."

In Bharat Singh v. Dalip Singh, AIR 1996 Punjab and Haryana 271 : 1996(1) RRR 120 (P&H), a Division Bench of this court held as follows:

"Secrecy of ballot papers is paramount and recount of votes cannot be ordered as a matter of course and on the mere making. Recount of votes 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, to the satisfaction of the Tribunal or Court and then, and only then, a recount can be ordered. Reason for the same is that the result of an election should not be tinkered with and the election petition should not be permitted to have roving inquiry as the counting of the votes is done in the presence of the candidates or their election agents where they are given full opportunity to object to improper acceptance or improper rejection of votes. Thereafter they are given full opportunity by the Returning Officer to claim a recount. Therefore, it cannot be claimed in such a case, that recount has to be ordered in every case where a petition is filed on the grounds other than corrupt practices as a matter of course."

The Hon''ble Supreme Court in Shri Satyanarain Dudhani v. Uday Kumar Singh and others, AIR 1993 SC 367 held as follows :

"The secrecy of the ballot papers cannot be permitted to be tinkered lightly. An order of recount cannot granted as a matter of course. The secrecy of the ballot papers has to be maintained and only when the Court is satisfied on the basis of material facts pleaded in the petition and supported by the contemporaneous evidence that the recount can be ordered."

Lastly, reliance was placed by the counsel for the petitioner on FAO 2632 of 1998 decided on 15.3.1999 in which the observations of the Hon''ble Supreme Court were adhered to, accepted and followed. This Court was further pleased to hold that mere allegation that some votes have been improperly accepted or refused or rejected will not be sufficient to support an order for recount of the votes.

On the contrary, counsel for the respondent relied upon Baldev Singh v. Teja Singh Swatantra (dead) and others, AIR 1975 SC 693, wherein it was held that where the margin of difference is minimal, the claim for a fresh count cannot be summarily brushed aside as futile or trumpery. If, a uniform view, founded in legal error, has led to wrong rejection of votes, rectification by a recount on the spot, when a demand was made, would have been reasonable. If formal defects had been misconstrued as substantial infirmities; or vice versa, resulting in wrongful reception or rejection, the sooner it was set right the better, especially when a plea for second inspection had been made on spot.

In the view of this court, this judgment does not favour respondent No. 1. In this very judgment, the Hon''ble Supreme Court was pleased to hold that "The courts frowns upon frivolous and unreasonable refusal of recount by Returning Officers who forget the mandate of Rule 63 that allowance of recount is not the exception and refusal is restricted to cases where the demand itself is `frivolous'' or `unreasonable''. In the present case, the demand of respondent No. 1 was frivolous and unreasonable. The grouse, at the first instance, was for the inspection of 42 votes which were rejected. Those votes were examined by the S.D.M. As per the opinion of the S.D.M., the maximum benefit of 10 to 15 votes could go to the respondent No. 1. Further, there is no indication that any vote which has been counted for the benefit of the petitioner had been wrongly counted. In the opinion of this court, respondent No. 1 was trying to make a fishing and reeving inquiry. He could still well successfully challenge the election of the petitioner in the election petition by leading evidence. Respondent No. 1 trying to make out a new case altogether. Even in the opinion of this Court, the Tribunal was not justified in calling the report of the S.D.M., who could only be examined as a witness if so desired by respondent No. 1 because the report of the S.D.M. is based on memory.

Counsel for the respondent, then relied upon Raghbir Singh Gill v. Gurcharan Singh Tohra and others, AIR 1980 SC 1362. In the opinion of this court, this judgment, rather, goes against the respondent. It has been laid down by the Hon''ble Supreme Court in para33 as follows :

"Recount cannot be ordered just for the asking. A petition for recount after inspection of the ballot papers must contain as adequate statement on material facts on which the petitioner relies in support of his case and secondly the Tribunal must be prima facie satisfied that in order to decide the dispute and to do complete justice between the parties an inspection of the ballot papers is necessary. The discretion conferred in this behalf should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fishing out materials for declaring the election void. Only on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the court regarding the truth of the allegations made for a purpose of fishing out materials."

Yet, reliance was placed on Shri Shashi Bhushan v. Prof. Balraj Madhok and others, AIR 1972 SC 1251, wherein it was held as follows :

"It is no doubt true that a judge while deciding the question of inspection of the ballot papers must bear in mind the importance of the secrecy of the ballot papers. The allegations in support of a prayer for inspection must not be vague or indefinite; they must be supported by material facts and prayer made must be a bona fide one. If these conditions are satisfied, the court will be justified in permitting inspection of ballot papers. Secrecy of ballot is important, but doing justice is undoubtedly more important and it would be more so, if what is in stake is the interests of the society."

In the present case, the petitioner had won by a recognisable difference of 27 votes but we cannot forget that the total votes polled in this case were 1970. In order to make out a case for recount, respondent No. 1 had to make out a case for recount. He could not improve his case than that of report, Annexure P6, which had been acted upon by the Tribunal while passing the order, Annexure P1. If, Annexure P6, prima facie, does not dislodge the case of the petitioner, it was not in the interest of justice on the part of the Tribunal to pass an order of recount.

Faced with this difficulty, the counsel for the respondent, then, submitted that the order, Annexure P1, is subject to appeal under Section 100 of the Act and the revision under Article 227 of the Constitution of India is not maintainable.

I do not subscribe to this argument. Section 100 of the Act lays down that notwithstanding anything contained in any other law for the time being in force, an appeal shall lie to the High Court on any question whether it pertains to law or fact from every order made by an Election Tribunal under section 87 of Section 88.

In this regard, we will have to look into the provisions of sections 87 and 88 of the Act. Section 87 talks of decision of the Tribunal on the conclusions of the trial of the election petition and this section gives powers to the Tribunal either to dismiss the election petition or declare the election of all or any of the returned candidates to be void and the petitioner to have been duly elected. Section 88 of the Act talks of other orders to be made by the Tribunal and as per this section, where any charge is made in the petition of any corrupt practice having been committed at the election, the Election Tribunal shall also make an order at the time of making of order under Section 87 indicating whether any corrupt practice has been committed or not, the name of the person who committed the corrupt practice and the total amount of costs, etc. payable.

The impugned order talks of recount and is not covered by the provisions of either section 87 or section 88. Otherwise, under Article 227 of the Constitution, the High Court has always the supervisory power to examine the illegality or impropriety of the order passed by any Tribunal, etc. subordinate to it.

In this view of the matter, I am of the considered opinion that the order dated 6.7.1999, Annexure P1, is not sustainable as the Tribunal has committed a patent illegality/material irregularity in ordering the recount of the votes and such an order has to be quashed and I order accordingly.

The petition stands allowed.

Before I part with this order, I may clarify that this order shall have no bearing on the other grounds of the election petition challenging the election of the petitioner to the post of Sarpanch.