Mithu Singh vs Ranjit Singh and others

N.K. Sodhi, J.—Elections to Panchayat Samiti, Bhaini Bagha, Zone 2, District Mansa were held on September 30,1994. Mithu Singh, Ran-jit Singh and three others contested the election as a member of the Panchayat Samiti from the said Zone. Counting of votes took place on October 1, 1994 at Gandhi School, Mansa. Total votes polled were 7962 out of which 759 votes were declared invalid. Mithu Singh polled 2357 votes as against 2319 polled by Ranjit Singh. The other candidates secured lesser votes and we are not concerned with them in this appeal. Mithu Singh having polled the highest number of votes was declared elected by 38 votes. Ranjit Singh his nearest rival having been defeated challenged the election of Mithu Singh by filing an election petition u/s 76 of the Punjab State Election Commission Act 1994 (for short, the Act). The election was challenged on a number of grounds but we are concerned here only with the grounds pertaining to improper counting and rejection of votes. The averments in the election petition in this regard are contained in sub paras (d) (e) and (i) of para 6 of the petition and it will be useful to reproduce them at this stage:

(d) That at the time of counting, the valid votes polled in favour of the Petitioner were illegally declared invalid and cancelled. Counting Agents of the Petitioner were not given any opportunity to check the invalid votes.

(e) That at the time of counting of the votes, bundles of counted votes were made. Some of the votes polled in favour of Petitioner were mixed with the bundles of votes polled in favour of Respondent No. 1 and thus were counted in favour of Respondent No. 1.

(f) That the Returning Officer played unfair role during counting. When Petitioner requested for recounting he refused to do so. Again Petitioner requested for rechecking of invalid votes then the Returning Officer turned the Petitioner out of the counting centre. Even the written request made by the Petitioner for recounting and rechecking of invalid votes was turned down. Further Returning Officer did not obtain the signatures of the Petitioner while sealing the Ballot Boxes. Telegram message was immediately sent on the same day to Election Commissioner, Punjab and Deputy Commissioner, Mansa." The aforesaid allegations were emphatically denied by Mithu Singh in the written statement filed by him before the Election Tribunal.

From the pleadings of the parties, the Tribunal framed the following issues:

1) Whether the marking stamp was not provided by the Presiding Officer to the voters under the prescribed rules ? OPP

2) Whether the polled votes were rejected improperly under the prescribed rules and instructions ?OPP

3) Whether the election petition is not maintainable in the present form under the rules ?OPD

4) Relief.

The Tribunal recorded the evidence of the parties and examined three witnesses on behalf of Ranjit Singh including himself. Mithu Singh appeared as his own witness. On behalf of Ranjit Singh, it was urged before the Tribunal that valid votes polled in his favour had been illegally declared invalid and rejected and to the same effect he made a statement on oath and also stated that his request for recounting of votes was disallowed by the Returning Officer. He also stated that he sent telegrams (Mark P1 and P2) to the Election Commissioner, Punjab and Deputy Commissioner, Mansa about the alleged illegalities and irregularities committed in the election process. Mithu Singh on the other hand submitted that the votes had been properly counted and rejected in accordance with the provisions of Rule 36 of the Punjab Panchayat Election Rules, 1994. On a consideration of the submissions made before it on behalf of the parties, the Tribunal came to the conclusion that "in order to verify whether the invalid votes were correctly and properly rejected in accordance with the provisions of Rule 36 of Punjab Panchayat Election Rules, 1994, a fresh scrutiny of the rejected votes is called for." Accordingly, the Tribunal as per its order dated February 16, 1995 directed that the rejected votes would be recounted on February 28, 1995. The record pertaining to Bhaini Bagha Zone of Panchayat Samiti, Mansa (Zone-2) was summoned for the date fixed.

When scrutiny of rejected votes of polling station 120 was going on, Ranjit Singh brought to the notice of the Tribunal that some invalid votes had been included in the valid votes of Mithu Singh with a view to give him undue benefit. Surprisingly enough the Tribunal took note of this contention and picked up a bundle containing 50 votes polled in favour of Mithu Singh and scrutinized them and found that 44 invalid votes had been included in it. As a consequence thereof, all the valid votes of polling station 120 of all the candidates were counted. It may be mentioned that it was not the case of Ranjit Singh as given in the petition that invalid votes had been included amongst the valid votes of Mithu Singh. What was alleged by him in the election petition and in the statement that he made as a witness before the Tribunal was that at the time of counting of votes valid votes polled in his favour were illegally declared invalid and it was also alleged that some votes polled in his favour were mixed up with the bundles of votes polled in favour of Mithu Singh. The counsel for Mithu Singh raised an objection before the Tribunal that valid votes of the candidates could not be counted in view of its own order dated February 16, 1995 whereby counting of only the rejected votes had been ordered. The Tribunal brushed aside this objection and observed that there was no bar to the rechecking of valid votes especially if any mischief has been alleged. Mithu Singh then moved an application that if counting of votes was being done, the Tribunal should count votes of all the polling stations and not only of polling booth 120. This application was rejected and the Tribunal then counted all the votes of polling station 120 and found that Ranjit Singh had polled 2371 votes whereas Mithu Singh polled only 2316. As per final result sheet prepared by the Tribunal on the basis of fresh scrutiny of rejected votes and of the valid votes of polling station 120, the Tribunal declared Ranjit Singh elected as a member of the Panchayat Samiti by 55 votes. It is this order and also the order dated February 16, 1995 whereby recounting of rejected votes was ordered have been challenged by Mithu Singh in the present appeal filed u/s 100 of the Act.

Having heard counsel for the parties at length I am of the view that the impugned orders of the Tribunal cannot be sustained.

The ground on which Ranjit Singh challenged the election of Mithu Singh was that valid votes polled by the former had been illegally declared invalid and that at the time of counting of votes some of the votes polled by him were mixed up with the votes of Mithu Singh. These allegations, to say the least, are as vague as they could be and no particulars thereof were stated in the petition nor any single instance mentioned about any alleged irregularity or illegality in the counting of votes. Not only this, when Ranjit Singh appeared as his own witness as PW-2 before the Tribunal all that he stated was that votes polled by him had been wrongly rejected without giving any further particulars. No doubt, he stated that he made a request for recounting of votes which was rejected but that is no substitute for the particulars that he was required to give in his election petition as also in his statement, so as to make out a case for recounting of votes. When a candidate looses by a narrow margin he is likely to say that counting has not been properly done but that by itself is no ground for ordering a recount. It is well settled that an order of recount cannot be passed as a matter of course and that the election Petitioner must provide sufficient material before the recounting of votes is ordered. It has been observed by their Lordships of the Supreme Court in P.K.K. Shamsudeen Vs. K.A.M. Mappillai Mohindeen and Others, "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 recount 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." In the present case the Tribunal ordered a recount of rejected votes only for making a fishing inquiry as to whether any illegality or irregularity had been committed in the counting of votes. This could not be done. It has no evidence before it of any such illegality or irregularity before it ordered recount. Moreover, there was no justification for the Tribunal to have ordered recount of the valid votes of polling booth 120 when such a request had been made orally by Ranjit Singh in the course of scrutiny/recounting of rejected votes.

In the result, the appeal is allowed and the impugned orders dated February 16, 1995 and February 28,1995 are set aside and the election petition filed by Ranjit Singh Dismissed. There is no order as to costs.