Sultan vs Jai Singh and Others

Nanak Chand Khichi, J.—This revision petition has been filed for quashing the order dated February 6, 1997, passed by the trial Court and order dated April 11, 1997, passed by the appellate Court, whereby respondent No. 1 has been declared elected as Member of Panchayat Samiti.

The brief facts of the case are that the elections for the membership of Panchayat Samiti Adampur, from Ward No. 13 of the Electoral Division of the said Samiti were held on December 15, 1994. Petitioner and the respondents contested the election. Sultan-petitioner was declared elected as Member of Panchayat Samiti, Adampur. Jai Singh-respondent No. 1 filed Election Petition challenging the election of the petitioner on various grounds and claimed that he be declared elected in place of the petitioner. The petitioner contested the election petition and controverted the allegations made therein. Jai Singh-respondent No. 1 had challenged the election of petitioner and made a statement wherein he only prayed for recounting of votes and decision of the election petition on the basis thereof. Hence no issues were framed by the trial Court. As a result of this, re-counting was ordered on April 25, 1995 and Government Pleader was appointed as Local Commissioner for doing the needful. Re-counting was done on May 15, 1995. The Local Commissioner submitted a detailed report. According to this report, the record was presented by the Block Development and Panchayat Officer, Adampur. The re-counting was conducted in the presence of the parties and their counsel, Seals on the envelop were found intact and were broken in their presence. On recounting, it was found that the packet contained 3157 ballot papers. Out of these, 396, 1019, 420 and 1148 votes were polled in favour of Chandgi Ram, Jai Singh, Lekh Ram and Sultan, respectively, 109 votes were rejected while 65 votes were found to be disputed. Another packet/envelop was opened. It was not found relating to the polling in question. The envelop was then re-sealed. Sultan-petitioner moved an application before the trial Court for getting the missing ballot papers traced because according to the election result, the total number of votes polled was 3601 out of which 3477 were found valid while 124 were rejected. The Deputy Commissioner, got the missing ballot papers traced and produced in Court. The difference in the number of ballot papers sent to the Court and the number of actual votes polled was 444. When the ballot papers were traced and produced in Court, the sealed envelop was found containing 439 votes. In this way, in all, only 5 ballot-papers were still missing. On April 18, 1996, the Civil Judge (Sr. Division), Hisar, himself opened the packet containing 65 disputed votes in the presence of the parties and their counsel and found 12 votes validly polled in favour of Sultan-petitioner and two votes validly polled in favour of Jai Singh-respondent No. 1. These votes were exhibited as Exs. C.1 to C.13 and Exs.C.14 and C.15. On March 6, 1996, 439 ballot received later on, were again counted as per order of the Court and it was found that Jai Singh and Sultan secured 192 and 39 votes respectively whereas Lekh Ram and Chandgi Ram, respondents had secured 139 and 42 votes respectively. The net result of the recounting conducted on May 1-5, 1995 and on March 6, 1996, was as under :--

Sr. No.

Name of the candidate

Result of recounting conducted on 15-5-95

Result of recounting conducted on 6-3-96

Net result

1.

Chandgi Ram

396

42

438

2.

Jai Singh

1019

192

1211

3.

Lekh Ram

420

139

539

4.

Sultan

1148

39

1187

5.

Rejected

109

27

136

6.

Disputed

65

--

65

3157

439

3596 3576)

According to the result originally prepared by the Returning Officer in Form 20, a certified copy of which was produced oh record, the total votes polled were 3601 and the valid votes were 3477. Sultan, petitioner was found to have secured 1240 votes as against Jai Singh who secured 1235 votes. According to this result prepared by the Returning Officer, Sultan, petitioner was declared elected with a margin of five votes only. After recounting of votes as referred to above, the petitioner had got total number of 1187 votes while Jai Singh-respondent, who had filed the Election Petition, had secured 1211 votes. In this way, Jai Singh secured 24 votes more than Sultan-petitioner. With regard to five missing votes, none of the parties pressed for getting those traced. The learned trial Court found that even if these five missing votes were counted in favour of Sultan-petitioner, yet he would be losing as Jai Singh, respondent No. 1 secured 13 votes more than him (Sultan-petitioner). In view of this, it was found by the trial Court vide impugned order that petitioner Sultan, was wrongly declared elected whereas Jai Singh-respondent No. 1 had secured more votes and should have been declared as the winning candidate. The election petition was accepted. The election of the petitioner was set aside and Jai Singh-respondent was declared elected in his place. The appeal filed by Sultan-petitioner, in the Court of Addl. District Judge, Hisar, was dismissed on April 11, 1997.

The learned counsel for the petitioner has vehemently argued while assailing the impugned orders that the trial Court was not at all justified for ordering recounting of the ballot papers. This order was passed without there being any material on the record to show that irregularity or illegality in the counting of votes was committed. He has further submitted that re-counting of votes should not have been ordered just for asking. This contention is without any force and substance and has to be rejected. Admittedly, Jai Singh-respondent No. 1, who had challenged the election, gave up the plea with regard to other objections raised by him in the election, petition. While making a statement in the Court, he only prayed for deciding the Election Petition on recounting of the ballot papers. This position was accepted by the petitioner and his counsel, Consequently, a Local Commissioner was appointed to scrutinize and to recount the votes. This procedure adopted by the trial Court cannot be said to be illegal in any way. In Badu Ram v. Ram Niwas 1997 (2) RCR 439, it was held by a single Bench of this Court that where the fate of the Election Petition was based only on re-counting, which was not objected to, by the petitioner before the trial Court, the procedure adopted was held to be not illegal. In the instant case, recounting was ordered on the offer made by Jai Singh-respondent No. 1 to which the petitioner never objected. This shows that he was a consenting party to the recounting of votes. After losing in re-counting, it does not lie in the mouth of the petitioner to turn around and say that the learned trial Court ordered recounting just for asking without there being any material on record. In a case involving similar proposition, a Division Bench of this Court in Karam Singh v. Addl. District Judge, Yamuna Nagar 1997 (3) RCR 131 ; 1997 AIHC 2824), held that recounting can be ordered on the basis of ah argument. After losing the election on recounting, the petitioner cannot be allowed to challenge the same.

In view of the above discussion, this revision petition is dismissed being without any merit. However, there will be no order as to costs.