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CASE NO.: Appeal (civil)  1912 of 2006

PETITIONER: Gursewak Singh

RESPONDENT: Avtar Singh & Ors

DATE OF JUDGMENT: 05/04/2006

BENCH: S.B. Sinha & P.K. Balasubramanayan

JUDGMENT: J U D G M E N T (Arising out of S.L.P. (C) No. 4237 of 2005)

S.B. Sinha,  J.

                Leave granted.                  Gram Panchayat Ralla is situated in the District of Mansa in the State  of Punjab.  Election to the post of Sarpanch of the said Gram Panchayat was  held on 29.6.2003.  The Appellant and the First Respondent herein were the  only two contestants, polling wherefor was held in four booths being Nos.  41, 42, 43 and 44.  The Appellant was declared elected having polled 2004  votes as against 1900 by the First Respondent.  147 votes were rejected.  The  First Respondent herein allegedly made all attempts to disturb the counting  process.  He, however, did not lodge any complaint with the Returning  Officer.  The wife of the First Respondent incidentally was elected as  Sarpanch in the earlier term.   

       An election petition was filed by the First Respondent on 28.7.2003  inter alia praying for the following relief:

"\005Therefore, the petition is presented it is prayed  that the petition may kindly be accepted with costs  and the recounting of the votes for the election of  Sarpanch may kindly be ordered and election of  Respondent No. 1 as Sarpanch may be set aside  and the petitioner be declared as the elected  Sarpanch of Gram Panchayat of Village Ralla."

       In the said election petition, it was inter alia averred:

"That at the time of issuing the ballot paper every  illiterate voter was required to mark his thumb  impression, as a result of which the ink of the  stamp pad would get affixed to the thumb of such  voters.  At the time of folding the ballot this ink  would leave thumb impression on the ballot.  42  such votes which were polled in favour of the  petitioner were wrongly declared invalid whereas  48 such votes which had been poled in favour of  Respondent No. 1 instead of being declared invalid  were considered as valid and counted in favour of  Respondent No. 1.  In this manner during the  process of counting similar types of votes,  different criteria were adopted which is completely  wrong and illegal."

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       In the said proceedings by an order dated 4.6.2004, recounting of  votes was directed whereagainst the Appellant herein filed a writ petition  being CWP No. 9269 of 2004.  The High Court summoned the original  ballot papers.  Upon inspection thereof, it was observed that everything was  in a total mess stating:

"We have heard learned counsel for the parties at  some length.   

       During the course of hearing it appeared to  us that in the interest of justice we would direct the  box containing the votes to be opened.  Therefore,  we directed seals of the box to be removed in  presence of counsel for the parties and the Reader  of Court.  The seals were removed and box opened  by the officials in their presence.  It has been  containing the votes, particularly, in relation to  booth No. 41, which envelope was opened, clearly  show that they are not being maintained in a  proper way.  There is no separate envelopes to  indicate rejected votes.  Wrongly counted votes  and the votes in favour of each of the candidate to  the election.  At this stage, we would not make any  further observations to avoid any prejudice to the  rights and contentions of either party to these  proceedings.

       Arguments have been concluded.  We direct  that the envelope as well as the box be sealed in  the presence of counsel for the parties and the seal  should be clearly marked so as to establish its  identity at a subsequent stage before the competent  forum.

       Judgment reserved."

       By an order dated 2.9.2004, the writ petition was dismissed stating:

"In the back-drop of definite allegations in regard  to irregularities, improper counting of votes and  particularly, keeping in mind the fact that when  boxes containing the ballot papers were opened  before this Court it came to the notice that votes  were not even being kept in a segregated manner  in proper bundles, in our opinion, the respondent  herein had made a prima-facie case for recounting  of votes.  The Tribunal has exercised jurisdiction  vested in it within the purview and scope of Rules  33 and 37 of the Rules.  Exercise of such  jurisdiction neither suffers from a patent error of  law nor is contrary to the record.  In order to  justify interference with such as interim order,  heavy onus lay on the petitioners before us to show  that the impugned orders ex-facie suffer from  erroneous errors of law.  In our opinion, the  petitioners have not been able to exhibit any such  error.  The conclusions arrived at by the learned  Tribunal are based upon the averments made in the  petition, supported by oral evidence led by the  parties during the course trial of election petition,  which are no way contrary to the well established  principles of law.

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       Consequently, we dismiss both these  petitions leaving the parties to bear their own  costs."

       On or about 16.9.2004, an application was filed by the Appellant  herein before the Tribunal making allegations against the First Respondent  Baljinder Singh, the then BDPO Bikhi, Raghubir Singh, RO and Darshan  Singh, Chowkidar contending that they were responsible for tampering with  the records.  By  an order dated 12.10.2004, the said application filed by the  First Respondent was dismissed stating:

"The inordinate increase in the number of rejected  votes was brought to the attention of the  undersigned by the ADC-cum-Counting Officer  when detected during recounting, and the  undersigned exercising supervision of the  recounting process, as mandated by the Punjab  State Election Commission Act, 1994, and various  Court decisions, examined these 301 ballot papers,  and after due examination, it was clearly seen that  not only the colour and density of the ink used, but  also the shape of the balloting stamp, bore no  resemblance to each other, the candidates being  only 2 in number.  From this, it has been  concluded that one of the stamps, whereby the vote  in favour of Sh. Gursewak Singh, Respondent No.  1, has been sought to be rejected, has in fact been  administered at a different place and time than the  date of the actual polling on 29.6.2003.  It can also  be concluded that the same has been done by the  interested persons after the conclusion of poll and  after the declaration of the result, as the same has  not been incorporated in the report of the  ARO/Presiding Officer."

       During the said recounting process, the Counting Officer brought the  said fact to the notice of the Tribunal whereupon ballot papers were closely  inspected and the following questions were put to Shri Tejpal Rishi by the  Tribunal which are as under:

"a. Whether the ballot papers pertaining to Booth  41 which have been found now to be liable to  rejection on account of double stamping of  election seal, contain his signatures on the reverse? b. Whereas as per your own record and declaration  of results pertaining to Booth 41, only 47 number  of votes were shown as rejected, whether now, in  view that as many as 301 more ballot papers of  Booth 41 have got double stamping, it does not  show your collusion with one of the parties in view  of the fact that you did not show these votes as  invalid at the time of original counting?"

       The Tribunal has recorded the response of Shri Tejpal Rishi to the  said querries in the following terms:

"In response to the first question, the concerned  official admitted that the signatures on the reverse  of the ballot papers were his.  As to the second  question put to him, alleging his collusion and  negligence, he has strongly refuted the imputation,  and reiterated that at the time of counting of votes  on 29.6.2003, only 47 votes had been found liable  to be rejected.  No corrupt practice was done by

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him.  He states that there is no question of these  301 votes as now shown as invalid, being present  at the time of counting.  Rather the double  stamping is most likely to have occurred after  29.6.2003.  He acknowledges that 200 ballot  papers of booth 41 which were in favour of Avtar  Singh petitioner, have been recovered from the  packed of Booth 43.  Finally, he states that  whatever tampering with record has admittedly  been made, has been done only after the election  material was deposited before the higher  authorities.  The statement of Sh. Kulbir Singh,  Asst. Presiding Officer, Booth 41, is also on the  same lines."

       The Tribunal, taking into the said facts, therefore, opined:

"\005In the present case, no charges have been  proved against the returned candidate, viz.,  respondent 1, rather the method and manner in  which the ballot papers have been found to have  been tampered, thereby attempting to influence the  final result of the election, points, on the other  hand, to the petitioner or those who acted in his  aid.  Thus Tribunal has not come across any such  blatant case where tampering of polled votes has  taken place after the declaration of results, in order  to create an unassailable position in case of  recounting of votes.  It is a measure of the level of  degree of lawlessness and desperation which a  defeated candidate can go to get himself declared  selected\005"

       The High Court, however, reversed the said judgment and order of the  learned Tribunal opining that even if 301 double stamped votes are counted  in favour of the Appellant herein, the First Respondent would still get 68  more votes.  As regards the statement of Shri Rajpal Rishi, it was held that  the same was recorded behind the back of the First Respondent herein and,  therefore, no reliance thereupon could have been placed.

       The learned counsel appearing on behalf of the Appellant would  submit that the High Court committed an error, having regard to the specific  findings of fact arrived at by the learned Tribunal in reversing the said  decision and declaring the said Respondent elected.   

       Mr. J.L. Gupta, learned senior counsel appearing on behalf of the First  Respondent would, however, support the judgment of the High Court.

       Before adverting to the rival contentions raised in this appeal, certain  disturbing features may be noted.  4063 ballot papers were issued for  holding the election but only 4051 votes were found to have been polled and  12 ballot papers were missing.  In the counting held on 29.6.2003, it was  found as under:

Booth Votes found Gursewak Avtar Singh Rejected 41 1147 708 392 47 42

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966 463 474 29 43 902 397 486 19 44 1036 436 548 52 TOTAL 4051 2004 1900 147

       After the recounting, pursuant to the order of the Tribunal dated  12.10.2004 as also the judgment of the High Court in CWP No. 9269 of  2004, the position stood, thus:

"Booth Gursewak  Singh  (Appellant) Avtar Singh (First  Respondent) Rejected  Votes Total 41 354 231 360 (incl.  301 doubly  stamped  ballots) 945 42 467 474 25 966 43 397 685 20 1102 44 423 578 22 1023

1641 1966 429 4036"

       The discrepancies in the ballot papers as found in respect of booth

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Nos. 41 and 43 are as under:

"Booth No. Gursewak  Singh  (Appellant) Avtar Singh (First  Respondent) Rejected  Votes Votes for the  Booth (A)     41 (B)     41 354 708 231 392 360  47 945 1147 (A)     43 (B)     43 397 397 685 486 20 19 1102 902"

       As regard booth No. 44, the position was found to be as following:

"Booth No. Gursewak  Singh  (Appellant) Avtar Singh (Respondent) Rejected  Votes Votes for the  Booth (A)     44 (B)     44 423 436 578 548 22 52 1023 1036"

       Thus, upon recounting, 1641 votes were found to be in favour of the  Appellant, 968 votes in favour of the First Respondent and 427 votes were  found invalid.

       It is also disturbing to note that in relation to booth No. 41, 200 more  ballot papers were found whereas in respect of booth No. 43, about 200 less  were found.  How and in what manner, the ballot papers of the two booths

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got mixed up is not known.  Who is responsible therefor is also not known.   What evidence was adduced in support of the respective contentions is also  not known.  As regard booth No. 44, the Tribunal recorded:

"The case of booth 44 is slightly more complex as  only 1023 ballot papers have been recovered from  the packet against 1036 shown at the time of the  original counting, 30 votes which were shown as  rejected were decided in favour of the petitioner,  that 13 votes further of the respondent 1 were  found rejected.  As to booth 41, where the  maximum irregularities have been noted, originally  47 votes were shown as rejected.  During  recounting, however, apart from this, 12 more  votes were shown to have been rejected, and 301  such ballot papers also were found which were  having double stamps, these were kept apart and  counted in the list of rejected votes for the time  being.  Upon close examination of the 2 stamps on  the 301 ballot papers, however, it was clearly  visible to the naked eye that not only the shape and  size of the swastika stamp, but also the density and  colour of the ink were at significant variance with  each other.  Statements of the ARO/ Presiding  Officer of booth 41 confirmed that one of the  stamps, vide which the ballots favouring Sh.  Gursewak Singh, Respondent 1, were sought to be  rendered invalid, was administered at a later date  and time than the day of counting."

       The High Court did not go into the correctness of the aforementioned  findings of the Tribunal at all.  It was, in our opinion, essential to go into the  said question and arrive at a positive finding on analyzing the evidence on  record.

       Although we need not go into the law of recounting, as the said  question does not arise before us, we may notice a decision of this Court in  Chandrika Prasad Yadav v. State of Bihar and Others [(2004) 6 SCC 331],  wherein it is stated:

"It is well settled that an order of re-counting of  votes can be passed when the following conditions  are fulfilled: (i) a prima facie case; (ii) pleading of material facts stating irregularities  in counting of votes; (iii) a roving and fishing inquiry shall not be made  while directing re-counting of votes; and (iv) an objection to the said effect has been taken  recourse to."

       The said dicta has been reiterated in M. Chinnasamy v. K.C.  Palanisamy and Others [(2004) 6 SCC 341], Hoshila Tiwari v. State of Bihar  and Others [(2005) 12 SCC 342] and Tanaji Ramchandra Nimhan v. Swati  Vinayak Nimhan & Ors. [2006 (2) SCALE 81].  The reason why we referred  to the said decisions is that at every level, in case of a challenge to an  election, pleadings of the parties have been held to play a significant role.

       The Tribunal inter alia held that there had been no allegation of  corrupt practices against the Appellant.  There was no pleading as such in  this behalf in the election petition.  The High Court, however, held:

"Going through the petition and the evidence on  file, allegations of mal-practice have been prima

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facie alleged and proved against Respondent No. 1  and the officials (Respondents 2 to 5), who had  helped Respondent No. 1 in manipulating the  election."

       There was no basis for arriving at the said finding.  It was not  supported by any cogent reason.  No material on record was referred to for  arriving at the said finding.

       While interfering with an order of the Election Tribunal, particularly,  in view of the purport and object for which such Tribunals had been  constituted, the High Court had an obligation to assign sufficient and cogent  reasons.  The High Court, as noticed hereinbefore, proceeded on the basis  that the Appellant was responsible for the mess created in the matter of  maintenance of records.  There are items of evidence on record to show that  ballot papers had not been properly kept.  Some were kept in loose sheets.   They had been counted separately.  The Tribunal noticed how ballot paper  envelopes were found in suspicious circumstances.

       Instead of breaking the seals at one end, large number of ballots were  found in loose condition.  200 ballot papers of booth No. 41 were found in  the bag of booth No. 43.  The Tribunal, therefore, came to the conclusion:

"\005From a comparative analysis of the position  (booth-wise) of the results after recounting, as  given tabular form on page 13 above, it is apparent  that there is no issue as pertaining to the counting  process in Booth 42, as the total number of ballots  polled (966) is same, and there is rather a decrease  of 4 rejected votes, which have now been counted  in the tally of the Respondent 1, thereby increasing  his tally of booth 42 to 467 from 463.  Similarly, in  relation to Booth 43, if one takes into account that  2-ballot papers in favour of the petitioner which  pertained to Booth 41 have somehow managed to  enter the packet containing ballot papers of Booth  43 then the matter is somewhat regular, as the total  votes polled in the booth 43 is similar at 902, and  there is only marginal difference of 1 extra vote  which was polled in favour of petitioner being  declared rejected\005"

       We have noticed hereinbefore the observations of the Tribunal as  regard booth No. 44.

       We are, therefore, of the opinion that the High Court should have  examined the case more closely.  The impugned judgment, therefore, cannot  be sustained.  It is hence set aside.  The appeal is allowed and the matter is  remitted to the High Court for consideration of the matter afresh.  It may,  however, be place on record that we have deliberately not adverted to the  other contentions raised at the bar, lest it may prejudice any of the parties  herein.

       Before parting, however, we may record some disturbing features.  By  an order dated 7.3.2005, this Court directed status quo to be continued as  prevailing on 23rd February, 2005.  During pendency of this petition, even in  the absence of the authority, having the jurisdiction in the matter, oath was  supposed to have been administered to the First Respondent herein.  The  officer who attested the signature of the First Respondent in the requisite  papers has been placed under suspension by an order dated 2.3.2005.

       In view of the fact that we have set aside the judgment of the High  Court and the matter is remitted back to the High Court, we direct that  during pendency of the appeal before the High Court, the Appellant herein  shall be reinstated as Sarpanch in the Gram Panchayat, Ralla.  However, the

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High Court is requested to consider the desirability of disposing of the  matter as expeditiously as possible, preferably within a period of two months  from the date of communication of this order.

       The First Respondent shall bear the costs of the Appellant in the  appeal.  Counsel’s fee assessed at Rs. 10,000/-.