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CASE NO.: Appeal (civil)  3165 of 2006

PETITIONER: Sadhu Singh

RESPONDENT: Darshan Singh & Anr

DATE OF JUDGMENT: 26/07/2006

BENCH: S.B. Sinha & Dalveer Bhandari

JUDGMENT: J U D G M E N T (Arising out of SLP (C) No. 85 of 2005)  

S.B. SINHA, J.

Leave granted.  

The appellant herein contested an election held on 29.6.2003  to the post of Sarpanch of the Gram Panchayat of Village Bareh,  Tehsil Budhlada in the State of Punjab.  The appellant herein was  declared elected.  He won by a margin of 11 votes.  The 1st  respondent filed an election petition, inter alia, contending that  while counting the ballot papers, 147 votes were wrongly rejected.   It was further averred that the counting staff headed by the  Presiding Officer intermingled about 25 ballots, which were polled  in his favour in the bundles of the elected candidate and had the  said votes been counted in his favour he would have been declared  elected.  By reason of an order dated 29.6.2004, the Election  Tribunal directed recounting of the ballot papers.  The validity of  the said order was questioned by the appellant herein by filing a  revision application before the High Court of Punjab and Haryana,  which was numbered as Civil Revision No.3194 of 2004.  By  reason of the impugned judgment, the said revision application has  been dismissed.   

Mr. C.L. Sahu, learned counsel appearing on behalf of the  appellant, inter alia, would submit that the Election Tribunal and  the High Court clearly committed an error in directing recounting  of the votes.  It was urged that while so directing the necessity to  maintain secrecy of ballot papers which is sacrosanct, have been  overlooked on frivolous, vague and indefinite allegations.  There  had, thus, been no adequate material, Mr. Sahu would urge, to  direct recounting of the votes.   

Mr. J.K. Das, learned counsel appearing on behalf of the  respondents, on the other hand, would support the impugned  judgment.   

From a perusal of the election petition filed by the 1st  respondent herein it appears that he obtained 1313 votes, whereas  the appellant obtained 1324 votes.  It was clearly averred that 147  votes were wrongly rejected.  The Presiding Officer was arrayed as  respondent No.2 in the election petition.  The learned Tribunal  opined that the direction for recounting of votes was necessary,  upon satisfying himself that although no written request for  recounting was made, respondent No.1 in his evidence stated an  oral request clearly been made therefor, but the same had been  turned down by the Presiding Officer.  The learned Tribunal also

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took into account the fact that the appellant herein in his evidence  did not state as to how many votes had been rejected due to non- affixation of stamps or how many of them had been rejected where  double stamps were affixed.  The Tribunal furthermore took into  account the statement of the 1st respondent herein that 24-25 votes  polled by him were intermingled with the votes of the appellant.   

The High Court in its impugned judgment opined :  

"In the instant case, as it has specifically  been alleged by the election petitioner that no  reasons have been given while rejecting the votes,  therefore, it is imperative to have a look at the  rejected ballots to find out whether they have been  rightly rejected or not."                      Concededly the following factors are relevant for directing  recounting of votes:  

i)      prima facie case must be established; ii)     material facts must be pleaded stating irregularities in  counting of votes; iii)    a roving and fishing inquiry shall not be directed by  way of an order for recounting of votes;  iv)     an objection to the said effect should be raised; and  v)      secrecy of ballot papers should be maintained.

{See Gursewak Singh vs. Avtar Singh & Ors. [(2006) 4  SCC 542]; M. Chinnasamy vs. K.C. Palanisamy [(2004) 6 SCC  341]; Chandrika Prasad Yadav vs. State of Bihar [(2004) 6  SCC 331] and Tanaji Ramchandra Nimhan vs. Swati Vinayak  Nimhan & Ors. [(2006) 2 SCC 300].}     

In the instant case, a finding of fact has been arrived at that  the 1st respondent had raised an objection as regards the manner in  which the ballot papers had been counted by the officers.  The said  finding of fact was arrived at after the parties adduced their  respective evidence.  The Tribunal has also, in view of the  materials brought on records by the parties, directed recounting of  votes as the number of ballot papers was stated to have been  rejected was 147, which exceeded the margin of 11 votes by which  margin the appellant was declared elected.   

The 1st respondent was found to have made out a prima facie  case for recounting of votes by both the Tribunal and also the High  Court on the premise that a large number of votes might have  wrongly been rejected.  The margin of votes polled by the  appellant vis-‘-vis the 1st respondent, although would not be of  much relevance but the said fact alone was not the basis for  passing the impugned judgment.  The 1st respondent herein not  only lodged protests in regard to the manner in which the Presiding  Officer counted the votes, but had also urged him to recount the  votes.  He had also given specific instances in respect thereof in his  election petition.  The Election Petitioner, furthermore, not only  placed necessary facts in his election petition but also in his  deposition before the Tribunal categorically stated that the  Presiding Officer did not assign any reason for declaring a huge  number of votes as invalid.   We have noticed hereinbefore that  before the Tribunal a contention had been raised by the 1st  respondent that 25 votes polled in his favour were wrongly counted  in favour of the appellant by intermingling them with the ballot  papers.       We, therefore, are satisfied that the conditions precedent  necessary for a direction of recounting of votes stand satisfied.  For

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the reasons aforementioned, no case has been made out for  interference with the impugned judgment.  The appeal is  dismissed.  No costs.