FAO No.4841 of 2009 (O&M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** FAO No.4841 of 2009 (O&M) DATE OF DECISION: 02.03.2010 **** Nagar Singh @ Nago and another . . . . Appellants VS. Bukhan Singh and others . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: Mr.Daldeep Singh, Advocate for the appellants. Mr.Harsh Aggarwal, Advocate for the respondents. **** RAKESH KUMAR JAIN J. (ORAL) This appeal is directed against the order of Additional Deputy Commissioner-cum-Election Tribunal, Barnala dated 25.8.2009 by which the election of Nagar Singh @ Nago (appellant No.1) has been set aside and Bukhan Singh (respondent No.1) has been declared to have been elected. In brief, the facts of the case are that the election in Thirteen Wards to constitute Municipal Council, Tapa was held on 30.6.2008. Five candidates contested the election from Ward No.12, namely, Nagar Singh @ Nago (appellant No.1), Gurcharan Singh, Namberdar(Appellant No.2), Bukhan Singh (respondent No.1), Shobha Ram (respondent No.2) and Gurmeet Singh (respondent No.3). FAO No.4841 of 2009 (O&M) - 2 - Appellant No.1 polled 386 votes and was declared elected defeating his nearest rival Bukhan Singh (respondent No.1) who challenged his election on the ground that he was convicted and sentenced vide judgment dated 17.01.2007 passed by Special Judge, Barnala for a period of three years’ rigorous imprisonment with a fine of Rs.5000/- in case FIR No.78 dated 9.5.2003 registered under Section 13 of the Prevention of Corruption Act, 1988 and was dismissed from the post of Chowkidar, PUNSUP, Barnala on 1.6.2006. It is also pertinent to mention that against the order of conviction and sentence, appeal of the appellant No.1 was admitted and only sentence was suspended but not the conviction. The learned Election Tribunal vide its order dated 25.8.2009 held that appellant No.1 was not eligible to contest election, therefore, his election was set aside and at the same time declared respondent No.1 to have been elected against the said post as Councilor from Ward No.12. Aggrieved against the impugned order, the present appeal has been preferred by two appellants, namely, Nagar Singh @ Nago and Gurcharan Singh in which, on 12.10.2009, counsel for the appellants restricted his prayer only to the extent that respondent No.1 could not have been declared elected in view of Section 90 of the Punjab State Election Commission Act, 1994 (for short ‘the Act’). On the same date, while issuing notice of motion, this Court had stayed the declaration with respect to respondent No.1 as elected candidate. Mr.Daldeep Singh, learned counsel for the appellants has vehemently argued that in case of multi-corner contest, the Election Tribunal has no jurisdiction to put the election petitioner, who may be the nearest rival to the elected candidate, in his place while upsetting the election of the returned candidate as it violates Section 90 of the FAO No.4841 of 2009 (O&M) - 3 - Act. In this regard, he has relied upon a decision of the Supreme Court in the case of “Prakash Khandre Vs. Dr. Vijaya Kumar Khandre” 2002(2) RCR (Civil) 827. On the other hand, Mr.Harsh Aggarwal, learned counsel for the respondents has argued with equal vehemence that so far as Section 90(b) is concerned, a bare reading of it would provide that in case of setting aside the election of the returned candidate, the petitioner or such other candidate who would have obtained majority of the valid votes, should have declared elected. However, in support of his contention, no precedent has been cited. I have heard both the learned counsel for the parties and have perused the available record with their assistance. In order to appreciate the argument raised by counsel for the parties, certain provisions of law are required to be referred to, namely, Section 90 of the Act and Section 101 of the Representation of People Act, 1951 (for short ‘the Act of 1951’). “Section 90 of the Act: Grounds for which a candidate other than the returned candidate may be declared to have been elected – If any person who has filed an election petition has in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the Election Tribunal is of the opinion : - (a) that in fact the petitioner or such other candidate received a majority of the valid votes; or (b) that but for the votes obtained by the returned candidate by corrupt practices, the petitioner or such other candidate FAO No.4841 of 2009 (O&M) - 4 - would have obtained a majority of the valid votes, That Election Tribunal shall, after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, as the case may be, to have been duly elected.” Section 101 of the Act of 1951: Grounds for which a candidate other than the returned candidate may be declared to have been elected – If any person who has lodged a petition has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the High Court is of opinion : - (a) that in fact the petitioner or such other candidate received a majority of the valid votes; or (b) that but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes, the High Court shall, after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, as the case may be, to have been duly elected.” A bare perusal of both the aforesaid provisions would show that except for the ‘High Court’ and the ‘Election Tribunal’, provided in the aforesaid provisions, both Section 90 of the Act and Section 101 of the Act of 1951 are Para materia. The Hon’ble Apex Court had the opportunity to deal with a similar situation in the case of Prakash FAO No.4841 of 2009 (O&M) - 5 - Khandre (supra) where there was multi-corner contest and held that: - “However, in an election where elected candidate is declared to be disqualified to contest election and there are more than two candidates contesting election, there is no specific provision under the Act under which the person who has secured the next higher number of votes could be declared as elected. The Act is silent on this point. Further, it cannot be presumed that the votes secured by the disqualified elected candidates would have been wasted or would have been secured by the next candidate who has secured more votes. If disqualified candidate was not permitted to contest the election then how the voters would have voted in favour of the candidate who has secured more votes than other remaining candidates would be a question in the realm of speculation and unpredictability. In such a situation, declaring the election of the returned candidate on the ground of his initial disqualification to contest the election by itself would not entitle the election petitioner or any other candidate to be declared elected.” “In view of the above settled legal position, in our view the impugned order passed by the High Court declaring the election petitioner as elected on the ground that the votes cast in favour of elected candidate (appellant) are thrown away was totally erroneous and cannot be justified. As held by the Constitution Bench in Kanappa’s case that some general rule of election law prevailing in the United Kingdom that the votes cast in favour of a person who is found disqualified for election may be regarded as “thrown away” only if the voters had noticed before the poll the disqualification of the candidate, has no application in our country and has only merit of antiquity. We would observe that the FAO No.4841 of 2009 (O&M) - 6 - question of sending such notice to all voters appears to us alien to the Act and the Rules. But that question is not required to be dealt with in this matter. As stated earlier, in the present case for one seat, there were five candidates and it would be impossible to predict or guess in whose favour the voters would have voted if they were aware that elected candidate was disqualified to contest election or if he was not permitted to contest the election by rejecting his nomination paper on the ground of disqualification to contest the election and what would have been voting pattern. Therefore, order passed by the High Court declaring the election petitioner-Dr.Vijay Kumar Khandre as elected requires to be set aside.” After reading the aforesaid judgment, no dispute is left to be decided by this Court as it has already been decided by the Hon’ble Supreme Court that in case where there is a direct contest and the candidate who looses because of the corrupt practice adopted by the returned candidate would replace him, if he is unseated from the said post, but where there is a multi corner contest, it would be very difficult to find out that who would get the votes of an unseated candidate loosing battle in the Court. In view of the above law laid down by the Apex Court, I do not find any force in the argument raised by counsel for the respondents. Hence the present appeal is allowed. In so far, the election of respondent No.1 is concerned, the same is hereby set aside but the other part of the order of the Election Tribunal is maintained. Now, the election of the new incumbent from Ward No.12 of Municipal Council, Tapa shall be conducted in accordance with law. (RAKESH KUMAR JAIN) FAO No.4841 of 2009 (O&M) - 7 - March 02, 2010 JUDGE vivek