FAO No.4767 of 2009 (O&M) - 1 – IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** FAO No.4767 of 2009 (O&M) DATE OF DECISION: 03.02.2010. **** Jalaur Singh . . . . Appellant VS. Balwinder Singh and others . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: Mr.D.V. Sharma, Sr. Advocate with Mr.Harit Sharma, Advocate for the appellant. Mr.Vinod K. Kataria, Advocate for the respondents. **** RAKESH KUMAR JAIN J. (ORAL) This appeal is directed against order dated 4.9.2009 passed by the Election Tribunal, Moga whereby, an election petition filed by Balwinder Singh (respondent No.1), on the ground of recounting of votes, has been allowed and he has been declared to have been elected. Briefly stated, the election of the Panches for the Gram Panchayat, Karyal, Tehsil and District Moga, was held on 26.5.2008 in which the appellant was declared elected and respondent No.1 was declared defeated, as the appellant had secured 295 votes and respondent No.1 had polled 293 votes. Respondent No.1 challenged the election of the appellant by filing an election petition under Section FAO No.4767 of 2009 (O&M) - 2 – 76 of the Punjab Gram Panchayat Act, 1994 and prayed for recounting. Vide order dated 10.7.2009, the Election Tribunal, Moga ordered recounting of votes on 17.9.2009 at 10.00 AM in his Court by District Revenue Officer, Moga and District Development and Panchayat Officer, Moga. The appellant challenged the said order by way of Civil Revision No.3888 of 2009, which was dismissed by this Court on 16.7.2009 observing that no ground to exercise jurisdiction under Article 227 of the Constitution of India was made out to interfere in the order dated 10.7.2009 passed by the Tribunal. Then in terms of the order dated 10.7.2009, votes were recounted by the aforesaid two persons, out of which, authority of one person, namely, Jitender Singh, SDO, Punjab Mandi Board was challenged by the appellant on the ground that he has been inimical to him. The the said application was allowed by the tribunal on 19.8.2009 and in his place District Revenue Officer, Moga and District Development and Panchayat Officer, Moga were directed to recount the votes which were found to be 294 in favour of respondent No.1 and 292 in favour of the appellant. The election of the appellant was, thus, set aside and respondent No.1 was declared to have been elected. Learned counsel for the appellant has, inter alia, argued that the learned Presiding Officer had erred in the exercise of his jurisdiction in delegating his power of recount to District Revenue Officer, Moga and District Development and Panchayat Officer, Moga. In this regard, he has relied upon two decisions of this Court in the case of “Satnam Singh Versus Kamaljeet Singh” 2000(4) RCR (Civil) 525 and “Darshan Singh Versus Deputy Commissioner – cum – President Officer, Election Tribunal and other” 2000(3) RCR (Civil) 271. FAO No.4767 of 2009 (O&M) - 3 – In the case of Satnam Singh (Supra), this Court has held : - “Counsel for respondent No.1 argued that it was only because of recounting of votes that this difference had arisen. Regarding re-counting, another argument is advanced by learned counsel for the appellant. It is that though the recounting was ordered, the Election Tribunal itself did not carry out the re-counting but it was done by Additional Deputy Commission, Sangrur and that the Election Tribunal had no right to entrust this work of recounting to Additional Deputy Commissioner and the re-counting being not done by the Election Tribunal itself or under its supervision, cannot be said to be legal. So far as the difference is counting of votes is concerned, I express no opinion because the second argument regarding re-counting advanced by the learned counsel for the appellant, seems worth considering. On questioning the counsel for the respondents, he could not show that Additional Deputy Commissioner was a part of the election Tribunal through the Presiding Officer of the Election Tribunal is Duty Commissioner. According to Section 73, the Election Tribunal is constituted by the State Government in consultation with the Election Commissioner, for each district of part thereof. Section 73(2) of the Act provides that the State Government shall, by notification, appoint an IAS or PCS or Class I officer of the State Government having adequate administrative, legal or magisterial experience, as the President Officer of an election Tribunal, therefore, though the Deputy Commissioner was (admittedly) entrusted the powers of Election Tribunal, and the Additional Deputy Commissioner was not entrusted with the same. I find that it was not proper for the Election Tribunal to have entrusted the duty of re-counting to FAO No.4767 of 2009 (O&M) - 4 – a person outside the Tribunal. For verifying the position, whether the Additional Deputy Commissioner forms part of Election Tribunal, I had called the advocates again for further arguments and counsel for the respondent could not show that the Additional Deputy Commissioner was entrusted the power of Election Tribunal. This being the position, this appeal succeeds on the last ground i.e. recounting was not done by the Election Tribunal.” In the case of Darshan Singh (Supra), this Court has further held as under: “It is a settled principle of law that the power vests in the Tribunal cannot be delegated. The power to order re-count is not a power which can be delegated by the Tribunal to a 3rd person. Directing re-count of votes is a serious order and it has to be passed and compliance recorded by due application of mind by the concerned Tribunal. The statutory provisions neither prescribe nor justify implied delegation on the principle of necessity or otherwise, if the counting of votes is irregular or defective and the order of recounting is passed by the Tribunal it could finally result in setting aside the election to the elected candidates. Thus, re-count has to be done by the Tribunal itself. It places onerous responsibility upon the Tribunal and it must and has to satisfy with regard to valid rejection of votes or otherwise where such a ground is pleaded and due evidence is led in support thereof. Such opinion is that of the authority concerned and none else. For FAO No.4767 of 2009 (O&M) - 5 – this part of the impugned order has to be set aside. The learned Tribunal has fallen in error of jurisdiction in ordering recount of votes to taken up by Additional Deputy Commissioner, Bathinda with the help of such other person or officer as he may deem fit and proper and for submission of the report of the Tribunal.” Learned counsel for the appellant has submitted that his two votes have been illegally rejected at the time of re-counting. In reply, counsel for the respondents could not refer to any judgment contrary to the judgment cited by the learned counsel for the appellant and rather stated that he would have no objection if the impugned order is set aside and the matter is remanded back to the Election Tribunal, Moga, with a direction to the Presiding Officer of the Tribunal to recount the votes himself. In view of the above discussion, the present appeal is allowed, the impugned order is set aside and the matter is remanded back to the Presiding Officer Election Tribunal, Moga, with a direction that he shall recount the vote himself and declare the result within a period of one month from the date of appearance of the counsel for the parties. Parties are directed to appear either in person or through their counsel before the Election Tribunal, Moga on 22.2.2009. Order dasti. (RAKESH KUMAR JAIN) February 03, 2010 JUDGE Vivek