L.P.A. No.140 of 2006 in 1 C.W.P. No.172 of 2006 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. L.P.A. No.140 of 2006 in C.W.P. No.172 of 2006 Date of decision: November 23, 2006 Lillu Ram ...Appellant Versus The Additional Civil Judge (Sr. Division), Gurgaon and others. ...Respondents CORAM: Hon'ble Mr. Justice S.S. Nijjar, Acting Chief Justice Hon'ble Mr. Justice S.S. Saron Present: Mr. Ashok Aggarwal, Senior Advocate with Mr. Mukul Aggarwal, Advocate, for the appellant. Mr. M.L. Sarin, Senior Advocate, with Mr. Hemant Sarin, Advocate, for the respondents. This Letters Patent Appeal is against the order dated 25.07.2006, passed by the learned Single Judge in CWP No.172 of 2006. The elections to the Gram Panchayats in the State of Haryana were held on 9.4.2005. The appellant Lillu Ram contested the election for the office of Sarpanch, Gram Panchayat, Nathupur, Tehsil and District Gurgaon. There were eight candidates including L.P.A. No.140 of 2006 in 2 C.W.P. No.172 of 2006 the appellant and Smt. Shiela (respondent No.2) who contested for the office of Sarpanch. In the elections that were held, the appellant secured 973 votes whereas Smt. Sheela (respondent No.2) secured 971 votes. There was, therefore, a difference of two votes only between the said two candidates. After declaration of the election result, Smt. Sheela (respondent No.2) filed an election petition dated 29.4.2005 (Annexure P-1) under Section 176 of the Haryana Panchayati Raj Act, 1994 (“Act” for short). The said provision provides for the determination of validity of election inquiry by Judge and the procedure therefor. The election petition was registered as Petition No.18 of 2.5.2005. The respondent No.2 in her petition also sought the re-counting of votes and for nullifying the entire election process; besides for declaring her as elected to the office of Sarpanch of Gram Panchayat, Nathupur. The setting aside of the election was inter alia sought on the grounds that the doors of the polling station of the elections which was at Government Primary School, Nathupur were closed at 3.45 P.M. while the time for polling was till 4.00 P.M. Before the polling time was over, the ballot boxes were brought out to a bus parked behind the polling station at the instance of Om Parkash, Returning Officer (respondent No.9) and the S.D.M. Gurgaon. The ballot boxes without prior notice to respondent No.2 were then transferred to John Hall, Gurgaon. The respondent No.2 and her agent were stopped from entering and being present at the L.P.A. No.140 of 2006 in 3 C.W.P. No.172 of 2006 time of counting of votes. The appellant and his agents were, however, allowed to enter the John Hall and be present at the time of counting. The counting was, therefore, done without the presence of respondent No.2 or her agent. It was a conspiracy of the election staff and its officers so as to manipulate the votes and declare the appellant as elected. The respondent No.2 further alleged that she has reasons to believe that bogus/coined votes were manufactured in favour of the appellant during the counting of votes, which were taken as votes that had been validly cast. The respondent No.2 could not at that time pray for re-count of votes as she was prevented from being present at the time of counting. There has, thus, been an improper rejection of valid votes and improper acceptance of invalid and bogus votes which materially affected the result of the election. It is also alleged that in the voters' list prepared for election of the Nathupur Panchayat, voters of the Gram Panchayat of village Paroli, Tehsil and District Faridabad were also enrolled. They had cast their votes at Paroli and also at Nathupur. Besides, several persons cast their votes twice in villages Alawardi and Nathupur. A list of the various voters which has been prepared, has been indicated in the election petition (Annexure P-1). The votes of many voters who had died, had also been polled by others. The names of the dead persons and the votes polled have also been indicated. It is also alleged that in the presence of the agent of respondent No.2 at the polling booth in village L.P.A. No.140 of 2006 in 4 C.W.P. No.172 of 2006 Nathupur, the total number of votes that were polled was 2925 votes. However, in the result declared on 9.4.2005 only 2896 votes had been shown to have been polled. The respondent No.2 through her agent moved an application dated 9.4.2005 (Annexure R-2/2) before the Deputy Commissioner, Gurgaon, stating therein that in the counting of votes respondent No.2 had been declared elected but on the pretext of calculation she was shown as defeated by a margin of two votes. Besides, their request for re-counting had been turned down by the S.D.M. Moreover, number of votes cast on their side had been rejected. The appellant filed his written statement dated 31.10.2005 (Annexure P-2) to the election petition of respondent no.2. Preliminary objections were raised to the effect that the petition was not maintainable in the present form and was liable to be summarily dismissed. Besides, the respondent No.2 was estopped from filing the petition by her own act, conduct, omissions, admissions, acquiescence and laches. It was further alleged that the petition was bad for non-joinder of necessary parties, she had no cause of action and locus standi to file the petition. Moreover, the Court did not have jurisdiction to entertain and decide the petition. It was also stated that the petition was wholly vague, frivolous, baseless, untenable and false to the knowledge of respondent No.2. The respondent No.2 had not approached the Court with clean hands L.P.A. No.140 of 2006 in 5 C.W.P. No.172 of 2006 and she had intentionally suppressed and concealed material facts. Therefore, she was not entitled to any relief. The petition in fact had been filed on account of ill-will and political rivalry with the appellant. It had been filed with a view to harass and pressurize the appellant. In fact, proper, free and fair election had been held and respondent No.2 having lost the election filed the petition due to frustration. There was no ground, whatsoever, for setting aside the election of lawful, validly and democratically elected Sarpanch. The respondent No.2 and her associates were themselves guilty of wrongs and misdeeds and they could not derive any advantage therefrom. It was denied that the conduct of election was illegal or against the provisions of the Act. The allegation regarding doors of the polling station being closed at 3.45 P.M. was denied. It was also denied that before polling time was over, the ballot boxes were carried out at the instance of the Returning Officer (respondent No.9) and S.D.M. Gurgaon to a bus parked behind the Polling Station. It was further denied that without prior notice, the boxes were transferred to John Hall, Gurgaon. The gate of the polling station, it is stated, remained open till the scheduled time. It is only after the polling time was over that the ballot boxes were shifted to John Hall, Gurgaon where they were scheduled to be brought for counting purpose. This was done in the presence of and with the full knowledge of the candidates, their respective agents and supporters. The allegations of the respondent L.P.A. No.140 of 2006 in 6 C.W.P. No.172 of 2006 No.2 being stopped from entering John Hall at the time of counting of votes by the election staff, the Returning Officer and the S.D.M. Gurgaon have also been denied. The allegations of conspiracy of the election staff or its officers to manipulate the votes so that the appellant could be declared elected, was also denied. The other allegations as made by the respondent No.2 were also denied. It was stated that the respondent No.2 and her agent were very much present throughout the counting and they never raised any objection, whatsoever because the counting was done fairly, properly and as per law. It was stated that in fact the petition filed was an after thought. The respondent No.2 also filed an application (Annexure P-3) seeking re-counting of votes. It was alleged that the Act provides for the presence of all candidates and/ or their counting agents at the time of counting. However, the petitioner and her agent were both excluded from the place where the counting took place. The other allegations as made in the election petition (Annexure P-1) were reiterated in the application seeking re-count of votes. The appellant filed his reply (Annexure P-4) to the application seeking re-count of votes in which the allegations were denied. It was submitted that the respondent No.2 knowing fully well that the main petition would fail on account of her inability to prove the case on merit by leading evidence, she had come up with the baseless application seeking re-count of votes. Besides re-count L.P.A. No.140 of 2006 in 7 C.W.P. No.172 of 2006 could not be ordered as a matter of course simply at the whims and fancies of respondent No.2. The valid election of the appellant could not be called in question in such like manner. The learned Additional Civil Judge (Senior Division), Gurgaon considered the case of the parties and in terms of her order dated 2.1.2006 (Annexure P-6) observed that in order to do justice between the parties on the basis of the averments made in the petition, she was of the view that it would be imperative to direct re-count/ scrutiny and computation of valid votes. It was further observed that beside making definite averments on verification supported by unambiguous details in accordance with law, respondent No.2 had made out a prima face to the satisfaction of the Court. The learned Additional Civil Judge (Senior Division) was of the view that the case falls within the restricted scope of Section 176 (4) (b) of the Act. Reliance was placed on a Full Bench decision of this Court in Radha Kishan Vs. The Election Tribunal Cum-Sub-Judge Hissar, 1999 (4) RCR (Civil) 79 and on a Single Bench judgment in Badlu Ram Vs. Ram Niwas and others 1997 (2) RCR (Civil) 439. The order of the learned Additional Civil Judge (Sr. Division), Gurgaon dated 2.1.2006 (Annexure P-6) was assailed by the appellant by way of CWP No.172 of 2006. After considering the matter and contentions raised by the parties vide order dated 25.7.2006, the learned Single Judge dismissed the petition and upheld L.P.A. No.140 of 2006 in 8 C.W.P. No.172 of 2006 the order dated 2.1.2006 (Annexure P-6), passed by learned Additional Civil Judge (Sr. Division), Gurgaon. The appellant aggrieved against the decision of the learned Single Judge, has preferred the present Letters Patent Appeal which was admitted on 28.7.2006 and with the consent of the parties, it has been listed for final disposal. In the meanwhile re-count was stayed. It is contended on behalf of the appellant that the learned Single Judge overlooked the statutory provisions which prohibit the re-count of votes. A reference is made to Rule 69 of the Haryana Panchayati Raj Election Rules, 1994 (“Rules” for short) to contend that if a candidate has any objection or grievance with regard to the counting of votes, then the candidate and his counting agent is statutorily obliged to move an application before the Returning Officer. It is submitted that it is the admitted case of respondent No.2 that no such application was made to the Returning Officer and instead she claimed that an application dated 9.4.2005 was filed before the Deputy Commissioner, Gurgaon in which also it is merely stated that the S.D.M. had declined her request for the re-count of votes. Therefore, respondent No.2 did not comply with Rule 69 of the Rules. It is further submitted that the complaint dated 9.4.2005 made by respondent No.2 has been misread which in any case did not contain any allegation regarding respondent No.2 or her counting agent being not permitted inside the John Hall, Gurgaon where the L.P.A. No.140 of 2006 in 9 C.W.P. No.172 of 2006 counting of votes was going on. Therefore, the allegations were merely an after thought to seek re-count of the votes. It is further submitted that the law with regard to re-counting of votes is very stringent and recount of votes could not be ordered at the mere asking of the candidate. Besides, it is to be ordered where there is a proper foundation laid in the pleading and the same is to be proved by adducing evidence. The ratio of the Full Bench judgment in Radha Kishan's case (supra), it is submitted, has not been correctly applied. Besides, the provisions of Section 176 (4) (b) of the Act has not been correctly appreciated. In response, it is submitted by the learned counsel for respondent No.2 that the Returning Officer and the S.D.M. Gurgaon in connivance with each other had not allowed respondent No.2 and her agents to enter the John Hall where the counting of votes was being done. This was in contravention of Rule 63 of the Rules and in the absence of respondent No.2, the appellant was declared elected illegally by a margin of two votes. Reference is made to the application dated 9.4.2002 (Annexure R2/2) which was submitted by the agent of respondent No.2 on the same day before the Deputy Commissioner, Gurgaon for re-counting of votes but her said application was not accepted. A reference is also made to the order of the learned Single Judge as regards non-filing of affidavit by respondent No.2 in support of the allegations made in paragraph (iv) L.P.A. No.140 of 2006 in 10 C.W.P. No.172 of 2006 of the election petition before the Additional Civil Judge (Senior Division), Gurgaon. The learned Single Judge after perusing the record of the trial Court observed that a duly attested affidavit dated 29.4.2005 of respondent No.2 was filed before the Additional Civil Judge (Senior Division) in support of her allegations as contained in the election petition. It is contended that the learned Additional Civil Judge (Sr. Division) and the learned Single Judge had correctly appreciated the facts and circumstances and ordered re-counting of the votes. We have given our thoughtful consideration to the matter and perused the records of the case. The provisions of Section 176 of the Act as already noticed provide for determination of validity of elections inquiry by Judge and procedure. Section 176 (4) of the Act with which we are primarily concerned, reads as follows:- “(4). (a). If on the holding such inquiry the civil Court finds that a candidate has, for the purpose of election committed a corrupt practice within the meaning of sub-section (5), he shall set aside the election and declare the candidate disqualified for the purpose of election and fresh election may be held. (aa). If on holding such enquiry the Civil Court finds that- (i) on the date of his election a returned candidate was not qualified to be elected. (ii) any nomination has been improperly rejected; or L.P.A. No.140 of 2006 in 11 C.W.P. No.172 of 2006 (iii) the result of the election, in so far as it concerns a returned candidate, has been materially affected by improper acceptance of any nomination or by any corrupt practice committed in the interest of returned candidate by an agent other than his election agent or by the improper reception, refusal or rejection of any vote or the reception of any vote which is void or by any non-compliance with or violation of the provisions of the Constitution of India or of this Act, or any rules or orders made under this Act. election of such returned candidate shall be set aside and fresh election may be held. (b). If, in any case to which clause (a) or clause (aa) does not apply, the validity of an election is in dispute between two or more candidates, the court shall after a scrutiny and computation of the votes recorded in favour of each candidate, declare the candidate who is found to have the largest number of valid votes in his favour to have been duly elected. Provided that after such computation, if any, equality of votes is found to exist between any candidate and the addition of one vote will entitle any of the candidates to be declared elected, one additional vote shall be added to the total number of valid votes found to have been received in the favour of such candidate or candidates, as the case may be, elected by lot drawn in the presence of the Judge in such manner as he may L.P.A. No.140 of 2006 in 12 C.W.P. No.172 of 2006 determine.” A perusal of the provisions of Section 176 (4) (b) of the Act shows that if in any case to which Clause (a) or Clause (aa) does not apply and the validity of an election is in dispute between two or more candidates, the Court shall after a scrutiny and computation of the votes recorded in favour of each candidate, declare the candidate who is found to have a largest number of valid votes in his favour to have been duly elected. The respondent No.2 in her election petition (Annexure P-1) had made allegations with regard to number of votes being enrolled from other villages besides persons who have died, were shown to have cast their votes. However, during the course of hearing before the learned Additional Civil Judge (Sr. Division), Gurgaon, she did not press the same. Even otherwise it was observed by the learned Additional Civil Judge (Sr. Division) that prima facie there was no material on record to show that one voter was enrolled in the voter-list of two villages and that the persons mentioned in para 3 (d) of the election petition had died. However, in order to do justice between the parties on the basis of averments made in the petition, the learned Addl. Civil Judge (Sr. Division) was of the view that it would be imperative to direct re-count/scrutiny and computation of the valid votes. It was also observed that besides making definite averments on verification supported by unambiguous details in accordance with law, the respondent No.2 had made out a prima facie L.P.A. No.140 of 2006 in 13 C.W.P. No.172 of 2006 case to the satisfaction of the Court. The scope of provisions of Section 176 (4) (b) of the Act has been considered by a Full Bench of this Court in Radha Kishan's case (supra). It was observed that the provision like Section 176 (4) (b) is not embodied in the representation of the People Act, 1951. The said Act as per its preamble is enact to provide for the conduct of elections to the House of Parliament and to the House or Houses of the Legislature of each State, the qualification and disqualification for membership of those Houses, the corrupt practices and other offences at or in connection with such elections and the decision of doubts and disputes arisen out of or in connection with such elections. It was observed by the Full Bench that the provision of Section 176 (4) (b) of the Act has been made with an object of expeditious disposal of application on the ground prescribed therein. If the conditions mentioned in the said provision are satisfied and sufficient material is available in support of the allegations for claiming re-count of votes without any allegations of corrupt practices, the Court would be justified in ordering re-count of votes though the re-count cannot be directed on mere asking. If a prima facie case to the satisfaction of the Court is made out in terms of the said provision, nothing prevents the Court from ordering scrutiny and computation of votes without asking the applicant to lead evidence or detail inquiry for that limited scope. The following observations of the Full Bench in Radha L.P.A. No.140 of 2006 in 14 C.W.P. No.172 of 2006 Kishan's case (supra) are opposite:- “The scrutiny and computation by recount of votes arises in such election more than often. Such request de hors of the corrupt practices or other allegations prima facie may justify passing of an order within the scope of section 176 (4) (b) of the Act. The legislative intent requiring expeditious disposal of a petition and passing of an order of scrutiny and computation without detailed inquiry is explicit in the language of these provisions. Without placing necessary emphasis on the language of the Section and to make the law susceptible to the situations likely to arise in the cases to which such provisions are applicable and with intention to ostracize the possibility of confusion we would interpret the Section on its cumulative reading and in synthesis with the scheme of the Act. Ergo we hold that recounting of votes in such an election cannot be directed on mere asking and in a routine manner. The applicant, if makes definite averments on verification supported by unambiguous details, in accordance with law, supported by documents, if any, and where the applicant makes out a prima facie case to the satisfaction of the court, nothing prevents the Court from ordering scrutiny and computation of L.P.A. No.140 of 2006 in 15 C.W.P. No.172 of 2006 votes on recount in the case falling within restricted scope of section 176 (4) (b) of the Act. In other words, the court would not be justified in declining such a relief for the reason that the applicant, irrespective of above, must lead evidence through detailed enquiry. Such detailed enquiry is neither postulated nor would be necessary within the purview of said provisions in the limited cases, afore-referred.” The appellant, however, has placed reliance on Baldev Singh vs. Shinder Pal Singh & another, JT 2006 (9) SC 442. In the said case, it had been contended therein that the first respondent had requested for re-counting of votes. The officers who examined themselves were, however, not cross-examined on that point. It was observed that the said statement would, thus, be deemed to have been admitted. Even the purported illegalities, which according to the respondents would lead to declaration of election of the appellant therein to be void, had not been put to the witnesses in the cross- examination. In the said background, the question that arose and was considered, was as to whether the learned Tribunal was correct in directing re-counting of votes. The officers had stated that the consent paper was torn. The fax message which had been sent immediately to the Collector of the District was a contemporaneous of documents, the genuineness thereof had not been questioned. The L.P.A. No.140 of 2006 in 16 C.W.P. No.172 of 2006 Supreme Court in the facts and circumstances and after considering the law held that they are unable to upheld the finding of the Tribunal and of the High Court with regard to re-counting. It may be noticed that Baldev Singh's case (supra) is in the context of Punjab State Election Commission Act, 1994 and the Punjab Panchayat Election Rules, 1994 and there is no provision like that of Section 176 (4) (b) of the Act as in the present case which empowers the Court after scrutiny and computation of the votes recorded in favour of each candidate, to declare the candidate who is found to have the largest number of valid votes in his favour to have been duly elected. Therefore, what is required, is scrutiny and computation of the votes. Scrutiny and Computation of votes in the context of the Act would mean a minute inquiry of counting the votes by a process or method of computing. Therefore, it is the number of votes which is required to be verified on the basis of definite averments on verification supported by unambiguous details and documents and the applicant making out a case to the satisfaction of the Court. The statutory provisions in the matter of election are to be strictly construed. The right to be elected and to dispute an election as is well known are pure and simple statutory rights. Outside the statute, there is no right