F.A.O. No.4050 of 2009 (O&M) -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O. No.4050 of 2009 (O&M) Date of Decision: 27.10.2009 Bhajno ..Appellant Versus Bimla Devi and others ....Respondents Present: Mr. C.L. Sharma, Advocate for the appellant. Mr. Aman Kashyap, Advocate for respondent No.1. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest?Yes -.- K. KANNAN J.(ORAL) 1. The appeal is against the order of the Election Tribunal declaring the 1st respondent herein as lawfully elected in the election for the post of Member Panchayat in village Pandori Beet, Tehsil Garshankar. 2. In the Panchayat election held on 26.05.2008, the petitioner and the respondents Nos.1 to 3 before the Election Tribunal were in fray contesting for two seats reserved for Women General Candidates. The results were announced declaring the appellant here-Bhajno (1st respondent before the Election Tribunal) as duly elected. The tally of votes as declared F.A.O. No.4050 of 2009 (O&M) -2- was that Bhajno had polled 85 votes, while the person challenging the election, Bimla Devi had polled 84 votes. The respondents No.2 and 3 had polled lesser number of votes and they are not necessary for enumeration. 3. The election petition had been filed by Bimla Devi essentially on the ground that the Election Officer had at all times been saying that Bimla Devi had polled 94 votes but ultimately when the results were announced, the tally was shown as 84 votes. The contention was that the total number of invalid votes as declared were 19 but the petitioner has stated in the election petition that 21 votes had been rejected as invalid by the Presiding Officer in connivance with respondent Nos.1 and 2 suggesting as it were, that the votes cast in her favour had been wrongly treated as invalid votes. Apart from these two contentions, some general allegations had also been made that the Presiding Officer had been at the influence of the opposite parties No.1 and 2 and it was also stated that a person by name Amrit Pal had been canvassing votes even inside the polling place and he was fully drunk and he was supporting the cause of respondent Nos.1 and 2. 4. Bhajno had filed her objection denying the contentions raised by Bimla Devi and the parties went to trial on the basis of the rival contentions where it was required to be found whether the allegation of malpractice as contended by the petitioner has been established. It was also to see whether votes, which were F.A.O. No.4050 of 2009 (O&M) -3- validly cast had been wrongly assigned as invalid votes and whether the petitioner, who was reported to have polled 94 votes was wrongly declared as polled only 84 votes. 5. At the trial, an application had been moved by the petitioner for recount of all the votes. This petition had been allowed subsequent to the oral evidence that had been tendered by the parties. The interim order was challenged in revision by Bhajno before this Hon'ble High Court by means of a revision in C.R. No.1965 of 2009. This Hon'ble Court passed an interim order on 16.04.2009 appointing Sh. G.K. Khanna, Advocate to be present at the time when the recounting was to be done. The interim order was passed on securing consent of both parties. At the recounting, which was done on 17.04.2009, the Commissioner Sh. G.K. Khanna was present. It was reported that Bhajno, who was the revision petitioner, was not present. However, she knew the date when the recounting was to be done and she had opted not to be present. At the recounting, in view of the contention raised by Bimla Devi that the Presiding Officer had wrongly rejected several polled votes and boosted the tally of valid votes, the votes which had been bundled as invalid were first seen. The Commissioner found that 19 votes, which had been declared as invalid were correctly so declared. Then referring to the votes, which the petitioner herself had polled because her complaint was that her actual tally was 94 when the Presiding Officer had F.A.O. No.4050 of 2009 (O&M) -4- counted them as only 84, on recount of the number of votes, which had been bundled as having been cast in her favour, it was seen that she had polled only 84 votes. The votes cast in favour of every other candidate were also required to be seen since it could have been possible that votes cast in favour of the petitioner had been wrongly counted as having been voted in the names of other candidates. The votes of every other candidate had continued to remain the same as it was originally declared. Crucially, the votes polled for Bhajno were also required to be counted for the same reason to ensure that no vote, which had been cast in favour of Bimla Devi had been wrongly counted as having been cast in favour of Bhajno. While so counting, it was found that Bimla Devi's tally did not increase for, there had been no vote of Bimla Devi which had been wrongly counted as having been cast in the name of Bhajno. 6. However, on a recount, it was reported that one vote had two markings and yet another vote had one marking on the reverse of the ballot paper. These two votes were, therefore, treated as invalid and the tally of Bhajno was reduced from 85 to 83 and the two votes, which were reduced were added to the number of invalid votes from 19 to 21. When the report had been filed before this Hon'ble Court, no objections had been filed by Bhajno and this Hon'ble High Court passed a final order directing the Election Commissioner to pass orders in terms of the evidence F.A.O. No.4050 of 2009 (O&M) -5- collected through the appointment of an Advocate Commissioner. On the basis of the report, the Election Commissioner went on to ultimately change the declaration already made and declared Bimla Devi as having been duly elected by a margin of one vote. The Election Commissioner rejected the petitioner's plea of bias of the Presiding Officer and certain other misconducts attributed to a private individual at the booth. 7. It is this decision of the Election Tribunal, which is in challenge before this Court. The primary objection of Bhajno before this Court is that the Election Tribunal ought not to have directed the recounting of votes. According to the learned counsel, there was no justification for such a recount on the basis of the pleadings which had been made in the election petition. It was the further contention of the learned counsel appearing for the appellant that when the basis of the election petition as regards the tally of votes had been only on two counts, namely, that invalid votes had been wrongly recorded as such, when they ought to have been treated as valid and counted in favour of the petitioner and that the votes which had been actually cast in her favour had all not been properly counted and therefore, there had been a wrong final tally, there was no warrant for counting the votes polled for the appellant and ultimately after her tally. 8. Learned counsel appearing for the respondent would join issues on the contentions raised by the learned counsel F.A.O. No.4050 of 2009 (O&M) -6- appearing for the appellant by pointing out that recounting was directed to be done by this Hon'ble Court already and that had become final. It shall not be permissible for the appellant to challenge an order, which was passed before this Court. It was his further contention that even the order for directing recounting had been made by this Court only on an express statement made before Court on behalf of the appellant that she had no objection to the recounting being done. When the recounting had been done and the report was given showing the tally of the votes polled by the appellant to have fallen from 85 to 83, the appellant had not filed her objection for the same and therefore, it shall not be permissible for appellant to contend that the recounting had been wrongly done. Adverting to the issue raised by the appellant that Bimla Devi was trying to traverse beyond the pleadings, learned counsel appearing for Bimla Devi would contend that there were allegations in the petition to state that the Presiding Officer was acting under the influence of the opposite parties No.1 and 2 and she had also filed an application for recounting the next day before the Presiding Officer but it was rejected. This according to him, would found the justification for making a recount even in respect of the votes polled in favour of the appellant and the wrong boosted tally for her had been made only by a deliberate reference to some invalid votes as valid vote in favour of the appellant. F.A.O. No.4050 of 2009 (O&M) -7- 9. The fundamental principle of law requires to be stated now is to stay confined to what could be properly seen in evidence in an election petition. An election petition that challenges a declared result is the nature of a slur to a democratic process and a declared result which has a sanctity cannot be sullied by mere conjectures of parties that the result was not properly done. Afterall, the public officers manning the election are responsible Government servants obligated to perform the duty with impartiality that the electoral process demands. A high degree of exactitude relating to pleadings is, therefore, insisted by judicial pronouncements that pin down the fate of the parties in election petitions to strict rules of pleadings. A petition that challenges the result in an election process shall set out in clear terms every one of the grounds, which according to the petitioner shows that the result was wrongly made. In this case, apart from the contention of malpractice of some one creating undue influence to voters and a general statement that the Presiding Officer was acting under the influence of the opposite parties No.1 and 2, which contentions were rejected even by the Election Tribunal the declaration of result was challenged only as regards the votes alleged to have been polled to the petitioner as having been wrongly omitted. As stated above, it was mentioned to be wrong on the tally of the invalid votes and the tally as shown by the Presiding Officer for the petitioner at the time of declaration F.A.O. No.4050 of 2009 (O&M) -8- of result was deliberately lessened than what were actually polled in her favour. 10. The recounting when it was ordered by the Court was, therefore, justified if at all, only to examine the abovesaid two facts of verifying the votes, which had been bundled as invalid and the votes that had been polled for all the contestants to ensure whether any vote which had been counted as having been cast for the petitioner had wrongly been counted as having been cast in favour of the other contestants. In my view, the conduct of recount cannot be done for examining anything beyond what the pleadings themselves permitted. If on recount, it was found initially that 19 votes, which had been cast as invalid continued to remain as 19 and none of them could have been counted as in favour of the Bimla Devi, it concluded one part of the objection raised by her. While verifying the votes of all other persons, the examination could have been only to see whether any vote taken as having been polled to any other candidate was wrongly taken to be so when it had been really cast in favour of Bimla Devi. For all candidates except the appellant herein, no mistake was found. Only as regards the votes cast in favour of the appellant, two votes, one, where it was alleged that there were two markings and another vote where there was some seal on the reverse of the ballot paper were taken as having been wrongly polled in favour of the appellant. Significantly, on a recount, it was not found that F.A.O. No.4050 of 2009 (O&M) -9- these two votes must have been counted as in favour of the Bimla Devi. That was the only point, which could have been seen as relevant and as emerging from the pleadings. The finding at the time of recount that two votes had been wrongly counted in favour of the appellant is, in my view, a deflection from the pleadings. It was not the pleading of the person, who challenged the election result that votes in favour of the appellant had been wrongly counted. The decrease of two votes polled in favour of appellant by treating two votes as invalid is, in my view, an exercise which is unauthorized. The recount could not have resulted in reducing the number of votes found already valid in favour of the appellant. If it had reduced, it should have been only seen whether it was going to increase the tally of Bimla Devi, who had the election results. Admittedly her own tally did not increase. 11. In the conclusion that I have come to, it may seem utterly technical and may even be a forensic exercise which is perceived to be unjust. The justness of a decision in an election petition will have to be guided by how the parties are locked up in lis and how they stood bound to their pleadings. In Mahender Pratap Vs. Krishan Pal (2003) 1 SCC 390 , the Hon'ble Supreme Court, while dealing with an election petition under the Representation of People Act, 1951 underscored the need for strict rules of pleading. The Hon'ble Court also observed "in F.A.O. No.4050 of 2009 (O&M) -10- election petitions which are filed with prayer for re-count of votes, the Court has always insisted upon a high standard of proof of grounds as would impel the Court to direct re-count of votes and recheck the election results. It is only after the election petitioner is able to demonstrate before the Court by leading satisfactory evidence that there was serious flaw in the counting procedure which had materially affected the result of election that the prayer for recount is generally allowed." There was not even a pleading that there was any error in counting procedure. There was no pleading that a recount had been sought by the petitioner but refused. An aborted attempt was made to introduce a copy of representation to the Presiding Officer for recount, but being not supported by pleadings, it was not permitted to be exhibited as evidence. In the circumstances, the recount that was ordered ought to have been to elicit the correctness or otherwise of what was pleaded. Justice in a case shall be according to what pleadings would admit of. The procedure here is to assess the relative merits on the basis of pleadings and the grounds of challenge. A cliched expression is "procedures are mere handmaids to justice" but if, such tools were to result in a finding that the person, who had been declared to be elected was to be unseated on a ground not contemplated even by the person who challenged the election, it shall not be permitted. The votes polled to the appellant which was originally declared as 85 votes F.A.O. No.4050 of 2009 (O&M) -11- could not be reduced to 83 by finding any vote as invalid, which was not anybody's case. If the tally of the petitioner Bimla Devi as declared before did not alter, in the manner canvassed by her, she could have no further relief. 12. The decision of the Election Tribunal is erroneous and it is set aside. The appeal is allowed. There shall be, however, no direction as to costs. (K. KANNAN) JUDGE October 27, 2009 Pankaj*