C.R. No. 552 of 2008 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 552 of 2008 (O&M) Date of decision: January 19, 2009 Chandan Singh .. Petitioner v. Virender Raj and others .. Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. S.C.Kapoor, Senior Advocate with Mr. Harminderjit Singh, Advocate for the petitioner. Mr. Adarsh Jain, Advocate for respondent No.1. ... .. Rajesh Bindal J. Challenge in the present petition is to the order dated 22.1.2008, passed by the learned court below, whereby it has directed for recounting of votes. Briefly, the facts are that the petitioner as well as respondent No.1 contested election for the post of Sarpanch of Village Dundahera. The petitioner was declared elected having polled 666 votes, whereas respondent No.1 was the second lowest getting 657 votes. There was a difference of 9 votes. Out of the total votes polled, 208 votes were declared invalid. Respondent No.1 immediately after the declaration of result, lodged a protest and requested for recount before the Returning Officer. The same was followed with a representation to the Chief Election Commissioner. Immediately thereafter, an election petition was filed raising various pleas regarding illegalities/irregularities made in counting of votes. Initially, the learned court below, vide order dated 7.9.2007, rejected the prayer of the petitioner for a direction for recounting of votes on the ground that by that time, respondent No.1 had not been able to make out a prima facie case for recounting, as evidence had not been led. However, subsequently the evidence of respondent No.1 and also the petitioner was recorded and on the basis thereof, the learned court below, vide impugned order dated 22.1.2008, directed for recounting of votes. It is this order which is challenged in the present revision petition. Learned senior counsel for the petitioner submitted that the provisions of Section 176(4)(b) of the Haryana Panchayati Raj Act, 1994 (for short, `the Act') would not be applicable in the facts and circumstances of the case, C.R. No. 552 of 2008 [2] as the same is a residuary clause which is applicable only in the facts and circumstances which are not covered under clauses (a) and (aa) of sub-section (4) of Section 176 of the Act and the case of respondent No.1, being squarely covered under Section 176(4)(aa)(iii), reliance on Section 176(4)(b) of the Act was totally misplaced. It was further submitted that the term “the result of the election has been materially affected” has been considered in various judgments where the consistent opinion expressed by the Courts is that it is a question of fact which has to be proved by positive evidence and in the present case, there being no evidence except the statement of the petitioner claiming irregularities in the counting of votes, prima facie case was not made out for recounting of votes. He further referred to the application filed by respondent No.1 on 9.4.2005 immediately after the declaration of result which is stated to be quite vague and so the allegations in the petition. The submission is that in support of the allegations, none of the Counting Agents was examined. No objection with regard to rejection of votes was taken at the time of counting which is sufficient to conclude that the allegations made by respondent No.1-plaintiff are totally vague and all what is sought is a fishing enquiry which is not permissible as secrecy of the election has to be maintained. On the other hand, learned counsel for respondent No.1 submitted that all the contentions, legal or otherwise, raised by learned senior counsel for the petitioner are totally misconceived. He has not brought to the notice of the court a glaring fact about the statement of the petitioner in his cross-examination regarding his no objection to the recounting of votes. Once that is so, no argument or legal issue was required to be considered by the court, as the parties could very well get the votes recounted with their consent. He further submitted that respondent No.1 has given details in his petition filed before the court below, the manner in which because of irregularities committed in the counting of votes, the result of the election has been materially affected. As far as legal issues are concerned, he submitted that the principles, as have been laid down on consideration of the provisions of the Representation of People Act, 1951 are not applicable in the case of elections for Panchayats. Referring to a Full Bench judgment of this Court in Radha Kishan v. Election Tribunal-cum- Sub Judge, Hissar, 1993(1) PLR 1, it was submitted that the parties to a dispute can very well agree on recount of votes. A defeated candidate by filing an election petition has only to make out a prima facie case for recount. In response to the contentions raised by learned counsel for respondent No.1, learned senior counsel for the petitioner submitted that the effect C.R. No. 552 of 2008 [3] of the statement made by the petitioner in his cross-examination is not that the entire votes polled had to be reconsidered, rather, it would be only numerical counting thereof and nothing more than that. In fact, the consent given is of no legal consequence as the case falls under Section 176(4)(aa) of the Act. Heard learned counsel for the parties and perused the record. After hearing learned counsel for the parties, keeping in view the fact that there is a statement of the petitioner recorded in his cross-examination for no objection to the recount of votes and also the effect thereof, I deem it appropriate to deal the same first before going to the legal issues, if need be. The statement made by the petitioner in his cross-examination is extracted below: “......There is a difference of 9 votes between me and the petitioner. I have no objection for recount of votes........” The issue regarding recounting on the basis of consent of the parties was dealt with by a Full Bench of this Court in Radha Kishan's case (supra). Relevant paragraphs 26 and 27 thereof are extracted below: “26. The consent by the parties for recounting or scrutiny and computation of votes founded on the consent of the parties does not offend any law or public policy. Having taken a stand not only of stating no objection to the order as contemplated under Section 4(b) of the Act, but also having given specific consent, we feel that it will neither be fair nor proper for the consenting parties to challenge the validity of such order. The parties are governed by their conduct before the court of competent jurisdiction. Normally the parties would not be permitted to alter their conduct to the disadvantage and prejudice of the other and more particularly in the cases of the present kind. A Division Bench of this Court in the case of Bharat Singh (supra) following the principles enunciated by the Hon'ble Supreme Court of India in the case of Sukhchand Raj Singh held as under: “Counsel appearing for the petitioner argued that no recount can be allowed on the basis of the statement of the parties. It was contended that where the election petition does not disclose any cause of action or where there was no evidence to support the allegations made in the election petition for a recount, no recount can be ordered because any statement made by the returned candidate, agreeing for a recount, will be against law and, therefore, cannot be acted upon. As against this, the stand taken by the counsel appearing for the C.R. No. 552 of 2008 [4] respondents is that the compromise regarding recount is a valid agreement and binding between the parties.” Whether a recount can be ordered on the basis of an agreement between the parties, came up for consideration before the Supreme Court of India in Sukhchand Raj Singh v. Ram Harsh Misra and others, AIR 1977 SC 681, Supreme Court of India ordered recount on the basis of agreement between the parties. While considering such an agreement, it was held by their Lordship that (emphasis supplied) “This agreement, we may add, does not violate any of the provisions of the Representation of People Act, 1951, including Section 97 thereof.” 27. In view of the law enunciated by the Hon'ble Supreme Court, referred to above, we are of the considered view that a party giving consent for recounting of votes would be estopped from challenging the correctness of that order on the ground that the consented order is impermissible in law or otherwise. The validity of such consent order would hardly be open to attack keeping in view the limited scope of section 4(b) and more particularly when such an order could otherwise be passed by the court on merits of the case. The power otherwise vested in the court of competent jurisdiction can always be exercised on the consent of the parties, unless the court has any valid reason to decline the relief prayed for. In the case of Radha Kishan, we would not permit the petitioner to assail the order as he had agreed to it and a definite consent was given by him for such scrutiny and computation. The impugned order is nothing but consequences of such recounting of valid votes.” Now coming to the scope of recounting of votes, as is sought to be objected by learned senior counsel for the petitioner, we will have to refer to the provisions of Haryana Panchayati Raj Election Rules, 1994 (for short, `the Rules') which have been framed under the provisions of the Act. Rules 65 and 66 would be relevant in the present case, which are extracted below: “65. Scrutiny and rejection of ballot papers.- (1) A ballot paper contained in a ballot box shall be rejected, if - (a) it bears any mark or writing by which the voter can be identified; (b) it is a spurious ballot paper; (c) it has been so damaged or mutilated that its identity as a C.R. No. 552 of 2008 [5] genuine ballot paper cannot be established; (d) it bears a serial number, or is of a design, different from the serial numbers of, as the case may be, or design of the ballot paper authorised for use at the particular polling station; (e) it does not bear any mark which it should have borne under the provisions of sub-rule (3) of Rule 49; (f) it has not been marked; (g) it has been marked in the column of more than one candidates; or (h) it has been marked by an equipment and in the manner other than the equipment and the manner prescribed for that purpose: Provided that where Returning Officer (Panchayat) or any other officer authorised by him, on being satisfied that any such defect as is mentioned in clause (d) or clause (e) has, in respect of all or any ballot papers used at a polling station, been caused by the mistake or failure on the part of the Presiding Officer or Polling Officer concerned, or has directed that the defect should be overlooked a ballot paper shall not be rejected only on the ground of such defect under clause (d) or clause (e): Provided further that if the mark put by a voter has spread over two columns of the ballot paper the vote shall be counted in favour of the candidate in which column the major portion of the mark falls. (2) Before rejecting any ballot paper under sub-rule (1) the Returning Officer (Panchayat) or such other officer authorised by him shall allow [each counting agent] present a reasonable opportunity to inspect the ballot paper but shall not allow him to handle it or any other ballot paper. (3) The Returning Officer (Panchayat) or such other officer authorised by him, shall record on every ballot paper which he rejects the letter `R' and the grounds of rejection in abbreviated form whether in his own hand or by means of a rubber stamp. (4) All ballot papers rejected under this rule shall be bundled together. 66. Counting of votes.-(1) Every ballot of paper which is not C.R. No. 552 of 2008 [6] rejected under Rule 65, shall be counted: Provided that no cover containing tender ballot papers shall be opened and no such paper shall be counted. (2) After the counting of all ballot papers contained in all the ballot boxes has been completed, the Returning Officer (Panchayat) or the officer authorised by him, shall make the entries in a result sheet in form 14, 15, 16 and 17 for a Panch, Sarpanch, members of Panchayat Samiti and Zila Parishad respectively and announce the particulars. (3) The valid ballot papers shall thereafter be bundled together and kept along with the bundle of rejected ballot papers in a separate packet which shall be sealed and on which shall be recorded the following particulars, namely: (a) the number of the ward and name of village in case of election of Panch of Gram Panchayat, the name of village in case of election of Sarpanch or the number of ward of Panchayat Samiti or Zila Parishad, as the case may be, in case of elections of members of Panchayat Samiti or Zila Parishad; (b) the particulars of the polling where the ballot papers have been used; and (c) the date of counting.” A perusal of Rule 66 of the Rules, which provides for counting of votes, shows the manner in which the votes are to be counted. If there is re- counting of votes that would necessarily mean re-doing the exercise, as is enumerated under the provisions of the Rules, referred to above. The exercise then has to be in terms of the provisions of Rules 65 and 66 of the Rules. Accordingly, the contention of learned senior counsel for the petitioner that recount would mean only numerical counting of the votes already there is totally misconceived. In the process, the person concerned is certainly entitled to scrutinise the votes and see as to whether the votes polled have been actually counted and also as to whether certain votes, which were wrongly rejected, have been taken as valid votes and on the other side whether certain valid votes have been rejected. If the contention of learned senior counsel for the petitioner is accepted, the same would be merely a cosmetic exercise with no effective result. In the present case, recount of votes was sought by respondent No.1 with the allegations such as – 15 to 18 votes have been rejected because of light stamp impression for which the voters cannot be faulted with; major portion of the C.R. No. 552 of 2008 [7] stamp impression being in the column of respondent No.1 but some portion having not been printed because of tilting of stamp or some small portion having been spilled over to adjoining column or the ink on the ballot paper having been pilled over, though the impression is in the right column etc. The aforesaid contentions, a positive stand of respondent No.1 in support thereof coupled with the statement of the petitioner in his cross- examination, in my opinion, the votes polled in the election certainly deserve to be recounted. Though the learned court below has discussed the merits of the controversy and the material brought on record by the parties for the purpose of directing the recounting of votes independently may be sufficient, but without opining thereon, in my opinion, consent by the petitioner itself is sufficient for passing an order for recounting of votes and the petitioner is estopped from challenging the order of recount or the result thereof in terms of the law, as referred to above. For the reasons mentioned above, I do not find any merit in the present revision petition. The same is dismissed. (Rajesh Bindal) Judge January 19, 2009 mk