FAO No.5567 of 2009 - 1 - ****** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.5567 of 2009 Date of decision:10.09.2010. Gurnam Bindra Singh ...Appellant Versus Kulwant Singh and others ...Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Bhoop Singh, Advocate, for the appellant. Mr. Kanwaljit Singh, Senior Advocate, with Mr. H.S.Sethi, Advocate, for respondent No.1. Mr. R.L.Gupta, Addl. Advocate General, Punjab, for respondent No.2 to 6. ***** RAKESH KUMAR JAIN, J. This case has witnessed a see-saw battle in Court of two political aspirants as various petitions have been filed in order to grab the power after the election was over. Gurnam Bindra Singh (appellant) and Kulwant Singh (respondent No.1) were pitted against each other in the election for the post of Municipal Councillor from ward No.15, SAS Nagar, Mohali which was held on 30.07.2006 under the provisions of the Punjab State Election Commission Act, 1994 [for short “the Act”]. Ward No.15 comprises of three booths i.e. booth Nos.47, 48 and 49. The appellant polled 290, 351 and 517 votes in booth Nos.47, 48 and 49 respectively, total 1158 votes, whereas respondent No.1 polled 425, 392 and 289 in booth Nos.47, 48 and 49 respectively, total 1106 votes and 26, 54 and 5 votes in booth Nos.47, 48 and 49 respectively, total 85 votes FAO No.5567 of 2009 - 2 - ****** were cancelled. The appellant was declared as elected by a margin of 52 votes as Municipal Councillor from ward No.15 of the Municipal Council, SAS Nagar, Mohali. The respondent No.1 challenged the election of appellant by way of Election Petition dated 29.08.2006 filed under Section 76 of the Act. When the case was listed before the Election Tribunal on 17.04.2007, respondent No.1 filed an application for summoning the election record including the cancelled/rejected votes in all the aforesaid three booths. The Election Tribunal ordered for summoning of record and adjourned the case to 24.04.2007. The appellant came to know on 18.04.2007 from the news reports appearing in the “Chandigarh Tribune”and the “HT Chandigarh Live” that the Election Tribunal/Deputy Commissioner had ordered for re-counting of votes on 24.04.2007. In utter panic, the appellant filed CWP No.5874 of 2007 titled as 'Gurnam Bindra Singh vs. State of Punjab and others' seeking quashing of Annexure P-7 and Annexure P-8 therein, namely, the news paper reports as per which re-counting was ordered to be held on 24.04.2007 in respect of the votes of all the aforesaid three booths of ward No.15 and in the alternative, in the nature of prohibition for staying the order of re- counting. Initial order in the said Civil Writ Petition was passed on 23.04.2007, which reads as under: - “Notice of motion for April 26, 2007, accepted by Mr. Vivek Sood, Advocate, on behalf of respondent No.4. Copy of Order dated April 17, 2007 where under recount has been ordered for tomorrow, has been delivered to the learned counsel for the petitioner today in Court. In the meanwhile, proceedings for recount which are scheduled for April 24, 2007 at 2.00 P.M. shall continue but shall be subject to any order passed in this petition. However, in the event of recount going against the petitioner, no FAO No.5567 of 2009 - 3 - ****** further order shall be passed by the Election Tribunal as a result of the said recount. Copy of this order be given dasti under the signatures of the Special Secretary of this Bench.” On the next date, i.e. 24.04.2007, the above said Writ Petition was withdrawn by the appellant with the following order: - “This case came up yesterday. A copy of order dated April 17, 2007 was delivered by the learned counsel for respondent No.4 to the learned counsel for the petitioner. Today, the learned counsel for the petitioner has argued that after reading the order dated April 17, 2007, it has been discovered that as a matter of fact no recount was ordered. The confusion resulted on account of the fact that no one bothered to read the order, which was in illegible Punjabi. Therefore, the counsel for the petitioner alleges that the recount has now been ordered on the basis of the order that was passed by this Bench yesterday. Learned counsel submits that the relief he had sought was on the basis of press reports (Annexures P-7 and P-8). Be that as it may, since no recount has been ordered, the petitioner wishes to withdraw this petition. The prayer is allowed. The petition is dismissed as withdrawn with liberty to file a fresh petition at a later stage on the same or fresh cause of action. Copy of this order be given Dasti under the signatures of the Special Secretary of this Bench.” FAO No.5567 of 2009 - 4 - ****** After the aforesaid Writ Petition was over, the appellant filed Civil Revision No.2449 of 2007 dated 05.05.2007 under Article 227 of the Constitution of India for transfer of the election petition to any other Election Tribunal in the State of Punjab or Haryana. The said revision petition came up for preliminary hearing on 07.05.2007 in which following order was passed by this Court: - “Notice of motion for 20.08.2007. Meanwhile, passing of the final order is stayed. Dasti on payment.” The aforesaid interim order was allegedly disobeyed by the Election Tribunal, consequently the appellant filed COCP No.777 of 2007 under Section 12 of the Contempt of Courts Act, 1971 in which, vide order dated 31.05.2007, it was observed by the learned Single Bench of this Court that “therefore, I am satisfied that prima facie, the allegations, disclose commission of a criminal contempt within the meaning of Section 2(c) of the Contempt of Courts Act, 1971 and, therefore, I hereby take suo- motu notice of the contempt. Accordingly, I order that the present petition be treated as a criminal contempt petition. The papers of the present case be placed before the Hon'ble Chief Justice, for placing it before the appropriate Bench.” After having treated the COCP No.777 of 2007 as criminal contempt, it was renumbered as Crl. O.C.P. No.8 of 2007 and was placed before the Division Bench of this Court. The Crl. O.C.P. No.8 of 2007 was ultimately disposed of by the Division Bench on 02.11.2007 with the following order: - “Arguments heard. The contemner H.I.S. Grewal who is at present the Deputy Commissioner, S.A.S. Nagar, Mohali, in his affidavit filed in this Court dated 27.09.2007, has tendered an unconditional apology apart from narrating the whole incident as to what had happened on that FAO No.5567 of 2009 - 5 - ****** day. After hearing the the arguments, going through the petition and averments of the affidavit of Sh. H.I.S. Grewal, Deputy Commissioner-cum-Election Tribunal, S.A.S. Nagar, Mohali, we think it in the fitness of things that the notice given for contempt be withdrawn and the apology of the officer as tendered in his affidavit, be accepted. Petition is disposed of as such.” It is also pertinent to mention that Civil Revision No.2449 of 2007 was admitted on 20.08.2007 and was ordered to be heard with Civil Revision No.3220 of 2007. Following order was passed in Civil Revision No.2449 of 2007: - “Counsel for the parties have agreed that this revision be heard with C.R. No.3220 of 2007, which has been filed by the petitioner against the order of recounting. Admitted. To be heard with C.R. No.3220 of 2007.” Ultimately on 04.08.2008, C.R. No.2449 of 2007 was rendered infructuous and following order was passed: - “Learned counsel for the parties state that this petition has been rendered infructuous. Disposed of accordingly.” On 08.05.2007, the Election Tribunal, despite the stay granted by this Court on 07.05.2007, passed the following order: - “After having read the contents of the Election Petition, the reply of the respondent very carefully and giving very thoughtful consideration to the arguments advanced by the learned counsel for the petitioner and the respondent, I do not find FAO No.5567 of 2009 - 6 - ****** the reason as to why respondent No.1 is shying away from the recount. The hallmark of Parliamentary democracy is the ascertainment of will of the people which in this case can only be done through recount. In view of facts and circumstances set out supra in the interest of justice, equity and fair play it is imperatively essential that the votes polled for the election of Ward No.15, Municipal Council, SAS Nagar, be recounted. The recounting took place at 3.30 PM today i.e. 08.05.2007 and was conducted under my direct supervision by Mrs. Navjot Kaur, PCS, AC (Grievances), Sh. P.S.Virk, District Development and Panchayat Officer and Sh. Hardip Singh, Election Tehsildar, Mohali. The result of the recounting has been put in a sealed cover in the sealed trunk in the treasury at Kharar.” The order dated 08.05.2007 of the Election Tribunal was challenged by the appellant by way of Civil Revision No.3220 of 2007 which was admitted on 02.07.2007 and further proceedings before the Election Tribunal were stayed. Ultimately, the aforesaid Civil Revision No.3220 of 2007 was allowed by a Single Bench of this Court with detailed order dated 27.08.2008. The relevant part of the order reads as under: - “On consideration of the matter, I find force in the contention raised by the learned counsel for the petitioner. Para 6 of the Election Petition on which strong reliance has been placed would show that the allegations levelled by respondent No.4 were vague allegation without specific particulars. Neither the name of the Polling FAO No.5567 of 2009 - 7 - ****** Officer or team was mentioned, who was said to have illegally rejected and cancelled the votes as claimed by respondent No.4. There are allegations that the Polling Officer was won over by the petitioner herein. The allegations were required to be substantiated by summoning the witness and thereafter making a case for recount. The reading of the law referred to above, which has been relied upon by the petitioner as well as by respondent No.4 leads to only one conclusion that recount cannot be ordered on the merely asking of a party. There have to be a proper pleading making out a case for recount. In dealing with such allegations it is the responsibility of the Election Tribunal to maintain the secrecy of ballot papers. The conduct of the Election Tribunal in this case was also not above board. Even prior to ordering the recount the anticipated order was published in the newspapers even before the said order was passed on the judicial side, which compelled the petitioner to file writ petition in this Hon'ble Court. When the petitioner had moved an application for transfer of the case and the notice had been issued by this Court still the Election Tribunal proceeded to order recount in absence of the petitioner of his counsel. Be that as it may, the impugned order cannot be sustained as respondent No.4 had failed to prima facie establish the case for recount as allegations were too general in nature required to be proved by evidence. Nothing has been placed FAO No.5567 of 2009 - 8 - ****** on record as to whether any written complaint was made by respondent No.4 before the Polling Officer immediately after the election. Even after filing of the Election Petition different dates were given and only when there was change of officer holding the post, decision was taken to order the recount. The reading of the order shows that much reliance has been placed on averments made in para 6 of the petition which has been reproduced above. As already observed, the allegations lack the material particulars. It was incumbent upon the Election Tribunal to first prima facie satisfy itself on the material produced regarding truth of the allegations made for recount. The learned Tribunal even did not think it proper to summon the Polling Officer or other officials against whom serious allegations were made. It may also be noticed that the learned Tribunal has taken the averments to be gospel truth without examining the officials. The learned Election Tribunal ordered the recount of observing that it see no reason why the petitioner was shying away from recount. In the present case, once the matter for transfer was pending before the Court, it was for the Election Tribunal to stay his hand and to wait the decision of this Court. In any case, the order passed is contrary to the settled law that in absence of evidence to prove prima facie allegations the recount could not be ordered on the basis of vague allegations. FAO No.5567 of 2009 - 9 - ****** Thus, the impugned order cannot be sustained. Consequently, this revision is allowed. Order passed by the learned Election Tribunal is ordered to be set aside.” The appellant again filed Civil Revision No.5030 of 2009 challenging the order of the Election Tribunal dated 25.08.2009, which reads as under: - “Case filed presented. Learned counsel of both the parties came present. The counsel for the petitioner requested that application dated 25.05.2009 of learned respondent stating therein that in view of the order dated 27.08.2008 passed in Civil Revision No.3220 of 2007 the election petition cannot proceed further, to which reply was filed on 05.06.2009. On submission of reply by the counsel for the petitioner and after hearing both the counsel of the parties and going through the written arguments of the counsel for the respondent and on going through the petition it was found that the counsel for the respondent challenged the order dated 08.05.2007 passed by election tribunal (Deputy Commissioner-cum- Election Tribunal) SAS Nagar by filing Civil Revision No.3220 of 2007 before Punjab and Haryana High Court. The Hon'ble High Court vide order dated 27.08.2008 set aside the order of Election Tribunal dated 08.05.2007. As far as the election petition is concerned, it can only be decided after calling for the evidence from the parties. As such the application of the respondent dated 25.05.2009 is hereby dismissed. The counsel for the petitioner is directed to produce FAO No.5567 of 2009 - 10 - ****** the evidence. The case be listed for petitioner's evidence on 04.09.2009.” In the above revision petition, notice of motion was issued on 03.09.2009 for 05.11.2009 and the proceedings before the Election Tribunal was stayed, however, an application i.e. CM No.22831-CII of 2009 filed at the instance of the appellant was listed and allowed for preponment of hearing of the revision petition and the main revision petition was withdrawn vide order dated 25.09.2009, which reads as under: “ CM No.22831-CII of 2009 CM is allowed. The hearing of the revision is preoponed to today. CR No.5030 of 2009 Dismissed as withdrawn.” Ultimately, in terms of the order dated 27.08.2008 passed by this Court in Civil Revision No.3220 of 2007, the Election Tribunal framed the issue “whether recount of votes for the election to the Municipal Council, Mohali for ward No.15 held on 30.07.2006 is warranted in the interest of equity, justice and fair play.” The election petitioner (respondent No.1 herein) in order to prove his case examined the following witnesses: - i) Shingara Singh as PW1 and tendered his affidavit as Ex.PW1/A, ii) Tarsem Singh as PW2 and tendered his affidavit as Ex.PW2/A, iii) Ram Parkash as PW3 and tendered his affidavit as Ex.PW3/A, and iv) Kulwant Singh (election petitioner) as PW4 and tendered his affidavit as Ex.PW4/A. Out of the above, PW1 Shingara Singh was the counting agent at booth No.48, Tarsem Singh PW2 was counting agent at booth No.47 and Ram Parkash was counting agent at booth No.49. On the other hand, the appellant alone appeared as his own witness and tendered his affidavit FAO No.5567 of 2009 - 11 - ****** Ex.PW1/R. The learned Election Tribunal, vide impugned order dated 01.10.2009, allowed the election petition, ordered re-counting of votes and set aside the election of the appellant after observing thus: - “After hearing the arguments of learned counsel for both the parties and on examination of the case file, it has been found that the counsel for the respondent has failed to disprove the evidence produced by the petitioner. The petitioner has also failed to produce any sold evidence proved the connivance of the polling staff with the respondent, thus, in view of equity and natural justice, in order to reach the right conclusion, it shall be lawful to hold recounting of votes in booth No.47, 48 and 49 of ward No.15 regarding which the counsel for the respondent also could not produce any sold evidence. Thus, it was ordered to recount the votes in this case and Tehsildar, SAS Nagar was directed by this Court to secure the election record/votes from the concerned Treasury Officer, Kharar. At this, the Tehsildar complied with the directions and obtained a sealed box from Treasury Officer, Kharar and produce the same. The seal of the box was broken in the presence of the counsel for both the parties and recounting of votes was got done in the presence of this court through Smt Navjot Kaur, PCS, Assistant Commissioner (Grievances), Sh. Amarbir Singh Sidhu, Secretary, Zila Parishad and Sh. Rajinder Oberoi, Tehsildar, SAS Nagar with the help of officials appointed for this purpose. As per the result declared by these officers out of total 2349 votes, Kulwant Singh – FAO No.5567 of 2009 - 12 - ****** petitioner obtained 1033 valid votes and Gurnam Singh respondent No.1 obtained 1008 valid votes while 308 votes were rejected. In this way, Kulwant Singh petitioner got 25 votes more than the votes of the respondent. The recounting sheet/result sheet has been signed by counsel for both the parties who have shown their agreement to the counting and no objection of any type has been raised by them on asking from which it is clear that they are satisfied with the counting and they do not want to say any further. Thus, the petition of the petitioner is accepted under the provisions of Section 87(C), Section 89(D)(iii) and Section 90(A) and the election of Sh. Gurnam Bindra Singh – respondent is declared to be illegal (void) and Sh. Kulwant Singh – petitioner is declared to have been lawfully elected from ward no.15, Municipal Council, Mohali.” Shri Bhoop Singh, learned counsel appearing on behalf of the appellant, while assailing the impugned order, has basically raised following two questions: i) Whether recounting can be ordered on equity and natural justice or the election petitioner has to make out a prime facie case for recount on the basis of particulars averred in the election petition and the evidence led in that behalf. ii) Whether the Election Tribunal can delegate its power of recount to a panel of officers appointed by the Election Tribunal who were not a part of the election process. At this stage, Shri Kanwaljit Singh, learned Senior counsel appearing on behalf of respondent No.1, has also raised a question to the FAO No.5567 of 2009 - 13 - ****** effect that “whether the appellant is estopped to challenge the impugned order after recording his satisfaction in writing to the re-count.” I would deal all the three questions raised by both learned counsel for the parties on the basis of pleadings, evidence, provisions of law and the judgments cited by them. In respect to the first point, learned counsel for the appellant has submitted that as per Rule 88 of the Punjab Municipal Election Rules, 1994 [for short “the Rules”], the election petitioner is required to set forth in the petition full particulars of any material irregularities which he alleges, including as full a statement as possible with regard to the commission of each such irregularity and in absence of the details of the particulars, no relief can be granted to the election petitioner. It is submitted that the election petition is as vague as it could be as it is sans material particulars which could attract the attention of the Court for the purpose of ordering re-count of votes. In this regard, he has referred to the grounds taken in the election petition, which are reproduced as under: - (i) That the counting agents of the petitioners in all the booths having been repeatedly telling the polling officer and his team that the votes are being illegally rejected/cancelled which should have been counted in favour of the petitioner and were not liable to be cancelled or rejected in favour of the petitioner. (ii) That similarly, many-many votes which were liable to be rejected and could not be considered in favour of the respondent No.1 were illegally accepted and were counted for the respondent. (iii) That though this objection and protest was raised by the counting agents again and again but since the polling officer/presiding officer had already been won over by the respondent No.1 in FAO No.5567 of 2009 - 14 - ****** such a manner that they refused to listen to any genuine and reasonable request of the petitioner and his agents. So much so that when a demand was made immediately that let the returning officer respondent No.5 be called and votes be re-checked, the same was rejected. (iv) That the illegal rejection of votes which should have been validly considered for petitioner and similarly illegal acceptance of votes for the respondent No.1 which should have been rejected has made the difference of 80 votes illegally which has ultimately materially effected the election result. If these 80 votes would not have been illegally accepted or rejected as mentioned above, the difference of 52 votes by which the petitioner has lost would not have come and thus the illegal action on the part of the polling/counting officer in connivance of the respondent No.1 who had won them over has materially effected the result of this case.” Learned counsel for the appellant has further submitted that as per the aforesaid averments, the counting agent of the election petitioner/respondent No.1 alleged to have repeatedly asked the polling officer that the votes have been illegally rejected/cancelled which should have been counted in favour of the election petitioner and in that process many-many votes, which were even liable to be rejected, were counted/considered in favour of the appellant, but as the Returning Officer was won over by the appellant, he refused to accede to the genuine request of the election petitioner/respondent No.1 so much so the prayer for re- checking of the votes was rejected. It is also alleged that due to this malpractice, there occurred a difference of 80 votes and the difference of 52 votes, by which the election petitioner had lost the election, would not FAO No.5567 of 2009 - 15 - ****** have arisen. Thus basically, the question has been raised about the working of the election staff at the time of counting that they had illegally rejected the votes which should have been counted in favour of the election petitioner/respondent No.1 and accepted the rejected votes in favour of the appellant which should have been ignored and had also not taken into consideration the objection raised at that time by the counting agent of the election petitioner/respondent No.1. It is submitted that Section 80 of the Rules deals with counting of votes, whereas Section 82 deals with re-counting of votes. The election petitioner/respondent No.1 has not led any evidence much-less cogent except for producing his counting agents namely Shingara Singh (PW1), Tarsem Singh (PW2) and Ram Parkash (PW3). The learned Election Tribunal had also found that there is no cogent evidence led by the election petitioner for the purpose of proving a prima facie case for re-count, yet re-counting has been ordered on the basis of equity and the principle of natural justice. Learned counsel for the appellant has relied upon decisions of the Supreme Court in the cases of M. Chinnasamy vs. K.C.Palanisamy and others, AIR 2004 Supreme Court 541, P.K.K. Shamsudeen Vs. K.A.M. Mappillai Mohindeen and others, AIR 1989 Supreme Court 640, Ram Sukh Vs. Dinesh Aggarwal, 2009(4) R.C.R. (Civil) 585 (SC)