CM Nos.6105 & 6107-CII-2010 and -1- FAO No.1212 of 2010 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CM Nos.6105 & 6107-CII-2010 and FAO No.1212 of 2010 DATE OF DECISION: 10.03.2010 **** Surjit Singh . . . . Appellant VS. Kulwinder Singh and others . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: Mr. L.S. Sidhu, Advocate for the appellant. **** RAKESH KUMAR JAIN J. (ORAL) CM Nos.6105 & 6107-CII-2010 Allowed as prayed for. FAO No.1212 of 2010 The unsuccessful election petitioner has come up in appeal against order dated 26.11.2009 passed by the Election Tribunal (ADC), Muktsar. In brief, the facts of the case are that in the election of the Gram Panchayat village Nurpur Kripalke, Tehsil and District Muktsar held on 26.5.2008, both the appellant and respondent No.1 polled 89 votes each. The returning officer obtained written consent of both the appellant and respondent No.1 for draw of lots in which respondent No.1 was successful and was declared elected. The appellant has challenged his election on the ground that one of the voter Darbara CM Nos.6105 & 6107-CII-2010 and -2- FAO No.1212 of 2010 Singh could not poll his vote in his favor as his ballot paper was torn off by the supporters of respondent No.1. It is submitted that a complaint was also made immediately to the Election Commission about the incident. It is also submitted that three votes, which would have polled in favour of the appellant, have been illegally rejected. Learned Election Tribunal framed various issues on the pleadings of the parties but issue No.1 was found to be material issue, which has been decided against the appellant. The Election Tribunal has held that Darbara Singh did not appear as his own witness rather his affidavit has been produced in evidence by some other witness. Learned Election Tribunal has found that the affidavit alone is not evidence and cannot be taken into consideration when Darbara Singh is available. The appellant should have examined him in support of his affidavit as a witness so that respondent No.1 would have an opportunity to cross-examine the said witness to test his veracity. In respect of the other three illegally rejected votes, the Election Tribunal has held that there is no material placed before it on the basis of which it could be found that how these three votes have been illegally rejected. In the absence of evidence led by the election petitioner/appellant, Election Tribunal held that the allegation of cancellation of 3 votes was an afterthought. Learned counsel for the appellant has basically challenged the aforesaid finding but to no avail as he could not convince this Court on the point that if a person whose vote has been torn off by the named supporter of the returned candidate, was available then why he was not examined by the election petitioner. Insofar as three illegal votes are concerned, it has been argued that the appellant is an illiterate person, therefore, he could not point out earlier about the CM Nos.6105 & 6107-CII-2010 and -3- FAO No.1212 of 2010 illegal rejection of those three votes. He also submits that he could not led evidence of the manner in which votes have been declared to be illegal. After hearing learned counsel for the appellant and perusing the available record, I find that the finding recorded by the learned Tribunal are in accordance with the facts placed before it and it does not warrant any interference by this Court in appeal. Hence, I do not find any merit in the present appeal and as such the same is hereby dismissed, in limine, though without any order as to costs. (RAKESH KUMAR JAIN) March 10, 2010 JUDGE vivek