Civil Writ Petition No. 17358 of 2010 (O&M) 1 In the High Court of Punjab and Haryana, at Chandigarh. Civil Writ Petition No. 17358 of 2010 (O&M) Date of Decision: 1.12.2010 Balbir Singh …Petitioner Versus The Registrar, Co-operative Societies, Punjab and Others …Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. M.S. Kang, Advocate for the petitioner. Mr. Anil Kumar Sharma, Additional Advocate General, Punjab, for respondents No.1 and 2. Mr. Ashwani Prashar, Advocate for respondent No.3. Mr. Sahil Sabhlok, Advocate, for Mr. D.S. Patwalia, Advocate for respondent No.4. Mr. R.K. Sharma, Advocate for respondents No.5 and 6. Kanwaljit Singh Ahluwalia, J. (Oral) Civil Misc. No.17022 of 2010 Learned counsel for the petitioner submits that he does not press the present application. As prayed, the present application is dismissed as not pressed. Civil Writ Petition No. 17358 of 2010 (O&M) 2 Civil Writ Petition No.17358 of 2010 The present writ petition has been filed seeking a writ in the nature of Certiorari for quashing of the impugned order dated 31.8.2010 (Annexure P10), passed by the Joint Registrar, Co-operative Societies, Patiala Division, Patiala, whereby he had dismissed the election petition, preferred by the petitioner. At the very outset, it was pointed out to learned counsel for the petitioner at the time of first hearing that the remedy of appeal is available, therefore, the petitioner should avail the same. Learned counsel for the petitioner has levelled serious allegations of malafide against the authority, who had decided the election petition and the authority before whom the appeal was to be listed. Learned counsel for the petitioner mustered courage to implead the authorities, which had passed the orders, by name. Therefore, this Court has granted indulgence. Today, learned for the parties are in agreement that this Court need not to go into the allegations of malafide as on facts the case is required to be remitted back to the authorities, who had dismissed the election petition. I have perused the impugned order dated 31.8.2010 (Annexure P10) with the aid of learned counsel for the parties. A grievance has been made that the petitioner and respondent No.3 had got equal number of votes, to be precise they got 29 votes each. The Presiding/Returning Officer, in breach of the rules, instead of resorting to draw of lots, declared the candidate elected by way of toss. It is stated that the declaration of the result by way of toss is not in consonance with Civil Writ Petition No. 17358 of 2010 (O&M) 3 the rules. To controvert this, learned counsel for respondent No.3 has taken a stand that the procedure of toss was adhered to after the parties had given their consent. To verify this fact, record was called. On the last date of hearing, a photocopy of Form No.6 i.e. Result Sheet was retained on the record of this case. A perusal whereof reveals that the Presiding Officer has recorded as under:- “After the result was declared by way of toss, Karnail Singh son of Joginder Singh was declared elected from Zone No.11”. This was signed by Karnail Singh and the petitioner, whereas in the order (Annexure P10), it has been specifically stated as under:- “...It was not denied by the counsel for the petitioner or petitioner himself that the result by way of toss was declared with his consent...” Learned counsel for the petitioner has submitted that no such statement was made that the result by way of toss was declared with the consent of the petitioner. He has further submitted that nothing as such has been recorded in the Form No. 6. The authority, deciding the election petition, was also primarily persuaded by the fact that the petitioner has given his consent for toss, therefore, it was concluded as under:- “...After hearing the arguments of both the parties, it is quite clear that when the petitioner and respondent secured equal number of votes, a toss was offered to both the parties to which the petitioner and respondent No.1 gave consent. It was Civil Writ Petition No. 17358 of 2010 (O&M) 4 thereafter only that by way of toss, respondent No.1 was declared elected in pursuance of that. Now the petitioner cannot take this plea that toss is not valid because. Thus, this argument carries no weight that draw of toss should have been drawn when petitioner and respondent No.1 secured equal number of votes...” The fact that the petitioner had given his consent is belied by perusal of Form No.6. Therefore, the authority, passing the order (Annexure P10) has not applied its mind. Accordingly, as agreed by learned counsel for the parties and the joint statement made by them, the impugned order dated 31.8.2010(Annexure P10) is set aside. The matter is remitted back to respondent No.2-Joint Registrar, Co-operative Societies, Punjab, to decide the matter afresh. The parties shall be at liberty to raise all the arguments available to them. The parties shall also be at liberty to file written arguments and considering the same, respondent No.2-Joint Registrar, Co-operative Societies, Punjab, shall pass an order afresh. The parties are also permitted to persuade respondent No.2 that the evidence is required to be led. With the observations made above, the present writ petition is disposed of. (Kanwaljit Singh Ahluwalia) Judge December 1, 2010 “DK”