CR No.5408 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.5408 of 2008 Date of Decision: 3.10.2008 Rajesh Bhatia ..Petitioner Vs. Ashwani Azad & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Rajinder Chhokar, Advocate, for the petitioner. Mr.A.P.Kansal, Advocate, for respondent No.1. Vinod K.Sharma,J. (Oral) The petitioner has challenged the order passed by the learned Civil Judge (Senior Division), Faridabad ordering recount of the votes. Respondent No.1 filed a petition under Section 15 of the Haryana Municipal Corporation Act, 1994 (for short the Act) for declaring the election of the petitioner as Municipal Councillor from Ward No.11 Municipal Corporation, Faridabad to be illegal, null and void. He further prayed that he be declared as winner/successful candidate. Respondent No.1 in the election petition claimed that total CR No.5408 of 2008 2 votes of Ward No.11 are 18159 but only 11181 votes were polled. The election process was over at 4 PM on 30.4.2005. It was claimed by the petitioner that even before the arrival of polling agents the ballot boxes had already been opened. It is the case of respondent No.1 that agent of respondent No.1 claimed that votes be shown to them but the counting staff did not show the same. The petitioner claimed that more than 320 votes were declared invalid. Request of the agents for being shown the invalid votes was not accepted. It is further the case of respondent No.1 that respondent No.1 was declared as winner by 700 votes but thereafter the counting staff disclosed two other boxes. However, said boxes were not shown to him and thereafter the petitioner was declared as elected. The petitioner claimed that he wrote to the Deputy Commissioner, Faridabad for recounting of votes and the copies thereof were sent to the Chief Election Commissioner and State Election Commissioner but his request was declined. In the written statement the claim of respondent No.1 was contested. After the pleadings of the parties were complete issues were framed. Request of respondent No.1 was accepted and recounting was ordered on 10.8.2006. The petitioner challenged the said decision by filing Civil Revision No.5006 of 2006. This court in the previous litigation by relying upon Rule 62 of the Haryana Municipal Corporation Election Rules 1994 (for short the Rules) held that once an application was not immediately made it was not CR No.5408 of 2008 3 open to the Returning Officer to recount the votes. The court held that as no evidence was led in the election petition by the parties yet, therefore, under section 17 of the Act the Election Tribunal could not have ordered the recount of votes. Revision was allowed. However, it was directed that the Election Tribunal should proceed in accordance with the law and make endeavour to dispose of the same as early as possible and preferably within six months. Thereafter, respondent No.1 examined himself as PW 1 and also examined one Shri Sushil Mehndiratta as PW2 and Shri Lajpat Rai as PW 3. Thereafter his evidence was closed. The petitioner appeared as RW 1 and examined Shri Yogesh Goshwami as RW 2. It was the case of the petitioner that no case for recounting was made out. However. Learned Civil Judge (Sr.Division) observed that respondent No.1 has taken categorical stand that votes were illegally rejected by the counting staff without showing the same to the election agents of the candidates. The allegations made by respondent No.1 were duly corroborated by RW 2 Sushil Mehndratta and Laj Pat Rai RW 3. The court also observed that after declaring respondent No.1 as elected two new boxes were opened which were not shown to respondent no.1 or his agent. The court observed that while being cross-examined the petitioner admitted in his cross-examination that he had no objection if votes are recounted. The court also observed that no prejudice was likely to be caused to the petitioner as the votes were to be recounted in court and issue No.1 would CR No.5408 of 2008 4 be decided. Mr. Rajinder Chhokar, learned counsel appearing on behalf of the petitioner challenges the impugned order on the plea that admission was made by the petitioner in ignorance of his right. It was also his case that the admission made by the petitioner could be withdrawn by him at any time. In support of this contention reliance was placed on the judgment of this court in the case of Smt.Matto and others Vs. Naino and others 2008 (1) RCR (Civil) 8, wherein this court was pleased to lay down as under:- “9. After hearing the learned counsel for the parties, I find force in the arguments raised by the learned counsel for the appellant. It is settled law that admission has to be read as a whole and once the admission is said to have been made in ignorance of right and the same was contrary to law, the same was not binding on the plaintiff respondents. Once the onus of providing (proving?) issue No.2 was placed on the defendant- respondents and they failed to discharge the same, the learned trial court rightly held that the property was not joint Hindu Family property and the parties were rightly held entitled to inherit as per Section 8 of the Hindu Succession Act.” However, the judgment relied upon by the leaned counsel for the petitioner is of no help to the petitioner as till date no steps have been taken to withdraw the statement made by the petitioner before the learned Civil Judge (Senior Division). CR No.5408 of 2008 5 Even otherwise, the order passed by the learned Civil Judge has not been passed on the basis of admission alone but on the basis of evidence led by respondent No.1 which stands duly corroborated. Learned counsel for the petitioner placed reliance on the order of this court passed in CR No.5006 of 2006 titled Rajesh Bhatia Vs. Chairman HN Municipalities Election Tribunal Chandigarh & Ors., decided on 22.4.2008 to contend that the impugned order was contrary to Rule 62 of the Rules. However, this contention is also deserves to be rejected as this Court while disposing of CR No.5006 of 2006 clearly mentioned that the parties have to be permitted to lead their evidence and thereafter decision could be taken regarding recount. Learned counsel for the petitioner also argued that the evidence is not complete as some of the witnesses of the respondents are yet to be examined. This plea also deserves to be rejected as the petitioner has already led evidence which stands duly corroborated showing that there was irregularity in recount. Thus, prima facie case was made out for ordering recount. Learned counsel for the petitioner contended that the application after four days of recount could not be entertained. This plea of the learned counsel for the petitioner is also misconceived as that bar is for ordering recount by the Returning Officer/Presiding Officer and not to the court where the election petition is to be adjudicated. The Hon'ble Full Bench of this court in the case of Radha CR No.5408 of 2008 6 Kishan Vs. Election Tribunal-cum-Sub Judge, Hissar 1999 (3) P.L.R.1 has been pleased to lay down as under:- “50. Ergo we hold that recounting of votes in such an election cannot be directed on more asking and in a routine manner. The applicant, if makes difinite averments on verification supported by unambiguous details, in accordance with law, supported by documents, if any, and where the applicant makes out a prima facie case to the satisfaction of the court, nothing prevents the Court from ordering scrutiny and computation of votes on recount in the case falling within restricted scope of section 176 (4) (b) of the Act. In other words, the court would not be justified in declining such a relief for the reason that the applicant, irrespective of above, must lead evidence through detailed enquiry. Such detailed enquiry is neither postulated nor would be necessary within the purview of said provisions in the limited cases. Afore-referred.” Thus, it would be seen that once the petitioner made out a prima facie case to the satisfaction of the court nothing could prevent the court from ordering scrutiny and recounting of votes. It may further be noticed that Hon'ble Supreme Court in the case of Chandrika Prasad Yadav Vs. State of Bihar and others 2004 (2) RCR (Civil) 568 has been pleased to lay down that recount be ordered when it is proved on record that there is a prima facie case established and the material facts have been pleaded stating irregularity in counting of CR No.5408 of 2008 7 votes. But the court while ordering recount has to see that no roving and fishing inquiry is to be made and that secrecy of ballot papers is maintained. In the present case, prima facie case stands established and the petitioner himself in cross-examination showed his willingness to get recount done. The impugned order, therefore, does not suffer from any illegality nor there is lack of jurisdiction which may call for interference by this court in exercise of revisional jurisdiction. No merit. Dismissed. Copy of the order be given dasti under the signatures of Court Secretary. 3.10. 2008 (Vinod K.Sharma) rp Judge