FAO No. 5117 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -- FAO No. 5117 of 2009 Date of decision: October 27, 2009 Karnail Singh ........ Appellant Versus Jagtar Singh .......Respondent (s) Coram: Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Mr. L S Sidhu, Advocate for the appellant -.- 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporter or not? 3. Whether the judgement should be reported in the Digest? Nirmaljit Kaur, J. C M No. 25063 CII of 2009 Allowed as prayed for. Documents (Annexures A-1 to A-6) are taken on record. Appeal This is an appeal against the order dated 24.09.2009 passed by the Deputy Commissioner-cum-Presiding Officer, Election Tribunal, Tarn Taran FAO No. 5117 of 2009 2 vide which the election petition of respondent, Jagtar Singh, has been accepted and the election of appellant, Karnail Singh, has been set aside, declaring the respondent as elected Panch of Village Sarhali Khurd, Block Naushehra Pannuan, Tehsil and District Tarn Taran. The election of the appellant was set aside by the Election Tribunal on the ground that the appellant after having connived with the Presiding Officer got himself illegally and unlawfully declared as elected Panch without proper counting of the vote. It was alleged in the petition that the Presiding officer did not prepare the bundles of the votes, as per the instruction of the Election Commission. It was further alleged that there was no proper counting of the votes and also counting of the votes started late. There was no arrangement of the light in the rooms where the counting was done. The signatures of the candidates were obtained on blank paper on the plea that the Presiding Officer faced troubles in obtaining the signatures of the defeated candidates after the result. It was further alleged that at the instance of the appellant, the respondent was not allowed to enter the room where the counting was being held and in fact was removed from the premises with the help of police. It was further alleged that liquor was flowing at the time of counting and there was lot of noise in the room. Further, the valid votes of the respondent were rejected and the appellant did not allow the polling agent to recheck the votes. The request for recounting of the votes was not acceded to. It was under these circumstances that the Election Tribunal thought it just and proper to hold the recounting of the votes to verify the correctness or otherwise. Both the parties gave their consent for recounting of FAO No. 5117 of 2009 3 the votes. Thereafter, in the presence of the parties, recounting of the votes was conducted and after recounting, it was found that respondent-Jagtar Singh, had, in fact, obtained 569 votes against 566 votes obtained by appellant- Karnail Singh. It was found that 34 votes were rejected, but only 13 votes were shown as rejected. On the basis of the recounting of the votes, the respondent was declared as elected and the election of appellant was set aside having received lesser number of votes. While challenging the aforesaid order passed by the Election Tribunal, vide which the respondent was declared elected on the basis of recounting, the learned counsel for the appellant argued that the record had been tampered. Karnail Singh-the appellant had stated at the outset that he was not sure whether the seal was the same or it had been re-fixed. Statement of the Presiding officer, Parshotam Singh, was also recorded on oath, who deposed that the record was deposited in the office of the BDPO, Naushehara Pannuan after election and hence he cannot tell about the seal whether the seals affixed are the same, which were fixed under his hands or fixed later on. Thus, they had expressed their suspicion at the outset and, therefore, it is possible that the record may have been tampered with. After hearing the learned counsel for the appellant and after having gone through the statements referred to above, copies thereof have been placed on record as Annexures A-1, A-2 and A-3, it is apparent that the appellant had no objection to the recounting of the votes and in fact he gave his consent for the same. The statement of the appellant, Karnail Singh has been placed on record as A-2, which reads as under:- “Stated on oath that the advocates could not present, today due FAO No. 5117 of 2009 4 to the strike of advocate. Therefore, today count be made in my presence. I have seen the brief. I have doubt that the seal of brief has been fixed again. RO&AC ETTT Karnail Singh 16.09.2009” Thus, even though the appellant expressed his doubt about the seal on the brief, he agreed and gave his consent for recounting of the votes. Accordingly, he is bound by his statement and cannot wriggle out of the same. He cannot turn around and challenge the result of such recounting on the ground that he had apprehension qua the seal on the brief. The appellant gave his consent in spite of the doubt. The statement of Parshotam Singh, Presiding Officer, on which the appellant heavily relied, reads as under:- “Stated on oath that record is already present in the Court regarding the election of Panch of Village Sarhali Khurd. Its brief which is sealed, I have seen. My signatures are also present on this brief. Used ballot papers are lying this brief. This record is lying in the office of BDPO, Naushehara Pannuan, after completing from election. Therefore, I could not tell it that marked seals are also those marked seals with my hand or it has been marked later on. Seals are not broken. The envelop is not quite torn. Envelop has not been transferred.” It is apparent from the above statement that the seals were not broken. The fact that the Presiding officer stated that he was not sure whether FAO No. 5117 of 2009 5 these seals were marked with his hand or not is meaningless as he has not been able to verify the same either way. The important thing is that he admitted that the seals were not broken. Further, the appellant gave his consent for recounting. The parties having given their consent for recounting of the votes, are bound by their statements as well as the result thereof. The Hon'ble Apex Court in the case of 'Baldev Singh v Shinder Pal Singh and another, 2006 (4) RCR (Civil) 891, while taking into consideration the earlier decision rendered in the case of T.A. Ahammed Kabeer v. A.A.Azeez and others, 2003 (4) RCR (Civil) 250, held as under:- “It is true that a re-count is not to be ordered merely for the asking or merely because the court is inclined to hold a re- count. In order to protect the secrecy of ballots the Court would permit a re-count only upon a clear case in that regard having been made out. To permit or not to permit a re-count is a question involving jurisdiction of the court. Once a re-count has been allowed the Court cannot shut its eyes on the result of recount on the ground that the result of recount as found is at variance with the pleadings. Once the court has permitted re-count within the well settled parameters of exercising jurisdiction in this regard, it is the result of the re-count which has to be given effect to.” No merit. Dismissed. (Nirmaljit Kaur) Judge October 27, 2009 mohan