F.A.O. No.338 of 2010 1 IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... F.A.O. No.338 of 2010 Date of Decision: August 19, 2011 Manjit Kaur ... Appellant VERSUS Amarjit Kaur and others ... Respondents CORAM : HON'BLE MR.JUSTICE MOHINDER PAL Present: Mr.J.S.Gill, Advocate for the appellant. Mr.Premjit Kalia, Advocate for respondent No.1. -.- MOHINDER PAL, J. This appeal is directed against the order dated 17.09.2009 passed by the Deputy Commissioner-cum-Presiding Officer Election Tribunal, Tarn Taran (hereinafter referred to as 'the Tribunal') vide which the election petition filed by the petitioner (appellant herein) was dismissed. The petitioner being the voter in the voter list of Village Manakpura, Block Gandiwind, Tehsil and District Tarn Taran had contested the election of Gram Panchayat held on 26.05.2008 for the post of Member Panchayat. Respondent No.1 Amarjit Kaur also contested the election. In total, 696 votes were polled in the election, out of which 18 votes were rejected and 2 ballot papers were F.A.O. No.338 of 2010 2 mis-placed by respondent No.1 in connivence with respondents No.2 and 3. As per result of the election, Mukhtar Singh obtained 116 votes, Sahib Singh 92, Nirmal Kaur 85, Sawinder Singh 82, Sohail Singh 69, Kashmir Kaur 58, Jaswant Singh 54, Amarjit Kaur 39 (respondent No.1), Manjit Kaur 39 (appellant), Tarsem Singh 34, Gurbachan Singh 03, Harjinder Kaur 01, Rajwinder Singh 01 and Sukhwinder Kaur had not obtained any vote. It is alleged that two ballot papers which were mis-placed by respondent No.1 were in fact in favour of the petitioner. Despite having mis-placed from the votes, the petitioner as well as respondent No.1 secured equal number of votes and with the intervention of respectables, it was resolved that the election be decided by Toss. However, no Toss has been done and respondents No.2 and 3 in connivance with respondent No.1 declared her elected. It is further her case that some another lady was impersonated in her place. The statement of this lady was got recorded and also got affixed the thumb impression by treating the same to be the statement of the petitioner. It is further case of the petitioner that she requested the respondents to adopt the process of Toss. However, they failed to comply to her request and the decision taken by the elders. While relying upon these averments, it was submitted that election petition was liable to be accepted. In reply, respondent No.1 Amarjit Kaur admitted that she along with the petitioner obtained 39 votes each. However, it was denied that two ballot papers were mis-placed by her. It was further denied that she was declared elected in connivance with respondents No.2 and 3 or that the mis-placed ballot papers were in favour of the petitioner. It has been submitted that she was declared elected by way of Toss which was adopted as per request of the petitioner. Finally, it F.A.O. No.338 of 2010 3 has been prayed that since the respondent has been declared elected, the petition being vague was liable to be dismissed. Respondent No.3 Gulzar Singh appeared and filed his separate written statement denying the averments of the petitioner and declaration of result in favour of respondent No.1 to be quite lawful and justified. Respondent No.2 BDPO Gandiwind had not come present despite service and was proceeded against ex parte. I have heard the learned counsel for the parties and have also gone through the Annexures available on the file. Learned counsel for the appellant has raised various arguments. It has been submitted that two ballot papers belonging to the appellant were got mis-placed by respondent No.1 in connivance with respondents No.2 and 3. The Toss was agreed to be held, however, no toss has been held. Some another lady has impersonated in place of the appellant and her thumb impression has been taken on the statement which was never given by the appellant Manjit Kaur. Finally, it has been stated that in recounting, one vote polled by the appellant has been declared as disputed on the basis of thumb impression of Manjit Kaur having been found on the ballot papers. On the other hand, while appearing on behalf of the respondent, it has been submitted that both the appellant as well as respondent No.1 have resolved to conclude the election by way of Toss and as respondent No.1 has won the Toss, the election petition has been wrongly rejected by the Tribunal. From the pleadings as well as arguments raised by the learned counsel for the parties, it appears that two ballot papers have been mis-placed. The appellant in her evidence as well as in the arguments has laid stress on the point that these two ballot papers F.A.O. No.338 of 2010 4 have been deliberately got mis-placed in connivance with respondents No.2 and 3 i.e. the officials, who were assigned the duty of conducting elections. After loss of these ballot papers, both the appellant as well as respondent No.1 secured 39 votes each and method of Toss has been adopted. It is further ground of the appellant that she never participated in the Toss and an another lady has impersonated her thumb impression to show her consent regarding the Toss. As is apparent from the impugned order, the Tribunal has done recounting where each side has got 39 votes. Another thing pointed out by the Tribunal at the time of recounting is that out of the rejected votes one vote of Manjit Kaur appellant was found to have been carrying thumb impression in the column of other contestant Jaswant Singh. The Tribunal has reached to the conclusion that this thumb impression was that of appellant Manjit Kaur. It is difficult to find as to how the Presiding Officer reached the conclusion that it was Manjit Kaur only, who had put her thumb impression in the column of other contestant. This is particularly so as the votes when polled are not thumb marked. The ballot papers do not carry the name of the person, who is polling the same. Still further, the decision regarding declaring the vote as invalid has been reached without any comparison of the standard thumb impression of the appellant with the thumb impression found on the ballot paper. All this goes to prove that despite the fact that two ballot papers which the appellant claims to have been polled in her favour have been lost, she still secured 40 votes against 39 votes secured by her opponent respondent No.1. This Court is further unable to find the reason as to why a candidate will put her thumb impression in the column of some other contestant when she herself is contesting the election and fight is neck to neck. Learned counsel for respondent F.A.O. No.338 of 2010 5 No.1 has also failed to answer this question. In view of the foregoing discussion, the election petition filed by the appellant Manjit Kaur stands allowed by setting aside the order under appeal. The file is remanded back to the Deputy Commissioner-cum-Presiding Oficer, Tarn Taran with a direction to declare the appellant as elected candidate for the post of Panch. The appellant will approach before the Deputy Commissioner on 01.12.2011. The Tribunal will declare her elected and will proceed further as per law. Accordingly, the present appeal is allowed. August 19, 2011 ( MOHINDER PAL ) jt JUDGE