C. R. No. 4243 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : C. R. No. 4243 of 2009 Date of Decision : April 26, 2010 Gurnam Singh .... Petitioner Vs. Deputy Commissioner-cum-Presiding Officer, Election Tribunal, Muktsar and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. S. K. Arora, Advocate for the petitioner. Mr. G. S. Mann, Advocate for respondent no.2. * * * L. N. MITTAL, J. (Oral) : Mithu Singh – respondent no.2 herein filed election petition under Section 76 of the Punjab State Election Commission Act, 1994 (in short – the Act), challenging election of Gurnam Singh (petitioner herein) as Punch of Gram Panchayat of Village Bodiwala Kharak Singh, Tehsil Malout, District Muktsar. Election Tribunal (Deputy Commissioner, Muktsar), vide order dated 14.07.2009 (Annexure P-1), ordered recounting of votes and directed Tehsildar, Malout to do the recounting. The said order has been challenged by the elected candidate by filing the instant revision petition under Article 227 of the Constitution of India. I have heard learned counsel for the parties and perused the C. R. No. 4243 of 2009 2 case file. Learned counsel for the petitioner vehemently contended that there is no provision in the Act empowering the Election Tribunal to order recounting of votes. However, learned counsel for respondent no.2 contended that there is no provision in the Act prohibiting the Election Tribunal from ordering the recounting of votes and therefore, Election Tribunal was competent and had power to order recounting of votes, if case for the same is made out. Reliance in support of this contention has been placed on a judgment of Hon'ble Apex Court in the case of Sohan Lal vs. Babu Gandhi and others reported as AIR 2003 Supreme Court 320. No judgment to the contrary has been cited by learned counsel for the petitioner. Consequently, in view of judgment of Hon'ble Supreme Court in the case of Sohan Lal (supra), the aforesaid objection raised by learned counsel for the petitioner has to be overruled. Since there is no prohibition in the Act against ordering recounting of votes by the Election Tribunal, in a given case, Election Tribunal has power to order recounting of votes, if circumstances are proved to make out a case for the same. Learned counsel for the petitioner next contended that without framing issues and recording evidence, recounting could not be ordered. Reliance in support of this proposition has been placed on a judgment of this Court in the case of Sukhchain vs. Election Tribunal, Muktsar and others reported as 2006 (4) R. C. R. (Civil) 419. It was also contended that Election Tribunal could do the recounting of votes himself and could not delegate this power to Tehsildar. Reliance in support of this contention has been placed on two judgments of this Court namely Darshan Singh vs. Deputy Commissioner-cum-President Officer, Election Tribunal and others reported as 2000 (3) R. C. R. (Civil) 271 and Satnam Singh vs. Kamaljeet Singh reported as 2000 (4) R. C. R. (Civil) 525. Learned counsel for respondent no.2 could not advance any meaningful argument to C. R. No. 4243 of 2009 3 controvert the aforesaid contention nor any judgment to the contrary has been cited. It is thus apparent that the Election Tribunal could not delegate the function of recounting to Tehsildar, as categorically held in cases of Darshan Singh (supra) and Satnam Singh (supra). Moreover, mere margin of two votes in the votes polled by the election-petitioner and elected candidate and rejection of 19 votes would not, by itself, be sufficient to order recounting. On the contrary, as laid down in the case of Sukhchain (supra), parties had to be given opportunity to lead evidence and only then the Election Tribunal could adjudicate upon and determine whether case for ordering recounting of votes is made out or not. Consequently, the impugned order is liable to be set aside on both these counts. Learned counsel for respondent no.2 contended that the petitioner has not come to the Court with clean hands and the petitioner did not disclose that he had participated in the recounting of votes, done on 21.07.2009 by the Tehsildar, pursuant to the impugned order. However, this contention is not sufficient to discard the case of the petitioner because the petitioner has mentioned in the revision petition that recounting of votes has been done by Tehsildar on 21.07.2009. Thus, it cannot be said that the petitioner has concealed any material fact from this Court. For the reasons recorded herein above, the instant revision petition is allowed and impugned order dated 14.07.2009 (Annexure P-1) passed by learned Election Tribunal, Muktsar is set aside. I have not expressed any opinion on the question whether there is sufficient ground for ordering recounting of votes or not. The Election Tribunal shall adjudicate upon the said question in accordance with law after recording evidence. April 26, 2010 ( L. N. MITTAL ) monika JUDGE