FAO No.1529 of 2010 1 In the High Court for the States of Punjab and Haryana at Chandigarh. Decided on August 19,2010. Sudarshan Kaur (SC) --Appellant vs. Smt.Chhindo and others -- Respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.S.S.Salar,Advocate,for the appellant Mr.S.S.Swaich,Advocate,for for respondent Nos.1,4,5 and 7 None for respondent No.15. Rakesh Kumar Jain, J,(Oral) This appeal is directed against the order passed by Election Tribunal dated 02.2.2010, by which election of the appellant (Sudarshan Kaur) has been set aside on the ground that draw of lots was not held by the Returning Officer but by the Presiding Officer. In brief, election for constituting the Gram Panchayat of Sarhal Mundi, Block Phillaur, District Jalandhar,was held on 26.5.2008 in FAO No.1529 of 2010 2 which Smt. Chhindo wife of Bihari Lal and Smt. Sudarshan Kaur wife of Mohinder Singh contested for the post of Panch (S.C.Women) and polled equal votes. The Presiding Officer held draw of lots in terms of Section 68 of the Punjab State Election Commission Act,1994 (for short, the Act) in which Sudarshan Kaur (appellant) was successful. The defeated candidate Smt.Chhindo challenged the election of the appellant by filing the election petition in which it was inter-alia, alleged that the Presiding Officer had no jurisdiction to hold draw of lots in the case of tie as the jurisdiction vests only with the Returning Officer and only on that ground, election petition has been allowed by the Election Tribunal. Learned counsel for the appellant has submitted that Sh.N.D.Chopra, was appointed as Presiding Officer by the District Electoral Officer vide his order dated 4.6.2008 alongwith other Polling Officers for the election of Gram Panchayat Sarhal. It was specifically provided in the order dated 4.6.2008 that the Presiding Officer will work as Assistant Returning Officer for the purpose of counting of votes. Order dated 4.6.2008 is being reproduced below:- “ORDER OF APPOINTMENT OF PRESIDING AND POLLING OFFICERS FOR THE ELECTION OF GRAM PANCHAYAT. In pursuance of section 20 of Representation of the Punjab State Election Commission Act,1994, I hereby appoint officer (s) specified in para 2 and 3 of the table below as Presiding officers/polling officers for the Election of Gram Panchayat. Block 40-PHILLAUR I also authorise the polling officer specified in the para of table against the FAO No.1529 of 2010 3 entry to perform the function of the presiding officer during the unavoidable absence, if any, of the presiding officer. ___________________________________________________________ 1 Polling Party No.152 2 Name of the Presiding Officer 5677 N.D. Chopra, Special Assistant Banks, SBI, Indl. Focal Point, Jalandhar 3 Name of Polling Officers 6081 190 Sandeep Kumar, Punjabi Teacher Kamlesh Supervisor District Education Officer (SE), Jalandhar, G.M.School, Fazalpur, Jalandhar, “BDPO and CDPO, Child development Project Oficer, Nakodar 6074 Parminder Kaur, Teacher Zila Parishad, Jalandhar, ETT Teachers, Under BDPO, Nurmahal. 4 Polling Officer authorized to perform the functions of presiding officer in the latter's absence Saandeep Kumar, Punjabi Teacher District Education Officer (SE), Jalandhar, G.M. School, Fazalpur, Jalandhar. Note : 1. The Poll will be held on 26.5.2008 between the hours of 8 AM to 4 PM. 2. The Officers names above shall attend following rehearsals on the date, time and venue mentioned below :- Rehearsals Date Time Venue 1 21.5.2009 10.00 A.M. City Resorts, Phillaur 2 23.5.2008 10.00 A.M. City Resorts, Phillaur FAO No.1529 of 2010 4 (3). The officer named above shall report at GOVT.SR.SEC SCHOOL PHILLAUR ON 25/05/2008 AT 9.am. Their attendance will be marked there. Thereafter they will be taken to Block mentioned in Para 1 above for performing election duty there. Direction regarding collection of polling material and returning it at the Collection/dispatch centre will be given by R.O./A.R.O. of the above mentioned Block. (4) Please be cautioned that failure to attend any rehearsal or any dereliction of duty would attract strict legal action. (5)Polling party numbers will be intimated the polling station at thetime of dispersal of polling parties. (6)The counting of votes will be done on the spot after the poll. (7) The Presiding Officer will work as ARO for the purpose of counting votes. Sd/- Place:Jalandhar District Electoral Officer Date:04/06/2008 Jalandhar”. Learned counsel for the appellant has referred to Sections, 16,17 & 68 of the Act and Rule 35 of the Rules in his submissions. Section 16 of the Act provides that every Assistant Returning Officer shall, subject to control of the Returning Officer, be competent to perform, all or any of the functions of the Returning Officer but for the scrutiny of nomination papers. He has submitted that Chapter 11 of the Act, pertains to counting of votes and Section 68 of the Act deals with a situation of equality of votes which provides that in case of tie, the Returning Officer shall forthwith decide between those candidates by draw of lot and FAO No.1529 of 2010 5 proceed as if the candidate on whom the lot falls had received an additional vote. He has also referred to the similar provisions in The Punjab State Election Rules,1994 (for short,'the Rules'). Learned counsel for the appellant has submitted that since the District Electoral Officer had appointed the Presiding Officer for the purpose of counting of votes who has performed the functions of Returning Officer in his absence, for the purpose of determining the winning candidate by way of draw of lots, the action of the Presiding Officer in this regard cannot be termed to be illegal. On the other hand, the learned counsel for respondent has submitted that draw of lots was illegally held, which has been challenged by him in the election petition by itself. It is also submitted that draw of lots was never held, which fact has not been decided by the Election Tribunal. I have heard learned counsel for the parties and have gone through the record with their assistance. Before adverting to the rival contentions of the learned counsel for the parties, it would be relevant to refer to Sections 16,17,68 of the Act and Rule 35 of the Rules. “16. Returning Officer.—(1) For every constituency, for every election to fill a seat or seats in a Panchayat or a Municipality, the Election Commission shall, in consultation with the State Government, designate or nominate an officer of the State Government or of a local authority as a Returning Officer or one or more Assistant Returning Officers: FAO No.1529 of 2010 6 Provided that the Election Commission may designate or nominate the same person to be the Returning Officer or Assistant Returning Officer for more than one constituency. (2). Every Assistant Retuning Officer shall, subject to the control of the Returning Officer, be competent to perform all or any of the functions of the Returning Officer. Provided that no Assistant Returning Officer shall perform any of the functions of the Returning Officer which relate to the scrutiny of nominations, unless the Returning Officer is unavoidably prevented from performing such functions and it is necessary in the public interest to perform such functions. 17. Returning Officer to include Assistant Returning Officer. -- Reference in this Act to the Returning Officer shall, unless the context otherwise requires, be deemed to include an Assistant Returning Officer performing any function which he is authorized to perform under section 16. 68. Equality of votes.-- If, after the counting of the votes is completed, and the addition of one vote will entitle any of those candidates to be declared elected, the Returning Officer shall forthwith decide between those candidates by lot, and proceed as if the candidate on whom the lot fails had received an additional vote. 35. Procedure in case of time (Section 68).-- If, after the counting of votes is complete, votes polled FAO No.1529 of 2010 7 by two candidates are equal, and the addition of one vote will entitle any of these candidates to be declared elected, the Returning Officer shall forthwith decide between those candidates by draw of lots and proceed as if the candidate in whose favour the lot falls, has received an additional vote”. Section 20 of the Act empowers the District Electoral Officer to appoint Presiding Officers. The Presiding Officer is appointed for each Polling Station whereas the Returning Officer is appointed for every Constituency in which there could be more than one polling station. In terms of Section 17, Returning Officer would include Assistant Returning Officer. In this appeal, the question arises for determination is as to “whether draw of lots can be conducted by the Presiding Officer who is also given the additional work of Assistant Returning Officer for the purpose of counting of votes by the District Electoral Officer or it could be only performed by Returning Officer as provided under Section 68 of the Act” ? After perusal of the provisions of law which have been noticed hereinabove, as well as order dated 4.6.2008 passed by the District Electoral Officer,Jalandhar, which has been reproduced in the earlier part of the judgment, scrutiny of nomination papers is the only thing which cannot be done by the Assistant Returning Officer. Since the Presiding Officer has been appointed by the District Electoral Officer to work as A.R.O for the purpose of counting of votes, therefore, he had the jurisdiction to decide FAO No.1529 of 2010 8 the question of tie between the parties by draw of lots. Insofar as argument of learned counsel for the respondents that there was no draw of lots and the election has been held illegally is concerned, election petition is not decided on that count nor any argument has been raised by learned counsel for the respondents before the Court below. This is purely a question of fact which could have been decided by the Election Tribunal on the basis of evidence, but since the said question of fact is not proved by the respondents by way of leading evidence, the same cannot be considered for the first time by this Court in appeal. Therefore, I do not find any merit in the submission made by learned counsel for the respondents in this regard as well. In view of the above discussion, I find merit in the submissions made by learned counsel for the appellant. Hence, this appeal is allowed and order passed by the Election Tribunal dated 2.2.2010 is hereby set aside with costs. August 19,2010 (Rakesh Kumar Jain) RR Judge