C.R. No.3599 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.3599 of 2010 Date of Decision: 14.09.2010 Kaur Singh alias Chamkaur Singh .……Petitioner Versus Bikkar Singh and others ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. B. S. Sidhu, Advocate for the petitioner. Mr. Saurabh Chugh, Advocate for the respondents. L. N. MITTAL, J (ORAL) Elected candidate Kaur Singh (respondent No.1 in the Election Petition) has invoked the jurisdiction of this Court under Article 227 of the Constitution of India by filing the instant revision petition assailing order dated 19.05.2010 Annexure P-1 passed by learned Election Tribunal, Moga in election petition instituted by Bikkar Singh-election petitioner (respondent No.1 herein) challenging the election of Kaur Singh alias Chamkaur Singh petitioner herein as Member Panchayat. By impugned order Annexure P-1, the Election Tribunal has ordered recounting of votes. I have heard learned counsel for the parties and perused the record. Learned counsel for the petitioner contended that the election petition was not presented in person as required by Section 76 of the Punjab State Election Commission Act, 1994 (in short, the Act) and, therefore, the election petition is liable to rejection under C.R. No.3599 of 2010 -2- Section 80 of the Act. However, no such objection has been taken in the pleadings nor any such objection has been adjudicated upon in the impugned order by the Election Tribunal. Objection in the written statement that election petition is not maintainable in the present form would not cover the objection that election petition was not presented in person. Learned counsel for the petitioner also contended that recounting of votes could not be ordered in routine and on the other hand, prima facie case has to be made out for the same. Reliance in support of this contention has been placed on judgment of Hon'ble Supreme Court in the case of N. Narayanan versus S. Semmalai and others, AIR 1980 Supreme Court 206. It was also contended that even consent of the returned candidate for recounting is not sufficient to order recounting of votes in the absence of material for the same. Reliance in support of this contention has been placed on a judgment of Hon'ble Supreme Court in the case of P.K.K. Shamsudeen versus K.A.M. Mappillai Mohindeen and others, AIR 1989 Supreme Court 640. On the other hand, learned counsel for election petitioner-respondent No.1 contended that the returned candidate stated in the witness box that he had no objection to the recounting of votes and the election petitioner also made out a ground for recounting of votes and, therefore, recounting has been rightly ordered. It was also contended that if returned candidate gives consent for recounting of votes, as in this case, then order of recounting of votes cannot be assailed by the returned candidate, as C.R. No.3599 of 2010 -3- held by this Court in the case of Surjit Kaur versus Jaswant Kaur, 2001(3) RCR (Civil)285 as followed in unreported judgment dated 02.09.2009 in C.R. No.2569 of 2009 titled as Geeta Rani verus Deputy Director-cum-Presiding Officer and others. I have carefully considered the rival contentions. Judgments of this Court in the cases of Geeta Rani (supra) and Surjit Kaur (supra) are fully applicable to the instant case. Returned candidate i.e petitioner herein specifically stated in cross-examination that he was agreeable to recounting of votes. He stated that he had no objection to the recounting of votes. Moreover, the Election Tribunal has observed that the Election petitioner himself was not present at the time of counting of votes and his agent was present and the agent was not satisfied with the counting and, therefore, he did not give his consent for toss as both the election petitioner and returned candidate had secured equal votes i.e 134 each. Thus the Election Tribunal was satisfied that case for recounting of votes has been made out. Even otherwise, in view of consent by the returned candidate, order of recounting of votes cannot be assailed at the instance of the returned candidate. In the case of P.K.K. Shamsudeen (supra), there was no consent by the returned candidate to the order of recounting of votes nor the election petitioner had made averments in the election petition to make out a case for recounting of votes. On the other hand, returned candidate in that case had consented to the result of recount, but had not consented to the order of recount. So the said judgment is not applicable to the instant case. As regards case of N. Narayanan (supra), the same is not applicable to this case because necessary C.R. No.3599 of 2010 -4- ingredients for order of recounting of votes have been made out in the instant case and there is also consent by the returned candidate to order recounting. For the reasons aforesaid, I find no merit in the instant revision petition, which is accordingly dismissed. However, nothing observed in this order shall effect the merits of the election petition and only the question of ordering of recounting of votes has been adjudicated upon in the instant revision petition. ( L. N. MITTAL ) JUDGE 14.09.2010. A. Kaundal