FAO No. 5312 of 2010 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O. No. 5312 of 2010 (O&M) Date of decision: 12.1.2011 Jalaur Singh .. Appellant v. Balwinder Singh and others ..Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. R. K. Garg, Advocate for the appellant. Mr. V. K. Kataria, Advocate for respondents No. 1, 2 and 5. ... Rajesh Bindal J. Challenge in the present appeal is to the order dated 20.7.2010, passed by Presiding Officer, Election Tribunal, Moga (for short, `the Election Tribunal'), whereby after re-counting of votes, respondent No. 1- Balwinder Singh was found to have got 294 votes and appellant-Jalaur Singh got 292 votes. As a consequence thereof, Balwinder Singh was declared elected as Panch of Gram Panchayat, Kariyal, Tehsil and District Moga. Briefly, the facts are that after the election for the members of Gram Panchayat, Kariyal on 26.5.2008, the same was challenged by respondent No. 1- Balwinder Singh. In his petition, the Election Tribunal, vide order dated 10.7.2009, directed for re-counting of votes. The aforesaid order was challenged by the present appellant in this court by filing Civil Revision No. 3888 of 2009, which was dismissed on 16.7.2009 upholding the order directing for re-counting of votes. Thereafter, re-counting of votes was done and even the result thereof was challenged by the present appellant before this court by filing FAO No. 4767 of 2009, which was allowed. This court, while setting aside the order, remitted the matter back to the Election Tribunal with a direction that he shall re-count the votes FAO No. 5312 of 2010 [2] himself as the votes were earlier re-counted by some subordinate officer. Thereafter, re-counting of votes was done by the Presiding Officer, Election Tribunal himself in the presence of the parties and their counsels. As is noticed in the impugned order dated 20.7.2010, respondent No. 1- Balwinder Singh got 294 votes, whereas appellant-Jalaur Singh got 292 votes. It is this order, which is impugned before this court. Learned counsel for the appellant submitted that without there being any ground made out for seeking re-counting of votes, the order passed by the Election Tribunal directing re-counting of votes was totally illegal. He further submitted that in the election petition filed by respondent No. 1, all the candidates were not impleaded as parties. In terms of the provisions of Section 77 of the State Election Commission Act, 1994 (for short, `the Act'), the petition filed by him being inherently defective was liable to be dismissed. Further submission was that election petition was required to be presented by the party himself and the same could not be presented through a counsel. For the aforesaid violations, the election petition was required to be dismissed as such and could not have been entertained. On the other hand, learned counsel for respondent No. 1 submitted that the only issue, which survives at present in the appeal, is whether re-counting, as has been done by the Election Tribunal is in terms of the order passed by this court in the earlier appeal filed by the appellant, namely, FAO No. 4767 of 2009. There is no defect in the process of re- counting done by the Election Tribunal, as re-counting was done in the presence of parties and their counsels and on re-counting, respondent No. 1 was found to have got more votes than the appellant, hence, declared elected as Panch of Gram Panchayat, Kariyal. The appellant cannot be permitted to raise other issues pertaining to the maintainability of the petition on different grounds as he had the opportunity to raise those issues when the orders passed by the Election Tribunal were earlier challenged twice before this court. Heard learned counsel for the parties and perused the paper book. From a perusal of the facts, noticed above, it is clear that the appellant in the present case had been to this court twice earlier by filing FAO No. 5312 of 2010 [3] Civil Revision No. 3888 of 2009 challenging first order passed by the Election Tribunal on 10.7.2009 directing for re-counting of votes and then by filing FAO No. 4767 of 2009 challenging re-counting of votes, which was done by an officer subordinate to the Presiding Officer, Election Tribunal. On both the occasions, the appellant had the opportunity to raise the issue regarding maintainability of the election petition on various grounds available to him under the Act, but that was not done. At present, the only issue for consideration before this court is whether the Election Tribunal has re-counted the votes strictly in terms of the order passed by this court on 3.2.2010, vide which it was directed that re-counting of votes has to be done by the Presiding Officer, Election Tribunal himself. A perusal of the impugned order shows that re-counting was done by the Presiding Officer. One rejected vote found by the Presiding Officer, Election Tribunal will not materially effect the result of election, as even if the same is taken in favour of the appellant, that will only lead to the conclusion that he got 293 votes and the votes got by him would still be less than the votes got the appellant. Considering the aforesaid facts, I do not find that the appellant can now be permitted tot take up the issues which he did not choose to take when he earlier approached this court twice. Accordingly, the appeal is dismissed. ( Rajesh Bindal ) Judge 12.1.2011 mk