Sadhu Singh vs Sub Divisional Magistrate Cum ...
2022 Latest Caselaw 10630 P&H

                                   CR-2970-2022 (O&M)                                                         1

                                   121

                                                 IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                                                                CHANDIGARH

                                                                                   CR-2970-2022 (O&M)
                                                                                   Reserved on : 31.08.2022
                                                                                   Date of decision : 07.09.2022


                                   Sadhu Singh                                                          ....Petitioner

                                                                       Versus

                                   Sub Divisional Magistrate-cum-Presiding Officer & Ors.           .....Respondents



                                   CORAM : HON'BLE MRS. JUSTICE ALKA SARIN

                                   Present :        Mr. Amit Jhanji, Senior Advocate with
                                                    Ms. Nikita Garg, Advocate for the petitioner.

                                                    Ms. Jasleen Kaur Sidhu, DAG Punjab for respondent No.1.

                                                    Respondent No.2 - Sh. Ajay Singla, Returning Officer present
                                                    in person.

                                                    Mr. A.P.S. Rana, Advocate for respondent No.3.

                                                    Mr. A.P. Kaushal and Mr. K.S. Dadwal, Advocates
                                                    for respondent No.5.


                                   ALKA SARIN, J.

The present revision petition has been filed under Article 227 of

the Constitution of India for setting aside the order dated 20.07.2022

(Annexure P-5) passed by respondent No.1, whereby the election petition

filed by respondent No.5 has been allowed and a Committee has been

constituted for recounting the votes.

The brief facts relevant to the present lis are that in December

2018 the petitioner as well as respondent Nos.4 and 5 filed their nominations

for the post of Sarpanch for Gram Panchayat Singpura, Tehsil Kharar, YOGESH SHARMA 2022.09.07 13:38 I attest to the accuracy and integrity of this order/judgment Punjab and Haryana High Court, Chandigarh

District SAS Nagar. The polling was held on 30.12.2018 and the petitioner

was declared elected. In January 2019 the respondent No.5 filed an election

petition (Annexure P-1) before respondent No.1 challenging the election of

the petitioner as Sarpanch of Gram Panchayat Singpura. Vide impugned

order dated 20.07.2022 respondent No.1 accepted the election petition filed

by respondent No.5 and constituted a Committee for recounting the votes.

Hence, the present revision petition.

In view of the submissions made by the learned counsel, the

records were summoned on 28.07.2022 after hearing both the counsel for the

parties. Before this Court arguments have been made by counsel

representing the petitioner, respondent Nos.1, 3 and 5 while respondent No.2

put in appearance in person. None of the respondents filed any counter-

affidavits.

Learned counsel for the petitioner has contended that

respondent No.1 has allowed the election petition in a routine and cavalier

manner and has not assigned any reasons for ordering a recount. According

to learned counsel the impugned order is a mere reproduction of the

statements of the parties recorded in evidence and there are no reasons

forthcoming for ordering a recount which has been ordered mechanically. It

is contended that the impugned order does not even record a prima facie case

for ordering a recount. Reliance has been placed upon the decisions in the

cases of Kirpal Singh vs. Preet Mohinder Singh [1999 (4) RCR (Civil)

248], Udey Chand vs. Surat Singh & Anr. [2009 (10) SCC 170],

Harjinder Singh vs. Addl. Commissioner-cum-Election Tribunal & Ors.

[2015 (47) RCR (Civil) 749] and Gurnam Bindra Singh vs. State of

Punjab & Ors. [2008 (4) RCR (Civil) 741].

YOGESH SHARMA 2022.09.07 13:38 I attest to the accuracy and integrity of this order/judgment Punjab and Haryana High Court, Chandigarh

Per contra, learned counsel for respondent No.5 submitted that

after the counting the respondent No.5 was declared elected by 12 votes but

immediately it was announced that 19 votes had been rejected and the

petitioner was declared elected as Sarpanch by a margin of 13 votes.

According to counsel the 19 votes were rejected without assigning any

reasons which caused grave prejudice to respondent No.5 and is also

violative of Rule 33 of the Punjab Panchayat Election Rules, 1994. He also

contended that once a recount has been ordered then the result of the recount

has to be given effect to. Reliance has been placed upon the decisions in the

cases of Darshan Singh vs. Deputy Commissioner-cum-President Officer

& Ors. [2000 (3) RCR (Civil) 271], T.A. Ahammed Kabeer vs. A.A.

Azeez & Ors. [2003 (4) RCR (Civil) 250] and Chandeshwar Saw vs. Brij

Bhushan Prasad & Ors. [2020 (12) SCC 70], Baldev Singh vs, Shinder

Pal Singh & Anr. [2007 (1) SCC 341] and Sadhu Singh vs. Darshan

Singh & Anr. [2006 (6) SCC 255].

Heard learned counsel for the parties and respondent No.2

appearing in person.

Vide the election petition (Annexure P-1) the election of the

petitioner as Sarpanch was challenged by respondent No.5 on the following

allegations :

"7. That at the time of counting, the petitioner and his

agent were directed to sit 5-6 feet away from the

counting table. After counting, the petitioner was

declared elected by 12 votes. Then abruptly the polling

party stated that 19 votes have been rejected and that

Sadhu Singh is elected as Sarpanch by margin of 13 YOGESH SHARMA 2022.09.07 13:38 I attest to the accuracy and integrity of this order/judgment Punjab and Haryana High Court, Chandigarh

votes. The polling party without giving any reason

improperly rejected 19 number of votes polled in favour

of the petitioner in connivance with respondent no.3 so

that respondent no.3 is elected as Sarpanch. This has

caused prejudice to the petitioner. The petitioner

protested but his protests went unheeded. The petitioner

and his polling agents were not granted any opportunity

to inspect the 19 number of votes which are shown to

have been rejected in order to ascertain the marks on

the ballot papers. The petitioner urged the counting

party headed by the Presiding Officer to recount the

votes. The presiding officer got the signatures of the

petitioner on the blank papers for the purpose of

recounting but without recounting the votes, the result

was declared.

8. That wrong procedure was adopted by the counting

party headed by presiding officer in the counting of

votes and despite the request of the petitioner the votes

polled were not counted separately. The votes polled

were intermingled and not counted in separate packets.

The counting party intermingled 24-25 votes polled in

favour of respondent no.4 with the votes of respondent

no.3 and counted them in favour of the winning

candidate. The petitioner and respondent no.4/Ravinder

Singh and their polling agents raised hue and cry that

votes polled in favour of the contesting candidate should YOGESH SHARMA 2022.09.07 13:38 I attest to the accuracy and integrity of this order/judgment Punjab and Haryana High Court, Chandigarh

not be intermingled and be counted in separate packets.

But the polling party paid no heed to consider their

genuine request. If proper counting was done as per

rules, the petitioner would have won. Moreover the

ballot box and other election material was not got

sealed in the presence of the petitioner. The election

rules and legal provisions were violated. The petitioner

has brought the abovesaid irregularities in the notice of

the higher authorities but all in vain.

9. That the counting party has committed grave

illegality and irregularity in counting of votes for the

post of Sarpanch. The said grave illegality and

irregularity in counting the votes/rejection of the votes

has materially affected the result of election/ returned

candidates and have gravely prejudiced the petitioner."

Respondent No.3 in his election petition also averred that "There has been

non-compliance of the provisions of law including Section 66 of the Punjab

State Election Commission Act, 1994 and Rule 33 of the Punjab Panchayat

Rules, 1994 and the rules and procedure regarding the counting/rejection of

votes, which has polluted the election process and as such the election of

respondent no.3 to the said post is void and liable to be set aside".

The petitioner filed his reply (Annexure P-2) to the election

petition and contested the same. The Returning Officer also filed a written

statement (Annexure P-3) denying the grounds of challenge raised in the

election petition. As per the averments made in this petition, the evidence of YOGESH SHARMA 2022.09.07 13:38 I attest to the accuracy and integrity of this order/judgment Punjab and Haryana High Court, Chandigarh

the petitioner and of respondent Nos.4 and 5 was recorded during the

proceedings before respondent No.1. Vide impugned order dated 20.07.2022

respondent No.1 accepted the election petition filed by respondent No.5 and

constituted a Committee for recounting the votes.

A perusal of the impugned order reveals that respondent No.1

has extensively reproduced the statements recorded in evidence of the

parties to the lis. However, there is no consideration of the merits or de-

merits of these statements by respondent No.1. The impugned order does not

even mention the grounds of challenge to the election of the petitioner as

Sarpanch. The very brief facts are mentioned in the opening paragraph of the

impugned order, followed by the statements of Ravinder Singh (present

respondent No.4), Sadhu Singh (present petitioner) and Kamaljit Singh

(present respondent No.5). Thereafter respondent No.1 proceeded to order

the recount by holding as under :

"After perusing the documents on record and after

hearing both the parties. After perusing the above

mentioned facts the petition filed by the petitioner is

accepted. For recounting of votes/ballot papers casted

in the Village Singpura for the post of Sarpanch the

committee of the following officials has been

constituted:

1) Sh. Puneet Bansal, Naib Tehsildar, Gharaun

2) Executive Officer, Municipal Council Kharar

The above committee under their supervision and

in the presence of both the parties will conduct

recounting of votes in the Court of undersigned and YOGESH SHARMA 2022.09.07 13:38 I attest to the accuracy and integrity of this order/judgment Punjab and Haryana High Court, Chandigarh

Block Development and Panchayat Officer, Kharar will

assist the above committee but the date of recounting

will be declared later."

The impugned order does not show any application of mind by respondent

No.1 to the pleading of the parties and the evidence on the record. This

Court is left guessing as to what were the reasons which weighed with

respondent No.1 to order a recount. The grounds of challenge to the election

as raised in the election petition filed by respondent No.5 have not even been

noticed in the impugned order. No prima facie grounds have been recorded

by respondent No.1 to order a recount of votes.

In the case of Kirpal Singh (supra) it was inter-alia held as

under :

"11. I have considered the rival submissions of the

parties and I am of the considered opinion that the

impugned order, Annexure P-1, is liable to be disturbed

as in the opinion of this court, the learned Tribunal had

exceeded its jurisdiction in such a manner that it has

disturbed the confidence of the voter and it has violated

the sanctity of secrecy of votes. Recounting of votes

shall not be granted as a matter of course. A very strong

ground should be made out by the person who seeks

recounting of votes because recounting of the votes at

the whims of a person will definitely disturb the secrecy

of the ballot. We are in a democratic country. A voter

expresses his faith or consent or his opinion through

ballot papers either in favour of a particular candidate YOGESH SHARMA 2022.09.07 13:38 I attest to the accuracy and integrity of this order/judgment Punjab and Haryana High Court, Chandigarh

or in favour of a particular party. His confidence should

not be disturbed so lightly that it may provide a handle

to everybody for claiming recounting."

In Udey Chand's case (supra) the Supreme Court held that :

"12. The importance of maintenance of secrecy of ballot

papers and the circumstances under which that secrecy

can be breached, has been considered by this Court in

several cases. It would be trite to state that before an

Election Tribunal can permit scrutiny of ballot papers

and order re-count, two basic requirements viz.:

(i) the election petition seeking re-count of the ballot

papers must contain an adequate statement of all the

material facts on which the allegations of irregularity or

illegality in counting are founded, and

(ii) on the basis of evidence adduced in support of the

allegations, the Tribunal must be prima facie satisfied

that in order to decide the dispute and to do complete

and effectual justice between the parties, making of such

an order is imperatively necessary, are satisfied.

xxx

26. We have no hesitation in holding that a petition for

re-count as contemplated under clause (b) of Section

176(4) of the Act must contain adequate statement of

material facts on which the election petitioner relies in

support of his allegation(s) and it must also be

supported by some contemporaneous evidence to show YOGESH SHARMA 2022.09.07 13:38 I attest to the accuracy and integrity of this order/judgment Punjab and Haryana High Court, Chandigarh

irregularity or illegality in the counting. On this basic

material, which affords the basis for the allegations in

the petition and the response of the opposite party

thereon, the Tribunal is required to record its prima

facie satisfaction that in order to decide the issue raised

in the petition and in order to do complete justice

between the parties the "scrutiny and computation of

the votes" recorded in favour of each candidate is

necessary. The need to record reasons in support of the

satisfaction can hardly be overemphasised because

reasons are the soul of the order/judgment. Therefore,

we hold that though in an election petition seeking an

order under Section 176(4)(b) of the Act, it may not be

necessary for the court to hold a regular enquiry as

postulated under clause (a) of Section 176(4) of the Act

but the court is obliged to apply its mind to the material

facts, disclosed in the petition, on which the allegations

of irregularity or illegality are founded, along with some

contemporaneous evidence, which would depend on the

facts and circumstances of each case. An order for re-

count on the basis of bare allegations in the election

petition would not be a proper exercise of jurisdiction

under the provision."

In Harjinder Singh's case (supra) the recount of votes was

ordered without assigning any reasons. This Court held :

"5. The order read thus :

YOGESH SHARMA 2022.09.07 13:38 I attest to the accuracy and integrity of this order/judgment Punjab and Haryana High Court, Chandigarh

"File was presented. Case was called. Counsel for

both the parties are present. For recounting the

votes of Village Barwala, Tehsil Patti, District

Tarn Taran, a Three members committee

comprising of (1) Asstt. Commissioner (Z), Tarn

Tarn; (2) Tehsildar (Elections), Tarn Taran and (3)

Superintendent (Revenue) o/o Deputy

Commissioner is constituted. Presiding Officer,

Returning Officer Village Barwala advised to

appear in this Court on 8.7.2015 at 10.00 a.m.

along with the concerned record of the election of

Sarpanch. The Block Development and Panchayat,

Patti is given duty that he should come present in

this Court on 8.7.2015 along with the record of

polling of Village Barwala, Distt. Patti, District

Tarn Taran, which is deposited in their office along

with the Returning Officer and Presenting Officer.

                                                        File   be   presented   again    on    8.7.2015    for

                                                        recounting."

6. On going through the order, I am of the view that

order do not assign any reasons for recounting of the

votes. There has to be application of mind. Thus, in my

view order is not sustainable and hereby set aside. The

matter is remitted back to the Election Tribunal to

decide the election petition in accordance with law as

expeditiously as possible preferably within a period of YOGESH SHARMA 2022.09.07 13:38 I attest to the accuracy and integrity of this order/judgment Punjab and Haryana High Court, Chandigarh

four months from the date of receipt of certified copy of

the order."

In the case of Gurnam Bindra Singh (supra) this Court held that :

"28. Be that as it may, the impugned order cannot be

sustained as respondent No.4 had failed to prima

facie establish the case for recount as allegations were

too general in nature required to be proved by evidence.

Nothing has been placed on record as to whether any

written complaint was made by respondent No.4 before

the Polling Officer immediately after the election. Even

after filing of the Election Petition different dates were

given and only when there was change of officer holding

the post, decision was taken to order the recount. The

reading of the order shows that much reliance has been

placed on averments made in Para 6 of the petition

which has been reproduced above.

29. As already observed, the allegations lack the

material particulars. It was incumbent upon the Election

Tribunal to first prima facie satisfy itself on the material

produced regarding truth of the allegations made for

recount. The learned Tribunal even did not think it

proper to summon the Polling Officer or other officials

against whom serious allegations were made."

Thus, it is well settled that before ordering a recount the

Tribunal has to prima facie be satisfied that a case was made out for ordering

a recount. This satisfaction has to be discernible from the order passed YOGESH SHARMA 2022.09.07 13:38 I attest to the accuracy and integrity of this order/judgment Punjab and Haryana High Court, Chandigarh

ordering a recount. A recount of votes cannot be ordered mechanically

without adverting to the allegations in the election petition and being

satisfied that these allegations prima facie made out a case for ordering a

recount. A recount cannot be ordered on the mere asking. The impugned

order in the present case does not record any satisfaction by respondent No.1

about there being a prima facie case made out for ordering a recount of

votes.

The judicial precedents cited by counsel for respondent No.5

are distinguishable and not applicable to the facts and circumstances of the

present case. In Darshan Singh's case (supra) this Court while upholding the

order of recount of votes found that "In view of the pleadings and the

documentary and oral evidence produced by the election petitioner-

respondent herein, a definite case has been made out casting a shadow on

the entire process of counting of votes". It was further held that "On the

application of the above settled principle of law, pleadings and evidence on

record, I have no hesitation in holding that the learned Tribunal had

sufficient material before it to pass the order of re-count". In the present

case the impugned order does not disclose any reason which weighed with

respondent No.1 to order a recount of votes.

In the case of T.A. Ahammed Kabeer (supra) it was held that

once a re-count has been allowed the Court cannot shut its eyes on the result

of re-count on the ground that the result of re-count as found is at variance

with the pleadings. However, it was also held that the Court would permit a

re-count only upon a clear case in that regard having been made out. No

such clear case is made out in the impugned order in the present case.

YOGESH SHARMA 2022.09.07 13:38 I attest to the accuracy and integrity of this order/judgment Punjab and Haryana High Court, Chandigarh

In Chandeshwar Saw's case (supra) the Supreme Court found

that the material facts justified the recount of votes. It was inter-alia held

that:

"15. The question is: whether material facts to justify an

order of re-count of votes has been clearly pleaded and

the same have been proved by the appellant-election

petitioner in the present case? That issue has been

analysed by the Election Tribunal extensively, as is

evident from the analysis made by it, which commended

to the learned Single Judge. Since the appellant had

substantiated the allegation made in the election petition

and the Election Tribunal being convinced about the

said claim proceeded to issue order of re-count. No fault

can be found with that approach of the Election

Tribunal nor it is possible to suggest that the Election

Tribunal or the learned Single Judge was not conscious

about the necessity to substantiate the allegation about

the serious irregularities committed by the officials

during the counting."

Thus, this decision does not help respondent No.5 as in the present case

there is no satisfaction recorded by respondent No.1 for ordering a recount

of votes.

In Baldev Singh's case (supra) the recount was set aside by the

Supreme Court so this decision is of no assistance to respondent No.5.

In Sadhu Singh's case (supra) the Supreme Court upheld the

order of recount while finding and being satisfied "that the conditions YOGESH SHARMA 2022.09.07 13:38 I attest to the accuracy and integrity of this order/judgment Punjab and Haryana High Court, Chandigarh

precedent necessary for a direction of re-counting of votes stand satisfied".

The conditions necessary for order a recount of votes, as noticed by the

Supreme Court, are (i) prima facie case must be established; (ii) material

facts must be pleaded stating irregularities in counting of votes; (iii) a roving

and fishing inquiry shall not be directed by way of an order for re-counting

of votes; (iv) an objection to the said effect should be raised; and (v) secrecy

of ballot papers should be maintained. In the present case the impugned

order does not disclose the consideration by respondent No.1 of these

conditions precedent before ordering a recount.

In view of the discussion above, this Court finds that respondent

No.1 passed the impugned order of recount of votes without following the

settled principles of law in this regard. The impugned order is cryptic, vague

and non-speaking and does not even record a prima facie satisfaction of

respondent No.1 to order a recount. No grounds or reasons are forthcoming

in the impugned order which would justify the order of a recount of votes.

The present revision petition is thus allowed, the impugned

order (Annexure P-5) is set aside and the matter is remanded to respondent

No.1 to pass a fresh order, in accordance with law. Parties to appear before

respondent No.1 on 26.09.2022.

Nothing mentioned in this order shall have any bearing on the

merits of the election petition.

                                                                                     ( ALKA SARIN )
                                   07.09.2022                                             JUDGE
                                   Yogesh Sharma

NOTE : Whether speaking/non-speaking: Speaking Whether reportable: YES/NO

YOGESH SHARMA 2022.09.07 13:38 I attest to the accuracy and integrity of this order/judgment Punjab and Haryana High Court, Chandigarh