Gursewak
Singh Vs. Avtar Singh & Ors [2006] Insc 181 (5 April 2006)
S.B.
Sinha & P.K. Balasubramanayan
(Arising
out of S.L.P. (C) No. 4237 of 2005) S.B. Sinha, J.
Leave
granted.
Gram Panchayat
Ralla is situated in the District of Mansa in the State of Punjab. Election to the post of Sarpanch
of the said Gram Panchayat was held on 29.6.2003. The Appellant and the First
Respondent herein were the only two contestants, polling wherefor was held in
four booths being Nos. 41, 42, 43 and 44. The Appellant was declared elected
having polled 2004 votes as against 1900 by the First Respondent. 147 votes
were rejected. The First Respondent herein allegedly made all attempts to
disturb the counting process. He, however, did not lodge any complaint with the
Returning Officer. The wife of the First Respondent incidentally was elected as
Sarpanch in the earlier term.
An
election petition was filed by the First Respondent on 28.7.2003 inter alia
praying for the following relief:
"Therefore,
the petition is presented it is prayed that the petition may kindly be accepted
with costs and the recounting of the votes for the election of Sarpanch may
kindly be ordered and election of Respondent No. 1 as Sarpanch may be set aside
and the petitioner be declared as the elected Sarpanch of Gram Panchayat of
Village Ralla." In the said election petition, it was inter alia averred:
"That
at the time of issuing the ballot paper every illiterate voter was required to
mark his thumb impression, as a result of which the ink of the stamp pad would
get affixed to the thumb of such voters. At the time of folding the ballot this
ink would leave thumb impression on the ballot. 42 such votes which were polled
in favour of the petitioner were wrongly declared invalid whereas 48 such votes
which had been poled in favour of Respondent No. 1 instead of being declared
invalid were considered as valid and counted in favour of Respondent No. 1. In
this manner during the process of counting similar types of votes, different
criteria were adopted which is completely wrong and illegal." In the said
proceedings by an order dated 4.6.2004, recounting of votes was directed whereagainst
the Appellant herein filed a writ petition being CWP No. 9269 of 2004. The High
Court summoned the original ballot papers. Upon inspection thereof, it was
observed that everything was in a total mess stating: "We have
heard learned counsel for the parties at some length.
During
the course of hearing it appeared to us that in the interest of justice we
would direct the box containing the votes to be opened. Therefore, we directed
seals of the box to be removed in presence of counsel for the parties and the
Reader of Court. The seals were removed and box opened by the officials in
their presence. It has been containing the votes, particularly, in relation to
booth No. 41, which envelope was opened, clearly show that they are not being
maintained in a proper way. There is no separate envelopes to indicate rejected
votes. Wrongly counted votes and the votes in favour of each of the candidate
to the election. At this stage, we would not make any further observations to
avoid any prejudice to the rights and contentions of either party to these
proceedings.
Arguments
have been concluded. We direct that the envelope as well as the box be sealed
in the presence of counsel for the parties and the seal should be clearly
marked so as to establish its identity at a subsequent stage before the
competent forum.
Judgment
reserved." By an order dated 2.9.2004, the writ petition was dismissed stating:
"In
the back-drop of definite allegations in regard to irregularities, improper
counting of votes and particularly, keeping in mind the fact that when boxes
containing the ballot papers were opened before this Court it came to the
notice that votes were not even being kept in a segregated manner in proper
bundles, in our opinion, the respondent herein had made a prima-facie case for
recounting of votes. The Tribunal has exercised jurisdiction vested in it
within the purview and scope of Rules 33 and 37 of the Rules. Exercise of such
jurisdiction neither suffers from a patent error of law nor is contrary to the
record. In order to justify interference with such as interim order, heavy onus
lay on the petitioners before us to show that the impugned orders ex-facie
suffer from erroneous errors of law. In our opinion, the petitioners have not
been able to exhibit any such error. The conclusions arrived at by the learned
Tribunal are based upon the averments made in the petition, supported by oral
evidence led by the parties during the course trial of election petition, which
are no way contrary to the well established principles of law.
Consequently,
we dismiss both these petitions leaving the parties to bear their own
costs." On or about 16.9.2004, an application was filed by the Appellant
herein before the Tribunal making allegations against the First Respondent Baljinder
Singh, the then BDPO Bikhi, Raghubir Singh, RO and Darshan Singh, Chowkidar
contending that they were responsible for tampering with the records. By an
order dated 12.10.2004, the said application filed by the First Respondent was
dismissed stating:
"The
inordinate increase in the number of rejected votes was brought to the
attention of the undersigned by the ADC-cum-Counting Officer when detected
during recounting, and the undersigned exercising supervision of the recounting
process, as mandated by the Punjab State Election Commission Act, 1994, and
various Court decisions, examined these 301 ballot papers, and after due
examination, it was clearly seen that not only the colour and density of the
ink used, but also the shape of the balloting stamp, bore no resemblance to
each other, the candidates being only 2 in number. From this, it has been
concluded that one of the stamps, whereby the vote in favour of Sh. Gursewak
Singh, Respondent No. 1, has been sought to be rejected, has in fact been
administered at a different place and time than the date of the actual polling
on 29.6.2003. It can also be concluded that the same has been done by the
interested persons after the conclusion of poll and after the declaration of
the result, as the same has not been incorporated in the report of the
ARO/Presiding Officer." During the said recounting process, the Counting
Officer brought the said fact to the notice of the Tribunal whereupon ballot
papers were closely inspected and the following questions were put to Shri Tejpal
Rishi by the Tribunal which are as under:
"a.
Whether the ballot papers pertaining to Booth 41 which have been found now to
be liable to rejection on account of double stamping of election seal, contain
his signatures on the reverse? b. Whereas as per your own record and
declaration of results pertaining to Booth 41, only 47 number of votes were
shown as rejected, whether now, in view that as many as 301 more ballot papers
of Booth 41 have got double stamping, it does not show your collusion with one
of the parties in view of the fact that you did not show these votes as invalid
at the time of original counting?" The Tribunal has recorded the response
of Shri Tejpal Rishi to the said querries in the following terms:
"In
response to the first question, the concerned official admitted that the
signatures on the reverse of the ballot papers were his. As to the second
question put to him, alleging his collusion and negligence, he has strongly
refuted the imputation, and reiterated that at the time of counting of votes on
29.6.2003, only 47 votes had been found liable to be rejected. No corrupt
practice was done by him. He states that there is no question of these 301
votes as now shown as invalid, being present at the time of counting. Rather
the double stamping is most likely to have occurred after 29.6.2003. He
acknowledges that 200 ballot papers of booth 41 which were in favour of Avtar
Singh petitioner, have been recovered from the packed of Booth 43. Finally, he
states that whatever tampering with record has admittedly been made, has been
done only after the election material was deposited before the higher
authorities. The statement of Sh. Kulbir Singh, Asst. Presiding Officer, Booth
41, is also on the same lines." The Tribunal, taking into the said facts,
therefore, opined:
"In
the present case, no charges have been proved against the returned candidate,
viz., respondent 1, rather the method and manner in which the ballot papers
have been found to have been tampered, thereby attempting to influence the
final result of the election, points, on the other hand, to the petitioner or
those who acted in his aid. Thus Tribunal has not come across any such blatant
case where tampering of polled votes has taken place after the declaration of
results, in order to create an unassailable position in case of recounting of
votes. It is a measure of the level of degree of lawlessness and desperation
which a defeated candidate can go to get himself declared selected" The
High Court, however, reversed the said judgment and order of the learned
Tribunal opining that even if 301 double stamped votes are counted in favour of
the Appellant herein, the First Respondent would still get 68 more votes. As
regards the statement of Shri Rajpal Rishi, it was held that the same was
recorded behind the back of the First Respondent herein and, therefore, no
reliance thereupon could have been placed.
The
learned counsel appearing on behalf of the Appellant would submit that the High
Court committed an error, having regard to the specific findings of fact
arrived at by the learned Tribunal in reversing the said decision and declaring
the said Respondent elected. Mr. J.L. Gupta, learned senior counsel appearing
on behalf of the First Respondent would, however, support the judgment of the
High Court.
Before
adverting to the rival contentions raised in this appeal, certain disturbing
features may be noted. 4063 ballot papers were issued for holding the election
but only 4051 votes were found to have been polled and 12 ballot papers were
missing. In the counting held on 29.6.2003, it was found as under:
Booth
Votes found Gursewak Avtar Singh Rejected 41 1147 708 392 47 42 966 463 474 29
43 902 397 486 19 44 1036 436 548 52 TOTAL 4051 2004 1900 147 After the
recounting, pursuant to the order of the Tribunal dated 12.10.2004 as also the
judgment of the High Court in CWP No. 9269 of 2004, the position stood, thus:
"Booth
Gursewak Singh (Appellant) Avtar Singh (First Respondent) Rejected Votes Total
41 354 231 360 (incl. 301 doubly stamped ballots) 945 42 467 474 25 966 43 397
685 20 1102 44 423 578 22 1023 1641 1966 429 4036" The discrepancies in
the ballot papers as found in respect of booth Nos. 41 and 43 are as under:
"Booth
No.
Gursewak
Singh (Appellant) Avtar Singh (First Respondent) Rejected Votes Votes for the
Booth
-
41
-
41 354 708 231
392 360 47 945 1147
-
43
-
43 397 397 685
486 20 19 1102 902" As regard booth No. 44, the position was found to be
as following:
"Booth
No.
Gursewak
Singh (Appellant) Avtar Singh (Respondent) Rejected Votes Votes for the Booth
-
44
-
44 423 436 578
548 22 52 1023 1036"
Thus,
upon recounting, 1641 votes were found to be in favour of the Appellant, 968
votes in favour of the First Respondent and 427 votes were found invalid. It is
also disturbing to note that in relation to booth No. 41, 200 more ballot
papers were found whereas in respect of booth No. 43, about 200 less were
found. How and in what manner, the ballot papers of the two booths got mixed up
is not known. Who is responsible therefor is also not known.
What
evidence was adduced in support of the respective contentions is also not
known. As regard booth No. 44, the Tribunal recorded:
"The
case of booth 44 is slightly more complex as only 1023 ballot papers have been
recovered from the packet against 1036 shown at the time of the original
counting, 30 votes which were shown as rejected were decided in favour of the
petitioner, that 13 votes further of the respondent 1 were found rejected. As
to booth 41, where the maximum irregularities have been noted, originally 47
votes were shown as rejected. During recounting, however, apart from this, 12
more votes were shown to have been rejected, and 301 such ballot papers also
were found which were having double stamps, these were kept apart and counted
in the list of rejected votes for the time being. Upon close examination of the
2 stamps on the 301 ballot papers, however, it was clearly visible to the naked
eye that not only the shape and size of the swastika stamp, but also the
density and colour of the ink were at significant variance with each other.
Statements of the ARO/ Presiding Officer of booth 41 confirmed that one of the
stamps, vide which the ballots favouring Sh. Gursewak Singh, Respondent 1, were
sought to be rendered invalid, was administered at a later date and time than
the day of counting." The High Court did not go into the correctness of
the aforementioned findings of the Tribunal at all. It was, in our opinion,
essential to go into the said question and arrive at a positive finding on
analyzing the evidence on record.
Although
we need not go into the law of recounting, as the said question does not arise
before us, we may notice a decision of this Court in Chandrika Prasad Yadav v.
State of Bihar and Others [(2004) 6 SCC 331], wherein it is stated:
"It
is well settled that an order of re-counting of votes can be passed when the
following conditions are fulfilled:
-
a prima facie
case;
-
pleading of
material facts stating irregularities in counting of votes;
-
a roving and
fishing inquiry shall not be made while directing re-counting of votes; and
(iv) an objection to the said effect has been taken recourse to." The said
dicta has been reiterated in M. Chinnasamy v. K.C. Palanisamy and Others
[(2004) 6 SCC 341], Hoshila Tiwari v. State of Bihar and Others [(2005) 12 SCC 342] and Tanaji Ramchandra Nimhan
v. Swati Vinayak Nimhan & Ors. [2006 (2) SCALE 81]. The reason why we referred
to the said decisions is that at every level, in case of a challenge to an
election, pleadings of the parties have been held to play a significant role.
The
Tribunal inter alia held that there had been no allegation of corrupt practices
against the Appellant. There was no pleading as such in this behalf in the
election petition. The High Court, however, held:
"Going
through the petition and the evidence on file, allegations of mal-practice have
been prima facie alleged and proved against Respondent No. 1 and the officials
(Respondents 2 to 5), who had helped Respondent No. 1 in manipulating the
election." There was no basis for arriving at the said finding. It was not
supported by any cogent reason. No material on record was referred to for arriving
at the said finding.
While
interfering with an order of the Election Tribunal, particularly, in view of
the purport and object for which such Tribunals had been constituted, the High
Court had an obligation to assign sufficient and cogent reasons. The High
Court, as noticed hereinbefore, proceeded on the basis that the Appellant was
responsible for the mess created in the matter of maintenance of records. There
are items of evidence on record to show that ballot papers had not been
properly kept. Some were kept in loose sheets.
They
had been counted separately. The Tribunal noticed how ballot paper envelopes
were found in suspicious circumstances. Instead of breaking the seals at one
end, large number of ballots were found in loose condition. 200 ballot papers
of booth No. 41 were found in the bag of booth No. 43. The Tribunal, therefore,
came to the conclusion:
"From
a comparative analysis of the position (booth-wise) of the results after
recounting, as given tabular form on page 13 above, it is apparent that there
is no issue as pertaining to the counting process in Booth 42, as the total
number of ballots polled (966) is same, and there is rather a decrease of 4
rejected votes, which have now been counted in the tally of the Respondent 1,
thereby increasing his tally of booth 42 to 467 from 463. Similarly, in
relation to Booth 43, if one takes into account that 2-ballot papers in favour
of the petitioner which pertained to Booth 41 have somehow managed to enter the
packet containing ballot papers of Booth 43 then the matter is somewhat
regular, as the total votes polled in the booth 43 is similar at 902, and there
is only marginal difference of 1 extra vote which was polled in favour of
petitioner being declared rejected" We have noticed hereinbefore the
observations of the Tribunal as regard booth No. 44.
We
are, therefore, of the opinion that the High Court should have examined the
case more closely. The impugned judgment, therefore, cannot be sustained. It is
hence set aside. The appeal is allowed and the matter is remitted to the High
Court for consideration of the matter afresh. It may, however, be place on
record that we have deliberately not adverted to the other contentions raised
at the bar, lest it may prejudice any of the parties herein.
Before
parting, however, we may record some disturbing features. By an order dated
7.3.2005, this Court directed status quo to be continued as prevailing on 23rd February, 2005. During pendency of this petition,
even in the absence of the authority, having the jurisdiction in the matter,
oath was supposed to have been administered to the First Respondent herein. The
officer who attested the signature of the First Respondent in the requisite
papers has been placed under suspension by an order dated 2.3.2005.
In
view of the fact that we have set aside the judgment of the High Court and the
matter is remitted back to the High Court, we direct that during pendency of
the appeal before the High Court, the Appellant herein shall be reinstated as Sarpanch
in the Gram Panchayat, Ralla. However, the High Court is requested to consider
the desirability of disposing of the matter as expeditiously as possible,
preferably within a period of two months from the date of communication of this
order.
The
First Respondent shall bear the costs of the Appellant in the appeal. Counsel's
fee assessed at Rs. 10,000/-.
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