PUNJAB AND HARYANA HIGH COURT
Kishan Kaur
Vs
Shanti Devi
(D.K.Mahajan, J.)
08.03.1996
JUDGEMENT
D.K.Mahajan, J.
( 1. ) THE petitioner has filed this revision under Article 227 of the Constitution of India for quashing the impugned order dated December 14, 1995, of the additional Senior Judge-cum-Election Tribunal, Safidon, district Jind, whereby recount of votes has been ordered.
( 2. ) ADUMBRATED facts of the case are that respondent No. 1 (Smt. Shanti
Devi) filed an election petition on February 14, 1995. Petitioner filed her
written statement on May 20, 1995. Respondent No. 1 without leading any
evidence filed a petition Annexure P-1 on August 26, 1995, alleging that she
has relinquished her ground taken in para 2(ii) of the petitition and only
claims recounting by re-examining ballot papers and also by calling missing
ballot papers wrongly put in the other boxes at the time of simultaneous voting
for the members of the Block Samiti and Zila Parishad. The petitioner filed
reply Annexure P-2 wherein she objected that without recording evidence for
recount cannot be passed. She also denied that three ballot papers were wrongly
put in the other boxes at the time of simultaneous voting for the members of
Block Samiti and Zila Parishad. An objection was also raised that the
election-petitioner has no right to summon the ballot boxes of the election of
Zila Parishad and Block Samiti in this manner. By the impugned order
Election Tribunal allowed the respondent-election petitioner's petition
Annexure P-1 by holding that the petitioner has given up her other ground of
challenge with regard to corrupt practices and is only making a prayer for
recount, which falls within the ambit of Section 176(4)(b) of the Haryana
Panchayati Raj Election Act, 1994 (in short, the Act), which does not require
any enquiry. It also held that this provision has made it obligatory for the
Court to make a scrutiny and computation of votes polled in favour of each candidate
in all the cases where validity of an election is disputed between two or more
candidates and where the challenge is not founded on any allegation of corrupt
practice. Relying on Smt. Rajwati v. Smt. Rajesh Kumar1, the
Election Tribunal while allowing the respondent-election petitioner's petition
ordered recount of the votes. During arguments, petitioner's learned
counsel, relying on Dharam Pal Rana v. Dilbagh Singh2, vehemently
argued that recount of votes cannot be held without recording evidence. Parties
before the Tribunal should lead their evidence on the question whether the case
for recount is made out or not. After their evidence, the Election Tribunal
should pass an appropriate order in accordance with law. Respondent's
learned counsel, relying on Smt. Rajwati's case 1995 (2) CLJ 636 (supra),
argued that where in the election petition the challenge is not to the corrupt
practice but only a prayer for recount is made, the Court should make a
scrutiny and computation of votes polled in favour of each candidate. In
the aforementioned judgment it is held that the deliberate omission by the
legislature of requirement of an enquiry as a condition precedent to an order
for scrutiny and computation of votes shows that the legislature intended that
instead of finally depending on the counting of votes made by Returning Officer
in the changed election scenario in the country, the Court should be vested
with the power and a duty to scrutinise and compute the votes polled in an
election held for panchayats and where the election is subject to challenge by
way of petition under Section 176 of the Act. The Court has been made a final
arbiter on the question of number of votes polled by candidates in an election
to the panchayat. It is further held that scrutiny and computation shows that
it is for the Court to scrutinise each ballot paper and then compute the votes
recorded in favour of each candidate and then declare result in favour of the
person who secured the largest number of valid votes.
( 3. ) THE moot question for decision is whether an order of recount has to be
necessarily passed where the validity of the election is challenged on the
ground other than corrupt practices, even though there are no pleadings for
cogent evidence warranting the order of recount. To decide that question, it is
relevant to consider Rules 62 to 72 of the Haryana Panchayati Raj Election
Rules 1944, dealing with the recount of votes. In Bharat Singh v. Dalip
Singh3, a Division Bench of this Court has held that these Rules
are pari materia with Rules 53 to 63 framed under the Representation of People
Act, 1951, known as the Conduct of Election Rules, 1961, which also deal with
recount of votes. Section 183 of the Act emphasises the maintenance of
screcy of votes. The provisions in the Representation of People Act, 1951, and
the Rules framed thereunder regarding recount have come up for interpretation
in a number of cases. The Apex Court has held that recount is not to be granted
as a matter of course or right. Recount can only be granted where proper
foundation of material facts has been laid in the pleadings of the parties duly
supported by reliable evidence, which could satisfy the Court that in order to
decide the dispute, the inspection of ballot is necessary. In Ram Sewak
Yadav v. Hussain Kamil Kidwai4, the Apex Court has held :- "An
order for inspection may not be granted as a matter of course; having regard to
the insistence upon the secrecy of the ballot papers, the Court would be
justified in granting an order for inspection provided two conditions are
fulfilled :(i) that the petition for setting aside an election contains an
adequate statement of the material facts on which the petitioner relies in
support of his case; and(ii) the Trubunal is prima facie satisfied that in
order to decide the dispute and to do complete justice between the parties
inspection of the ballot papers is necessary." ;
Cases Referred.
11995 (2) CLJ (Civil Crl. and Revenue) 636
2(1995) 3 PLR 513
3(1966) 1 PLR 70
4AIR 1964 SC 1249