IMPORTANT POINT
While interfering with an order of Election Tribunal High Court has an obligation to assign sufficient and cogent reasons.

Headnote:ELECTION LAW—Election to the post of Sarpanch of Gram Panchayat— Appellant and 1st respondent were only two contestants and appellant was declared elected having polled 2004 votes as against 1900 by 1st respondent and 147 votes were rejected—Election petition filed by 1st respondent—Recounting of votes was directed whereagainst appellant filed writ petition which was dismissed—Election Tribunal found that no charges were proved against Returned Candidate—High Court reversed said judgment—Appeal—Discrepancies were found in ballot papers during recounting and Tribunal had recorded response of Counting Officer in that regard—High Court did not go into correctness of aforesaid findings of Tribunal at all—Tribunal held that there had been no allegation of corrupt practices against appellant but High Court held so against appellant with no basis for arriving at said findings—Impugned judgment was liable to be set aside and matter remitted to High Court for consideration afresh.
       Held : 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.(Paras 18 to 20)
       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.(Paras 23 to 25)
       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.(Para 28)

JUDGMENT

S.B. Sinha, J.—Leave granted.

2. 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.

3. 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.”

4. 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 and been polled 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.”

5. 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 both 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.”

6. 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 ne

Click Here to Read the rest of this document

2006 Supreme(SC) 326

IMPORTANT POINTWhile interfering with an order of Election Tribunal High Court has an obligation to assign sufficient and cogent reasons.

Cases Referred (4)

IMPORTANT POINT
While interfering with an order of Election Tribunal High Court has an obligation to assign sufficient and cogent reasons.