Baldev Singh vs Shinder Pal Singh - 2006 Supreme(SC) 981

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2006 Supreme(SC) 981

2007(1) Supreme 785
SUPREME COURT OF INDIA
(From Punjab and Haryana High Court)
S.B. Sinha and Dalveer Bhandari, JJ.
Baldev Singh—Appellant
versus
Shinder Pal Singh & Anr.—Respondents
Civil Appeal No. 4560 of 2006
(Arising out of SLP (C) No. 24126 of 2004)
Decided on 19-10-2006
Counsel for the Parties :
For the Appellant : Salil Sagar and Yash Pal Dhingra, Advocates.
For the Respondents : S.K. Bagga, Sr. Advocate, Mohan Lal Saggar, Seeraj Bagga and Mrs. Sureshta Bagga, Advocates.

Headnote:ELECTION LAW—Punjab State Election Commission Act, 1994—Sections 66, 68, 69, 76 and 89—Punjab Panchayat Raj Act, 1994—Punjab Panchayat Election Rules, 1994—Rule 33(2)(e)—Election for post of Sarpanch and Panchas of Gram Panchayat was held—Both appellant and Respondent No. 1 were found to have polled 412 votes each—Result of recounting was same—Returning Officer drew lots with written consent of both candidates and appellant was declared elected as Sarpanch—Supporters of Respondent raised hue and cry and Returning Officer could not enforce the decision—Sub Divisional Magistrate on being informed directed that decision taken should be enforced—Election result was declared—Respondent filed election petition—Tribunal directed recounting—Upon recounting, respondent was stated to have received 412 votes whereas appellant was said to have received 398 votes and Respondent was declared elected—Appeal filed before High Court was dismissed—Appeal—Though in election petition it was contended that Respondent had requested for recounting of votes, officers examined were not cross-examined on the point—Purported illegalities which would lead to declaration of election of appellant to be void were not put to witness in cross examination—Whether Tribunal was correct in directing recounting? No.
       Held : The verification of an election petition, it was trite, must be done strictly in terms of Order VI Rule 15 of the Code of Civil Procedure. It was, thus, incumbent on the part of Appellant herein to specifically state as to which statements made in the election petition were true to his knowledge and which were true to his belief. A factual averment made in the election petition cannot be both true to the knowledge and belief of the deponent. (Para 22)
       We may furthermore notice that although in the election petition it has been contended that First Respondent had requested for recounting of votes, the officers who examined themselves were not cross-examined on that point. The said statement would, thus, be deemed to have been admitted. Even the purported illegalities which, according to Respondents, would lead to declaration of election of Appellant herein to be void had not been put to the witness in cross-examination. (Para 23)
       The question which, therefore, would arise is ‘as to whether the learned Tribunal was correct in directing recounting?’ The officers had categorically stated that consent paper was torn. The fax message which has been sent immediately to the Collector of the District was a contemporaneous document, the genuineness whereof has not been questioned. Apart from the statutory Form, even in the said fax message the Returning Officer was categorical in his statement that both the candidates have received equal number of votes and thus, the result of the election to the post of Sarpanch was declared by draw of lots. It also mentioned about the tearing of the written paper on which consent had been given and only in the aforementioned situation, sought for guidance as to what action should be taken in the matter. The official act should be presumed to have been done in the ordinary course of business. A recounting, as is well known, should not ordinarily be directed to be made. There exists certain limitation in this behalf.(Para 24)
       We, therefore, in view of the facts and circumstances of the case, are unable to uphold the findings of the Tribunal and the High Court. We set them aside accordingly. The appeal is allowed.(Para 32)

JUDGMENT

S.B. Sinha, J.—Leave granted.

2. An election for the post of Sarpanch and Panches of the Gram Panchayat, Village Ransih Khurd, District Moga was held on 29.6.2003. Total votes polled in both the elections were shown to be 836. The Returning Officer found that both Appellant and Respondent No.1 had polled 412 votes each. Respondent No.2 herein is said to have got 4 votes. 8 votes were rejected. Allegedly, a recounting was done. The result of recounting was same as that of the first one. Returning Officer recorded the said statement in the statutory Form No.IX prescribed in terms of Rule 33(2)(e) of the Punjab Panchayati Election Rules, 1994. The total number of votes polled was found to be 836 even in the election of the Panches. Indisputably, election was held under the Punjab Panchayati Raj Act, 1994. The State of Punjab in exercise of its power conferred upon it under the said Act, framed rules known as Punjab Panchayat Election Rules, 1994 (for short, ‘the Rules’). The relevant provisions of ‘the Rules’ are as under :

“33. Counting of Votes—(1) In a Sabha area where there is only one polling station, the Returning Officer shall follow the following procedure for the counting of votes and declaration of result for election to the Gram Panchayat.

(2) The Presiding Officer shall, as soon as practicable, after the close of the poll and in the presence of any candidate or polling agent who may be present:

(a)..............

(b)..............

(c)..............

(d)..............

(e)After the counting of ballot papers contained in all the ballot boxes has been completed, the Returning Officer shall record a statement in Form IX showing the total number of votes poled by each candidate.”

“35. Procedure in case of tie—If, after the counting of votes is completed, votes polled by two candidates are equal, and the addition of one vote will entitle any of these candidates to be declared elected. The Returning Officer shall forthwith decide between those candidates by draw of lots as the candidate in whose favour the lot falls has received an additional vote.”

“38. Election Papers to be forwarded to the District Election Officer—The Returning Officer shall put the election papers in separate packages on the outside of which shall be endorsed a description of their contents, and after sealing them in separate packets, forward to the District Election Officer :

a)the ballot-papers counted as valid;

b)the ballot-papers rejected as invalid;

c)the unissued ballot-papers;

d)the issued tendered ballot-papers;

e)the spoilt ballot-papers;

f)the cancelled/returned ballot-papers;

g)the tendered votes list;

h)the list of challenged votes;

i)account of ballot-papers; and

j)the marked copy of electoral roll.”

3. The Returning Officer drew lots with written consent of both the candidates, i.e., Appellant and Respondent No.1. Appellant was declared elected as Sarpanch of the Gram Panchayat. However, immediately prior thereto, the supporters of 1st Respondent allegedly raised a hue and cry, as a result whereof, the Returning Officer could not enforce his decision. He immediately sent a fax message to the Deputy Commissioner, Moga seeking his advice in the matter stating :

“Regarding Panchayat Elections, for the Panchayat Election of Village Ran Singh Kurd I was appointed R.O.I. for Nihal Singh Wala on 29.6.2003. Election was held and after counting the votes for Sarpanch, Sh. Shinder Pal & Sh. Baldev Singh received equal 412-412 votes. As both candidates received equal number of votes, therefore, as per instructions result for Sarpanch was to be declared by draw of lots. Both the candidates were called and draw was conducted before them and one slip was drawn through another Returning Officer. As the slip in the name of Sh. Baldev Singh came out but another candidate Sh. Shinder Pal Singh refused to accept the decision and written paper was torn. Now this office does not have consent paper of both candidates given for draw of lots. It is requeste

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2006 Supreme(SC) 981

Cases Referred (5)