The principle of waiver cannot apply in election matters as election law is peremptory in nature and cannot be waived by any action of a party.

JUDGMENT

Sudhir Mittal, J. (Oral). - This petition has been filed for setting aside order dated 30.10.2020 (Annexure P-5) whereby the Election Tribunal, Block Andana at Moonak has directed recount of votes.

2. Election to the post of Sarpanch of Village Bishanpura Khokhar, Tehsil Moonak, District Sangrur was held on 30.12.2018 in which the petitioner was declared elected. His election was challenged by respondent No.2 vide election petition dated 30.01.2019. Although, the prayer made of setting aside the election has been declined, relief of recounting has been granted. The margin between the petitioner and respondent No.2 was of 08 votes.

3. Learned counsel for the petitioner has argued that relief of recounting could not have been granted in the absence of a prayer therefor. The issue regarding the election being void has been decided in favour of the petitioner and thus, the Election Tribunal has gone beyond the prayer made in the election petition. The next argument raised is that the election petition was liable to be rejected on the ground of non-impleadment of necessary parties. It has been submitted that in the election petition allegations of corrupt practices have been made against the Returning Officer but the said Returning Officer has not been made a party. Reliance has been placed upon 'Asha Rani vs. Barjinder Kaur and others, 2010(66) R.C.R.(Civil) 129'. Further, it has been argued that the impugned order is liable to be set aside on the short ground that the Election Tribunal could not delegate its power. A perusal of the impugned order shows that the Election Tribunal has directed the Tehsildar Moonak to conduct the recount and this is impermissible in law. With reference to this proposition, reliance has been placed upon 'Gurnam Bindra Singh vs. Kulwant Singh and others, 2010(4) R.C.R.(Civil) 367'. The next submission is that the material particulars in support of the plea for recounting have not been pleaded and on account of this reason also the election petition deserves to be dismissed. In this regard, reliance has been placed upon 'Preet Mohinder Singh vs. Kirpal Singh, 2001(2) R.C.R.(Civil) 647' as well as Ram Sukh vs. Dinesh Aggarwaal, 2009(4) RC.R (Civil) 585'. The final argument isthat the election petition has not been properly verified. The verification should have been strictly in accordance with the Order 6 Rule 15 of the CPC and the same having not been done, the election petition was liable to be fail. For this purpose, reliance has been placed upon 'Baldev Singh vs. Shinder Pal Singh and another, 2006(4) R.C.R.(Civil) 891'.

4. In response, learned counsel for respondent No.2 submits that a perusal of the statement of Tarun Kumar referred to in the impugned order shows that at the time of counting gun shots were fired outside the booth and the present police officers commanded for faster counting of votes. Thus, Annexure P-9 was wrongly filled. This establishes that their may have been an error in counting also and the margin being very small, the order of recount was just and fair. In this regard, reliance has been placed upon 'Mandher Singh vs. Mangal Singh, 2000(3) PLR 835'. Regarding non-joinder of necessary parties, it has been argued that no objection in that regard was taken in the written statement filed before the Election Tribunal and thus, the petitioner would be deemed to have waived his right to raise this objection. Learned counsel for the respondent has placed reliance upon a Division Bench judgment of this Court in 'Roop Singh vs. Deputy Commissioner, 2006(6) RC.R. (Civil) 964-DB' to argue that even though there is no specific provision regarding recounting in the Punjab State Election Commission Act, 1994 (hereinafter referred to as the Act), relief of recounting can still be granted. Finally, it has been submitted that Rule 33 of the Punjab State Election Rules, 1994 providing for endorsement of the Returning Officer on the cancelled votes has not been complied with. The rule is m