Holding

The Supreme Court set aside the High Court judgment, holding that the High Court failed to examine the Tribunal's findings and did not provide cogent reasons for interfering with its order.

Summary

In the 2003 election for Sarpanch of Gram Panchayat Ralla, Gursewak Singh was declared winner over Avtar Singh. Avtar Singh filed an election petition seeking a recount, leading to a High Court examination of the ballot papers which revealed serious irregularities and a lack of proper segregation. The High Court dismissed the petition without providing detailed reasons and later set aside the Election Tribunal's order that had found no corrupt practices. Gursewak Singh appealed to the Supreme Court, arguing that the High Court failed to scrutinize the Tribunal's findings and did not give cogent reasons for its interference. The Supreme Court held that the High Court erred in its approach and that any interference with a Tribunal's order must be based on a thorough analysis of evidence and sufficient reasoning. Consequently, the appeal was allowed and the matter remitted to the High Court for fresh consideration.

Issues considered

Whether the High Court interfered with the Election Tribunal's order without sufficient reasons under Article 226 jurisdiction.
Whether there was a prima facie case of irregularities or corrupt practices justifying a recount of votes.
Whether the High Court correctly evaluated the evidence concerning ballot paper irregularities and alleged tampering.
Scope and standards of judicial review applicable to orders of election tribunals.

Legislation cited

Punjab State Election Commission Act, 1994

Subjects

election petitionrecountballot paper irregularitiesjudicial reviewArticle 226election tribunalcorrupt practiceshigh court interference

Judgment

GURSEWAK SINGH
A
v.
AVT AR SINGH AND ORS.

APRIL 5, 2006

B [S.B. SINHA AND P.K. BALASUBRAMANY AN, JJ.]

Constitution of India, 1950-Article 226-Jurisdiction of High Court-
Scope of interference with order of Election Tribunal-Held: High Court to
examine the case closely and assign sufficient and cogent reasons while
C interfering with the order of Tribunal.

In the election held on 29.6.2003 for the post of Sarpanch, appellant
and first respondent were only contestants. Polling was held in four booths
being numbers 41, 42, 43 ancl 44. Appellant was declared elected Sarpanch.
D Aggrieved first respondent filed election petition wherein he prayed for the
recounting of votes.

Recounting of votes was directed on 4.f\2004, where against appellant
filed writ petition. High Court summoned the original ballot papers. Upon
inspection, High Court found that there were no separate envelopes to indicate
E rejected votes, wrongly counted votes and votes in favour of each of the
candidate to the election and that everything was in mess. On 2.9.2004, High
Court dismissed the writ petition holding that votes were not being kept in
segregated manner in proper bundles and the respondent had made a prima
facie case for recounting of votes.

f On 16.9.2004, an application was filed before the tribunal making
allegations against the First Respondent, R.O. and Chowkidar contending that
they were responsible for tampering with the records. On 12.10.2004, tribunal
dismissed the application finding that no charge were proved. On appeal, High
Court set aside the order of tribunal. Hence the present appeal.

G Allowing the appeal and remitting the matter to High Court for fresh
consideration, the Court

HELD: I. 4063 ballot papers were issued for holding the election but
only 4051 votes were found to have been polled and 12 ballot papers were
916
H
GURSEWAK SINGH v.A VTAR SINGH [S.B. SINHA, J.] 917

missing. Upon recounting 1641 votes were found to be in favour of the A
. Appellant, 968 votes in favour of the First Respondent and 427 votes were
found invalid. 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. [922-B; 923-E-F) B
2. Election Tribunal had 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. High Court did not go into the correctness of the
findings of the Tribunal at all. It was essential to go into the said question C
and arrive at a positive finding on analyzing the evidence on record.
[924-H, CJ

Chandrika Prasad Yadav v. State of Bihar and Ors., [2004) 6 SCC 331;
M. Chinnasamy v. K.C. Palanisamy and Ors., [2004) 6 SCC 341; Hoshila
Tiwari v. State ofBihar and Ors., (2005] 12 SCC 342 and Tanaji Ramchandra D
Nimhan v. Swati Vinayak Nimhan and Ors., (2006) 2 SCALE 81, referred to.

3. While interfering with an order of the Election Tribunal, particularly, .
in view of the purport and object for which such Tribunals had been constituted,
High Court had an obligation to assign sufficient and cogent reasons. High
Court proceeded on the basis that the Appellant was responsible for the mess E
created in the matter of maintenance of records. High Court ought to have
examined the case more closely. (925-C, H; 926-A)

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1912 of2006.

From the Judgment and Order dated 4.2.2005 of the High Court of F
Punjab and Haryana at Chandigarh in F.A.O. No. 5311/2004.

Vijay Jhanji, Neeraj Kumar Jain, Aditya Kr. Chaudhary, Bharat Singh,
Sanjay Singh, Vikrant Hooda and Ugra Shankar Prasad for the Appellant.

J.L. Gupta, Nidesh Gupta, Nidhi Gupta, Vinod Shukla and S. Janani for· G
the Respondents.

The Judgment of the Court was delivered by

S.B. SINHA, J. Leave granted.

Gram Panchayat Ralla is situated in the District of Mansa in the State H
918 SUPREME COURT REPORTS [2006] 3 S.C.R.

A 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 l 900 by the First Respondent. 14 7 votes were rejected. The
First Respondent herein allegedly made all attempts to disturb the counting
B 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
C 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
D 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
E
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 .:ounted in favour of
F Respondent No. I. 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
G CWP No. 9269 of2004. 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.

H During the course of hearing it appeared to us that in the interest
GURSEWAKSINGH v.AVTAR SINGH [S.B. SINHA, J.] 919
of justice we would direct the box containing the votes to be opened. A
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 B
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
c
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."
D
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 E
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. F
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 oflaw. 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 G
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."
H
920 SUPREME COURT REPORTS [2006] 3 S.C.R.

A 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 appellant
B 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,
c examined these 30 I 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.
D Gursewak Singh, Respondent No. l, 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."
E
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:
F "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 ofresults pertaining to Booth 41,
only 47 number of votes were shown as rejected, whether now, in view
G that as many as 30 l 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
H querries in the following tenns: ·
._(
'

-
GURSEWAKSINGH v.AVTAR SINGH [S.R SINHA, J.] 921
'
"In response to the first question, the concerned official admitted that A
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, B
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 C
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 saine lines."

The Tribunal, taking into the said facts, therefore, opined:
D
" ... .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 E
tampering of polled votes has taken place after the declaration of
results, in order to create an unassailable position in case ofrecounting
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 ... "
F
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, G
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. H
-
922 SUPREME COURT REPORTS [2006] 3 S.C.R.

A 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
B papers were mi;sing. 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

c 42 966 463 474 29

43 902 397 486 19

44 1036 436 548 52

D 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 of2004,
the position stood, thus:

E "Booth Gursewak Avtar Singh Rejected Total
Singh (First Votes
(Appellant) Respondent)
41 354 231 360 (incl. 945
301 doubly
stamped
F
ballots)
42 467 474 25 966
43 397 685 20 1102
44 423 578 22 1023
G 1641 1966 429 4036"
The discrepancies in the ballot papers as found in respect of booth
Nos. 41 and 43 are as under: --
H
-~'
(

GURSEWAK SINGH v.AVTAR SINGH [S.B. SINHA, J.] 923
"Booth Gursewak Avtar Singh Rejected Votes for A
No. Singh (First Votes .the Bootl
(Appellant) Respondent)

(A) 41 354 231 3(i() 945

(8)41 708 392 47 1147 B

- (A) 43

(B)43
397

397
685

486
20

19
1102

902"

As regard booth No. 44, the position was found to be as following: c
"Booth Gursewak Avtar Singh Rejected Votes
No. Singh (Respondent) Votes for the
(Appellant) Booth
D
(A) 44 423 578 22 1023

(B)44 436 548 52 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 E
found invalid.

It is also disturbing to note that in relation to booth No. 4 I, 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. F
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 I 023 ballot
papers have been recovered from the packet against I 036 shown at
the time of the original counting, 30 votes which were shown as G
rejected were decided in favour of the petitioner, that 13 votes further
of the respondent I 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 H
924 SUPREME COURT REPORTS [2006) 3 S.C.R.

A 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/
B 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 rencjered invalid, was administered at a later date and
time than the day of counting."
-
C 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
recurd.

Although we need not go into the law of recounting, as the said
D question does not arise before us, we may notice a decision of this Court in
Chandrika Prasad Yadav v. State of Bihar and Ors., [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:
E (i) a prima facie case;

(ii) pleading of material facts stating irregularities in counting of votes;

(iii) a roving and fishing inquiry shall not be made while directing re-
counting of votes; and
F
(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 Ors., [2004] 6 SCC 341, Hos hi/a Tiwari v. State ofBihar and Ors., [2005]
12 SCC 342 and Tanaji Ramchandra Nimhan v. Swati Vinayak Nimhan &
G 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
H in the election petition. The High Court, however, held:
GURSEW AK SINGH v.A VTAR SINGH (S.B. SINHA, J.] 925
"Going through the petition and the evidence on file, allegations of A
mal-practice have been prima facie alleged and proved against
Respondent No. I 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 B ·
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 C
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. D
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 E
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 F
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. G
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 H
926 SUPREME COURT REPORTS [2006] 3 S.C.R.

A 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
B 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
C 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
D 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.

E The First Respondent shall bear the costs of the Appellant in the
appeal. Counsel's fee assessed at Rs. I 0,000/-.

D.G. Appeal allowed.