TARA SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) In this petition filed under Articles 226 and 227 of the Constitution of India, Tara Singh petitioner prays for a writ of certiorari quashing notification dated 20/06/1994, Annexure P 3 by which petitioner's election was set aside and Suresh Kumar respondent-2 was declared elected as member of Municipal Committee, Banur, District Patiala. Election was held on Sept. 6, 1992. Tara Singh petitioner and Suresh Kumar respondent-2 contested the same. Tara Singh was declared elected securing 219 votes whereas Suresh Kumar got 215 votes. Suresh Kumar filed an election petition challenging the same. Copy of the election petition is Annexure P 1. Deputy Director, Local Bodies was entrusted with the inquiry under the Punjab Municipal Act and Election Rules, Annexure P 2 is the reply furnished to the Election Petition. The Inquiry Commission after recording evidence submitted report to the Government of Punjab. The Secretary to the Government summoned the parties for 9/05/1994. On that day, petitioner and his counsel waited for sufficient time. However, Private Secretary to the Secretary to Local Bodies, Punjab respondent- 1 was requested to fix another date. An application was filed in this respect. It was mentioned therein that copy of the report of the Inquiry Commission be supplied. Thereafter, case was adjourned for two dates. The order was reserved and ultimately published in the Official Gazette on 20/06/1994 copy Annexure P 3. On notice of motion, written statement has been filed by Suresh Kumar, the contesting respondent. Along with the written statement, copy of the order passed by the Secretary to Government Punjab dated 14/06/1994 has been produced as Annexure R 3. The stand taken up in the written statement is that in fact Suresh Kumar respondent was declared elected as he had secured 215 votes whereas Tara Singh petitioner secured 210 votes. There was a third candidate namely Punjab Singh, who secured 30 votes and invalid votes were 38. In this manner, total number of votes polled was 493. Petitioner was illegally and wrongly declared elected as out of 38 rejected votes 9 were taken out and put in the lot of the petitioner by the Presiding Officer under the pressure of the Returning Officer Parveen Kumar. Otherwise Forms-V and VII indicated that there were 38 rejected votes. Alterations were made in these forms illegally. Findings recorded in the order Annexure R3 are supported. Taking up preliminary objections, it is submitted that Secretary to Government Punjab had allowed an opportunity of inspection of records to Tara Singh petitioner who could inspect the same and know the report of the Inquiry Commission. He also referred to the evidence produced before the Inquiry Commission with respect to preparation of Forms V and VII and alterations made therein. The election of the petitioner according to him was rightly set aside as there were material irregularities committed by the Returning Officer by changing the votes.

(2.) We have heard learned counsel for the parties. Election records were obtained and vide order dated 21/07/1994 as agreed by counsel for both the parties out of 219 votes alleged to have been cast in favour of Tara Singh petitioner, 9 such votes were taken out, numbers of which were mentioned in Form VII in order to find out as to whether they were valid or invalid votes. Out of those 9 votes, no dispute was being raised by learned counsel for Suresh Kumar respondent with respect to 5 votes which were valid and had to be counted in the lot of Tara Singh petitioner. The dispute was being raised with respect to 4 votes only. Thus, they were kept in the sealed envelope and the case was posted for today for arguments.

(3.) Before any reference is made to the 4 ballot papers sorted out, the other contentions raised by counsel for the parties be noticed. Learned counsel for Suresh Kumar respondent has argued that as per findings recorded in the order Annexure R 3 that there were inter-polations made in the Forms V and VII, the election of the petitioner Tara Singh was required to be set aside. Such irregularities were material in nature. He has referred to Rules 37(3) and 39(6) of the Punjab Municipal Elections Rules, 1952. Referring to the procedure to be followed at the time of counting of votes, it is stated that the Presiding Officer is required to prepare an account of ballot papers in Form V indicating total number of ballot papers received, the issued and un-issued including tendered and also the number of ballot papers found in the ballot boxes. Such form is required to be forwarded to the Deputy Commissioner along with packets as stated in Rule 42. After the votes are counted, Form VII is required to be filled and it is thereafter that the result is declared. Case of the petitioner is that when such forms were filled, a request in writing was made for recounting of votes. It was asserted that valid votes had been wrongly treated as rejected. The Presiding Officer rechecked the rejected votes and found that there were 9 such votes which were valid votes and put the same in the lot of the petitioner and declared him as elected. Consequently, necessary corrections were made in the Forms V and VII. Since Suresh Kumar respondent had filed the Election Petition, it is taken that Tara Singh was duly declared elected and his election could only be set aside on proof of the grounds given under law. Rule 37(3) on which reliance has been placed provides for preparation of Form V. As stated above, it is required to be sent to the Deputy Commissioner subsequently. Rule 39 provides procedure of counting of votes and sub-rule (vi) is reproduced as under :- (vi) The Presiding Officer shall allow the candidates and their agents who may be present reasonable opportunity to inspect all ballot papers, which in the opinion of the Presiding Officer are liable to be rejected but shall not allow them to handle those or any other ballot paper. The Presiding Officer shall on every ballot paper which is rejected, endorse the word "rejected". If any candidate or his agent questions the correctness of the rejection of any ballot paper the Presiding Officer shall also record briefly on such ballot paper the grounds for the rejection. A brief record shall be kept in Form VII of the serial numbers of all ballot papers rejected and of such particulars as will identify the ballot box used at a polling station other than a polling station of a notified committee in which each such ballot papers was found." A bare perusal of the aforesaid Rule would indicate that the Presiding Officer is required to make an endorsement on the ballot paper which is rejected and if objection is raised, the same is also required to be noticed and Form VIII is prepared of the serial numbers of all the ballot papers rejected. It is also required to mention particulars which would identify ballot box used from where such ballot papers were found. While referring to Annexure R 3, the order of the Secretary to Government, it is stated on behalf of Suresh Kumar respondent 3 that Form V was altered by the Presiding Officer and that per se would be material irregularity vitiating the election. The conclusion arrived at by the Secretary to the Government in order Annexure R 3 in this respect is to the following effect :-