CR No.5408 of 2008 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR No.5408 of 2008
Date of Decision: 3.10.2008
Rajesh Bhatia ..Petitioner
Vs.
Ashwani Azad & Ors. ..Respondents
Coram: Hon'ble Mr. Justice Vinod K.Sharma
Present: Mr.Rajinder Chhokar, Advocate,
for the petitioner.
Mr.A.P.Kansal, Advocate,
for respondent No.1.
Vinod K.Sharma,J. (Oral)
The petitioner has challenged the order passed by the learned
Civil Judge (Senior Division), Faridabad ordering recount of the votes.
Respondent No.1 filed a petition under Section 15 of the
Haryana Municipal Corporation Act, 1994 (for short the Act) for declaring
the election of the petitioner as Municipal Councillor from Ward No.11
Municipal Corporation, Faridabad to be illegal, null and void. He further
prayed that he be declared as winner/successful candidate.
Respondent No.1 in the election petition claimed that total
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votes of Ward No.11 are 18159 but only 11181 votes were polled. The
election process was over at 4 PM on 30.4.2005. It was claimed by the
petitioner that even before the arrival of polling agents the ballot boxes had
already been opened. It is the case of respondent No.1 that agent of
respondent No.1 claimed that votes be shown to them but the counting staff
did not show the same. The petitioner claimed that more than 320 votes
were declared invalid. Request of the agents for being shown the invalid
votes was not accepted. It is further the case of respondent No.1 that
respondent No.1 was declared as winner by 700 votes but thereafter the
counting staff disclosed two other boxes. However, said boxes were not
shown to him and thereafter the petitioner was declared as elected.
The petitioner claimed that he wrote to the Deputy
Commissioner, Faridabad for recounting of votes and the copies thereof
were sent to the Chief Election Commissioner and State Election
Commissioner but his request was declined.
In the written statement the claim of respondent No.1 was
contested. After the pleadings of the parties were complete issues were
framed.
Request of respondent No.1 was accepted and recounting was
ordered on 10.8.2006. The petitioner challenged the said decision by filing
Civil Revision No.5006 of 2006.
This court in the previous litigation by relying upon Rule 62 of
the Haryana Municipal Corporation Election Rules 1994 (for short the
Rules) held that once an application was not immediately made it was not
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open to the Returning Officer to recount the votes. The court held that as no
evidence was led in the election petition by the parties yet, therefore, under
section 17 of the Act the Election Tribunal could not have ordered the
recount of votes.
Revision was allowed. However, it was directed that the
Election Tribunal should proceed in accordance with the law and make
endeavour to dispose of the same as early as possible and preferably within
six months.
Thereafter, respondent No.1 examined himself as PW 1 and
also examined one Shri Sushil Mehndiratta as PW2 and Shri Lajpat Rai as
PW 3. Thereafter his evidence was closed. The petitioner appeared as RW 1
and examined Shri Yogesh Goshwami as RW 2.
It was the case of the petitioner that no case for recounting was
made out. However. Learned Civil Judge (Sr.Division) observed that
respondent No.1 has taken categorical stand that votes were illegally
rejected by the counting staff without showing the same to the election
agents of the candidates. The allegations made by respondent No.1 were
duly corroborated by RW 2 Sushil Mehndratta and Laj Pat Rai RW 3. The
court also observed that after declaring respondent No.1 as elected two new
boxes were opened which were not shown to respondent no.1 or his agent.
The court observed that while being cross-examined the petitioner admitted
in his cross-examination that he had no objection if votes are recounted. The
court also observed that no prejudice was likely to be caused to the
petitioner as the votes were to be recounted in court and issue No.1 would
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be decided.
Mr. Rajinder Chhokar, learned counsel appearing on behalf of
the petitioner challenges the impugned order on the plea that admission was
made by the petitioner in ignorance of his right. It was also his case that the
admission made by the petitioner could be withdrawn by him at any time.
In support of this contention reliance was placed on the
judgment of this court in the case of Smt.Matto and others Vs. Naino and
others 2008 (1) RCR (Civil) 8, wherein this court was pleased to lay down
as under:-
“9. After hearing the learned counsel for the parties, I find
force in the arguments raised by the learned counsel for the
appellant. It is settled law that admission has to be read as a
whole and once the admission is said to have been made in
ignorance of right and the same was contrary to law, the same
was not binding on the plaintiff respondents. Once the onus of
providing (proving?) issue No.2 was placed on the defendant-
respondents and they failed to discharge the same, the learned
trial court rightly held that the property was not joint Hindu
Family property and the parties were rightly held entitled to
inherit as per Section 8 of the Hindu Succession Act.”
However, the judgment relied upon by the leaned counsel for
the petitioner is of no help to the petitioner as till date no steps have been
taken to withdraw the statement made by the petitioner before the learned
Civil Judge (Senior Division).
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Even otherwise, the order passed by the learned Civil Judge has
not been passed on the basis of admission alone but on the basis of evidence
led by respondent No.1 which stands duly corroborated.
Learned counsel for the petitioner placed reliance on the order
of this court passed in CR No.5006 of 2006 titled Rajesh Bhatia Vs.
Chairman HN Municipalities Election Tribunal Chandigarh & Ors.,
decided on 22.4.2008 to contend that the impugned order was contrary to
Rule 62 of the Rules.
However, this contention is also deserves to be rejected as this
Court while disposing of CR No.5006 of 2006 clearly mentioned that the
parties have to be permitted to lead their evidence and thereafter decision
could be taken regarding recount.
Learned counsel for the petitioner also argued that the
evidence is not complete as some of the witnesses of the respondents are
yet to be examined. This plea also deserves to be rejected as the petitioner
has already led evidence which stands duly corroborated showing that there
was irregularity in recount. Thus, prima facie case was made out for
ordering recount. Learned counsel for the petitioner contended that the
application after four days of recount could not be entertained.
This plea of the learned counsel for the petitioner is also
misconceived as that bar is for ordering recount by the Returning
Officer/Presiding Officer and not to the court where the election petition is
to be adjudicated.
The Hon’ble Full Bench of this court in the case of Radha
CR No.5408 of 2008 6
Kishan Vs. Election Tribunal-cum-Sub Judge, Hissar 1999 (3) P.L.R.1
has been pleased to lay down as under:-
“50. Ergo we hold that recounting of votes in such an election
cannot be directed on more asking and in a routine manner.
The applicant, if makes difinite averments on verification
supported by unambiguous details, in accordance with law,
supported by documents, if any, and where the applicant makes
out a prima facie case to the satisfaction of the court, nothing
prevents the Court from ordering scrutiny and computation of
votes on recount in the case falling within restricted scope of
section 176 (4) (b) of the Act. In other words, the court would
not be justified in declining such a relief for the reason that the
applicant, irrespective of above, must lead evidence through
detailed enquiry. Such detailed enquiry is neither postulated nor
would be necessary within the purview of said provisions in
the limited cases. Afore-referred.”
Thus, it would be seen that once the petitioner made out a
prima facie case to the satisfaction of the court nothing could prevent the
court from ordering scrutiny and recounting of votes.
It may further be noticed that Hon’ble Supreme Court in the
case of Chandrika Prasad Yadav Vs. State of Bihar and others 2004 (2)
RCR (Civil) 568 has been pleased to lay down that recount be ordered
when it is proved on record that there is a prima facie case established and
the material facts have been pleaded stating irregularity in counting of
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votes. But the court while ordering recount has to see that no roving and
fishing inquiry is to be made and that secrecy of ballot papers is maintained.
In the present case, prima facie case stands established and the
petitioner himself in cross-examination showed his willingness to get
recount done.
The impugned order, therefore, does not suffer from any
illegality nor there is lack of jurisdiction which may call for interference by
this court in exercise of revisional jurisdiction.
No merit.
Dismissed.
Copy of the order be given dasti under the signatures of Court
Secretary.
3.10. 2008 (Vinod K.Sharma) rp Judge