LexBALDEV SINGH versus SHINDER PAL SINGH AND ANR.
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BALDEV SINGH 11. SHINDER PAL SINGH AND ANR. OCTOBER 19, 2006 [S.B. SINHA AND DAL VEER BHANDARI, JJ.] B Punjab Panchayati Election Rules, 1994: Rules 33(2)(e), 35 and 38. Election petition-Procedure in case of tie-Recounting of votes- Gram Panchayat elections-Sarpanch and Panches-Two candidates polled C equal number of votes-Allegedly, a recounting was done and the result of the recounting was the same as that of the first one-Returning Officer drew lots with the written consent of both the candidates-One of them was declared elected as Sarpanch--Defeated candidate filed election petition- Election Tribunal, ignoring the oral evidence of responsible officer, directed D recounting-Upon recounting, defeated candidate was declared elected- High Court affirmed the decision of the Tribunal-Correctness of-Held: The verification of the election petition must be done strictly in terms of Order VI Rule 15 of CPC-A factual averment made in the election petition cannot be both true to the knowledge and belief of the deponent-A recounting should not ordinarily be directed to be made-There exists certain /imitation E in this behalf-Hence, decisions of Tribunal and High Court set aside- Punjab Panchayati Raj Act, 1994, S. 86-Code of Civil Procedure, 1908, 0. VI R. 15. An election for the post of Sarpanch and Panches of the Gram Panchayat was held. The Returning Officer found that both the appellant and respondent F No. 1 had polled the same number of votes. Allegedly, a recounting was done and the result of the recounting was the same as that of the first one. The 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 framed under the Punjab Panchayati Raj Act, 1994. The Returning Officer drew lots with the written consent of both the candidates. The appellant G was declared elected as Sarpanch of the Gram Panchayat. However, immediately prior thereto, the supporters of respondent No. 1 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 n1 H 722 SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R. A seeking his advice in the matter. The result of the election was thereafter declared. An election petition was filed by respondent No. I before the Election Tribunal under Section 76 of the Act challenging the said election. In his deposition, the Returning Officer categorically stated that the consent paper B was torn. The Sub-Divisional Magistrate proved the fax message. The Presiding Officer supported the case of the appellant. The Tribunal, ignoring the aforementioned oral evidence of the responsible officers, directed recounting. Upon recounting respondent No. I was stated to have received more votes than the appellant and, therefore, respondent No. I was declared C to have been elected. The High Court affirmed the decision of the Tribunal. Hence the appeal. Allowing the appeal, the Court HELD: I. The verification of the election petition, it was trite, must be done strictly in terms of Order VI Rule 15 of the Code of Civil Procedure, D 1908. It was, thus, incumbent on the part of the appellant 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. (731-DJ E 2. Although, in the election petition, it has been contended that the 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 the respondent, would lead to declaration of election of the F appellant to be void had not been put to the witness in cross-examination. (731-E, FJ 3. The officers had categorically stated that the consent paper was torn. The fax message which had been sent immediately to the Collector of the District was a contemporaneous document, the genuineness whereof has not G 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 had received equal number of votes and thus, the result of the election to the
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