- (1.) This appeal has been filed against judgment dated 12.5.2005 passed by the Election Tribunal-cum-Additional Deputy Commissioner, Fatehgarh Sahib vide which election petition filed by respondent No. 1 Baljit Singh was allowed and he declared elected as Sarpanch.
(2.) To assail this judgment, it has been stated by counsel for the appellant that at the time of recount, large number of irregularities committed and the respondent No. 1 was declared elected in a illegal manner. Counsel further argued that as the Presiding Officer while recounting the votes, has not given any reason to reject the votes, polled in favour of the appellant, order under challenge deserves to be set aside. Prayer made has been vehemently opposed by counsel, who has put up appearance on behalf of respondent No. 1.
(3.) It is apparent from the records that in election to the post of Sarpanch, the appellant was declared elected on 29.6.2003. Respondent No. 1, who has also contested that election filed an election petition, challenging his election wherein it was stated that the counting has wrongly been done by the Presiding Officer. During proceedings of the election petition vide order dated 15.7.2004, it was ordered that the recounting of the votes be done on 28.7.2004. Appellant failed to challenge the order of recount before the said date and in fact, in presence of the appellant, recount was done on 28.7.2004. Thereafter, the respondent No. 1-petitioner, by filing Civil Revision No. 3678 of 2004, laid challenge to the order of recount dated 15.7.2004. A specific ground was taken by the petitioner that recount was done wrongly and contrary to the provisions of Punjab Panchayat Election Rules, 1994. Revision petition came up for hearing before this Court on 10.1.2005. While dismissing that revision petition, following order was passed by this Court :- "The petitioner has prayed for setting aside of the order dated 15.7.2004 (Annexures P-1 and P-2) passed by the Election Tribunal, Fatehgarh Sahib, by which recounting of votes has been ordered and the votes have already been counted. Respondent No. 1 had filed an election petition against the election of the petitioner in which the Election Tribunal vide order dated 15.7.2004 ordered the recount of the votes. It was further ordered that the recount was to take place on 28.7.2004 in the presence of the candidates with their respective counsel. Thereafter vide order dated 28.7.2004 after the recount of votes, it was found that respondent No. 2-Baljit Singh had secured more votes than the other candidate i.e. the petitioner and respondent No. 3 and at that stage counsel for the petitioner Harnek Singh prayed for time to produce evidence on issue Nos. 5 and 6 and for that purpose the case has been adjourned by the Election Tribunal to 10.8.2004 for evidence of the respondents. The recount of votes was ordered vide order dated 15.7.2004 and the recounting was done on 28.7.2004. Before these dates, the action of the Election Tribunal was not challenged. As the recounting has already been done, whatever the evidence the petitioner wants to adduce can be led in his evidence. Apart from the above, it is to be noted that the petitioner along with his counsel had duly participated in the recounting of the votes and therefore, at this stage they cannot be allowed to say that the voting was not done in accordance with law. Thus, as the jurisdiction with regard to the recounting has already been exercised by the Election Tribunal and as the petitioner did not challenge the order dated 15.7.2004. Prior to the recounting, therefore, at this stage, the recounting cannot be set aside. In T.A. Ahmmed Kabeer v. A.A. Azeez and others, 2003 5 SCC 650(SC), the Hon'ble Apex Court has held that :- "Once a recount has been allowed, the court cannot shut its eyes to the result of recount on the ground that the result of recount as found is at variance with the pleadings. Once the court has permitted recount with the well settled parameters of exercising jurisdiction, in this regard, it is the result of the recount which has to be given effect to." In the present case also the recount has been done in the presence of the candidates as well as their counsel. No illegality was found in the recount. All the concerned persons had duly signed and every vote was recounted after due consideration in the presence of the parties as well as their counsel. Thus, there is no illegality either in the order of recount or in the recounting. In view of the above, there is no merit in the revision and the same is dismissed accordingly".;