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2007 DIGILAW 803 (PNJ)

Hardev Singh v. Hardayal

2007-04-04

SATISH KUMAR MITTAL

body2007
Judgment Satish Kumar Mittal, J. 1. Petitioner Hardev Singh, who is the returned candidate, has filed this petition under Article 227 of the Constitution of India for setting aside the order dated 19.3.2007, passed by Additional Civil Judge (Senior Division), Sirsa, whereby he has summoned the election records pertaining the election of the office of Sarpanch of village Mattar, Tehsil and District Sirsa, for the purpose of recounting , after coming to the conclusion that the defeated candidate (respondent No. 1 herein) has prima facie made out a case for computation and scrutiny of votes in view of Clause (b) of Section 176(4) of the Haryana Panchayati Raj Act, 1994 (hereinafter referred to as the Act). 2. I have heard for the petitioner and gone through the impugned order, passed by the Civil Judge. 3. In this case, in the Panchayat election held on 3.4.2005, the petitioner was declared elected as Sarpanch of the village by securing 406 votes, out of 892 valid votes polled. Respondent No. 1 had secured 399 votes in the said election and 87 votes were secured by respondent No. 2. another candidate. The petitioner was declared elected by a margin of 7 votes. Respondent No. 1 filed a petition under Section 176(4)(b) of the Act alleging that he was wrongly declared defeated in the said election. At the time of counting, at least 25 votes polled in favour of respondent No. 1 were wrongly and illegally added in the account of the petitioner in collusion with the Returning /Presiding Officer. Immediately, an application for conducting the enquiry and taking action was filed by respondent No. 1. On that application, the police, consisting of D.S.P. and other police officials, came at the spot. The Presiding Officer gave in writing that there were 12 rejected votes, which he had put in the sealed cover and after opening the seal of the said cover. It is alleged that those 12 votes, which were shown rejected and were put into the sealed cover of the rejected votes, were the valid votes in favour of respondent No. 1. It is alleged that all this was done by the Presiding Officer in collusion with the petitioner in order of declare him elected as Sarpanch of the village, though he had not secured the highest number of votes. 4. It is alleged that all this was done by the Presiding Officer in collusion with the petitioner in order of declare him elected as Sarpanch of the village, though he had not secured the highest number of votes. 4. The Civil Judge, while taking into consideration the evidence led by the parties, came to the conclusion that the Presiding Officer did not put all the voles in the sealed envelope in the record of ballet papers and thereafter, he opened the sealed envelopes and put 12 votes showing the same as rejected votes. It has been found that the Presiding Officer gave the explanation that 12 rejected votes were left to be put in the sealed parcels of ballet papers, whereas total number of rejected votes as per Ex.P1 are 18, therefore, it was not explained as to under what circumstances part of the rejected votes i.e. 12 left to be put in the envelope. In view of these facts, it has been found that there is sufficient material and reasons, which make out case for computation and scrutiny of the votes recorded in favour of each candidate. 5. Counsel for the petitioner, while referring to the decisions of the Supreme Court in Chandrika Prasad Yadav V/s. State of Bihar and Ors. and in P.H. Pujar V/s. Kanthi Rajashekhar Kidiyappa and Ors., submits that recounting of the vote should be ordered in rare cases on the basis of specific allegations in the pleadings in the election petition and proof of improper acceptance of votes or improper rejection of valid votes. The re-counting should not be casually ordered on mere ipse dixit of the election petitioner and merely because margin of defeat of the petitioner is meager. He submits that in this case, there is no specific allegation and the proof regarding the alleged illegalities committed at the time of the counting, therefore, the Civil Judge has committed jurisdictional error while ordering for recounting. Counsel for the petitioner further submits that before the Returning Officer, no application for re-counting was filed. 6. I do not find any substance in the aforesaid submissions made by counsel for the petitioner. Counsel for the petitioner further submits that before the Returning Officer, no application for re-counting was filed. 6. I do not find any substance in the aforesaid submissions made by counsel for the petitioner. In Chandrika Prasad Yadavs case (supra), it was held that an order of recounting of votes can be passed, when the following conditions are fulfilled: (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 recounting of votes; and (iv) An objection to the said effect has been taken recourse to. In the instant case, there is specific pleading that 25 votes polled in favour of respondent No. 1 were illegally and wrongly added in the votes of the petitioner in collusion with the Presiding Officer. It has also been alleged (hat an application in this regard was made and on that application, the police came on the spot and the Presiding Officer gave in writing that 12 rejected votes were put into the envelope containing the rejected votes, after opening its seal. It has been alleged that these 12 votes were, in fact, valid votes in favour of respondent No. 1. After considering the evidence on record, the Court has come to the conclusion that a prima facie case for committing irregularities at the time of counting of votes has been made out, as the explanation given by the Presiding Officer that 12 rejected votes were left to be put in the sealed parcels of ballet papers is not satisfactory, because total number of rejected votes as per the declaration sheet, Ex.P.1 was 18. It has not been explained as to under that circumstances, part of the rejected votes i.e. 12 left to be put in the envelope of rejected ballet papers. In the instant case, it cannot be said that order of recounting is merely a roving and finishing inquiry in the counting of votes. In my opinion, the Civil Judge, while passing the impugned order, has committed no jurisdictional error. Therefore, I do not find any merit in the instant petition. 7. Dismissed.