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2008 DIGILAW 1411 (PNJ)

Satbir v. State of Haryana

2008-08-19

DAYA CHAUDHARY, SATISH KUMAR MITTAL

body2008
JUDGMENT Daya Chaudhary, J. - The petitioner has filed this writ petition under Article 226 of the Constitution of India for quashing of order dated 3.1.2007 passed by Election Tribunal-cum-Civil Judge (Senior Division), Sonepat- respondent No. 8 (hereinafter referred to as the Tribunal) vide which on the basis of recounting, the election petition of the petitioner was dismissed. 2. The petitioner filed an Election Petition under Section 176(1) & 176(4)(B) of Haryana Panchayati Raj Act for setting aside the election of Sarpanch and to declare him as elected on the basis of irregularities committed by respondent No. 4 during the election. In the election, Mr. Ashok Kumar- respondent No. 4 was declared elected as he got highest number of votes and the petitioner was declared defeated. 3. Order dated 3.1.2007 passed by the Tribunal has been challenged on various grounds but the main ground of challenge is that at the time of recounting the bundle of invalid votes containing 48 votes was not made available. It is alleged that those invalid votes were crucial and material for the outcome of election result. 4. Mr. Alok Jain, learned counsel for petitioner has argued that when the case was fixed for recounting on 1.12.2006, the Naib Tehsildar instead of bringing record, preferred an application for adjournment that the Block Development and Panchayat Officer has informed that the record was not traceable. On that application, the following zimai order has been passed : "Present : Sh. A.K. Jain, counsel for the petitioner. Shri N.S. Malik, LO for respondents No. 1 and 2. Shri R.D. Gaur, Counsel for respondent No. 4 Shri Narender Bhardwaj, counsel for the respondents No. 5 to 7. Respondent No. 3 ex parte. Today the case was fixed for recounting of votes, but Naib Tehsildar moved an application for adjournment on the ground that some ballot papers were not traceable and some more time may be given. Keeping in view the facts mentioned in the application, the case is listed for 11.12.2006 for production of votes and recounting thereof." 5. Mr. Jain has further argued that again on 14.12.2006, both the counsel were present but recounting could not take place because of not producing some of the record. Orders passed on 14.12.2006, 18.12.2006 and 3.1.2007 are respectively, reproduced as under: Zimni order dated 14.12.2006 "Today the case was fixed for recounting of votes. Mr. Jain has further argued that again on 14.12.2006, both the counsel were present but recounting could not take place because of not producing some of the record. Orders passed on 14.12.2006, 18.12.2006 and 3.1.2007 are respectively, reproduced as under: Zimni order dated 14.12.2006 "Today the case was fixed for recounting of votes. However, one envelope containing ballot papers was opened, after breaking the seals, but in that envelope bundle of ballot papers was found of village Malikpur, instead of village Asadpur. Therefore, recounting of votes could not be conducted and concerned authority is directed to trace out the ballot papers of village Asadpur, for recounting of votes. The record produced today is ordered to be returned with the seals intact to the concerned official to keep in safe custody till recounting. Now authority concerned is directed to produce complete ballot papers of village Asadpur, for recounting of votes on 18.12.2006, positively." Zimni order dated 18.12.2006 "Today the case was fixed for production of ballot paper of village Asadpur for recounting However, an application for seeking adjournment has been moved by the Naib. Tehsildar, on the plea that authority concerned are tracing out the ballot papers because the same has not been traced out till date. On his request, case is listed for 3.1.2007 for recounting the votes. Authority concerned is again directed to produce the complete ballot papers of village Asadpur on that date. Zimni order dated 3.1.2007 "Today the case was fixed for production of ballot papers for recounting thereof and same has been produced in Court with the seals intact. For the purposes of recounting of votes sealed envelope containing ballot papers are opened in the presence of parties as well as their counsel. Ballot papers have been counted. Heard. Vide my separate order of even date, petition deserves dismissal and is hereby dismissed, with no order as to costs. Memo of costs be prepared accordingly and file be consigned to the record room." 6. Mr. Jain has argued that in absence of total record, the recounting of votes was not properly conducted and because of non-production of relevant record, the result of the election was materially effected. 7. Respondents No. 1 to 3 and respondent No. 4 have filed separate written statements, which are on record. 8. Ms. Mr. Jain has argued that in absence of total record, the recounting of votes was not properly conducted and because of non-production of relevant record, the result of the election was materially effected. 7. Respondents No. 1 to 3 and respondent No. 4 have filed separate written statements, which are on record. 8. Ms. Kirti Singh, learned Assistant Advocate General, Haryana appearing on behalf of respondents No. 1 to 3 argued that even if the invalid or cancelled votes were counted in favour of petitioner, the ultimate result will not be effected. Moreover, the petitioner recorded his satisfaction about the recounting, therefore, no interference is required in the impugned order. 9. Mr. Rajiv Sharma, learned counsel appearing for respondent No. 4 reiterated the same arguments advanced by learned counsel for respondents No. 1 to 3. Mr. Sharma has further argued that total votes polled in the election were 1150 out of which 1092 votes were valid and the recounting was done on agreement of both the parties. Both the parties were satisfied with the outcome of recounting result and the present writ petition has been filed without any cause of action and the same may be dismissed with costs. 10. We have heard the arguments advanced by counsel for the parties and gone through the impugned order passed by the Tribunal. 11. Initially two issues were framed during trial of election petition which are reproduced as under : "Whether election of respondent No. 4 as Sarpanch of village Asadpur is liable to be set aside on the grounds prayed for ? OPD "Whether the petition is not maintainable in the present form nor the petitioner has any locus-standi to file the same ? OPD 12. Subsequently, one additional issue No. l-A was framed with the consent of parties, which is reproduced as under : "Whether recounting of votes are necessary and required on the grounds mentioned in the petition ? OPD 13. Ultimately, issue No. 1-A was decided in favour of the petitioner and order for recounting was passed on 7.11.2006. After calling the original record, recounting was done in presence of both the parties as well as their counsel. As per the result in the recounting the petitioner got 389 votes and respondents No. 4 got 454 votes. OPD 13. Ultimately, issue No. 1-A was decided in favour of the petitioner and order for recounting was passed on 7.11.2006. After calling the original record, recounting was done in presence of both the parties as well as their counsel. As per the result in the recounting the petitioner got 389 votes and respondents No. 4 got 454 votes. The recounting was made to the satisfaction of the parties and statement of parties as well as their counsel to this effect were recorded. As per result of recounting the difference was only of 65 votes. Even if the invalid votes, which were not found at the time of recounting, were to be counted in favour of the petitioner, the result would not have been effected. In this situation, the contention raised by counsel for the petitioner does not carry any weight as the difference of votes was much more higher than the invalid votes. Moreover it is not a case of the petitioner that those invalid votes were wrongly declared invalid. The only ground in the writ petition is that at the time of recounting bundle of 48 invalid votes was not found. Counsel for the petitioner has not pointed out anything to show that any objection with regard to invalid votes was raised at the time of recounting. Neither there was any demand by the petitioner before starting recounting that the bundle of 48 invalid votes should be brought and then only recounting should be done. The recounting was done in presence of both the parties and both the parties signed the result of recounting. It is not the case of the petitioner that the petitioner or his counsel raised any objection that the recounting was not properly conducted. The petitioner was declared defeated by difference of 65 votes whereas the invalid votes were only 48 and if these votes are counted in favour of petitioner it will not materially affect the election result. 14. Keeping in view the above facts, we do not find any merit in this petition and the same is hereby dismissed. Petition dismissed.