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2013 DIGILAW 366 (HP)

Natwar Singh v. State of Himachal Pradesh

2013-04-30

RAJIV SHARMA

body2013
JUDGMENT Justice Rajiv Sharma, Judge. The election for the post of Vice Pradhan, Gram Panchayat, Kutara, Tehsil Rohru was held on 28.12.2010. Petitioner was declared elected for the post of Vice Pradhan, Gram Panchayat, Kutara. Respondent No.4 filed an election petition under section 163 of the Himachal Pradesh Panchayati Raj Act, 1994 for setting aside the election result of the petitioner. The election petition was allowed by the Sub Divisional Officer (Civil), Rohru on 16.8.2011. Petitioner preferred an appeal against the order dated 16.8.2011 before the Appellate Authority. The Appellate Authority dismissed the same on 12.12.2011. 2. What emerges from the perusal of the record is that petitioner had secured 622 votes and respondent No.4 has secured 619 votes. The parties had agreed for recounting of votes. Pursuant to which, necessary directions were issued by the Sub Divisional Officer (Civil) to the Block Development Officer for the recounting of votes. In the recounting, petitioner has secured 617 votes and respondent No.4 has secured 614 votes, out of 1259 votes and 28 votes were declared invalid. Since the Block Development Officer has not taken into consideration the poll duty ballots, he was further directed to recount the same. After recounting poll duty ballots, the petitioner has secured 622 votes and respondent No.4 has secured 619 votes. However, on further recounting petitioner has secured 617 votes and respondent No.4 has secured 614 votes. Petitioner and respondent No.4 have secured 619 votes each since 5 poll duty ballot papers were cast in favour of respondent No.4 and 2 poll duty ballot papers in favour of the petitioner. However, the fact of the matter is that when the Block Development Officer counted the votes, the poll duty ballot papers were found missing. According to the pleadings, only 7 poll duties ballots were cast but when the record was perused, 8 poll duty ballot papers were issued by the Block Development Officer and the same were received by the Presiding Officer. However, surprisingly, he has given the account of 7 votes only. One vote still has not been counted for by the Presiding Officer. 3. Poll duty ballot papers were issued to Hitu Manchhan, Daya Singh, Anil Kumar, Ram Krishan, Hira Singh, Sanjeev Kumar, Panna Lal and Shiv Singh and the same were received, as noticed above, by the Presiding Officer. He has put his signatures in receipt of the same. One vote still has not been counted for by the Presiding Officer. 3. Poll duty ballot papers were issued to Hitu Manchhan, Daya Singh, Anil Kumar, Ram Krishan, Hira Singh, Sanjeev Kumar, Panna Lal and Shiv Singh and the same were received, as noticed above, by the Presiding Officer. He has put his signatures in receipt of the same. The Court has also gone through the ballot paper account prepared by the Presiding Officer of 8 votes. It cannot be authoritatively said whether the 8th poll duty ballot has been cast in favour of the petitioner or respondent No.4. In these circumstances, 8th poll duty ballot paper is liable to be ignored. 4. The Legislative Assembly has enacted, the Himachal Pradesh Panchayati Raj Act, 1994 (hereinafter referred to as the “Act” for brevity sake) and the Himachal Pradesh Panchayati Raj (Election) Rules, 1994 have been framed thereunder. Incorporation of Panchayats is stipulated under section 119. The qualification to vote and to be a candidate is provided under section 121. Disqualifications for the candidate are provided under section 122. Electoral offences are provided under Chapter X-A. Chapter-XI deals with disputes relating to election. Section 164 deals with the contents of petition. Section 175 provides for declaring the election to be void. Section 175-B provides for procedure in case of equality of votes. It reads as under: “175-B. Procedure in case of equality of votes.-If during the trial of an election petition, it appears that there is an equality of votes between any candidates at the election and that the addition of a vote would entitle any of those candidates to be declared elected, then- (a) any decision made by the returning officer under the provisions of this Act shall, in so far as it determines the question between those candidates, be effective also for the purposes of the petition; and (b) in so far as that question is not determined by such a decision, the authorised officer shall decide between them by lot and proceed as if the one on whom the lot then falls had received an additional vote.” 5. There is a detailed procedure the manner in which the elections in the Panchayat are to be held under the Himachal Pradesh Panchayati Raj (Election) Rules, 1994 (hereinafter referred to as the “Rules” for brevity sake). Rules 2 (h) and (i) define “Presiding Officer” and “Returning Officer”, respectively. There is a detailed procedure the manner in which the elections in the Panchayat are to be held under the Himachal Pradesh Panchayati Raj (Election) Rules, 1994 (hereinafter referred to as the “Rules” for brevity sake). Rules 2 (h) and (i) define “Presiding Officer” and “Returning Officer”, respectively. Rule 32 provides for framing election programme. Rule 33 provides for notice of election. The nomination of candidates is provided under rule 35. Chapter-V-A deals with poll duty ballot. Rules 49-A, B, C, D, E and F read as under: “49-A. Electors on poll duty entitled to vote.-Subject to their fulfilling the requirements hereinafter specified, the electors who are on poll duty within the same block shall be entitled to vote at an election of Panchayat. 49-B. Intimation by voters on Poll Duty.- An elector on poll duty within the same Block, who wishes to vote at an election shall apply in Form-28A to the Returning Officer for the Panchayat so as to reach him at least seven days or such shorter period as the State Election Commission may allow before the date of poll; and if the Returning Officer is satisfied that the applicant is an elector on poll duty, he shall issue him Poll Duty Ballots, each to be used for the election of member, Up-Pradhan, Pradhan of Gram Panchayat, Member of Panchayat Samiti and Member of Zila Parishad. 49-C.Form of ballot paper.-The ballot papers to be issued to the electors on Poll Duty within the same Block shall be same as are issued to other electors of the concerned Panchayat. 49-C.Form of ballot paper.-The ballot papers to be issued to the electors on Poll Duty within the same Block shall be same as are issued to other electors of the concerned Panchayat. 49-D. Issue of ballot paper.- (1) The Poll Duty Ballot Papers shall be delivered to such voter by the Returning Officer for the Gram Panchayat personally together with,- (a) two declaration forms in Form- 28B (one for Gram Panchayat and other for Panchayat Samiti and Zila Parishad); (b) five covers in Form- 28C (one for each ballot paper); (c) two large cover addressed to the Returning Officer in Form-28D (one for Gram Panchayat and other for Panchayat Samiti and Zila Parishad); and (d) instructions for the guidance of the elector in Form 28- E. (2) The Returning Officer for the Gram Panchayat shall at the same time (a) record on the counterfoil of the ballot paper the electoral roll number of the elector as entered in the marked copy of the electoral roll;(b) mark the name of the elector in the marked copy of the electoral roll to indicate that a ballot paper has been issued to him, without however recording therein the serial number of the ballot paper issued to that elector; and (c) ensure that the elector is not allowed to vote at a polling station. (3) Before any ballot paper is issued to an elector on election duty at an election, the serial number of the ballot paper shall be effectively concealed in such a manner as the State Election Commission may direct. (4) After ballot papers have been issued to all the electors on poll duty, the Returning Officer for the Gram Panchayat shall seal in a packet the marked copy of the electoral roll and record on the packet a brief description of its contents and the date on which it is sealed. (5) The Returning Officer for the Gram Panchayat shall also seal in a separate packet the counterfoils of the ballot papers issued to electors on poll duty and record on the packet a brief description of its contents and the date on which it has been sealed. (5) The Returning Officer for the Gram Panchayat shall also seal in a separate packet the counterfoils of the ballot papers issued to electors on poll duty and record on the packet a brief description of its contents and the date on which it has been sealed. 49-E. Recording of Vote .- (1) An elector who has received Poll Duty Ballot Papers and desires to vote shall record his vote on the ballot paper in accordance with the directions contained in Form- 28-E and then enclose each ballot paper in separate cover in Form- 28C. (2) The elector shall sign the declaration in Form -28B in the presence of Returning Officer of the Panchayat or such officer as may be notified in this behalf by the State Election Commission. 49-F.Return of ballot paper.- (1) After an elector has recorded his vote and made his declaration under rule 49-E, he shall return the ballot paper and declaration to the Returning Officer for the Gram Panchayat or such officer as may be notified in this behalf by the State Election Commission within such time as may be fixed and in accordance with the instructions communicated to him in Form-28E. (2) If any cover containing a poll duty ballot paper is received by the Returning Officer after the expiry of the time fixed in sub -rule (1) he shall note thereon the date and time of its receipt and shall keep all such covers together in a separate packet. (3) The Returning Officer for Gram Panchayat or such officer as may be notified in this behalf by the State Election Commission shall ensure that all covers containing poll duty ballot papers received by him are delivered to –(a) the Assistant Returning Officer for Gram Panchayat of the concerned Gram Panchayat in the case of election of Gram Panchayat; (b) the Returning Officer of the concerned Panchayat Samiti in the case of election of members of Panchayat Samiti at the time of counting of votes; and (c) the Returning Officer of the concerned Zila Parishad in the case of election of members of Zila Parishad at the time of counting of votes.]” 6. Chapter-VI provides for poll and voting for election. Voting procedure is provided under rule 60. Chapter-VI provides for poll and voting for election. Voting procedure is provided under rule 60. Rule 66 prescribes that the Presiding Officer, at the time of close of the poll, shall prepare a ballot paper account in Form-29 and enclose it in a separate cover with the words “Ballot Paper Account” scribed thereon. Rule 67 provides for sealing of other packets. Transmission of ballot boxes, packets, etc. is provided under rule 68. Counting of vote is provided under Chapter-VII. Rule 73- A provides for counting of votes received through poll duty ballot papers. Rule 73-A reads as under: “73-A. Counting of votes received through poll duty ballot papers.- (1) The Returning Officer shall at the first instance deal with the poll duty ballot papers in the manner hereinafter provided. (2) No cover in Form- 28D received by the Returning Officer after the expiry of the time fixed in this behalf shall be opened and no vote contained in such a cover shall be counted. (3) The other covers shall be opened one after another and as each cover is opened, the Returning Officer shall first scrutinize the declaration in Form- 28B contained therein and if the said declaration is not found, or has not been duly signed and attested, or is otherwise substantially defective, or if the serial number of the ballot paper as entered in it differs from the serial number endorsed on the cover in Form- 28C, that cover shall not be opened, and after making an appropriate endorsement thereon, the Returning Officer shall reject the ballot paper contained therein. (4) Each cover so endorsed and the declaration received with it shall be replaced in the cover in Form -28D and all such covers in Form-28D shall be kept in a separate packet which shall be sealed and on which shall be recorded the name of the constituency, the date of counting and a brief description of its content. (5) The Returning Officer shall then place all the declarations in Form -28B which he has found to be in order in a separate packet which shall be sealed before any cover in Form-28C is opened and on which shall be recorded the particulars referred to in sub-rule (4). (5) The Returning Officer shall then place all the declarations in Form -28B which he has found to be in order in a separate packet which shall be sealed before any cover in Form-28C is opened and on which shall be recorded the particulars referred to in sub-rule (4). (6) The covers in Form -28D not already dealt with under the foregoing provisions of this rule shall then be opened one after another and the Returning Officer shall scrutinize each ballot paper and decide the validity of the vote recorded thereon. (7) A poll duty ballot paper shall be rejected- if it bears any mark other than mark to record the vote or writing by which the elector can be identified; or (a) if it bears any mark other than mark to record the vote or writing by which the elector can be identified; or (b) if no vote is recorded thereon; or (c) if votes are recorded in favour of more candidates than one; or (d) if it is a spurious ballot paper; or (e) if it is so damaged or mutilated that its identity as a genuine ballot paper cannot be established; or (f) if it is not returned in the cover sent along with it to the elector by the Returning Officer. (8) A vote recorded on a poll duty ballot paper shall be rejected if the mark indicating the vote is placed on the ballot paper in such a manner as to make it doubtful to which candidate the vote has been recorded. (9) A vote recorded on a poll duty ballot paper shall not be rejected merely on the ground that the mark indicating the vote is indistinct or made more than once, if the intention that the vote shall be for a particular candidate clearly appears from the way the ballot paper is marked. (10) The Returning Officer shall count all the valid votes recorded in favour of each candidate and record the total thereof in the result sheet in- Form-32 in the case of member of Gram Panchayats; Form- 34 in the case of Pradhan/Up Pradhan; Form-36 in the case of member of Panchayat Samiti ; and Form- 38 in the case of member of Zila Parishad, and announce the same. (11) All the valid ballot papers and the rejected ballot papers shall be separately bundled and kept together in a packet which shall be sealed with the seals of the Returning Officer and the candidates or their election agents or counting agents, if they desire to affix their seals thereon, and on the packet so sealed the name of the constituency, the date of counting and a brief description of its contents shall be recorded.” 7. Scrutiny and opening of ballot boxes is provided under rule 74. Procedure for counting of votes is laid down under rule 75. According to sub-rule (v) of rule 75, after the declaration of result of all the members of the Gram Panchayat, the counting for the offices of Up-Pradhan/Pradhan shall be taken and result declared on Form-35 after preparing the result-sheet on Form 34. This has been prepared by the Presiding Officer in the present case. According to which, petitioner has secured 622 votes and respondent No.4 has secured 619 votes. However, Presiding Officer has given the details of only 7 poll duty ballot papers. In the instant case, surprisingly, the Presiding Officer has not followed the Rules the manner in which poll duty ballot papers were to be received and counted for. The same were to be counted as per rule 73-A. According to rule 49-A, the electors who were on poll duty within the same block were entitled to vote at an election of Panchayat. The same were to be counted as per rule 73-A. According to rule 49-A, the electors who were on poll duty within the same block were entitled to vote at an election of Panchayat. The elector on poll duty within the same Block, who wishes to vote at an election are required to apply in Form-28-A to the Returning Officer for the Panchayat so as to reach him at least 7 days or shorter period as the State Election Commission may allow before the date of poll and if the Returning Officer is satisfied that the applicant is an elector on poll duty, he shall issue him Poll Duty Ballots, each to be used for the election of member, Up-Pradhan, Pradhan of Gram Panchayat, Member of Panchayat Samiti and Member of Zila Parishad as per rule 49-B. The ballot papers required to be issued to the electors on Poll Duty within the same Block are to be the same as are issued to other electors of the concerned Panchayat as per rule 49-C. The poll duty ballot papers are to be delivered to such voter by the Returning Officer for the Gram Panchayat personally together with two declaration forms in Form-28-B, five covers in Form 28-C, two large cover addressed to the Returning Officer in Form-28-D and instructions for the guidance of the elector in Form 28-E. The Returning Officer at the same time has to record on the counterfoil of the ballot paper the electoral roll number of the elector as entered in the marked copy of the electoral roll, mark the name of the elector in the marked copy of the electoral roll to indicate that a ballot paper has been issued to him, without however recording therein the serial number of the ballot paper issued to that elector and ensure that the elector is not allowed to vote at a polling station as per sub-rules (1) and (2) of rule 49-D. According to sub-rule (3) of rule 49-D, before any ballot paper is issued to an elector on election duty at an election, the serial number of the ballot paper is to be effectively concealed in such a manner as the State Election Commission may direct. According to sub-rule (4) of rule 49-D, after ballot papers have been issued to all the electors on poll duty, the Returning Officer for the Gram Panchayat has to seal in a packet the marked copy of the electoral roll and record on the packet a brief description of its contents and the date on which it is sealed. According to sub-rule (5) of rule 49-D, the Returning Officer for the Gram Panchayat is required to seal in a separate packet the counterfoils of the ballot papers issued to electors on poll duty and record on the packet a brief description of its contents and the date on which it has been sealed. According to sub-rule (5) of rule 49-D, the Returning Officer for the Gram Panchayat is required to seal in a separate packet the counterfoils of the ballot papers issued to electors on poll duty and record on the packet a brief description of its contents and the date on which it has been sealed. According to rule 49-E, an elector who has received poll duty ballot papers and desires to vote has to record his vote on the ballot paper in accordance with the directions contained in form 28-E and then enclose each ballot paper in separate cover in form 28-C. The elector is also required to sign the declaration in Form 28-B in the presence of Returning Officer of the Panchayat or such Officer as may be notified in this behalf by the State Election Commissioner as per sub-rule (2) of rule 49-E. After the elector has recorded his vote and made his declaration under rule 49-E, he has to return the ballot paper and declaration to the Returning Officer for the Gram Panchayat as per sub- rule (1) of rule 49-F. If any cover containing a poll duty ballot paper is received by the Returning Officer after the expiry of the time fixed in sub-rule (1), he has to note thereon the date and time of its receipt and has to keep all such covers together in a separate packet as per sub- rule (2) of rule 49-F. The Returning Officer for Gram Panchayat or such officer as may be notified in this behalf by the State Election Commissioner has to ensure that all covers containing poll duty ballot papers received by him are delivered to the Assistant Returning Officer for Gram Panchayat of the concerned Gram Panchayat in the case of election of Gram Panchayat as per sub-rule (3) of rule 49-F. According to rule 73-A, the Returning Officer at the first instance is required to deal with the poll duty ballot papers in the manner provided and no cover in Form-28-D received by the Returning Officer after the expiry of the time fixed in this behalf can be opened and no vote contained in such a cover shall be counted. The other covers are required to be opened one after another and as each cover is opened, the Returning Officer shall first scrutinize the declaration in Form 28-B contained therein and if the said declaration is not found, or has not been duly signed and attested, or is otherwise substantially defective, or if the serial number of the ballot paper as entered in it differs from the serial number endorsed on the cover in Form 28-C that cover shall not be opened and after making an appropriate endorsement thereon, the Returning Officer has to reject the ballot paper contained therein as per sub-rule (3) of rule 73-A. Each cover so endorsed and the declaration received with it has to be replaced in the cover in form 28-D and all such covers in Form 28-D are to be kept in a separate packet which are to be sealed and on which has to be recorded name of the constituency, the date of counting and a brief description of its content as stipulated in sub-rule (4) of rule 73-A. The Returning Officer has to place all the declarations in Form 28-B which he has found to be in order in a separate packet which has to be sealed before any cover in Form 28-C is opened and on which has to record the particulars referred in sub-rule (4), as stipulated in sub-rule (5) of rule 73-A. According to sub-rule (6) of rule 73-A, the covers in Form-28-D not already dealt with under the foregoing provisions, as discussed hereinabove, are then to be opened one after another and the Returning Officer has to scrutinize each ballot paper and decide the validity of the vote recorded thereon. As per sub-rule (7) of rule 73-A, poll duty ballot paper can be rejected in the following manner: (a) if it bears any mark other than mark to record the vote or writing by which the elector can be identified; or (b) if no vote is recorded thereon; or (c) if votes are recorded in favour of more candidates than one; or (d) if it is a spurious ballot paper; or (e) if it is so damaged or mutilated that its identity as a genuine ballot paper cannot be established; or(f) if it is not returned in the cover sent along with it to the elector by the Returning Officer. 8. 8. According to sub-rule (8) of rule 73-A, vote recorded on a poll duty ballot paper shall be rejected if the mark indicating the vote is placed on the ballot paper in such a manner as to make it doubtful to which candidate the vote has been recorded. According to sub- rule (9) of rule 73-A, vote recorded on a poll duty ballot paper shall not be rejected merely on the ground that the mark indicating the vote is indistinct or made more than once, if the intention that the vote shall be for a particular candidate clearly appears from the way the ballot paper is marked. As per sub-rule (10) of rule 73-A, the Returning Officer is required to count all the valid votes recorded in favour of each candidate and record the total thereof in the result sheet in Form-32 in the case of member of Gram Panchayats. According to sub-rule (11) of rule 73-A, all the valid ballot papers and the rejected ballot papers shall be separately bundled and kept together in a packet which shall be sealed with the seals of the Returning Officer and the candidates or other election agents or counting agents, if they desire to affix their seals thereon, and on the packet so sealed the name of the constituency, the date of counting and a brief description of its contents are to be recorded. Chapter-VIII deals with election papers. Rule 82 provides that the papers relating to election of member of Gram Panchayat, Pradhn, Up-Pradhan and member of Panchayat Samiti shall be kept in the office of Block Development and Panchayat Officer under safe custody and election papers relating to the election of Members of Zila Parishad shall be kept in the Office of District Election Officer (Panchayati) in the safe custody. Rule 83 provides that while in the custody of the District Election Officer, the packets of unused ballot papers, the packets of used ballot papers whether valid, tendered or rejected and the packets of marked copies of the voters’ lists shall not be opened and their contents shall not be inspected by or produced before any person or authority except under the order of a competent court. The manner in which the election papers are to be disposed of is provided under rule 84. The manner in which the election papers are to be disposed of is provided under rule 84. Election papers and packets referred to in rules 61, 62, 67 and 83 are required to be retained for a period of 90 days from the date of publication of results in the official Gazette under rule 124 of the Himachal Pradesh Panchayati Raj (General) Rules, 1997 and thereafter can be destroyed subject to any direction to the contrary given by the State Government or by the State Election Commission or by a Competent Court or pending legal proceedings. 9.In the instant case, surprisingly, despite clear rules the manner in which the ballot papers are to be issued and counted, the Presiding Officer has not kept the record in the prescribed manner. He is remiss in discharge of his duties cast upon him under the rules. It is also surprising to note that 8 poll duty ballot papers were issued and received by him, but he has not kept the record in the prescribed manner of these votes. He has accounted only for 7 votes though he had received 8 votes. The plea raised by him in the reply-affidavit is that he has put the ballots in the envelope cannot be believed. He should have been vigilant while keeping record of the poll duty ballot papers. What has happened in the present case is that 8 poll duty ballot papers were issued and the Presiding Officer has received the same. In his declaration form 35, he has counted only for 7 votes and 1 vote has not been counted for. It cannot be said that whether the missing vote was cast in favour of the petitioner or respondent No.4 or any other candidate. Neither the Sub Divisional Officer (Civil) nor the Appellate Authority has gone through the record to ascertain how many poll duty ballot papers were received by the Presiding Officer. Poll duty ballot papers have been received, as discussed hereinabove, and the same could not be ignored even if those were not found at the time of recounting by the Block Development Officer. It is also true that after recounting, petitioner has secured 617 votes instead of 620 votes, but the fact of the matter is that if 7 votes are taken into consideration, petitioner and respondent No.4 get equal number of votes. It is also true that after recounting, petitioner has secured 617 votes instead of 620 votes, but the fact of the matter is that if 7 votes are taken into consideration, petitioner and respondent No.4 get equal number of votes. The Sub Divisional Officer (Civil), Rohru has come to the wrong conclusion that since 7 poll duty ballot papers have not been traced and earlier petitioner has secured 620 votes and subsequently 617 votes, the election was materially affected. He should have taken into consideration the validly cast 7 poll duty ballot papers coupled with the fact that both; petitioner and respondent No.4 have equal number of votes. In view of this, the issue can be resolved by invoking section 175-B of the Himachal Pradesh Panchayati Raj Act, 1994 and rule 80 of the Himachal Pradesh Panchayati Raj (Election) Rules, 1994. Rule 80 reads as under: “80. Equality of votes.- If, after the counting of votes is completed and equality of votes is found to exist between any candidates and an addition or one vote will entitle any of these candidates to be declared elected, the Returning Officer shall forthwith decide between those candidates by lot and proceed as if the candidate on whom the lot falls has received an additional vote.” 10. It is, thus, evident from the conjoint reading of section 175-B and rule 80 that if there is equality of votes in that eventuality, the Returning Officer has to declare the result by draw of lot. The Appellate Authority has also without taking into consideration the Himachal Pradesh Panchayati Raj Act, 1994 and Himachal Pradesh Panchayati Raj (Election) Rules, 1994, more particularly; dealing with the poll duty ballot papers and section 175- B and rule 80 has upheld the order of the Sub Divisional Officer dated 16.8.2011. These orders are liable to be set aside. 11. Their Lordships of the Hon’ble Supreme Court in Sukhad Raj Singh versus Ram Harsh Misra and others, AIR 1977 SC 681 have issued directions for recount to be done under personal supervision of Joint Registrar of High Court and the parties had agreed that the result of election as declared by the Joint Registrar would be final and have held that this agreement was not in violation of any provision of the Act including section 97 of the Representation of the People Act, 1951. Their Lordships have held as under: “3. Their Lordships have held as under: “3. Both sides agree that the election petition and the appeal before us shall stand finally disposed of with this order and that no further proceedings will lie or be taken by either of the parties, after the result of the election is declared by the Joint Registrar of the High Court. This agreement, we may add, does not violate any of the provisions of the Representation of the People Act, 1951 including section 97 thereof. After giving a full hearing to the counsel appearing before us for the respective parties, we had indicated that in the facts and circumstances of this case it was unnecessary for the appellant to file a recriminatory petition since the election petitioner had failed to make out a case for inspection of the ballot papers. The dismissal by this Court of the special leave petition filed by the appellant against the order dated November 5, 1974 which was passed by the High Court for inspection of the ballot papers, does not in the circumstances justify the conclusion that this Court had confirmed on merits the orders of inspection.” 12. In the instant case, the parties had also agreed to recount, pursuant to which directions were issued to the Block Development Officer to recount the votes. Petitioner and respondent No.4 have secured 619 votes after taking into consideration 7 poll duty ballot papers. 13. Learned Single Judge of Gauhati High Court in Barkatullah versus Rabindranath Malakar and others, AIR 1980 Gauhati 35 has held that on the basis of agreement between parties, recount and scrutiny of disputed votes can be done. Learned Single Judge has held as under: “4. While allowing the application I took into consideration the decision of the Supreme Court reported in AIR 1977 SC 68l (Sukhad Raj Singh v. Ram Harsh Misra), In that case the parties agreed that all the disputed votes should be recounted and the re-milt of the election might be declared on the basis of such recounting; the recounting of the undisputed votes done by the High Court under its order dated Nov. 5, 1974 should stand undisturbed; all undisputed votes, and the votes secured by the respective candidates as a result of recounting of disputed votes to be done under the order of the Supreme Court, should both be taken into account for the purpose of determining as to which candidate had polled a largest number of votes. The Supreme Court ordered for a recount in the manner agreed by the parties. The Supreme Court issued direction for recount to be done by or under the personal supervision of the Joint Registrar of the High Court of Allahabad (Lucknow Bench) as the parties agreed that the result of recount and scrutiny as declared by the Joint Registrar would be final. It was held that the agreement entered into between the parties was not violative of any of the provisions of the Representation of the People Act, 1951 including Section 97 thereof. 8. The said admission has been recorded by me in my order dated 12-1-1979. That apart, I have verified the report and found the same to be correct, exact and authentic. I accept this report wholly and find that the margin of votes was not reduced by 35 or more votes. On the other hand, it increased by 6 votes, if the recount and scrutiny of the petitioner’s ballots are only taken into consideration. The net result of the counting and scrutiny of the Respondent No. I’s ballots indicates increase of ballots by 4 votes. Under these circumstances, I entirely agree with the counsel for the parties that the petitioner’s total votes is not reduced by 35 or more votes, rather decreased by 6 and/or 10 votes. As the margin of votes between the peti-i tioner and the Respondent No. 1, on scrutiny and recount of the second and fourth rounds, did not reduce by 36 or more votes, in terms of the condition of the joint application, the petition is liable to be rejected.” 14. In a case of election of Pradhan Gram Panchayat certain ballot papers not issued were mixed up when electricity went off and the ordering of fresh poll by Returning Officer instead of rejecting such ballot papers were declared illegal by the Hon’ble Supreme Court in Ambika Prasad Dubey versus District Magistrate, Allahabad and others, AIR 1991 SC 1106 . Their Lordships have held as under: “3. Their Lordships have held as under: “3. The question for consideration is whether the fresh poll was justified under law on the aforesaid facts. In our considered opinion, it is wholly unjustified, illegal and without jurisdiction. 7. It will be seen from these Rules that the fresh poll could be ordered only when there is irregularities in the polling as provided under Rules 21-G and H. The present case is not concerned with the circumstances provided under Rr. 21-G and H. But it is concerned with the irregularities at the time of counting of ballot papers. The case, in other words, is covered by R. 21 -F. It has been found at the counting that 41 ballot papers were mixed up on the bundle of respondent 4 when the electricity went off and those 41 ballot papers upon scrutiny were found to have been not7 issued by the Polling Officers. In other words, they have not been used at the polling. They ,ought to have been, therefore, discarded. They ought not to have been included in favour of respondents-4. If those 41 ballot papers are excluded from the total number of votes held by respondents, he would get only 443 votes as against 456 votes polled by the petitioner. The petitioner is entitled to be declared as duly elected Pradhan. The Returning Officer instead of declaring the petitioner as duly elected Pradhan has reported for fresh poll. This is a clear case of failure to exercise jurisdiction by the Returning Officer and repoll ordered by the District Magistrate on this basis is no better. It is equally contrary to law and beyond jurisdiction. The High Court seems to have overlooked this material aspect of the case and dismissed the writ petition on erroneous view of the law.” 15. Learned Single Judge of Punjab and Haryana High Court in Mahender Singh versus Hukam Singh and others, AIR 1993 Punjab and Haryana 172 has held that agreement between parties for test check of certain booths and tables and recounting of entire votes agreed if irregularities or illegalities were committed during counting, passing of order for recounting of entire votes was permissible. Learned Single Judge has held as under: “14. Learned Single Judge has held as under: “14. It has been time and again observed by the Supreme Court that secrecy of ballot is important but where allegations are clear and specific and the Court is prima facie satisfied that a recount is required in order to do justice not only to the parties but the constituency at large in peculiar facts of a case, a sample recount can be ordered or even total recount can be ordered. It may be noticed that mere a narrow margin would not be sufficient to order a recount but while considering the case for a recount, taking other facts and circumstances into consideration, fact of the narrow margin cannot be lost sight of particularly in view of the chances of human error in the particular nature of the job of counting such a large number of votes by a large number of persons and frailities of, human beings as such. 15. There is again saying that one of the aim of the pleadings is to ease out the trial so as to give justice to the parties at reasonable costs. Verbal niceties cannot be resorted to in order to exonerate the respondent who prima facie has been able to get a declaration of. victory for any reasons including the human frailities. Further, the other object of pleadings is to apprise of one’s case which the other parties are required to meet and not take the other parties by a surprise. There cannot be cast iron compartment or particular rituals to be performed. In case the petitioner states that he knew only the facts and circumstances of the case averred and the respondent understood what he is to meet, hair splitting of the pleadings cannot be permitted. Once a party cither expressly or impliedly gives up its claims for better particulars or fact, he cannot be later permitted to change the stance particularly when the other party has already acted at his instance as in the present case. In view of the statement of respondent accepting the particular mode for disposal of election petition have neither had any evidence nor attempted supply any better particulars though never asked for. Courts are solemn places and the parties cannot be permitted to play the game of chess or of hide and seek. Parties cannot be permitted to approbate and reportable. 16. Courts are solemn places and the parties cannot be permitted to play the game of chess or of hide and seek. Parties cannot be permitted to approbate and reportable. 16. Courts are bound to regulate the extreme behaviour as in the garb of protecting secrecy, people would get elected by manipulation. In the later eventuality the principles of secrecy would suffer more vice than virtue. No doubt the Court will guard itself from sweeping away the victory of the returned candidate by freak accident of fate when the petitioner got an opportunity by filing an election petition.” 16. Learned Single Judge of the Punjab and Haryana High Court in Smt. Mewa Devi versus The Civil Judge (Junior Division), Narwana, District Jind and others, (1998-1) 118 P.L.R. 788 has held that when there is a difference of one vote and once it cannot be definitely said that majority of the eight missing votes were in favour of the contesting respondent, election of the petitioner to the post of Sarpanch could not be set aside. Learned Single Judge has held as under: “3. It is clear from the order reproduced above that petitioner has polled 623 votes whereas contesting respondent has polled 624 votes. It is also clear that eight, votes are missing. It may be mentioned at this stage that at no stage the contesting respondent ever raised the issue with regard to total number of votes polled and therefore, it shall have to be held that 1303 votes were polled whereas at the time of recount before the Tribunal, only 1295 votes were found from the sealed envelope. Mr. Bhoop Singh, learned counsel representing: the petitioner vehemently contends that once there is no allegation nor an issue ever raised with regard to total number of votes polled, it shall have to be held that in all 1303 votes were polled. He further contends that there is no option but for to hold that eight votes are missing and if that be so, it cannot be said that majority of eight votes which are missing would have definitely been polled in favour of the contesting respondent and unless such a conclusion can possibly be drawn, the margin of votes at this stage being only of one between the petitioner and the contesting respondent the election of the petitioner on the post of Sarpanch cannot possibly be set aside. Mr. Mr. R.S. Mittal, learned Senior Counsel representing the respondent could not controvert the contention of the learned counsel for the petitioner referred to above. This Court is also of the firm view that there being no challenge whatsoever with regard to total number of votes polled and it may be reiterated that as per returning Officer 1303 votes were polled and therefore, eight votes being missing and there being a margin of only one vote as per recount done by this Court, the election of the petitioner on this post of Sarpanch cannot be set aside. It requires to be mentioned that the moment packet containing votes are received by the Election Tribunal, petitioner has throughout been pleading that the same was torn and the possibility of tampering could not be ruled out. It is for this precise reason that when earlier in point of time, writ petition filed by the contesting respondent was allowed, this court while remanding the case had clearly said that it shall be open to the trial Court to draw its own inference and proceed in accordance with law, if it was found that the ballot papers had been tampered with while the same were in custody of the District Election Officer (Panchayat). Tampering is apparent in view of the fact that at no stage it was ever pleaded by the contesting respondent that the total votes cast were not 1303. Once it is not known as to who polled majority of the missing votes, possibility cannot be ruled out that majority of the said votes was in favour of the petitioner. In other words, once it cannot be definitely said that majority of the eight missing votes were in favour of the contesting respondent, election of the petitioner on the post of Sarpanch cannot be set aside.” 17. Their Lordships of the Hon’ble Supreme Court in Sadhu Singh versus Darshan Singh and another, (2006) 6 SCC 255 have laid down the following factors for recounting of votes: “(i) prima facie case must be established; (ii) material facts must be pleaded stating irregularities in counting of votes; (iii) a roving and fishing inquiry shall not be directed by way of an order for recounting of votes; (iv) an objection to the said effect should be raised; and (v) secrecy of ballot papers should be maintained.” 18. Their Lordships of the Hon’ble Supreme Court in Baldev Singh versus Shinder Pal Singh and another, (2007) 1 SCC 341 have approved that the result of draw of lots could be enforced when there is tie in Panchayat Election. Their Lordships have held as under: “3. The Returning Officer drew lots with written consent of both the candidates, i.e., Appellant and Respondent No.1. Appellant was declared elected as Sarpanch of the Gram Panchayat. However, immediately prior thereto, the supporters of 1st Respondent 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, Moga seeking his advice in the matter stating: “Regarding Panchayat Elections, for the Panchayat Election of Village Ran Singh Kurd I was appointed R.O.I. for Nihal Singh Wala on 29.6.2003. Election was held and after counting the votes for Sarpanch, Sh. Shinder Pal & Sh. Baldev Singh received equal 412-412 votes. As both candidates received equal number of votes, therefore, as per instructions result for Sarpanch was to be declared by draw of lots. Both the candidates were called and draw was conducted before them and one slip was drawn through another Returning Officer. As the slip in the name of Sh. Baldev Singh came out but another candidate Sh. Shinder Pal Singh refused to accept the decision and written paper was torn. Now this office does not have consent paper of both candidates given for draw of lots. It is requested to you to inform what action should be taken in this matter. 24. We may furthermore notice that although in the election petition it has been contended that 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 Respondents, would lead to declaration of election of Appellant herein to be void had not been put to the witness in cross- examination. 25. The question which, therefore, would arise is ‘as to whether the learned Tribunal was correct in directing recounting?’ The officers had categorically stated that consent paper was torn. The fax message which has been sent immediately to the Collector of the District was a contemporaneous document, the genuineness whereof has not been questioned. 25. The question which, therefore, would arise is ‘as to whether the learned Tribunal was correct in directing recounting?’ The officers had categorically stated that consent paper was torn. The fax message which has been sent immediately to the Collector of the District was a contemporaneous document, the genuineness whereof has not 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 have received equal number of votes and thus, the result of the election to the post of Sarpanch was declared by draw of lots. It also mentioned about the tearing of the written paper on which consent had been given and only in the aforementioned situation, sought for guidance as to what action should be taken in the matter. The official act should be presumed to have been done in the ordinary course of business. A recounting, as is well known, should not ordinarily be directed to be made. There exists certain limitation in this behalf.” 19. Accordingly, in view of the observations and analysis made hereinabove, orders dated 16.8.2011 passed by the Sub Divisional Officer, Rohru and 12.12.2011 passed by the Deputy Commissioner, Shimla are quashed and set aside. Returning Officer is directed to declare the result by draw of lot within a period of three weeks from today for the post of Vice Pradhan, Gram Panchayat, Kutara. The parties shall abide by the election result. Pending application(s), if any, also stands disposed of. No costs.