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2008 Supreme(P&H) 24
PUNJAB & HARYANA HIGH COURT
Rajesh Bindal, J.
Lillu Ram
Versus
Civil Judge (J.D.)
Decided On : JANUARY 8, 2008
Recounting of Votes--In recounting of numbers of voters polled and obtained by the candidates was found to be different as compared to the counting at the first place--It was necessary for the Court to have recorded reasons for the difference--In the absence of such finding, no final opinion can be expressed.
Headnote:(A) Haryana Panchyati Raj Act, 1994, Section 176--Election Law--Recounting of Votes--Non presence of petitioner at that time--Plea of tampering of votes thereafter--Such plea was made before election tribunal--That plea is still available to be urged, at the time of final hearing--The respondent can always urge before the Election Tribunal that in view of the record of votes having been tampered with before the re-count was ordered and took place, the result of re-count is liable to be ignored. But that is a plea which is to be urged before the Election Tribunal and the Election Tribunal may, on being satisfied of the substance in the plea so urged, ignore the result of re-count from consideration. (Para 18)
(B) Haryana Panchyati Raj Act, 1994, Section 176--Election Law--Recounting of Votes--In recounting of numbers of voters polled and obtained by the candidates was found to be different as compared to the counting at the first place--Held; Once it is found that there was a difference in the recounting of votes, it was necessary for the Court to have recorded reasons for the difference and also to see as to who was responsible for this and then only record a finding thereon. In the absence of such finding, no final opinion can be expressed in the matter. (Para 24)
(C) Haryana Panchyati Raj Act, 1994, Section 176--Election Law--Recounting of Votes--Recounting of votes/one valid vote of the petitioner was declared to be invalid whereas the invalid votes of respondent were declared as valid. But no reason for that is recorded--Matter remitted for fresh consideration. (Para 24)
Rajesh Bindal, J.
1. The case in hand has a chequered history where the parties are litigating to get elected as Sarpanch of village Nathupur (Gurgaon).
2. The present petition is filed to challenge orders dated September 8, 2007 and September 10, 2007 passed by learned Additional Civil Judge (Senior Division), Gurgaon whereby the matter was fixed for recount of votes and the subsequent order, whereby the respondent No. 2 was declared elected after recount of votes, respectively.
3. The election to the office of Sarpanch of Gram Panchayat, Nathupur was held on April 9, 2005 in which total 8 candidates contested. The petitioner and respondent No. 2 were the main contesting candidates, who were polled votes close to each other. Rest of the candidates were polled votes quite less and were nowhere in contest for the office of Sarpanch. In the election, total 2896 votes were polled, out of which 2653 were declared to be valid votes and 243 votes were declared as invalid. At the first instance the petitioner was declared elected having secured 973 votes whereas respondent No. 2 was immediate loosing candidate securing 971 votes.
4. Immediately after the election on April 10, 2005, respondent No. 2 made application to the Deputy Commissioner, Gurgaon levelling various allegations against the petitioner and requested for recount of votes. Thereafter, respondent No. 2 filed an election petition on May 2, 2005 under Section 176 of Haryana Panchayati Raj Act, 1994 (for short the Act) alongwith application for recounting of votes. The application filed by respondent No. 2 for recounting of votes was allowed by learned Additional Civil Judge (Senior Division), Gurgaon vide order dated January 2, 2006 directing summoning of records for the purpose for January 14, 2006. Petitioner challenged the order of recounting of votes by filing Civil Writ Petition No. 172 of 2006 before this Court. Vide order dated January 12, 2006, this Court while summoning the records of the Court below stayed the order of recounting. The writ petition was ultimately dismissed by this Court vide judgment dated July 25, 2006 upholding the order passed by learned Additional Civil Judge (Senior Division), Gurgaon ordering scrutiny and recounting of valid votes.
5. Aggrieved against the judgment of learned Single Judge of this Court passed in Civil Writ Petition No. 172 of 2006, the petitioner preferred Letters Patent Appeal No. 140 of 2006 before this Court, where the judgment of learned Single Judge was upheld vide judgment dated November 23, 2006. Further it is not in dispute that order passed by the Division Bench of this Court in Letters Patent Appeal was upheld by Honble the Supreme Court in Special Leave Petition (Civil) No. 790/2007 vide order dated January 25, 2007.
6. As the records of this election containing the ballot papers etc. were summoned by this Court at the time of hearing of the writ petition, the same were sent back to the Court below vide communication dated July 27, 2006 by special messenger. After dismissal of the Special Leave Petition by Honble the Supreme Court, the matter remained pending before the Court below and it was effectively taken up on March 1, 2007 when the learned Civil Judge (Senior Division), Gurgaon summoned the record from Civil Ahlamd. The two unsealed bags were opened in the presence of the parties and their counsels. Memo of their presence was also prepared. These two bags were containing seven sealed bags. Out of these seven sealed bags, two bags bearing No. 167 and 170 were objected to by the petitioner as tampered with. Memo of presence and a sheet of inspection of record was prepared on that date, which are extracted below for reference:
Inspection of Record 7 bags sealed put in two unsealed bags. Bag No. 166 Sealed (coloured plastic bag) Bag No. 167 White plastic bag. Seals on this bag are objected by respondent. Bag is also alleged to be torn at 8 different points. The points are encircled black. Bag No. 168
