Rajive Bhalla, J.

1. The petitioner, by way of this writ peti- tion, filed under Articles 226/227 of the Constitution of India, seeks the issuance of a writ of certiorari for quashing the order of the Additional Civil Judge (Senior Division), Tohana, dated March 13, 2004 (Annexure P1).

2. A brief narrative of the facts would be appropriate:-

Election for the post of Sarpanch of Village Mussa Khera, Tehsil Tohana, District Fatehabad, was held on March 12, 2000. Kailash Bai alias Kailash Rani (petitioner), Bhagan Bai, Malkiat Kaur and Krishna Devi (respondents Nos. 2 to 4) contested the election. Total votes cast were 844. The petitioner, having secured 317 votes, was declared elected. Respondents Nos. 2, 3 and 4 had secured 306, 152 and 48 votes, respectively, and 21 votes were declared rejected.

Bhagan Bai (respondent No. 2) impugned the said election by way of Election Petition No. 64 dated March 28, 2000, before the Additional Civil Judge (Senior Division), Tohana (respondent No. 1).

Vide order dated July 19, 2003, the Additional Civil Judge (Senior Division), To hana), ordered recount of votes. Pursuant to the recounting and vide order dated August 20, 2003, respondent No. 2 Bhagwan Bai was declared elected as she secured 277 valid votes as compared to 273 valid votes secured by the petitioner. Consequently, the peti- tioners election was set aside and respondent No. 2 was declared the elected Sarpanch of the Gram Panchayat. The aforementioned order was impugned by way of Civil Writ Petition No. 1342 of 2003.

A Division Bench of this Court vide judgment dated February 19, 2004 (Annexure P3) set aside the order dated August 20, 2003, (Annexure P2) and remanded the case to respondent No. 1 for adjudication afresh. The presiding officer was directed to undertake a fresh scrutiny of the votes and decide the matter afresh.

The learned Additional Civil Judge (Senior Division) Tohana examined the ballot papers afresh and arrived at a conclusion that the petitioner had secured 301 votes whereas respondent No. 2 had secured 303 votes and therefore declared respondent No. 2 as the elected Sarpanch.

While deciding the election petition, the trial Court arrived at a finding that in all 44 votes were liable to be rejected. As the present election petition is confined to the dispute between the petitioner and respondent No. 2 and as the rejected votes polled by other candidates would make no difference to the votes polled by them or to the final result, the particulars reproduced herein are confined to the petitioner and respondent No. 2.

Booth No. 86

No. of votes Reason for being Kailash Bai Bhagan Bai

declared invalid

32 Stamp appearing on the

reverse side unfilled 11 6

2 Voter affixed thumb 2

4 Mark not clear

Ink allegedly spilled 4

3 over into other columns.

However, trial Court has not specified

as to which candidate these votes had

been initially cast.

Booth No. 87

3 Ink spilled over into other columns 2

13. Learned counsel for the petitioner confines challenge to the impugned order to the votes held to be invalid/rejected by the trial Court. It is vehemently argued that the Returning Officer wrongly rejected 32 votes, on the ground that on the reverse side of these ballot papers, the stamp showing the Block, Gram Panchayat name and Booth Number were left vacant. Learned trial Court, while rejecting these ballot papers relied upon the provisions of Rules 49 and 65(1 )(e) of the Haryana Panchayati Raj Election Rules, 1994 (hereinafter referred to as the Rules) but lost sight of the first proviso to Rule 65(1) which clearly stipulates that in case a mistake or failure has been caused by the Presiding Officer