IMPORTANT POINT
.

AJAY TEWARI, J.

1. This appeal has been filed against the judgment and order of the Election Tribunal allowing an election petition.

2. The brief facts are that elections to the post of Sarpanch of Village Bhaloor, Tehsil Bagha Purana, District Moga were held on 03.07.2013. The appellant was declared elected having obtained 1695 votes while respondent No.2 obtained 1367 votes. The respondent No.2 filed an election petition which having been allowed the present appeal has been filed. In the petition main allegations were as follow :-

(i) 9 persons were living abroad, 4 were absent but their votes were cast in favour of the appellant by impersonation with the active connivance of the polling staff.

(ii)There were 9 persons who had their votes and identity cards in villages other than Bhaloor but their votes were also cast.

(iii)The election staff did not verify the votes with the electoral list.

(iv) That in booth No.10, 19 votes, in booth No.12, 10 votes and in booth No.13, 11 votes which had been cast in favour of respondent No.2 were destroyed.

(v)The votes obtained by another candidate i.e. Resham Singh-respondent No.3 in the present case were actually 425 but in form No. IX it was shown that 276 votes were cast in his favour.

(vi)Many irregularities and illegalities were permitted to be done by the election staff.

3. Respondent No.2 led his evidence but no evidence was led by the appellant. At that stage both the counsel and the parties agreed that recount be ordered. Strangely in the recount the number of rejected votes rose from 75 to 325 and after subtracting those votes and recount respondent No.2 was found to have obtained more votes than the appellant and he was consequently declared elected. Hence this appeal.

4. During the pendency of the appeal, the following order was passed on 06.12.2016 :-

"Counsel for the parties have filed the affidavits of the appellant as also respondent No.2 (the contesting parties) to the effect that they do not have any objection if the recount is carried out of the votes which have been polled in the election to the post of Sarpanch of Gram Panchayat village Bhaloor, Tehsil Bagha Purana, District Moga. The affidavits are taken on record.

The case is adjourned to 20.12.2016, for consideration"

5. The recount was carried out and following order was passed on 18.05.2017 :-

"C.M. No. 11226-CII of 2017 has been filed for examining/appreciating/recounting the votes and for discarding the recount done by the Registrar (Rules). Notice in the application.

Mr. Rajesh Bhateja, Advocate accepts notice. Adjourned to 02.06.2017.

Reply be filed on or before the next date of hearing. A report dated 24.04.2017 given by the Registrar (Rules) of this Court has been received whereby, the appellant has got 1152 votes and the respondent/election-petitioner has got 1329 votes. Similarly as per the objections filed now at the time of recount, the Tribunal had also found that the appellant had only got 1254 votes whereas, the respondent had got 1409 votes. Consent was also given by the parties for recount of the votes by way of affidavit on 06.12.2016. Relevant portion of the affidavit of Bohar Singh, appellant reads as under:-

"1. That above captioned appeal filed by deponent is pending for hearing for today. Records of election have been summoned. Deponent has no objection in recounting and inspection/examination of polled ballot-papers i.e. valid as well as rejected ballot papers. Reasonable opportunity to inspect rejected ballot papers, the ballot-boxes, seals on these boxes, seal ink on ballot-papers and condition of envelopes of ballot-papers be provided to the deponent and his counsel as it is quite necessary for the just decision of the case and for the substantial cause of justice."

In view of the above, the interim order dated 17.09.2015 staying the operation of the order of the Election Tribunal electing respondent no. 2-Gurdas Singh as a Sarpanch is vacated keeping in view that only one year of the e