CWP No.11106 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.11106 of 2010 Date of decision: 29.07.2010 Manjit Kaur ....Petitioner Versus State of Haryana and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. S.S. Nara, Advocate, for the petitioner. Mr. Rajiv Prashad, DAG, Haryana. Mr. J.S. Virk, Advocate, for respondent No.5. Mr. S.M. Sharma, Advocate, for respondent No.7. Sh. Kuldeep Singh, P.O.-cum-Returning Officer (SDM), Panchayat Naraingarh, Distt. Ambala, in person. ***** VINOD K. SHARMA, J (ORAL) The petitioner has invoked the writ jurisdiction of this Court to challenge the result Annexure P-3, attached with this petition vide which respondent No.5, Presiding Officer-cum-Returning Officer, has declared respondent No.7 as sarpanch of village Jolly, Tehsil Naraingarh, District Ambala. The brief facts leading to the filing of this writ petition are, that the election for the post of sarpanch of village Jolly, Tehsil Naraingarh, District Ambala, was held on 12.6.2010 through electronic voting machines (EVM). The petitioner, respondents No.6 and 7 contested the election for the post of sarpanch of village Jolly. Polling station of village Jolly was divided in two booths i.e. booths No.136 and 137. When the votes of booths were counted, there were 535 valid CWP No.11106 of 2010 -2- votes in booth No.136, and 687 valid votes in booth No.137. Thus, total valid votes polled were 1222. The votes secured by the candidates were duly entered in Form-15 and Form-19. As per the result in polling booth No.136, Smt. Gurnamo Devi secured 14 votes, Smt. Manjit Kaur secured 349, votes and Rajindero secured 172 votes. The counting sheet was signed by the Presiding Officer as well as all the candidates. The original counting sheet for booth No.136 is taken on record as Ex. P-1. Similarly, the counting sheet for booth No.137 shows that Gurnamo Devi got 43, votes Manjit Kaur got 378 votes, and Rajindero got 266 votes. The copy of the counting sheet duly prepared at the time of counting, is taken on record as Ex. P-2. From the counting sheets it was clear that Manjit Kaur should have been declared as elected candidate, however, in Part-II of the form while preparing the result-sheet, the Presiding Officer instead of counting votes polled by Manjit Kaur in booth No.136 as 349 mentioned it to be 172, and votes of Smt. Rajindero were shown as 379. The Presiding Officer in the result-sheet showed the votes polled by Manjit Kaur to the credit of Smt. Rajindero, and declared Smt. Rajindero as elected to the post of sarpanch. This change of result sheet was thus a case of fraud, whereby votes of one candidate were shown to be in favour of other, to declare the losing candidate as winning candidate. The writ petition is contested by the respondents. Respondent No.7 has raised preliminary objection regarding the maintainability of the writ petition, on the ground, that the petitioner CWP No.11106 of 2010 -3- has alternative statutory remedy of filing election petition against respondent No.7, therefore, the writ petition is not competent. Respondent No.7 has also placed reliance on the Rules of the Haryana Panchayati Raj Election Rules, 1994 (hereinafter referred to as 'Rules') to support her election. The contention of the learned counsel for respondent No.7 is, that as per sub rule (2) of Rule 66 of the Rules referred to above, after counting of all ballot papers contained in all the ballot boxes, the Returning Officer appointed or the officer authorised by him is to make entries in the result sheet in Form Nos. 14, 15, 16 and 17, for a Panch, Sarpanch, members of Panchayat Samiti and Zila Parishad, respectively, and announce the result. This Rule stands complied with, as already referred to above, as the votes in respective booths were duly entered in the forms prescribed for this purpose. Other sub-rules of this Rule are not relevant as this election was held through EVMs. The learned counsel for respondent No.7 also placed reliance on Rule 69. As per Rule 69 of the Rules, Returning Officer (Panchayat) or such other officer authorised by him, is to record in the result sheet in forms mentioned in sub-rule (2) of Rule 66, the total number of votes polled for each candidate and announce the result. Sub-rule (2) of Rule 69 provides that a candidate or, in his absence election agent may apply in writing to the Returning Officer (Panchayat), or the other officer authorised by him, for recount of all or any of the ballot papers already counted, stating the grounds on which he demands such a recount. On application being made, the Returning Officer (Panchayat) CWP No.11106 of 2010 -4- or the officer authorised by him, gets jurisdiction to decide the matter by either allowing the application in whole, or in part, or can reject the application in toto, if it appears to be frivolous or unreasonable. The decision is further required to be given in writing by the Presiding Officer. It is not in dispute, that in this case neither any application was made for recount, nor any order was passed by the Presiding Officer and without any basis, as already noticed above, he changed the votes by counting the votes of Manjit Kaur for the other candidate i.e. respondent No.7 so as to declare respondent No.7 elected. The plea raised by respondent No.7, therefore, deserves to be rejected, that Presiding Officer had the jurisdiction to change the result, after recount, when there was no such application or order in terms of Rule 69 passed by the Presiding Officer. Interestingly, even though the result has been changed, from the one shown in counting sheet, furthermore no reasons have been given for this change, rather Ex.P1 and Ex.P2 show that Presiding Officer was in such a hurry to help respondent No.7, that he did not bother to change the result sheet, to support his stand that the counting was wrongly done. The prayer of the learned counsel for respondent No.7 that he has no objection to recounting of the votes, cannot be accepted, as no such application was moved by her, when the counting was complete. The State of Haryana, in defence has taken a stand that the correction was made in the result because of the clerical error. This plea on the face of it deserves to be rejected, as it is not CWP No.11106 of 2010 -5- even the case, of respondent No7 that correction was required as there was any clerical error. It is very sorry state of affairs, that the State is trying to protect an officer, who is prima facie guilty of tampering with the result sheets and has declared the candidate having less number of votes as a winning candidate. It is because of such stand of the State that the officers are encouraged to commit such illegalities, which are patent on the face of record. In view of the facts stated above, specially keeping in view the fact that the result sheet of counting of votes, placed on record does show that Manjit Kaur had polled 378 votes in booth No.137, and 349 votes in booth No.136, which leaves no manner of doubt that the result sheets was a result of manipulation, to help the loosing candidate. The result sheets placed on record clearly show that Manjit Kaur had polled the highest number of votes, than other two candidates. For the reasons stated, this writ petition, is allowed with costs of Rs.50,000/- (Rupees fifty thousand only), the election of respondent No.7 is set aside and the petitioner is declared elected as sarpanch of village Jolly. The State of Haryana is directed to issue notification declaring petitioner as elected Sarpanch. Costs of Rs.50,000/- (Rupees fifty thousand only) imposed are directed to be recovered from Mr. Kuldeep Singh, Presiding Officer, guilty of changing the result sheet by manipulations. (Vinod K. Sharma) Judge July 29, 2010 R.S.