IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 15911 of 2008 DATE OF DECISION: SEPTEMBER 16, 2008 Ram Mehar .....PETITIONER Versus Additional Civil Judge (Sr.Division), Bhiwani and others ....RESPONDENTS CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JASWANT SINGH --- Present: Mr. Sudhanshu Makkar, Advocate, for the petitioner. .. SATISH KUMAR MITTAL, J. The petitioner, who was declared elected as Sarpanch of Gram Panchayat of Village Hasan in the election held on 9.4.2005, has filed this petition under Articles 226/227 of the Constitution of India for setting aside the order dated 22.8.2008 (Annexure P1) passed by the Additional Civil Judge (Sr.Division), Bhiwani-respondent No.1 (hereinafter referred to as `Election Tribunal') on an election petition filed by respondent No.2, whereby while allowing the said petition, the election of the petitioner has been set aside and respondent No.2 has been declared elected as Sarpanch of the Gram Panchayat as he had secured 493 votes in recounting against 492 votes secured by the petitioner. C.W.P. No. 15911 of 2008 -2- In the present petition, the election for the office of Sarpanch of Village Hasan was held on 9.4.2005. The petitioner and respondent No.2, besides three other candidates, contested the said election. Out of 1283 votes polled, the petitioner secured 497 votes whereas respondent No.2 secured 494 votes. Consequently, the petitioner was declared elected by 3 votes. 19 votes were declared invalid and 3 votes were found missing. The defeated candidate (respondent No.2) filed the election petition challenging the election of the petitioner. The only ground to challenge the election was that the counting of votes was not properly done. The Election Tribunal allowed the prayer of recounting vide order dated 20.10.2005 and ordered for recounting of the votes, while observing as under:- “In view of my above discussion and observations I am of the considered opinion that in the present case, the applicant has just claimed the recounting of the votes and he has not claimed any other mode to get election set aside. Three votes are missing and this fact is proved from the perusal of the documents. The applicant had lost the election only by three votes. In these circumstances a good prima facie case is made out in favour of the applicant. Moreover, respondent no.4 shall not suffer any irreparable loss if the votes are recounted. With these observations, the application filed by the applicant for recounting the votes is hereby allowed. Record of the election, which is lying with District Election Officer (Panchayat), Bhiwani, be summoned for recounting. Recounting shall be held in the open court in the presence of all the candidates.” Before recounting of the votes, the petitioner challenged the aforesaid order in this court by filing Civil Revision No.5703 of 2005, After hearing the counsel for the parties, the said petition was dismissed by C.W.P. No. 15911 of 2008 -3- this court vide order dated May 18, 2006 while observing as under:- “Both the submissions have been considered. Even the learned Additional Civil Judge (Senior Division), Bhiwani has held in para no.5 that 19 votes have been cancelled and three votes were missing. Therefore, the Tribunal has to find out whether the cancellation of votes was rightly made or it was beyond purview of law. The learned trial court, therefore, was justified in ordering re-counting. It has not travelled beyond its jurisdiction. There is no merit in the present petition and the same is dismissed.” Against the said order, the petitioner filed Civil Appeal No.5241 of 2008 (SLP (Civil) No.11960 of 2006) in the Supreme Court. In that appeal the petitioner had challenged the recounting order passed by the Election Tribunal. In the said SLP, initially the Supreme Court stayed the recounting of the votes, but later on the said stay order was vacated on 14.7.2008 as in terms of the Election Tribunal, the recounting had already taken place on 20.9.2006. However, the Supreme Court directed that the result of recounting of votes may be communicated to the Supreme Court within four weeks. After receipt of the result, the Supreme Court dismissed the said appeal vide order dated August 25, 2008 that since the election petition filed by respondent No.2 was finally disposed of by the Election Tribunal on 22.8.2008, the matter regarding challenging the recounting of votes has become infructuous. Therefore, the said appeal was disposed of as having become infructuous. However, while ordering so, a liberty was granted to the petitioner to challenge the order passed by the Election Tribunal on the basis of the grounds alleged in that appeal for which no opinion was expressed. C.W.P. No. 15911 of 2008 -4- From the aforesaid order, it appears that the petitioner was permitted to challenge the final order dated 22.8.2008 passed by the Election Tribunal. Therefore, the petitioner has filed the instant petition challenging the order dated 22.8.2008 passed by the Election Tribunal. While referring to the order of recounting dated 20.09.2006 (Annexuere P7), whereby 5 votes of the petitioner have been reduced and 1 vote of respondent No.2 has been reduced, counsel for the petitioner submitted that recounting was not done properly. He further submitted that total 1283 votes were polled in Polling Booth Nos.629 and 630, out of which, the petitioner, as per the earlier counting result, had secured 497 votes and respondent No.2 had secured 493 votes. However, during recounting, the result was that the petitioner has secured 492 votes whereas respondent No.2 has secured 493 votes, and the number of invalid votes have been increased from 19 to 25. Counsel for the petitioner argued that in the earlier counting, there were 3 votes missing and in recounting 5 votes were found missing, therefore, the recounting was not properly done. This contention of the counsel for the petitioner cannot be accepted. In Annexure P-7, it has been categorically stated that after breaking of the seal of the packets containing the votes of two booths, the recounting was made to the satisfaction of both the parties. A joint statement was made by the learned counsel for both the parties that recounting was made to their satisfaction. Merely because the missing votes have been increased from 3 to 5, it cannot be presumed that recounting was not validly done. This increase of the missing votes may be due to the wrong counting of 2 votes in favour of the petitioner, when actually those 2 votes were found missing. Therefore, with the increase of 3 missing votes, it cannot be C.W.P. No. 15911 of 2008 -5- presumed that recounting was not valid. Thus, we do not find any illegality in the impugned order dated 22.8.2008 passed by the Election Tribunal whereby respondent No.2 was declared elected as Sarpanch of the Gram Panchayat. Dismissed. (SATISH KUMAR MITTAL) JUDGE September 16, 2008 ( JASWANT SINGH ) vkg JUDGE