C.R. No. 5762 of 2007 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 5762 of 2007 (O&M) Date of decision: February 04 , 2009 Sahab Ram .. Petitioner v. Shri Bhagwan and others .. Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. S. S. Godara, Advocate for the petitioner. Mr. Ashok Verma, Advocate for respondent No. 1. ... Rajesh Bindal J. The petitioner, who is elected Sarpanch of Gram Panchayat of Village Nejia Khera, District Sirsa, has approached this Court impugning the order dated 29.10.2007, passed by learned Additional Civil Judge (Senior Division), Sirsa directing for re-counting of votes of election. Briefly, the facts are that in the election for Sarpanch of Gram Panchayat of Village Nejia Khera, District Sirsa, the petitioner was declared elected having secured 521 votes. Respondent No. 1 was the second lowest candidate, having secured 507 votes. Out of total 1055 polled votes, four were declared invalid and 1051 were valid votes. Two other candidates, namely, Jagdish and Nursi secured 21 and 2 votes respectively. Respondent No. 1, being aggrieved against the election of the petitioner as Sarpanch, filed election petition on 7.5.2005. During the pendency of the election petition, on 19.10.2005, an application was filed under Section 176(4)(b) of the Haryana Panchayati Raj Act, 1994 (for short, `the Act') for re-counting of votes. The application was dismissed by the learned court below vide order dated 18.1.2006. Thereafter, the claim for re- counting was again considered after framing issues and vide order dated 29.10.2007, the learned court below directed for re-counting of votes. It is this order passed by the learned court below, which is impugned in the present petition. Learned counsel for the petitioner submitted that the impugned order passed by the learned court below is totally illegal and in fact the court has C.R. No. 5762 of 2007 [2] exceeded its jurisdiction while directing for re-count of votes. If the case in its entirety is considered, it is an undisputed fact that vide earlier order dated 18.1.2006, the application filed by respondent No. 1 for re-counting of votes was dismissed. There was no fresh material before the court to have ordered re-count of votes, especially without even referring to the earlier order passed. The re-count of votes is not to be ordered casually, as the result of election is to be kept confidential. It is only under special circumstances if a prima facie case is made out by the applicant, that the Court who can order re-count of votes. In the present case, the allegations made by respondent No. 1, either in the election petition or in the application filed for re-counting of votes, are totally vague. As the rejected votes are merely four, therefore, even the plea that some of his valid votes have been rejected is not available to respondent No. 1 as there is margin of 14 votes between the petitioner and respondent No. 1. Even if all the rejected votes are counted towards the votes polled in favour of respondent No. 1, still he would be looser. Reliance was placed upon P. H. Pujar v. Kanthi Rajashekar Kidiyappa, 2002(2) R.C.R. (Civil) 347 and Lilu Ram v. The Additional Civil Judge (Sr. Division), Gurgaon and others, 2007(2) R.C.R. (Civil) 323. On the other hand, learned counsel for respondent No. 1 submitted that mere rejection of the earlier application filed by respondent No. 1 for re- counting does not mean that the same could not be ordered subsequently, as the position of law remains that the same has to be ordered on the basis of evidence to be led by the parties. As at initial stage, the evidence was not there, the court rejected the prayer for re-counting. However, subsequently the issues were framed and the evidence was led, on a consideration of which the court directed for re- counting of votes and no illegality as such can be pointed out in the order so passed. He further submitted that in fact, immediately after the election was over, a representation was made to the Returning Officer for re-counting of votes and the same having not been considered,respondent No. 1 has been prejudiced and it is this grouse of respondent No. 1, which was remedied by the learned court below by directing re-count of votes. Reliance was placed upon Sukhchain v. Election Tribunal, Muktsar and others, 2006(4) R.C.R. (Civil) 419. Heard learned counsel for the parties and perused the record. In the election petition filed by respondent No. 1, besides pointing out irregularities in the conduct of the election, the only statement was that many votes belonging to respondent No. 1 have been rejected illegally and many have been accepted wrongly in favour of the petitioner, which has affected materially the result of election. It is further pleaded that respondent No. 1 requested the C.R. No. 5762 of 2007 [3] Returning Officer for re-counting of votes but the request was not acceded to and the application remained unattended. In the application for re-counting, again general allegations were made regarding serious flaws in counting of votes and declaration of result. A perusal of the order passed by the learned court below on 18.1.2006 shows that the claim made by respondent No. 1 for re-counting of votes was rejected after considering his contention that immediately after the election, a request was made to the Returning Officer for re-counting. However, the same could not be proved on record. In the impugned order passed, the issues were framed and the evidence was led. The request for re-counting was allowed taking the plea of respondent No. 1 that certain bogus votes were cast in favour of the petitioner in collusion with the election authority and further that his request for re- counting was not considered. As far as the alleged request made by respondent No. 1 for re-counting of votes is concerned, the definite stand of the Returning Officer, who appeared as RW4 before the Court, was that no request was ever made by respondent No. 1 for re-counting of votes. However, still the learned court below proceeded to place reliance on an application produced by respondent No. 1, which was merely marked and not exhibited and directed the re-counting of votes with the observation that the application for re-counting made by respondent No. 1 immediately after the election having not been disposed of, re-counting of votes deserves to be carried out. However, such a finding cannot be justified under the provisions of the Act and the enunciation of law on re-counting of votes, cannot be ordered merely on the asking. A perusal of both the orders shows that in the earlier order dated 18.1.2006 also the prayer for re-counting was declined as respondent No. 1 had failed to establish on record that any request was made to the Returning Officer immediately after the election for re-counting of votes. The position did not change even subsequently when vide impugned order, the learned court below merely relying upon a document, which is not even exhibited but was marked only coupled with the fact that the Returning Officer, who appeared as RW4, deposed on oath that no such request was made for re-counting of votes, still directed for re-counting of votes which, in my opinion, cannot be said to be sufficient material for directing re-counting of votes, after the rejection of request of respondent No. 1 on an earlier occasion. Still further, the contentions raised by respondent No. 1 in the election petition are also not very specific, rather, quite general in nature. For the reasons mentioned above, I find merit in the submissions made by learned counsel for the petitioner. Accordingly, the present petition is C.R. No. 5762 of 2007 [4] allowed. The impugned order dated 29.10.2007, passed by the learned court below, is set aside. (Rajesh Bindal) Judge February 04 ,2009 mk