IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No.11978 of 2010 Date of Decision: 21.7.2010 Bala Devi. ....... Petitioner through Shri Inder Pal Goyat, Advocate. Versus State of Haryana and others. ....... Respondent nos. 1 to 4 through Shri R.K.S. Brar, Addl. Advocate General, Haryana. Respondent no.6 through Shri Naveen Kaushik, Advocate. Respondent no.7 through Shri S.D.Bansal, Advocate. None for respondent no.5. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. This is a petition under Articles 226/227 of the Constitution of India for issuance of a writ in the nature of certiorari quashing the list, Annexure P2 issued by respondent no.4-Block Development and Panchayat Officer, Jind whereby respondent no.7 has been shown Member of Gram Panchayt, Jalalpur, District Jind in place of the petitioner despite the fact she had actually won the election from Ward No.2. A further direction has C.W.P.No.11978 of 2010 -2- .... been sought to the official respondents to notify the name of the petitioner as Member Gram Panchayat, Jalalpur from Ward No.2. It was averred that in the said election, the petitioner and respondent no.7 got equal number of votes and thereafter, the tie was tried to be broken with the tossing of coin in which the former was successful, but instead the latter was notified to be the elected candidate. It was further averred that a certificate of being successful in the toss was issued in favour of the petitioner. After noticing the fact that the petitioner averred that she was duly elected but instead of her name being declared as the elected candidate, the name of respondent no.7 was notified, notice of motion was issued and she was directed to make a deposit of Rs.one lac which was ordered to be forfeited in case the averments made in the petition were found false. Simultaneously, a report in this regard was sought from the official respondents which has been placed on record. During the proceedings on 19.7.2010, the statements of respondent nos. 5 & 6, who were involved in the process of conducting elections of Gram Panchayat, Jalalpur, as Returning Officer and the Duty Magistrate, were recorded with regard to the manner in which they performed their duty. Since respondent no.5 made attempts to mislead the Court, he was held guilty under the provisions of the Contempt of Courts Act,1971 and was accordingly punished by a separate detailed order of that date and the hearing of the matter was adjourned to today. I have heard the learned counsel for the parties and have perused the file. C.W.P.No.11978 of 2010 -3- .... Learned counsel for the petitioner has placed on record a certificate issued by the Returning Officer to the petitioner on 6.6.2010 declaring her to be successful candidate. The same is taken on record as Mark-`A'. On the other hand, learned counsel for respondent no.7 contended that respondent no.7 was declared elected after the toss of coin by the Returning Officer and a certificate of being successful candidate was issued in his favour. Therefore, no interference with the same is called for. He placed reliance on a judgment of the Division Bench of this Court in Jasmail Kaur Versus Punjab State Election Commission and others, 2009(1) R.C.R. (Civil) 684 to contend that even though resorting to toss of coin was not an appropriate remedy, yet, no supplementary result could be issued once the procedure had been followed and more-so as the process was resorted to on consent inter se between the parties. He submitted that such a result having been declared, the election process stood concluded and the only option available to the official respondents was to notify the result, whereas the petitioner was entitled to assail the same by filing of an election petition in case she was not satisfied with it. In my opinion, the facts of the case in the reported case relied upon by the learned counsel for respondent no.7 were totally at variance with the facts of the present case. In that case, both the parties had agreed to the declaration of result by way of tossing of a coin and subsequently, the authorities sought to resort to the procedure mandated by law, i.e., by resorting to a draw of lots. It was in this backdrop that the Division Bench C.W.P.No.11978 of 2010 -4- .... observed that once the parties had given consent to the declaration of result by tossing of coin, then subsequently, supplementary result by holding of draw of lots was impermissible. If the facts of the instant case are to be seen, then it transpires that a complete fraud had been played on the entire electoral process at the time of declaration of result. Even though tossing of coin was resorted to ostensibly with the consent of the parties, yet, the Returning Officer issued a certificate of being elected in favour of respondent no.7 despite the fact that the petitioner had succeeded in the toss. He then issued certificate Mark-`A' in favour of the petitioner and thus, two certificates of being successful in the election were issued to both the adversaries. The notification pursuant to such a declaration of result by the Returning Officer was, therefore, impossible to have been carried out. It was, thus, not a fair process at all, but a complete subversion of the system, compounded further by the laxity of respondent no.6 – Deputy District Education Officer, who was Duty Magistrate. He failed in his duty to ensure that the certificate is issued to the successful candidate alone. In this eventuality, the Court is left with no other option, but to declare the process carried out by respondent nos. 5 & 6 in which they tried to resolve the tie between the petitioner and respondent no.7 by resorting to a toss of coin, as null & void. The writ petition is, therefore, accepted and the matter is remitted back to the Deputy Commissioner, Jind, who shall ensure that the result is declared after the process as mandated in Rule 71 of the Haryana Panchayati Raj Election Rules,1994 is observed. The needful shall be done C.W.P.No.11978 of 2010 -5- .... within a period of one week as the Court feels that it is not desirable to keep the elected candidate out of office for long. In the wake of the shocking fraud perpetuated by respondent nos. 5 & 6, the process shall be video- graphed so as to avoid any further mischief. The parties shall appear before the Deputy Commissioner, Jind at 10.00 A.M. on 27.7.2010 on which date the draw of lots shall be conducted. There shall be no further notice to either the petitioner or respondent no.7. The amount of Rs.one lac which stands deposited by the petitioner with the Registry of this Court shall be returned back to her. July 21,2010 ( Mahesh Grover ) “SCM” Judge