CIVIL REVISION NO.5150 OF 2007 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: APRIL 07, 2008 Mukesh Kumar .....Petitioner VERSUS Sia Ram and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Vikram Singh, Advocate, for the petitioner. Mr.Raj Mohan Singh, Advocate, for the respondents . **** RANJIT SINGH, J. The petitioner, who has lost the election as a Sarpanch, filed a petition, challenging the election of respondent who was declared elected as a Sarpanch. Additional Civil Judge (Senior Division), Safidon, has dismissed the petition, filed by the petitioner. The said order is now impugned by him through the present revision petition. The election to the office of Sarpanch of Village Morkhi, was held on 9.4.2005. Respondent No.1 was declared elected by CIVIL REVISION NO.5150 OF 2007 :{ 2 }: defeating the petitioner by margin of 5 votes. The petitioner secured 748 votes whereas respondent No.1 received 753 votes. The petitioner filed the petition to challenge the election by urging that the villager-voters are illiterate and due to confusion, they put some ballot papers in other boxes. Averment further is that 40 to 50 votes of the petitioner were illegally cancelled and several votes polled were found to be lying in the ballot boxes of Panchayat Samiti, election to which was also simultaneously held. On this basis, the petitioner claims that re-counting of the votes be directed in terms of the provisions of Section 176(4)(b) of Haryana Panchayat Raj Act, 1994 (for short, “the Act”) and the election of respondent No.1 be set- aside. On being put to notice, respondent No.1 appeared and contested the petition. In his reply, respondent No.1 raised a preliminary objection saying that the petitioner has no cause of action or locus to file the petition and that the petitioner is estopped from filing the petition due to his own act and conduct. The plea of petition being bad for non-joinder and mis-joinder of necessary party is also raised. It is further pleaded that the counting of the votes was done in the presence of the petitioner as well as his polling agents and then only respondent No.1 was declared elected as a Sarpanch. The reply on behalf of respondent No.6 is also filed. He had performed the duties of the Returning Officer. According to respondent No.6, respondent No.1 was rightly declared elected as he was winner by margin of five votes. Respondent No.6 in his reply has also disclosed that cancelled votes were shown to the petitioner, respondent No.1 CIVIL REVISION NO.5150 OF 2007 :{ 3 }: and their agents and these were declared as cancelled only once the parties were satisfied. In his reply, respondent No.6 (Returning Officer) has also denied the allegation that there was any confusion with the villagers while polling the votes and has stated that no such objection was ever raised before him on the date of polling. The trial Court struck the following issues:- “1. Whether the election of Sarpanch dated 9.4.2005 is lliable to be set-aside? OPP 2. Whether the petitioner is also entitled for injunction as prayed for? OPP 3. Whether the petition is not maintainable in the present form?OPR 4. Whether the petitioner has got no cause of action and locus standi to file the present petition? OPR 5. Whether the petitioner has not come in the court with clean hands?OPR 6. Whether the petition is bad for mis-joinder and non- joinder of necessary parties? OPR 7. Relief. The parties led evidence in support of their respective stands. The petitioner himself appeared as PW1 and examined Satbir son of Hari Singh as PW2. On the other hand, respondent No.1 appeared in support of his case and also examined Krishan as RW2 and Chand Bir as RW3. The evidence of the petitioner would disclose that the case set up by him is that 40 to 50 votes were declared cancelled CIVIL REVISION NO.5150 OF 2007 :{ 4 }: illegally and several votes were found in the boxes of Panchayat Samiti. He accordingly pleads that winning margin of 5 votes would not reflect the true results and as such, he has made out a case for re-count of the votes under Section 176(4)(b) of the Act. Respondent No.1 on the other hand would submit that no evidence/material prima-facie has been led by the petitioner, which may call for any re- counting of votes as prayed. Reliance has been placed on number of judgments as noticed by the Trial Court. It is seen that there is no specific averment or allegation, which would prima-facie show that any votes were illegally cancelled and if so how many of those were so cancelled. The evidence which was given by the petitioner and his witness was rather contrary to the pleadings even. The petitioner though has alleged that 40 to 50 votes were cancelled but while appearing as a witness it is stated that 8 votes were missing and 79 votes were rejected. While under cross- examination, the petitioner conceded that no disclosure was made to him with regard to cancelled votes. His witness, PW2, on the other hand stated that 9/10 votes were cancelled. It is, thus, seen that the petitioner and his witnesses are not clear as to how many votes were in fact cancelled. Though both the witnesses stated in their evidence that they had raised objection in the presence of Returning Officer but could not show any document or a writing where they had raised such objection. The record, which was produced before the Court, would rather show that the total votes polled were 3194 out of which 79 votes were declared invalid and, thus, 3115 were the valid votes polled. The petitioner had signed on Exhibit P1 containing these CIVIL REVISION NO.5150 OF 2007 :{ 5 }: details without any objection. The trial Court, thus, noticed that there is neither any objection raised by the petitioner nor could he produced any evidence in support of the fact that he has raised any such objection. It is, accordingly, observed that the petitioner has failed to prima-facie show any record in his favour which may call for any re-count of the votes. In Subhash Chand Vs. Ramesh Kumari and another, 2006 (3) RCJ 58 HC, this Court has observed that re- counting of votes can not be directed merely on the asking of a party in a routine manner. Even the judgments relied upon by the petitioner before the trial Court were discussed and it was found that even the ratio of law laid down in the case of Radha Kishan Vs. The Election Tribunal-cum-Sub Judge, Hissar and another, 1999 (2) P.L.J. HC 78, would also not support the submission of the petitioner. In this case, it has been held that the court is not obliged to pass an order of recount in a mechanical manner or merely on the asking of the party in the absence of any averment in support of the grounds for recounting. The learned counsel appearing for the petitioner has drawn my attention to the grounds raised in the petition and to say that the case for recounting was made out. When pointedly asked if the evidence given by the petitioner is on the basis of the pleadings raised, the counsel could not show if the evidence as given by the petitioner is on the basis of pleadings or not. The counsel also could not justify the variation in versions given by the petitioner and his witnesses. Such vague evidence, which is not even sure of number of votes cancelled or rejected, in the background that the petitioner CIVIL REVISION NO.5150 OF 2007 :{ 6 }: has endorsed his signatures on the documents on the declaration of the result would clearly show that the petitioner failed to make out a case for asking for re-count on the basis of the pleadings and the material. The reliance by counsel for the petitioner on a decision rendered in unreported Civil Revision No.5659 of 2000 (Pala Ram Vs. Civil Judge (Sr.Division, Panipat and others) decided on 28.2.2002 to say that re-count can be ordered would not advance his case in any manner. There is no dispute with this proposition that re- count can be ordered in case the conditions in Section 176(4)(b) of the Act are satisfied but in this case, the prayer for re-count has been declined on the ground that the petitioner has not made out a case for directing re-count on the basis of evidence and material that he has led before the Court. There is no infirmity in the impugned order, which would call for any interference in the exercise of revisional jurisdiction. There is no error of law or irregularity noticed in the impugned order. The present revision is accordingly dismissed. April 07, 2008 ( RANJIT SINGH ) khurmi JUDGE