In the High Court of Punjab and Haryana at Chandigarh Civil Revision No. 5084 of 2006 Date of decision: October 22, 2009 Santosh Devi .. Petitioner Vs. Kartara and others .. Respondents Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Jai Vir Yadav, Advocate for the petitioner. Mr. Rakesh Gupta, Advocate for the respondents. A.N. Jindal, J The election for the post of Sarpanch, having been held on 9.4.2005, term going to expire on 8.4.2010. Learned counsel for the petitioner has very serious reservations to challenge the said election by way of the present petition against the order dated 18.8.2006 passed by the learned Civil Judge (Sr. Division), Kaithal, who had declared Kartara- respondent No.1 as Sarpanch of the village Neemwala and while dismissing the application filed by Santosh Devi-petitioner. The factual background of the case is that the election of Gram Panchayat of village Neemwala was conducted on 9.4.2005. There were four contestants i.e. petitioner as well as respondents No.1 to 3. The election result was as under :- Total Votes polled 801 Votes secured by the petitioner 345 votes polled in favour of respondent No.1 346 votes polled in favour of respondent No.2 72 Votes polled in favour of respondent No.3 32 Votes cancelled 6 The petitioner challenged the said election of Kartara on the following grounds :- Civil Revision No. 5084 of 2006 -2- 1. One voter Sat Pal son of Surjit cast his vote twice i.e. one in Ward No.8 and another in Ward No.7 vide votes No.903/83 and 912/83. 2. Usha Devi wife of Ranbir Singh who is shown to have cast her vote No.822/83 was dead before the date of election. 3. The Presiding Officer/Returning Officer committed illegality/irregularity while canelling six votes polled in favour of the petitioner. 4. The Presiding Officer/Returning Officer wrongly counted five invalid votes in favour of the respondent No.1. The pleadings as set up by the parties gave rise to the following issues :- 1. Whether the respondent No.1 has been wrongly declared as successful candidate in the election, if so its effect?OPP 2. Whether the election petition is not maintainable?OPR 3. Whether the petitioner has no cause of action to file the present petition?OPR 4. Whether the election petition is bad for non-joinder of necessary parties?OPR 5. Relief. Both the parties led evidence. The trial court after scrutiny of the evidence decided issue No.1 while holding that it was the case of re- counting. Issues No. 2 to 4 were decided against the respondents. The re- counting was made whereby the result remained the same. Details of the result dated 18.8.2006 is as under :- Smt. Santosh Kartara Ram Kishan Karamvir Booth No.53 103 216 31 72 Booth No.54 242 130 1 0 Total 345 346 32 72 Civil Revision No. 5084 of 2006 -3- A note was given by the Additional Civil Judge (Sr. Division), Kaithal, to the effect that while counting the above votes, one vote of booth No.54 which was cancelled was also found. Five cancelled votes of booth No.53 were not found. From the duly sworn affidavit of Balwinder Singh son of Bhalle Singh, aged 35 years, a witness of the petitioner admitted in para No.4 of his affidavit that six votes were cancelled. The relevant narration of the part reads as under :- “That during this election total 801 votes were polled out of which 346 votes were polled in favour of Kartara, 345 votes were polled in favour of Santosh, 32 votes were polled in favour of Ram Kishan, 72 votes were polled in favour of Karamvir and 6 votes were declared cancelled.” The Additional Civil Judge (Sr. Division), Kaithal has not commented upon one cancelled vote which was found, thus, inference would be drawn that the said vote was rightly cancelled. As a matter of fact, the petitioner has also not disputed the cancellation of the vote and has not set it as a ground for cancelling the election. Even the ground No.4 as set out in the election petition does not smell of the challenge made to the cancelled votes. The relevant para No.4 of the election petition reads as under :- “That the Presiding Officer/Returning Officer wrongly counted the five votes in favour of respondent No.1 which were containing thumb impressions by committing an illegality as these votes were not valid votes being thumb marked. The Presiding Officer/Returning Officer also wrongly included two invalid votes to be valid votes in the bundle/counts of respondent No.1 which has materially effected the result.” The civil judge did not point out about five invalid votes as alleged by the petitioner. As regards cancelled votes, from the record it Civil Revision No. 5084 of 2006 -4- transpires that there is an admission with regard to the cancelled votes though five out of them were not found at the time of recounting. Assuming for the sake of argument that the cancelled votes were not found and these were in addition to the invalid votes counted in favour of the respondent No.1, in that situation, the invalid votes must have been detected by the Additional Civil Judge (Sr. Division), Kaithal at the time of counting but no such invalid vote was found which may have been included in the counting of the votes in favour of the respondent No.1. Consequently, from the facts that five cancelled votes were missing that could not be taken as the ground to quash the election of the respondent No.1. It could in no eventuality be argued that the votes were not actually cancelled or wrongly cancelled and these votes were counted in favour of respondent. It is also not known as to who polled the missing votes and the missing votes were in favour of the petitioner, therefore, inference in no circumstances could be drawn in favour of the petitioner. Similar observations were made by this Court in case Mewa Devi vs. Civil Judge, Narwana, 1998 (2) RCR (Civil) 534, wherein it was observed as under :- “..... Once it is not known as to who polled majority of the missing votes, possibility cannot be ruled out that majority of the said votes was in favour of the petitioner. In other words, once it cannot be definitely said that majority of the eight missing votes were in favour of the contesting respondent, election of petitioner on the post of Sarpanch cannot be set aside.” Thus, in view of the aforesaid observations made by this Court, no iota of doubt remains in my mind to confirm the findings of issue No.1 in favour of the respondent No.1. Resultantly, this petition being unmerited is hereby dismissed. October 22, 2009 (A.N. Jindal) deepak Judge