IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 6378 of 2007 DATE OF DECISION: NOVEMBER 10, 2008 Smt. Pushpa .....PETITIONER Versus Smt. Giano Devi and others ....RESPONDENTS CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JASWANT SINGH --- Present: Mr. Vijay Lath, Advocate, for the petitioner. Mr.P.K.Longia, Advocate, for respondent No.1. Mr.Nitin Jain, Advocate, for Mr.C.B.Goel, Advocate, for respondent No.2. .. SATISH KUMAR MITTAL, J. The petitioner, a defeated candidate in the election of the office of Sarpanch of Village Gram Panchayat Patti Kaserla, has filed this petition under Articles 226 and 227 of the Constitution of India for setting aside the order dated 13.01.2007 passed by the Additional Civil Judge (Senior Division), Kurukshetra (Election Tribunal), whereby the election petition filed by the petitioner under Section 176 of the Haryana Panchayati Raj Act, 1994 for setting aside the election of respondent No.1 being illegal and void, has been dismissed. In the election petition, the petitioner prayed for scrutinisation and recounting of the ballot papers and votes by summoning the election record of both the booths bearing Nos.159 and 160. It was the case of the petitioner that in spite of the request made to the Presiding Officers for recounting of both the booths, recounting was done only of booth No.160 and respondent No.1 was illegally declared elected by a margin of only C.W.P. No. 6378 of 2007 -2- two votes. The Election Tribunal while considering the evidence led by both the parties has dismissed the election petition while recording the following findings:- “After going through the evidence on the case file I am of the considered opinion that no prima facie case is made out for recounting of the votes because in the present petition star witness on behalf of the petitioner is petitioner herself but during her cross examination she has stated that she was satisfied with the recounting of the votes of booth of which votes were recounted. She does not know whether also Duty Magistrate was present at the spot or not. She does not know whether her agent has put their signatures on the result sheet. She was not present at the spot. She was called after declaration of the result. She does not know what has been written in the affidavit. Her husband was also present at the spot because she was not present at the spot. Therefore she has not requested for recounting of votes, but her agent has requested for recounting the votes. She does not appeared before the Duty Magistrate. She does not made any complaint to the Duty Magistrate. She does not know the Presiding Officer. So, in this way from the above-said statement of the petitioner which has been given by her in cross examination it is very much clear that the grounds taken in the present election petition are not in her knowledge because she is very much ignorant about the contents of the petition. On the other hand, RW2 Mohinder has deposed before the court that it is not necessary for recounting of the votes because recounting of the votes was done again and again and lastly it was counted in presence of the Duty Magistrate and both the parties were satisfied with the counting and only after that the result was declared. Similarly RW3 Raghubir has stated that votes were recounted in the presence of the Duty Magistrate and after that at the direction of Duty Magistrate Presiding Officer declared the respondent no.1 as elected Sarpanch. RW1 Giano has also stated before the court through affidavit that votes were counted according to rules and there C.W.P. No. 6378 of 2007 -3- was no irregularity.” Hence this petition. Counsel for the petitioner argued that the petitioner has proved on record that in spite of the prayer made for recounting of votes of both the booths, the Presiding Officer recounted only the votes of booth No.160 and not of booth No.159. Counsel submits that before recounting of votes in booth No.160, the petitioner was alleged to have secured 235 votes whereas respondent No.1 secured 130 votes and 15 votes were illegally rejected, but in the recounting of votes in booth No.160 only, the petitioner was declared to have secured 233 votes whereas respondent No.1 was declared to have secured 129 votes and 18 votes were alleged to be declared as cancelled/rejected. Counsel further submits that in spite of the repeated requests, respondents No.2 and 3 did not accede to the request of the petitioner and refused to recount the votes of booth No.159. Therefore, if the votes in booth No.159 could have been recounted, the result would have been changed. While referring to the statement of PW1-Waryam Singh and PW2-P.K.Gupta, who was the Presiding Officer of booth No.160, learned counsel submitted that no recounting in booth No.159 was done, and the Election Tribunal has wrongly recorded a finding that recounting was done in both the booths. After hearing the counsel for the parties, we do not find any illegality or perversity in the finding recorded by the Election Tribunal that recounting was done by the Presiding Officer in both the booths. From the very beginning, the stand of respondent No.1 in the written statement was that recounting of both the booths was done on the request of the petitioner. However, in spite of the clear stand, the petitioner did not take any steps for summoning the record to prove this fact that no recounting was done in booth No.159. Shri Mohinder Singh, who was the Presiding Officer at booth No.159 while appearing as RW2, has categorically stated that he conducted the recounting of votes of booth No.159 on the request of the agent of the petitioner. In the written statement filed by the said witness (respondent No.3), it has been stated that the votes of booth Nos.159 and 160 were recounted in presence of the Duty Magistrate and both the parties, and after recounting, both the parties were satisfied with the counting and only thereafter the result was announced in which respondent No.1 was declared C.W.P. No. 6378 of 2007 -4- elected as Sarpanch by two votes. The Election Tribunal while taking into consideration the evidence led by the said respondent and while ignoring a portion of the statement of Shri P.K.Gupta, who was the Presiding Officer of booth No.160, to the effect that in his presence the recounting of booth No.159 was not done, has rightly dismissed the election petition while ignoring the statement of Shri P.K.Gupta, who was not the Presiding Officer of booth No.159. Therefore, we do not find any illegality in the finding recorded by the Election Tribunal. No other point has been argued. Dismissed. (SATISH KUMAR MITTAL) JUDGE November 10, 2008 ( JASWANT SINGH ) vkg JUDGE