Jitender Singh v. Bhupinder Singh & Ors.

through Rao D.S.Nirbain, Advocate. Mr.Deepak Jindal, AAG, Haryana. *** CORAM:-HON'BLE MR.JUSTICE SURYA KANT. *** 1) Whether Reporters of the local papers 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? *** SURYA KANT, J. (ORAL) This revision petition is directed against the order dated

19.12.2006 passed by the learned Civil Judge ( Jr.Division)-cum-Election Tribunal, Mohindergarh whereby in respect of an election to Zila Parishad, Mohindergarh from Ward No.8, recount of the votes has been ordered. [2] [3] The facts may be noticed briefly. Election to the Zila Parishad, Mohindergarh was held on

3.4.2005. The petitioner as well as respondents No.1 to 15 contested the above-stated election from Ward No.8. Total 23427 votes were polled. While the petitioner is stated to have secured 2868 votes and was declared a returned candidate, his nearest rival, namely, respondent No.1 got 2861 votes. The petitioner was, thus, declared elected by a margin of 7 votes. C.R. No.58 of 2007 -2- [4] The petitioner's election has been challenged by the first respondent by way of an election petition under Section 176 of the Haryana Panchayati Raj Act, 1994 (in short the Act). Various allegations have been made by the first respondent in order to show that the election process was allegedly inflicted with a number of material irregularities. The petitioner, however, has refuted those allegations and has already filed his written statement. [5] During the pendency of the election petition, the first respondent moved an application dated 14.2.2006 seeking recount of the votes.

In the said application, though no specific ground was taken, however, the first respondent relied upon the averments already made by him in his election petition in that regard. [6] Notwithstanding the opposition made by the petitioner to the prayer for recount, the learned Election Tribunal vide its impugned order has allowed the said application and ordered recount of the votes. [7] Aggrieved, the petitioner-the returned candidate, has filed this revision petition. [8] It may be noticed here that in the election petition as regard to his plea of recount, two allegations have been made by the first respondent, namely, (i) that some of the votes validly polled in his favour were illegally declared as invalid; and (ii) 9 valid votes polled in his favour are allegedly missing. [9] On February 28, 2008, after hearing learned counsel for the parties for some time and having regard to the above-noticed allegations made by the first respondent in support of his plea of recount, the interim C.R. No.58 of 2007 -3- stay order earlier granted in favour of the petitioner against the impugned order was modified and it was directed that firstly 492 votes which were declared invalid, be recounted under the supervision of the learned Election Tribunal-cum-Civil Judge (Junior Division), Mohindergarh.

It was, however, directed that the result of the said recount shall not be declared or informed to the parties and the same shall be produced before this Court in a sealed cover. [10] In deference to the above-stated order, the learned Civil Judge, (Junior Division), Mohindergarh vide his memo. dated 12.3.2008 has sent the details of the recount of 492 invalid votes in a sealed cover which has been opened in Court in presence of learned counsel for the parties. The same has been perused. Suffice to say that the recount of the invalid votes does not support the contention of the first respondent that some votes validly polled in his favour were illegally declared invalid. Similarly, even if his allegation regarding missing of nine valid votes cast in his favour is believed to be true at this stage though the same is required to be proved by him by leading cogent evidence, even then the result of the election is not likely to be materially altered or affected. [11] The net result would be that there is no material whatsoever on record on the basis of which the learned Election Tribunal-cum- Civil Juge (Jr.Division), Mohindergarh, could form a prima facie, opinion in order to justify the recount of the votes at this stage.

The impugned order, therefore, directing recount of the votes cannot sustain and is accordingly set aside. [12] The above-mentioned observations, however, would not be construed to mean that the first respondent has failed to substantiate his C.R. No.58 of 2007 -4- allegations made in the election petition. [13] In other words, the learned Election Tribunal shall decide the election petition in accordance with law after giving reasonable and limited opportunities to both the parties to lead their respective evidence. [14] Since the election was held in the year 2005 and a substantial part of the term is already over, the Election Tribunal is directed to decide the election petition as early as possible and preferably within six months. [15] The result of the recount of invalid votes has been resealed and kept on record. [16] Disposed of. April 23, 2008 poonam ( SURYA KANT ) JUDGE