KALYAN SINGH Vs. DIWAN SINGH

JUDGEMENT

(1.) It is a very peculiar case where the Returning Officer has caused incalculable damage to respondent No. 1 by grossly misusing his official position and by indulging in an act, which was not at all warranted or permissible.

(2.) The facts in brief. Election was held for the membership of Kshetra Panchayat Kharsar, Development Block Narendra Nagar, Respondent No. 1 Diwan Singh and writ petitioner Kalyan Singh were the contesting candidates in this Election. The polling took place on 10th September, 2008. The counting of ballots was held on 13th September, 2008 and at about 7 p.m. the Returning Officer declared the result. As per the declaration of result by the Returning Officer, respondent No. 1 Diwan Singh secured 485 votes as against 443 votes secured by the writ petitioner. 53 votes were declared as invalid. The Returning Officer, Sri G. S. Rawat, respondent No. 2 herein, after declaration of the result issued a certificate in favour of respondent No. 1 and as per the averments made everywhere, respondent No. 1, after obtaining the certificate, left the place of counting and went to his village. What happened thereafter is unknown to law as well as it is shocking. As per clear and unequivocal admission made by respondent No. 2 in the counter-affidavit filed by him in this Court on 11th December, 2008 (affirmed on 10th December, 2008) and as per the contents of the impugned judgment dated 4th October, 2008 passed by the learned District Judge, Tehri Garhwal in Election Petition No. 26 of 2008 as well as per the averments contained in the writ petition and the counter-affidavit of respondent No. 1, after declaration of the result and the issuance of the certificate by respondent No. 2, on the same day i.e. 13th September, 2008 at about 8.30 p.m. the writ petitioner Kalyan Singh filed an application/petition before the Returning Officer raising some disputes about the counting and requested the Returning Officer to recount the ballots. Same day, same evening at about 8.30 p.m. respondent No. 2 in his capacity as Returning Officer "took immediate and quick action" and conducted a recounting of the ballots and "found" that Kalyan Singh, writ petitioner has obtained more votes than respondent No. 1 and by cancelling the certificate earlier issued to respondent No. 1, declared the petitioner as winner in the said Election. It is the admitted case of the parties before me and it is also admitted case of respondent No. 2 in the counter-affidavit filed by him that before ordering the recount of the ballots, the respondent No. 2 had not issued any notice to respondent No. 1, nor had afforded any opportunity of hearing to him, even though in Para (5) of his counter-affidavit, respondent No. 2 has stated that "he called respondent No. 1, but he did not turn up". Para (5) of the said counter-affidavit, being very relevant and material in so far as the conduct of respondent No. 2 is concerned, is reproduced herein, which reads thus :

(3.) Factually, therefore, what emerges in summing up is that respondent No. 2 first declared respondent No. 1 as the winning candidate, issued the requisite certificate to him and thereafter at the instance of the writ petitioner, without formally assuming any jurisdiction, without issuing any written/formal notice to respondent No. 1, without affording any opportunity of hearing to him, same evening, recounted the votes, cancelled the certificate of respondent No. 1 and instead declared the petitioner as a winning candidate and issued the requisite certificate to him.