BHIRA Vs. STATE OF HARYANA

JUDGEMENT

(1.) Whether the Election Commission can exercise the power of review in the absence of there being any such provision in the Haryana Panchayati Raj Act, 1994 by which it can review the order of re-poll and pass fresh orders for re-counting of votes instead - is the question mooted for decision before this Court.

(2.) In the last election to the Gram Panchayats in the State of Haryana held on 16-3-2000, the petitioner along with respondents Nos.5 to 9 contested the election to the office of Sarpanch of Gram Panchayat of village Rajound which was reserved for Scheduled Caste candidate. On the date of polling i.e. on 16-3-2000, there was large scale violence including booth capturing and snatching of ballot papers etc. The matter was reported to the police and a case was registered. The petitioner also made a complaint to the Presiding Officer but despite this, the counting took place and the petitioner was declared elected. Since respondent No.5 who was a candidate of Indian National Lok Dal i.e. the ruling party in the State and was supported by local M.L.A. respondent No.4, exerted political pressure on the Presiding Officer to declare respondent No.5 elected. The ballot papers including the other election material were snatched, tampered with and the Presiding Officer, under the political pressure, subsequently, declared respondent No.5 to have secured more votes than the petitioner on which the entire village came out in the streets and situation became tense. The Deputy Commissioner and Superintendent of Police also reached at the village and took stock of the situation. The Deputy Commissioner, after verifying the facts and going through the relevant material confirmed about the Irregularities and errors in the procedure which vitiated the poll and on receiving the reports from all the Presiding Officers, recommended for order of re-poll to the Election Commission. The Deputy Commissioner in the capacity of District Election Commissioner made recommendation and sent the same along with the reports of the Presiding Officer to the State Election Commission, Haryana-respondent No.2 for taking the final decision in the matter. Respondent No.2, after going through the records sent by the Deputy Commissioner and after discussing the matter with him, issued notification dated 17-3-2000, Annexure-P-1, ordering re-poll in the village to the office of Sarpanch and fixing the date for the same as 18-3-2000. The District Authorities were informed to make arrangements for re-poll on 18-3-2000. However, the District Authorities informed that due to shortage of time and non-availability of sufficient number of ballot papers, the date of re-poll be extended to 22-3-2000. However, before the re-poll could take place on 22-3-2000, on receipt of telephone call, it was known that the same had been postponed. The petitioner claims that in the meantime, respondent No.5 exerted political pressure on the State Election Commission-respondent No.2 and it, under the political pressure, without issuing any notice and without affording any opportunity of hearing to the petitioner and other candidates, reviewed its earlier decision of re-poll and ordered for recounting by subsequent notification dated 3-4-2000, Annexure-P-2. The grievance of the petitioner is that because of the political pressure the State Election Commissioner changed the entire election record and Presiding Officers and Polling Officers were called in his office and statements were recorded afresh. Fresh reports were got prepared from the election staff to review the earlier decision of re-poll and on the basis of the changed record, respondent No.2 issued the impugned notification, Annexure-P-2 and acting on the impugned notification, recounting was conducted at Kaithal on 6-4-2000 in the absence of the petitioner and the other candidates i.e. respondents Nos.6 to 9 and respondent No.5 was declared elected as Sarpanch. The petitioner claims that the action of respondent No.2 is totaly illegal arbitrary, mala fide, politically motivated. unconstitutional and is liable to be set aside. He seeks the issuance of writ, order or direction in the nature of certiorari for quashing the notification dated 3-4-2000, Annexure-P-2 and of declaring respondent No.5 elected to the office of Sarpanch of Gram Panchayat, Rajound and further to command respondents Nos.1 to 3 to conduct re-poll for the office of Sarpanch of village Rajound.

(3.) In the written statement filed by the State of Haryana and the Deputy Commissioner, District Kaithal, respondents Nos.1 and 3, it is claimed that after the inquiry conducted by respondent No.2, it was not found a case for re-poll rather it was a case for re-counting and accordingly impugned notification was issued.