SHEO CHAND Vs. SADA NAND AND OTHERS

JUDGEMENT

(1.) ELECTION to the Gram Pan -chayat of village Dhabi Kalan Tehsil Fatehbad, District Hissar, was held on the 29th of December, 1963. Sheo Chand petitioner and Mange Ram respondent No. 2 contested the election. After the counting of the votes result was declared showing that the petitioner had secured 332 votes as against respondent No. 2 for whom 317 votes were stated to have been polled. On January 13, 1934, respondent No. 2 filed an election petition for setting aside the election of Sheo Chand petitioner. A copy of the election petition has been filed as Annexure 'A' to the writ petition in this case. Following allegations contained in paras 4(a) and (b) and 7 of the election petition are relevant for the disposal of this writ petition:

(2.) THE material part of these allegations was denied in the written statement of Sheo Chand petitioner dated 29th February 1964, of which a copy has been filed as annexure 'B' to the writ petition. On the pleadings of the parties the prescribed authority Who was the Illaqa Magistrate, Fatehabad, framed as many as 10 issues in the trial of the election petition. Out of these, issues Nos. 1, 2, 4, and 5 alone are relevant for the purpose of deciding this petition and are reproduced below :

(3.) BY an order dated 16th November, 19S4 the Deputy Commissioner directed the transfer of the trial of the said election petition from the Court of the Ilaqa Magistrate Fatehabad to the Court of Shri Hari Ram, Ilaqa Magistrate, Hissar. Against this order of transfer dated 16th November, 1964, a writ petition (Civil Writ No. 4462 of 1964) was filed in this Court which was allowed on 3rd January 1965 and the order of transfer of the case was set aside. Shri Hari Ram thereupon passed a formal order in the case on 30th January, 1965, directing the parties to appear before the Sub Divisional Officer, Fatehabad, on 1st February, 1965. The parties appealed on that date before the S.D.O. Fatehabad, but the presiding officer of the Court was not present and the Reader of the Court recorded an order, which has been reproduced in para 13 of writ petition. The order contained a direction to the effect that the case would come up before the S.D.O. at Badopul on 2nd February, 1965. Admittedly the parties appeared before the prescribed authority on the adjourned date. It is the case of the petitioner that his counsel was not present on that date because the petitioner thought that it was a date fixed only for further proceedings when merely a date would be fixed for the trial of the election petition. The order recorded in this case on that date does show that Sheo Chand petitioner was not represented by counsel at that time and was present only in person though Mange Ram respondent was present along with his Advocate. It is not disputed that the evidence of Sheo Chand petitioner was recorded by the S.D.O. on that date and that in fact recounting of the votes was done by the prescribed authority on that date in the presence of the parties. It has also to be taken as correct that on recounting of the votes, it was found that Sheo Chand petitioner had polled only 322 votes whereas Mange Ram respondent had got 327 votes. The petitioner thereupon filed a writ petition in this Court impugning the recounting of votes by the prescribed authority. This writ petition (Civil Writ No. 430 of 1965) was, however, dismissed in limine as premature on 25th February, 1965. Thereupon the S.D.O. Fatehabad heard final argument., in the election petition and adjourned the same for orders" on two other dates and ultimately gave his judgment dated 16th March, 1965, copy of which is annexure 'C' attached with the writ petition which is the impugned order in the instant case.