BADLU RAM Vs. RAM NIWAS

JUDGEMENT

(1.) BADLU Ram son of Mehar Chand, resident of village Sudhrana, Tehsil Kosli, District Rewari, has filed the present writ petition under Articles 226/227 of the Constitution of India against the respondents praying for the issuance of a writ in the nature of certiorari quashing the judgment dated 26. 4. 95 (Annexure P-3) passed by the Sub Judge Ist Class, Rewari.

(2.) THE case set up by the petitioner is that general elections to the Gram Panchayats in the State, of Haryana were held in December, 1994 under the Haryana Panchayati Raj Act, 1994 (for short 'the Act') and the election to the Gram Panchayat in the village of the petitioner, namely, Sudhrana, Tehsil Kosli, District Rewari, took place on 19. 12. 1994. The petitioner and respondents Nos. 1 to 5 were the contesting candidates. The result of the election was also announced on the same day. Out of the total 822 votes, respondent No. 1 got 153 votes whereas the petitioner got 194 votes. The petitioner was declared elected as a Sarpanch and was administered the oath. The petitioner was also issued an identity card. Respondent No. 1 Shri Ram Niwas filed an election petition/suit in the Court of Sub Judge Ist Class, Rewari, under Section 176 of the Act on the ground that the petitioner had been wrongly declared elected as a Sarpanch of the Gram Panchayat of village Sudhrana. The petitioner could not file reply to the said election petition/suit as the learned trial Court decided the petition/suit filed by respondent No. 1 on the second date when the case was fixed for filing the written statement by the defendant-petitioner. The trial Court, i. e. respondent No. 6 did not follow the proper procedure rather he straightaway ordered for the recounting of the votes and declared respondent No. 1 Shri Ram Niwas as elected Sarpanch in place of the petitioner vide order dated 26. 4. 1995 (Annexure P3), to which challenge has been given in the present writ petition, on the ground that it is illegal and arbitrary, that the trial Court did not frame the proper issues nor it adopted the procedure as envisaged in the Code of Civil Procedure. Respondent No. 1 did not lead any evidence in support of his election petition and in the absence of leading of any evidence, respondent No. 6 was not justified or competent to order recount of the votes. The recounting was ordered in a casual manner. Respondent No. 6 committed illegality in recounting of the votes of only three candidates, i. e. , the petitioner, respondent No. 1 Ram Niwas, and respondent No. 2 Chhaju Ram and has not counted the votes of three other respondents, which has materially affected the results. It has also been averred that the learned trial Court committed an error in not taking into consideration that number of votes cancelled due to multiple voting which had been found only in the bundles of the petitioner and Sat Narain, respondent No. 4, who secured 180 votes. It seemed that the ballot boxes and ballot papers had been tampered with and thereafter multiple markings on the ballot papers of the petitioner and Sat Narain had been manipulated in such a manner that after re-counting, respondent No. 1 be declared elected. It was also pleaded by the petitioner that the election took place on 19. 12. 1994 and counting was done on the same day and the petitioner secured the maximum number of votes, i. e. , 194. At that time in the counting, respondent No. 1 made a request to the Returning Officer for recounting of the votes and his request was accepted and recount was done. Even thereafter the result was found to be correct and the petitioner was elected as he secured the highest number of votes, i. e. , 194. Later on respondent No. 1 manipulated the bundles and made it a point to cancel the votes of the petitioner as well as that of Sat Narain. The trial Court has also committed an error when it did not entertain the written statement of the defendant-petitioner and straightaway ordered for the recounting of the votes.

(3.) NOTICE of the writ petition was given to respondent No. 1 only, who filed written statement and denied the allegations made in the writ petition. According to this respondent, there is no legal right of the petitioner, which has been infringed. Hence he is not competent to file the present writ petition. The stand of this respondent is that counting of the votes was not done properly by the Presiding Officer in respect of election of Sarpanch and the petitioner was declared elected as sarpanch in an illegal manner, as a result of which this respondent had to file an election petition and it was categorically alleged in the election petition that invalid votes were put in the bundles of the petitioner. The Presiding Officer/returning Officer committed illegality and irregularity in connivance with the petitioner. During the pendency of the election petition, the counsel for respondent No. 1 made a statement in the Court that recounting of the votes should be done and if the votes of respondent No. 1 are found less, in that eventuality the election petition may be dismissed. The recounting was done in the retiring room of the trial Judge when the record of the votes was brought by Shri Ishwar Singh, Village Secretary, in the presence of the counsel for the parties, including Shri R. K. Vatas, counsel for the petitioner. Since the validity of the election was based upon the scrutiny of the votes, therefore, the trial Court had the power to call for the record of the votes for the purposes of recounting as per the provisions of Section 176 of the Act. It has also been submitted by respondent No. 1 that an offer was made by him in the presence of the counsel for the petitioner and other counsel representing different defendants and they did not object to the offer made by respondent No. 1. The trial Court proceeded in accordance with law. In the bundles of Sat Narain out of 180 votes, only 146 votes were found to be valid and the remaining 34 votes were found invalid. In the bundles of Badlu Ram petitioner out of 194 votes, only 149 votes were found valid and the remaining 45 votes were found invalid, while one valid vote in respect of Badlu Ram petitioner was found in the bundle of 28 cancelled votes and thus 150 valid votes were polled in favour of Badlu Ram. The bundles of Ram Niwas contained 153 votes, wherein one invalid vote was found while 3 valid votes in respect of Ram Niwas were found in the bundle of 28 cancelled votes. Thus respondent No. 1 Ram Niwas secured 155 votes. The bundles of the remaining candidates, i. e. , Chhaju Ram, Ramesh and Ram Narain, were also checked, and 144 votes in the bundles of Chhaju Ram, 49 votes in the bundles of Ramesh and 74 in the bundles of Ram Narain were found, which were valid. The total votes polled were 822 in which 104 votes were found invalid/multiple votes, while the answering respondent Ram Niwas secured 155, the petitioner Badlu Ram secured 150 votes Sat Narain secured 146 votes, Chhaju Ram secured 144 votes, Ramesh secured 49 votes and Ram Narain secured 75 votes.