KISHAN PIARI Vs. ADDITIONAL CIVIL JUDGE SENIOR DIVISION

JUDGEMENT

(1.) THIS is a petition under Articles 226 and 227 of the Constitution for quashing the order dated 25th January, 1987 whereby Additional Civil Judge (Senior Division), Palwal, while trying election petition filed under Section 176 of the Haryana Panchayati Raj Act, 1994 against the petitioner, directed that the votes cast in the election of Sarpanch be recounted.

(2.) ELECTION to Gram Panchayat, Banswa, Tehsil Hodal, District Faridabad, was held on 19th December, 1994. Four women candidates had filed their nomination papers for election to the office of Sarpanch. Nomination of one candidate was rejected and the remaining three candidates, namely, Smt. Kishan Piari-Petitioner, Smt. Parsandi-respondent No. 2 and Smt. Sunita-respondent No. 3, remained in the field. The petitioner was declared elected as Sarpanch. Smt. Parsandi-respondent No. 2 filed election petition challenging the petitioners' election before the Additional Civil Judge. Issues were framed by the trial Court (Additional Civil Judge) on 1st May, 1995 and three witnesses produced in evidence by Smt. Kishan Piari were examined. The trial Court, by order dated 13th May, 1996, ordered the recounting of the votes polled. Recounting of the votes at Booth Nos. 1, 3, 4 and 5 was done on 13th May, 1996. However, the envelope containing the votes polled of Booth No. 2 was not traceable on that day and the matter was, therefore, adjourned to 21st May, 19% by the trial Court for the counting of votes of Booth No. 2. The petitioner, Smt. Kishan Piari, filed a revision petition (No. 2002 of 1996) in the High Court challenging the order of recount. During the course of hearing, the learned Single Judge noticed that recounting had been ordered by the trial Court on the basis of the contents of an application filed by the Presiding Officer, Jawahar Lal, Sub Division Engineer, Haryana Urban Development Authority. The learned Single Judge found it appropriate to set aside the order of the trial Court with a direction to examine the Presiding Officer, Jawahar Lal, with reference to the contents of the application dated 21st November, 1995, filed by the said Presiding Officer in the trial Court. The petitioner was permitted to cross-examine the said witness, Jawahar Lal, so as to contravert the contents of the aforesaid application. Trial Court was directed by two learned Single Judge, vide order dated 24th July, 1996 to proceed with the matter In accordance with law.

(3.) SHRI K. S. Bakshi, learned counsel for the petitioner has argued that an order of recounting of the votes cannot be passed as a matter of course. The party seeking recounting must show, by cogent evidence, that a bona fide dispute existed, questioning the counting already done. No dispute had arisen during the counting which took place immediately after the poll. It is argued by Shri Bakshi that there was no sufficient material on record, supported by adequate evidence, on the basis of which it could be said that the sanctity of counting was violated and recounting was necessary. The result had been duly declared on 19th December, 1994 itself, (the date of polling), and the result was never postponed to the next day (20th December, 1994 ).