SAHAB RAM Vs. BHAGWAN

JUDGEMENT

(1.) THE petitioner, who is elected Sarpanch of Gram Panchayat of Village Nejia Khera, District Sirsa, has approached this Court impugning the order dated 29.10.2007, passed by learned Additional Civil Judge (Senior Division), Sirsa directing for re-counting of votes of election.

(2.) BRIEFLY , the facts are that in the election for Sarpanch of Gram Panchayat of Village Nejia Khera, District Sirsa, the petitioner was declared elected having secured 521 votes. Respondent No. 1 was the second lowest candidate, having secured 507 votes. Out of total 1055 polled votes, four were declared invalid and 1051 were valid votes. Two other candidates, namely, Jagdish and Nursi secured 21 and 2 votes respectively. Respondent No. 1, being aggrieved against the election of the petitioner as Sarpanch, filed election petition on 7.5.2005. During the pendency of the election petition, on 19.10.2005, an application was filed under Section 176(4)(b) of the Haryana Panchayati Raj Act, 1994 (for short, 'the Act') for re-counting of votes. The application was dismissed by the learned court below vide order dated 18.1.2006. Thereafter, the claim for recounting was again considered after framing issues and vide order dated 29.10.2007, the learned court below directed for re-counting of votes. It is this order passed by the learned court below, which is impugned in the present petition.

(3.) ON the other hand, learned counsel for respondent No. 1 submitted that mere rejection of the earlier application filed by respondent No. 1 for recounting does not mean that the same could not be ordered subsequently, as the position of law remains that the same has to be ordered on the basis of evidence to be led by the parties. As at initial stage, the evidence was not there, the court rejected the prayer for re-counting. However, subsequently the issues were framed and the evidence was led, on a consideration of which the court directed for recounting of votes and no illegality as such can be pointed out in the order so passed. He further submitted that in fact, immediately after the election was over, a representation was made to the Returning Officer for re-counting of votes and the same having not been considered, respondent No. 1 has been prejudiced and it is this grouse of respondent No. 1, which was remedied by the learned court below by directing re-count of votes. Reliance was placed upon Sukhchain v. Election Tribunal, Muktsar and others, 2006(4) RCR(Civil) 419 (P&H). Heard learned counsel for the parties and perused the record.