CHANDAN SINGH Vs. VIRENDER RAJ

JUDGEMENT

(1.) CHALLENGE in the present petition is to the order dated 22.1.2008, passed by the learned court below, whereby it has directed for recounting of votes.

(2.) BRIEFLY , the facts are that the petitioner as well as respondent No. 1 contested election for the post of Sarpanch of Village Dundahera. The petitioner was declared elected having polled 666 votes, whereas respondent No. 1 was the second lowest getting 657 votes. There was a difference of 9 votes. Out of the total votes polled, 208 votes were declared invalid. Respondent No. 1 immediately after the declaration of result, lodged a protest and requested for recount before the Returning Officer. The same was followed with a representation to the Chief Election Commissioner. Immediately thereafter, an election petition was filed raising various pleas regarding illegalities/irregularities made in counting of votes. Initially, the learned court below, vide order dated 7.9.2007, rejected the prayer of the petitioner for a direction for recounting of votes on the ground that by that time, respondent No. 1 had not been able to make out a prima facie case for recounting, as evidence had not been led. However, subsequently the evidence of respondent No. 1 and also the petitioner was recorded and on the basis thereof, the learned court below, vide impugned order dated 22.1.2008, directed for recounting of votes. It is this order which is challenged in the present revision petition.

(3.) ON the other hand, learned counsel for respondent No. 1 submitted that all the contentions, legal or otherwise, raised by learned senior counsel for the petitioner are totally misconceived. He has not brought to the notice of the court a glaring fact about the statement of the petitioner in his cross- examination regarding his no objection to the recounting of votes. Once that is so, no argument or legal issue was required to be considered by the court, as the parties could very well get the votes recounted with their consent. He further submitted that respondent No. 1 has given details in his petition filed before the court below, the manner in which because of irregularities committed in the counting of votes, the result of the election has been materially affected. As far as legal issues are concerned, he submitted that the principles, as have been laid down on consideration of the provisions of the Representation of People Act, 1951 are not applicable in the case of elections for Panchayats. Referring to a Full Bench judgment of this Court in Radha Kishan v. Election Tribunal-cum-Sub Judge, Hissar, 1999(4) RCR(Civil) 79 : 1999(3) PLR 1, it was submitted that the parties to a dispute can very well agree on recount of votes. A defeated candidate by filing an election petition has only to make out a prima facie case for recount.