Rajesh Bindal, J.
1. The case in hand has a chequered history where the parties are litigating to get elected as Sarpanch of village Nathupur (Gurgaon).
2. The present petition is filed to challenge orders dated September 8, 2007 and September 10, 2007 passed by learned Additional Civil Judge (Senior Division), Gurgaon whereby the matter was fixed for recount of votes and the subsequent order, whereby the respondent No. 2 was declared elected after recount of votes, respectively.
3. The election to the office of Sarpanch of Gram Panchayat, Nathupur was held on April 9, 2005 in which total 8 candidates contested. The petitioner and respondent No. 2 were the main contesting candidates, who were polled votes close to each other. Rest of the candidates were polled votes quite less and were nowhere in contest for the office of Sarpanch. In the election, total 2896 votes were polled, out of which 2653 were declared to be valid votes and 243 votes were declared as invalid. At the first instance the petitioner was declared elected having secured 973 votes whereas respondent No. 2 was immediate loosing candidate securing 971 votes.
4. Immediately after the election on April 10, 2005, respondent No. 2 made application to the Deputy Commissioner, Gurgaon levelling various allegations against the petitioner and requested for recount of votes. Thereafter, respondent No. 2 filed an election petition on May 2, 2005 under Section 176 of Haryana Panchayati Raj Act, 1994 (for short the Act) alongwith application for recounting of votes. The application filed by respondent No. 2 for recounting of votes was allowed by learned Additional Civil Judge (Senior Division), Gurgaon vide order dated January 2, 2006 directing summoning of records for the purpose for January 14, 2006. Petitioner challenged the order of recounting of votes by filing Civil Writ Petition No. 172 of 2006 before this Court. Vide order dated January 12, 2006, this Court while summoning the records of the Court below stayed the order of recounting. The writ petition was ultimately dismissed by this Court vide judgment dated July 25, 2006 upholding the order passed by learned Additional Civil Judge (Senior Division), Gurgaon ordering scrutiny and recounting of valid votes.
5. Aggrieved against the judgment of learned Single Judge of this Court passed in Civil Writ Petition No. 172 of 2006, the petitioner preferred Letters Patent Appeal No. 140 of 2006 before this Court, where the judgment of learned Single Judge was upheld vide judgment dated November 23, 2006. Further it is not in dispute that order passed by the Division Bench of this Court in Letters Patent Appeal was upheld by Honble the Supreme Court in Special Leave Petition (Civil) No. 790/2007 vide order dated January 25, 2007.
6. As the records of this election containing the ballot papers etc. were summoned by this Court at the time of hearing of the writ petition, the same were sent back to the Court below vide communication dated July 27, 2006 by special messenger. After dismissal of the Special Leave Petition by Honble the Supreme Court, the matter remained pending before the Court below and it was effectively taken up on March 1, 2007 when the learned Civil Judge (Senior Division), Gurgaon summoned the record from Civil Ahlamd. The two unsealed bags were opened in the presence of the parties and their counsels. Memo of their presence was also prepared. These two bags were containing seven sealed bags. Out of these seven sealed bags, two bags bearing No. 167 and 170 were objected to by the petitioner as tampered with. Memo of presence and a sheet of inspection of record was prepared on that date, which are extracted below for reference:
Inspection of Record 7 bags sealed put in two unsealed bags. Bag No. 166 Sealed (coloured plastic bag) Bag No. 167 White plastic bag. Seals on this bag are objected by respondent. Bag is also alleged to be torn at 8 different points. The points are encircled black. Bag No. 168 Sealed white plastic bag.' ' 169 Sealed ' ' ' ' 170 Sealed is objected by respondent as the bag is alleged to be desealed at one point and is (Jute bag) sealed at another Bag No. 171 Sealed white plastic bag. Bag No. 172 Sealed white plastic bag. Counsel for the petitioner Counsel for the respondentAtul Vasishta Sd/ Note in my presence and my hand Sd/Memo of Presence. Petitioners 1. Sh. Mange Ram for the petitioner (husband of petitioner) 2. Smt. Sheela Petitioner. 1. Sd/ Mange Ram 2. Sd/ Sheela Adv. Sh. Atul Vashistha for the petitioner. Atul VashishtaRespondents1. Sh. Lillu Ram Sd/ Adv. Sh. M.K.Dang for the respondent. Noted in my hand. Sd/ 01.03.2007
7. Keeping in view the objections raised by the petitioner to the tampering of two bags bearing No. 167 and 170, counsel for the petitioner before the Court below requested for not to proceed with recounting of votes before deciding objections regarding tampering of the record first. In view of the objections of counsel for the petitioner before the Court below, matter was adjourned for arguments on that issue. Considering various contentions raised by counsels for the parties, on the issue as to whether record was tampered or not, learned Court below framed as many as seven issues to be decided after recording of evidence of the parties vide order dated April 12, 2007. However, a perusal of the order shows that none of the issue was relating to the tampering of record.
8. Aggrieved against the order dated April 12, 2007 passed by learned Civil Judge (Senior Divison), Gurgaon, respondent No. 2 preferred Special Leave Petition (Civil) No. 7951 of 2007 before Honble the Supreme Court where on May 11, 2007, the same was dismissed as withdrawn while passing the following orders: The Special Leave Petition is dismissed as withdrawn. However, this would not debar the petitioner from approaching the High Court.
9. Thereafter respondent No. 2 approached this Court by filing Civil Revision No. 2779 of 2007 impugning orders dated March 1, 2007 and April 12, 2007. The revision petition was disposed of by this Court vide order dated August 17, 2007 by passing the following orders: The impugned order shows that the Court below was of the view that without evidence it cannot be decided as to whether there is tampering with the ballot box and asked the parties to lead evidence. This was the only issue before the Court below but it has framed as many as six issues relating to cause of action, locus standi, jurisdiction, maintainability etc. etc. The Court below passed the said impugned order merely on the oral objection of the party, without elaborate discussion on the point in issue and the relevant provisions of the Act. There is a lack of application of mind. Thus, this case deserves to be remanded to be Court concerned.
In view of the above, the impugned order is set aside and the matter is remanded to the Court concerned for decision afresh after perusing all pros and cons factually and legally without being influenced by the observations made by this Court while disposing of this revision petition. It shall be appreciated if the Court concerned disposes of the same within a period of six weeks from the date of appearance of parties before it.
10. Thereafter, petitioner moved an application for framing of issues and deciding the case after providing opportunity to lead evidence on September 8, 2007 in terms of the order passed by this Court in the aforesaid Civil Revision. On the statement of learned Counsel for the respondent before the Court below, without filing any reply to the application filed by the petitioner, the matter was fixed for arguments.
11. After hearing the arguments vide order dated September 8, 2007, learned Court below called for the gunny bags and opined that the seals of all the bags were intact though one bag was found to be torn at many places but still there was no sign of tampering. The case was kept for September 10, 2007 for re-counting of votes.
12. At the first instance, petitioner approached this Court by filing present revision petition in this Court on September 10, 2007 impugning this order. On September 10, 2007 when the case was fixed before the Court below, counsel for the petitioner there moved an application for adjournment to enable the petitioner to approach this Court against order dated September 8, 2007. However, the prayer made in the application was rejected and it was directed that the recount of votes will start at 12.00 Noon. However, when inspite of efforts, none appeared for the petitioner before the Court below, he was proceeded ex-parte and recounting was conducted in his absence. After taking out seven bags bearing Nos. 166 to 172, the recounting was started, as noticed by the Court below in order passed on September 10, 2007. On recount, following numbers of votes were found in each bag:
Sr. Name of Bag Bag Bag Bag Bag Bag Bag TotalNo. Candidates No. 166 No. 167 No. 168 No. 169 No. 170 No. 171 No. 172 1 Kalu 1 5 2 2 8 - - 18 2 Joginder 1 4 2 - 1 - - 8 3 Rajpal 2 - 13 34 110 10 14 183 4 Ranbir 4 2 4 10 85 111 22 238 5 Rohtash 4 8 66 87 22 43 24 254 6 Leelu 97 132 259 238 78 54 108 966 7 Shyam - - - - 6 - 1 7 Sunder8 Sheela 223 192 174 49 60 105 170 973Invalid 21 34 63 33 47 42 - 240 Total 353 377 583 453 417 365 339 2887
13. The end result of the entire recounting process was that total number of 2887 votes were found to have been polled, out of which 240 votes were found to invalid. Petitioner got 966 valid votes, whereas respondent No. 2 got 973 and accordingly by passing a separate order on September 10, 2007, she was declared elected. It is this order passed on September 10, 2007, which has been impugned in the petition by way of amendment.
14. I have heard Shri Ashok Aggarwal, learned Senior Counsel with Shri Mukul Aggarwal and Sh. Sanjiv Thakur, Advocates, for the petitioner and Shri Randeep Singh Rai, learned Senior Counsel with Shri Gautam Dutt, learned Counsel for respondent No. 2 and with their able assistance have perused the material placed on record.
15. In the factual matrix as mentioned above, Shri Ashok Aggarwal, learned Senior Counsel vehemently argued that the manner in which the learned Court below has proceeded with the matter shows that it did not have any respect for the orders passed by this Court earlier. There is no reason forthcoming as to what was the hurry in recounting of votes when counsel for the petitioner had requested for a short adjournment to enable them to avail of his legal remedy against the impugned order passed on September 8, 2007. Further it is submitted that even from a perusal of the order passed by the learned Court below, it is evident that same has been passed in a casual manner without recording any reason. Scrutiny and recounting of votes is not a mechanical exercise to be carried on rather the same required scrutiny of each and every vote to see as to whether the same was valid or not and in case there is some change of opinion over and above of the Election Officer regarding the validity/invalidity of the votes, the same was required to be recorded with reasons for rejection or acceptance of any valid/invalid vote.
16. Further it is submitted that there is another flaw which goes to root of the case and infact substantiate the case set up by the petitioner of tampering with the record is that originally when the petitioner was declared elected, it was found that in total 2896 votes were polled out of which 2653 votes were held to be valid whereas 243 votes were held to be invalid. The petitioner was declared elected having secured 973 votes as against 971 secured by the respondent No. 2. In the recount number of total polled votes were found to be 2887 i.e. 9 less than the votes found polled originally. The number of invalid votes decreased from 243 to 240. In the impugned order no reason is forthcoming as to why there is difference in number of votes found in original counting and recounting. He has relied upon Jayanta Samal v. Kulamani Behera and Anr. (2004) 13 Supreme Court Cases 552 and the judgment of Hon'ble the Supreme Court in Civil Appeal No. 1912 of 2006 (Gursewak Singh v. Avtar Singh and Ors.) decided on April 5, 2006.
17. Controverting the submission made by learned Counsel for the petitioner, Shri R.S. Rai, learned Senior Counsel for respondent No. 2 argued that the petitioner having failed to participate in the process of recount of votes is estopped to challenge the result thereof. It is further submitted that the bags were duly examined by the learned Presiding Officer and it was duly recorded that the seals were in order and it was only that out side of the bags were torn. The recounting was done only after the Court was satisfied. Still further, it is submitted that action of the petitioner is not bonafide as he was playing hide and seek with the Court. There is no reason as to why he refrained himself from participating in the proceedings before the Tribunal when the recounting of votes was to take place. Once he has failed to raise any objection to that at the appropriate time nothing lies in his mouth now to raise such an objection in the present proceedings which is not appellate in nature.
18. In Jayanta Samal's case (supra) Hon'ble the Supreme Court in a case where tampering with the record was found observed as under: It was submitted by the learned Counsel for the respondent that prior to re-count the votes have been tampered with and record in this regard is available before the Election Tribunal. That plea is still available to be urged by the respondent at the time of final hearing. The respondent can always urge before the Election Tribunal that in view of the record of votes having been tampered with before the re-count was ordered and took place, the result of re-count is liable to be ignored. But that is a plea which is to be urged before the Election Tribunal and the Election Tribunal may, on being satisfied of the substance in the plea so urged, ignore the result of re-count from consideration.
19. In Gursewak Singh's case (supra), where the allegations were somewhat similar to the present case and in recounting number of votes polled and obtained by the candidates was found to be different as compared to the counting at the first place, Hon'ble the Supreme Court opined as under:
It is also disturbing to note that in relation to booth No. 41, 200 more ballot papers were found whereas in respect of booth No. 43, about 200 less were found. How and in what manner, the ballot papers of the two booths got mixed up is not known. Who is responsible therefore is also not known. What evidence was adduced in support of the respective contentions is also not known. As regard booth No. 44, the Tribunal recorded:The case of booth 44 is slightly more complex as only 1023 ballot papers have been recovered from the packet against 1036 shown at the time of the original counting 30 votes which were shown as rejected were decided in favour of the petitioner, that 13 votes further of the respondent 1 were found rejected . As to booth 41, where the maximum irregularities have been noted, originally 47 votes were shown as rejected. During recounting, however, apart from this, 12 more votes were shown to have been rejected, and 301 such ballot papers also were found which were having double stamps, these were kept apart and counted in the list of rejected votes for the time being. Upon close examination of the 2 stamps on the 301 ballot papers, however, it was clearly visible to the naked eye that not only the shape and size of the swastika stamp, but also the density and colour of the ink were at significant variance with each other. Statements of the ARO/Presiding Officer of booth 41 confirmed that one of the stamps vide which the ballots favouring Sh. Gursewak Singh, respondent 1, were sought to be rendered invalid, was administered at a later date and time than the day of counting. The High Court did not go into the correctness of the aforementioned findings of the Tribunal at all. It was, in our opinion, essential to go into the said question and arrive at a positive finding on analyzing the evidence on record.
20. If the facts of the present case are examined in the light of law on the subject as referred to above, it is evident from record that originally total number of votes polled were 2896 out of which 2653 were held to be valid whereas 243 votes were held to be invalid. Petitioner secured 973 votes and respondent No. 2 secured 971 votes. The petitioner having secured more votes as compared to respondent No. 2 was originally declared elected.
21. However, in recounting the position changed altogether as total number of polled votes were found to be 2887, out of which invalid votes were found as 240 votes. The petitioner was found to have secured 966 votes as against respondent No. 2, who secured 973 votes. In recounting on the face of it, there was a difference of 9 votes in the total votes polled as 2887 votes found at the time of recounting as against 2896 votes found at the time of original counting.
22. The learned Court below has not recorded any reason as to why there was a difference in the total votes polled and also the reason for reduction in the number of invalid votes from 243 to 240. Similarly the reason for difference in valid votes which were reduced from 2653 to 2647.
23. Secondly, a perusal of the inspection record initially prepared by the then Presiding Officer reveals that there were objections with regard to sealing and position of bags No. 167 and 170, which according to the petitioner was not found to be intact after receipt of record from this Court. Even though the subsequent Presiding Officer had recorded that after inspection by her, seals were found to be proper but still the fact remains that major difference in the recounting of votes has emerged from bags No. 167 and 170 only. As far as bag No. 170 is concerned, at the time of first counting petitioner secured 82 votes whereas in the recounting the figure remained at 78. Similarly in other bags No. 166 and 169 as well, there was difference in the votes secured by the petitioner at 1 and 2 respectively. As far as respondent No. 2 is concerned, the only difference found was in the recounting of bag No. 166 where as against 221 votes secured earlier, she secured 223 votes making a total talley of 973 votes as against the petitioner, who secured 966 votes in recounting.
24. A perusal of the impugned order shows that the same merely records number of votes, which were found at the time of recounting. The reason as to why there was difference in total votes polled, secured and invalid votes is not forthcoming, which was required to be recorded as the parties in the present case were securing votes which were quite near to each other and difference of few votes was enough to win or lose. Still further there is no reason forthcoming as to why number of invalid votes was reduced from 243 to 240 and on what account the votes which were declared invalid earlier were considered valid later on. Once it is found that there was a difference in the recounting of votes, it was necessary for the Court to have recorded reasons for the difference and also to see as to who was responsible for this and then only record a finding thereon. In the absence of such finding, no final opinion can be expressed in the matter. A perusal of discussions on recounting of votes contained in bag No. 166 shows that one valid vote of the petitioner was declared to be invalid whereas the invalid votes of respondent No. 2 were declared as valid. But no reason for that is recorded. Similar is the position of bags Nos. 169 and 170 where earlier valid votes in favour of the petitioner were declared invalid lateron.
25. For the reasons recorded above, I deem it appropriate to remit the matter to the Court below for fresh consideration and dealing with the same after recording detailed reasons therefor.
26. The parties through their counsel are directed to appear before the Court below on January 21, 2008, for further proceedings.