Himachal Pradesh High Court
_____________________________________________________________________ vs State Of Himachal Pradesh And Ors on 6 March, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Civil Writ Petition No.491 of 2023
.
Date of Decision: 6.3.2024
_____________________________________________________________________
Jai Singh
.........Petitioner
Versus
State of Himachal Pradesh and Ors.
.......Respondents
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?
For the Petitioner: Mr. Vinay Sharma, Advocate.
For the respondents: Mr. Anup Rattan, Advocate General with Mr.
r Vishal Panwar and Mr. B.C. Verma, Additional
Advocate General and Ms. Menka Raj
Chauhan, Deputy Advocate General, for
respondents No. 1 to 5-state.
Mr. Nand Lal Thakur, Advocate, for
respondent No.6.
___________________________________________________________________________
Sandeep Sharma, J. (Oral)
Being aggrieved and dissatisfied with the order dated 10th January, 2023 passed by appellate authority i.e. learned Deputy Commissioner, Mandi District Mandi H.P. in case No.07 of 2022 titled Jai Singh vs. Jodhbir and another, upholding the order dated 26.03.2022 passed by learned Authorized Officer-cum-Sub Divisional Officer (C), Thunag, District Mandi in Election Petition No. 1 of 2021, whereby election petition having been filed by petitioner herein for declaring the election of respondent No.6 to be illegal against the post of Pradhan of Gram Panchayat, Jhared, came to be dismissed, ::: Downloaded on - 13/03/2024 20:29:58 :::CIS -2- petitioner has approached this Court in the instant petition filed under .
Article 226 of the Constitution of India, praying therein to allow the election petition after setting aside the impugned orders dated 10.01.2023 and 26.03.2022 passed by the authorities detailed hereinabove.
2. Precisely, the facts of the case as emerge from the record are that pursuant to a Notification of Government of Himachal Pradesh, the elections of Gram Panchayat Jhared, Block Janjehali District Mandi H.P., were notified for 21st January, 2021. Election to post of Pradhan Gram Panchayat, Jhared was contested by the petitioner as well as respondent No.6 on the scheduled date. In total 804 votes were cast, out of which, six number of votes were declared as invalid, two votes were cast to NOTA and out of 796 balance valid votes, petitioner secured 373 votes, whereas respondent No.6 secured 393 votes and another candidate namely Sh. Govind Singh secured 28 votes. Respondent No.6 (Jodhvir Singh) being highest vote taker was declared elected for the post of Pradhan Gram Panchayat-Jhared.
3. Being aggrieved and dissatisfied with the election of respondent No.6 to the post concerned, petitioner herein filed an election petition under Section 163 of the Panchayati Raj Act, 1994 praying therein to set aside the election of respondent No.6 declared on 21.01.2021 on the various grounds but his main ground was that ::: Downloaded on - 13/03/2024 20:29:58 :::CIS -3- neither he nor his agent was permitted to enter the counting hall and .
his prayer for recounting was not accepted by returning officer.
4. Aforesaid claim put forth by petitioner came to be resisted on behalf of respondent No.6 as well as officials respondents, who categorically claimed that the election was conducted in a free and fair manner. Though, notice was issued to respondent No. 5 but on account of his absence, he was proceeded ex parte. Subsequently aforesaid respondent was summoned as Court witness and in his statement he categorically denied the allegations leveled by the petitioner against him for his having not conducted free and fair election. Record reveals that the parties were afforded ample opportunities to lead evidence to prove the case. Petitioner apart from examining himself also examined one witness namely Sh. Rajeev Kumar, S/o Durga Singh. Interestingly both PW-1 Jai Singh and PW-2 Rajeev Kumar nowhere led evidence to prove the allegation that he was not allowed to enter counting hall by ARO citing COVID guidelines and only counting agent of respondent No. 6 was allowed inside. He also alleged that he had requested respondent No.5 to recount the votes, but such prayer of him was not allowed.
5. Though, PW-2 Rajeev Kumar deposed that all the candidates/counting agents were called inside counting hall only after declaration of results of two wards, out of total five wards, however, he admitted his signatures on result sheet Exhibit PW2/A. ::: Downloaded on - 13/03/2024 20:29:58 :::CIS -4-
6. To the contrary, respondent No.6 apart from examining .
himself also examined two witnesses namely Vinay Kumar and Pawan Kumar, RW-2 and RW1. Respondent No. 6 admitted that he alongwith counting agent was present inside the counting hall, however, he denied that he did not allow the petitioner to enter the counting hall, citing COVID guidelines.
7. RW-2 Sh. Vinay Kumar admitted that he entered counting hall only after the counting votes of two wards. He denied that he was in the counting hall since commencement of counting. He denied that Petitioner Jai Singh was denied entry in the hall. Sh. Pawan Kumar RW-1 specifically deposed that he did not receive any sort of complaint during whole election process. While admitting that respondent No.6 was present in counting hall alongwith his agent, that witness denied that he did not allow the petitioner to enter the counting hall citing COVID restrictions. He admitted that the counting hall agent of respondent No.6 entered counting hall only after declaration of the results of two wards.
8. Having carefully perused aforesaid evidence led on record by respective parties, this Court is persuaded to agree with the learned Additional Advocate General that no evidence worth credence ever came to be led on record on behalf of petitioner qua allegations/contentions made in the pleadings and the grounds of ::: Downloaded on - 13/03/2024 20:29:58 :::CIS -5- petition. At this stage, it would be apt to take note of Rule 79(2) H.P. of .
H.P. Panchayati Raj (Election) Rules, 1994 is as follows:-
" 79 Recount of votes:-
(1) After the completion of the counting and preparation of result sheet under rule 75, the District Election Officer (Panchayat) or Returning Officer, as the case may be, or any other Officer authorized by him shall announce the particulars of the result sheet.
(2) After such announcement has been made, a candidate or, in his absence, his election agent or any of his counting agent may apply in writing to the District Election Officer (Panchayat) or Returning Officer, as the case may be, or any other Officer authorized by him in this behalf for a recount of all or any of the ballot papers already counted stating the grounds on which he demands such recount: Provided that if no application for recount is received within reasonable time the result shall be declared in accordance with the provisions of clauses (v) and (vi) of rule 75. (3) On an application for recount under sub-rule (2), the District Election Officer (Panchayat) or Returning Officer, as the case may be, or other officer authorized by him in this behalf shall decide the matter and may allow the application in whole or in part or may reject it if it appears to him to be frivolous or unreasonable;
Provided that every decision of the District Election Officer (Panchayat) or Returning Officer, as the case may be, or any other Officer authorized by him shall be in writing and contain the reasons therefore.
(4) The District Election Officer (Panchayat) or Returning Officer, as the case may be, or any other officer authorized by him in this behalf, decides under sub-rule (3) to allow an application either in whole or in part, then he shall- (a) count the ballot papers ::: Downloaded on - 13/03/2024 20:29:58 :::CIS -6- again in accordance with his decision; (b) amend the result sheet to the extent necessary after such recount; and (c) announce the .
amendment so made by him.
(5) After the total number of votes polled in favour of each candidate has been announced under sub-rule (4), the District Election Officer (Panchayat) or Returning Officer, as the case may be, or such other officer authorized by him, shall complete and sign the result sheet and no application for a recount shall be entertained thereafter."
9. Aforesaid rule clearly provides that an application for recounting of votes must be given in writing to ARO, however, in the instant case, no such application was ever filed by the petitioner. He himself admitted in his cross-examination that no written request for recounting of votes was submitted by his counting agent to the ARO.
Apart from the counting agent of the petitioner admitted that he has signed result sheet that too without any protest, which certainly compels this Court to agree with the findings returned by the authorities below that no demand, if any was ever made by the petitioner for recounting. Though, respondent in his statement contended that he was not allowed by ARO to enter counting hall citing COVID guidelines, but there is ample evidence on record that after counting of two wards, not only polling agent of respondent No.6 but he was also permitted to enter the hall and at the time of counting of his votes, petitioner alongwith polling agent was present in the hall.
There is no evidence that request in writing for recounting was ever ::: Downloaded on - 13/03/2024 20:29:58 :::CIS -7- made by the petitioner and he was denied entry into the counting hall.
.
Allegations qua not allowing candidate/counting agents to enter counting hall after completion of counting of two wards is of not much relevance, especially when there is no dispute that such Rule was followed qua all the candidates/counting agents for the Post in question. No special treatment was ever afforded by the ARO to any particular contesting candidate. Rule 75(V) of Act H.P. Panchayati Raj, (Election) Rules, 1994 clearly reveals that during counting the votes of wards are counted first and then for UP-Pradhan and Pradhan. When the ballot box are opened then votes of UP-Pradhan and Pradhan are separated without opening the same on the basis of colour coding.
However, during aforesaid procedure counting agents of ward members always remain present. No complaint ever came to be filed on behalf of the counting agents with regard to mixing of ballots or removing of bundles of votes cast in favour of one particular candidate and there was mixing of the same with other ballot.
10. Having scanned entire material available on record viz-a-
viz reasoning assigned in the orders impugned in the instant proceedings, this Court finds it difficult to agree with the contention raised by Sh. Vinay Sharma, leaned counsel for the petitioner that election to the post of Pradhan of the Gram Panchayat was not conducted in free and fair manner, rather record reveals that Assistant Returning Officer followed due procedure and after recording ::: Downloaded on - 13/03/2024 20:29:58 :::CIS -8- satisfaction of all the parties concerned, rightly declared respondent .
No.6 to be elected against the post of Gram Panchayat Pradhan concerned.
11. Leaving everything aside, there is no document available on record suggestive of the fact that prayer, if any, in writing was ever made by the petitioner for recounting. It may be observed that prayer if any for recounting in terms of Rule 79 to H.P. Election Panchayati election Rules, 1994 can only be considered if written request in that regard is made.
Consequently, in view of the detailed discussion made hereinabove, this Court finds no legality in the impugned orders passed by the authorities, as such, no interference is called for. The present petition fails and dismissed accordingly, so also the pending application(s), if any..
March 6, 2024 (Sandeep Sharma),
Tarun Judge
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