Punjab-Haryana High Court
Badlu Ram vs Ram Niwas And Ors. on 5 November, 1996
Equivalent citations: (1997)115PLR477
Author: R.L. Anand
Bench: R.L. Anand
JUDGMENT R.L. Anand, J.
1. Badlu Ram son of Mehar Chand, resident of village Sudhrana, Tehsil Kosli, District Rewari, has filed the present writ petition under Articles 226/227 of the Constitution of India against the respondents praying for the issuance of a writ in the nature of certiorari quashing the judgment dated 26.4.95 (Annexure P-3) passed by the Sub Judge Ist Class, Rewari.
2. The case set up by the petitioner is that general elections to the Gram Panchayats in the State, of Haryana were held in December, 1994 under the Haryana Panchayati Raj Act, 1994 (for short 'the Act') and the election to the Gram Panchayat in the village of the petitioner, namely, Sudhrana, Tehsil Kosli, District Rewari, took place on 19.12.1994. The petitioner and respondents Nos. 1 to 5 were the contesting candidates. The result of the election was also announced on the same day. Out of the total 822 votes, respondent No. 1 got 153 votes whereas the petitioner got 194 votes. The petitioner was declared elected as a Sarpanch and was administered the oath. The petitioner was also issued an identity card. Respondent No. 1 Shri Ram Niwas filed an election petition/suit in the Court of Sub Judge Ist Class, Rewari, under Section 176 of the Act on the ground that the petitioner had been wrongly declared elected as a Sarpanch of the Gram Panchayat of village Sudhrana. The petitioner could not file reply to the said election petition/suit as the learned trial Court decided the petition/suit filed by respondent No. 1 on the second date when the case was fixed for filing the written statement by the defendant-petitioner. The trial Court, i.e. respondent No. 6 did not follow the proper procedure rather he straightaway ordered for the recounting of the votes and declared respondent No. 1 Shri Ram Niwas as elected Sarpanch in place of the petitioner vide order dated 26.4.1995 (Annexure P3), to which challenge has been given in the present writ petition, on the ground that it is illegal and arbitrary, that the trial Court did not frame the proper issues nor it adopted the procedure as envisaged in the Code of Civil Procedure. Respondent No. 1 did not lead any evidence in support of his election petition and in the absence of leading of any evidence, respondent No. 6 was not justified or competent to order recount of the votes. The recounting was ordered in a casual manner. Respondent No. 6 committed illegality in recounting of the votes of only three candidates, i.e., the petitioner, respondent No. 1 Ram Niwas, and respondent No. 2 Chhaju Ram and has not counted the votes of three other respondents, which has materially affected the results. It has also been averred that the learned trial Court committed an error in not taking into consideration that number of votes cancelled due to multiple voting which had been found only in the bundles of the petitioner and Sat Narain, respondent No. 4, who secured 180 votes. It seemed that the ballot boxes and ballot papers had been tampered with and thereafter multiple markings on the ballot papers of the petitioner and Sat Narain had been manipulated in such a manner that after re-counting, respondent No. 1 be declared elected. It was also pleaded by the petitioner that the election took place on 19.12.1994 and counting was done on the same day and the petitioner secured the maximum number of votes, i.e., 194. At that time in the counting, respondent No. 1 made a request to the Returning Officer for recounting of the votes and his request was accepted and recount was done. Even thereafter the result was found to be correct and the petitioner was elected as he secured the highest number of votes, i.e., 194. Later on respondent No. 1 manipulated the bundles and made it a point to cancel the votes of the petitioner as well as that of Sat Narain. The trial Court has also committed an error when it did not entertain the written statement of the defendant-petitioner and straightaway ordered for the recounting of the votes.
3. With the above averments, the petitioner has prayed for the quashment of Annexure P3, i.e. the order passed by the trial Court.
4. Notice of the writ petition was given to respondent No. 1 only, who filed written statement and denied the allegations made in the writ petition. According to this respondent, there is no legal right of the petitioner, which has been infringed. Hence he is not competent to file the present writ petition. The stand of this respondent is that counting of the votes was not done properly by the Presiding Officer in respect of election of Sarpanch and the petitioner was declared elected as sarpanch in an illegal manner, as a result of which this respondent had to file an election petition and it was categorically alleged in the election petition that invalid votes were put in the bundles of the petitioner. The Presiding Officer/Returning Officer committed illegality and irregularity in connivance with the petitioner. During the pendency of the election petition, the counsel for respondent No. 1 made a statement in the Court that recounting of the votes should be done and if the votes of respondent No. 1 are found less, in that eventuality the election petition may be dismissed. The recounting was done in the retiring room of the trial Judge when the record of the votes was brought by Shri Ishwar Singh, Village Secretary, in the presence of the counsel for the parties, including Shri R.K. Vatas, counsel for the petitioner. Since the validity of the election was based upon the scrutiny of the votes, therefore, the trial Court had the power to call for the record of the votes for the purposes of recounting as per the provisions of Section 176 of the Act. It has also been submitted by respondent No. 1 that an offer was made by him in the presence of the counsel for the petitioner and other counsel representing different defendants and they did not object to the offer made by respondent No. 1. The trial Court proceeded in accordance with law. In the bundles of Sat Narain out of 180 votes, only 146 votes were found to be valid and the remaining 34 votes were found invalid. In the bundles of Badlu Ram petitioner out of 194 votes, only 149 votes were found valid and the remaining 45 votes were found invalid, while one valid vote in respect of Badlu Ram petitioner was found in the bundle of 28 cancelled votes and thus 150 valid votes were polled in favour of Badlu Ram. The bundles of Ram Niwas contained 153 votes, wherein one invalid vote was found while 3 valid votes in respect of Ram Niwas were found in the bundle of 28 cancelled votes. Thus respondent No. 1 Ram Niwas secured 155 votes. The bundles of the remaining candidates, i.e., Chhaju Ram, Ramesh and Ram Narain, were also checked, and 144 votes in the bundles of Chhaju Ram, 49 votes in the bundles of Ramesh and 74 in the bundles of Ram Narain were found, which were valid. The total votes polled were 822 in which 104 votes were found invalid/multiple votes, while the answering respondent Ram Niwas secured 155, the petitioner Badlu Ram secured 150 votes Sat Narain secured 146 votes, Chhaju Ram secured 144 votes, Ramesh secured 49 votes and Ram Narain secured 75 votes.
5. With the above defence, respondent No. 1 has justified and defended Annexure P3.
6. In support of his case the petitioner has relied upon Annexure P1, which is a chart showing the total number of votes polled in favour of each candidate besides the number of votes which were declared cancelled. A perusal of this chart would show that Chhaju Ram got 144 votes, Badlu Ram got 194 votes, Ramesh got 49 votes, Ram Narain got 74 votes, Ram Niwas got 153 votes and Sat Narain got 180 votes, while 28 votes were cancelled and in this manner Badlu Ram petitioner was declared elected. Annexure P2 is the copy of the election petition dated 11.1.1995 filed by Ram Niwas, respondent No. 1. Annexure P3 is the impugned order dated 26.4.1995 passed by the Court of Sub Judge-Ist Class, Rewari. Respondent. No. 1 has also placed on record Annexure R1, which is a reply to the election petition filed by respondents Nos. 1, 3 and 5. Annexure R2 is the copy of the proceedings which took place on 26.4.1995. I shall make a brief reference with regard to the documents filed by the parties in the later part of the judgment, which is being rendered with the assistance of Shri Rajinder Chahar, Advocate with Mr. Raman Gaur, Advocate, who appeared on behalf of the petitioner, and Shri J.S. Yadav, Advocate, who appeared on behalf of respondent No. 1.
7. Before I deal with the solitary argument, which was raised by the learned counsel fur the petitioner, it will be useful for me to refer to paras Nos. 4 and 5 of the impugned order (Annexure P3), which run as follows:-
"4. When the counting was made in my chamber it was found that in the bundle of cancelled votes three valid vote's of Ram Niwas were there and one valid vote of Badlu was there. There were two bundles of the votes of Ram Niwas. One bundle was that of 58 votes. While on scrutiny and counting one vote was found to be invalid on account of multiple voting. Another bundle was that of 95 votes and in-that bundle all the votes were found to be valid. The total valid votes of Ram Niwas were found to be 155 as one invalid vote was there and 3 valid votes were found in the bundle of cancelled votes.
Bundles of Badlu were also counted and scrutinized. One bundle was that of 56 votes. Out of them 9 votes were found to be invalid on account of multiple voting and in another bundle there were 138 votes and during counting and scrutiny 36 votes were found to be invalid on account of multiple voting. Total valid votes of Badlu were found 150 whereas in his bundles there were total 194 votes. Out of them 45 votes were found to be invalid and one valid vote of Badlu was found in the bundle of cancelled votes. Likewise the counting and scrutiny of the votes of Satya Narain was also made. One bundle was that of 131 votes. Out of them 26 votes were found to be invalid on account of multiple voting. Another bundle was that of 49 votes and on scrutiny 8 votes were found to be invalid on account of multiple voting. The total valid votes of Satya Narain were found to be 146 as out of 180 votes in the bundles of Satya Narain 34 votes were invalid on account of multiple voting. Statement of the counsel for the parties also recorded in this behalf.
5. After counting counsel for defendant Badlu who is the declared Sarpanch contended that he be given time for filing of the written statement and also raised an objection that declaration form and other record including summary of votes has not been produced. As already mentioned, the ballot papers were produced and the ballot papers of 3 candidates and cancelled ballot papers were scrutinised and checked: The counsel for the parties were also offered the counting of the votes of the remaining candidates can also be made if desired but during the counting all the counsel for the, parties admitted that there is no use of counting the votes of other defendants. However, at random, scrutiny of the remaining bundles was also conducted so as to find out as to whether any vote in favour of first three candidates is there in the other bundles or not and at random checking no such vote was found in the bundles of other defendants. In the present petition, the simple dispute is that of recounting and the adjournment for the purpose of filing the written statement by counsel for defendant Badlu seems to be a vague excuse to prolong the litigation. From the recounting it is established on record that the concerned Presiding Officer was grossly negligent in counting votes. It seems that just to favour Badlu defendant invalid votes were counted in his favour and in favour of defendant Satya Narain so as to give impression to the plaintiff that he was on the third position. If such counting is being conducted by the Presiding Officer it is very shameful on the part of the system as by way of illegal counting. The Presiding Officer changed the verdict of the people and to change the verdict of the people is a serious lapse on the part of the Presiding Officer as ours is the democratic set up wherein right of franchise is the basic right and Haryana Panchayati Raj Act was enacted by the legislature in the year 1994. To meet out the requirements of 73rd Amendment of the Constitution, the Act was enacted with a view to establish three tyre system of the Panchayats in the State and to provide the representation to the scheduled caste and women and to achieve some other goals as so enumerated in the statement of aims and objects. If counting is conducted in such a manner, the whole of the purpose of enactment of the Haryana Panchayati Raj Act stands frustrated as while ignoring the verdict given by the electoral body the Presiding Officer changed the decision without any logic."
8. It was contended by the learned counsel for the petitioner that the trial Court committed a great error when it confined the recounting only with respect to the votes of Badlu Ram, Ram Niwas and Satya Narain and it did not recount the votes earlier cast in favour of Chhaju Ram, Ramesh and Ram Narain, and by not doing so, the order of recount and the mode of recount is illegal and is liable to be struck down. I do not find merit in this contention, if I look to the document (Annexure R2), which shows that on 26.4.1995 joint statements of Sarvshri Vir Kumar, Advocate, who appeared on behalf of Ram Niwas, plaintiff (respondent No. 1 in this petition); R.K. Vats, Advocate, who appeared on behalf of Badlu Ram, defendant-petitioner, and Shri Satbir Singh, Advocate, who appeared on behalf of the other candidates, were recorded. It was clearly stated by them that on counting of votes three valid votes in respect of Ram Niwas and one valid vote in respect of Badlu Ram were found in the bundle of cancelled votes. The votes of Ram Niwas were in two bundles; in which one bundle contained 58 votes, on counting of which one vote was found multiple, which was illegal. The second bundle contained 95 votes, which all were found legal. So the total votes of Ram Niwas were 155 because one vote was found to be illegal in his bundles of 153 votes and three legal votes were found in the bundle of cancelled votes. In this manner Ram Niwas, respondent No. 1, improved his position by two legal votes from the earlier one when it was shown that he secured 153 votes.
9. Annexure R2 further shows that in the bundle of 56 votes of Badlu petitioner, nine votes with multiple voting were found, which were declared illegal. In the second bundle containing 138 votes, when checked, 36 votes were found with multiple voting, which were declared illegal. In this manner the total valid votes in favour of Badlu Ram petitioner became 150 and his position deteriorated from 194 votes, which were earlier shown to have been polled in his favour. One valid vote was found in the bundle of cancelled votes. The counting of votes polled in favour of Sat Narain was also done. His one bundle containing 131 votes showed that 26 votes had multiple voting and were declared illegal. The second bundle containing 49 votes showed that 8 votes were found with multiple voting and were declared illegal. In this manner the total votes of Sat Narain could be termed as 146 as against 180, which were shown at the initial stage.
10. The position which emerged out from the above discussion is that Ram Niwas got 155 valid votes while Badlu Ram petitioner got 150 valid votes and Sat Narain got 146 valid votes. To meet the contention raised by the learned counsel for the petitioner, it may be useful for me to refer to the impugned order dated 26.4.1995 (Annexure P3) itself wherein it has been specifically stated by the learned Sub Judge that the counsel for the parties were also offered for the counting of the votes of the remaining candidates, but-during the counting all the counsel for the parties admitted that there was no use of counting of votes of the other defendants. However, at random scrutiny of the remaining bundles was also conducted so as to find out as to whether any vote in favour of the first three candidates was there in the other bundles or not and at random checking showed that no such vote was found in the bundles' of the other defendants.
11. With the above observations, the case of the petitioner-Badlu Ram is not going to be improved because no valid vote of Badlu Ram, Ram Niwas or Sat Narain was found in the bundles of other three candidates, namely, Chhaju Ram, Ramesh and Ram Narain. The highest valid votes on recount were in favour of Ram Niwas, respondent No. 1. Next to him was Badlu' Ram petitioner and next to him Was Sat Narain. Next to Sat Narain was; Chhaju Ram. Next to Chhaju Ram was Sham Narain and the lastly was the position of Ramesh. It is not the case of the petitioner that his valid votes were found in the bundles of Chhaju Ram Ram Narain and Ramesh. In the absence of such evidence, it cannot be said that the declaration given by the learned Sub Judge vide judgment Annexure P3 in favour of Ram Niwas was legal.
12. Faced with this situation, learned counsel for the petitioner submitted that as the recounting was not for the purpose of appreciation of evidence and the trial Court did not accept any Written statement nor it framed any issue, therefore, the impugned order should be struck down. This argument is very vital to be accepted because the fate of the election petition was based on only recount, which was not objected to by Badlu Ram petitioner before the trial Court. If a patent illegality was committed by the Returning Officer, which could be remedied without further evidence by the-trial Court, it had the power to do so. To cast the illegal votes in one's favour is also a corrupt practice and a candidate, who has been declared elected after committing a corrupt practice, cannot be allowed to complain that the decision of the authority, which has remedied the illegality, is without jurisdiction.
13. Rather Section 176 of the Act gives power to the trial Court to declare a candidate as duly elected, who has been found to have got the highest number of valid votes in his favour, after conducting scrutiny and computation of the votes, and this has been exactly done by the trial Court vide Annexure P3.
14. Learned counsel for the petitioner has relied upon P.K.K. Shamsudeen v. K.V.M. Mappillai Mohindeen and Ors., AIR 1989 S.C. 640, and submitted that the order of recount passed by the trial Court was illegal as there was no prima facie evidence to satisfy the Tribunal that recount should be ordered. The authority is not applicable to the facts in hand. A perusal of the election petition of respondent No. 1 would show that he had clearly averred that the declaration of the result in favour of the petitioner was based on illegal counting of the votes and the election petition of respondent No. 1 could be disposed of on a short point of determination of casting of the valid votes.
25. Resultantly, this Court is of the opinion that the present writ petition is without any merit, which is hereby dismissed with no order as to costs.