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LILLU RAM versus THE ADDITIONAL CIVIL JUDGE(SR.D) GURGAON

High Court of Punjab and Haryana, Chandigarh

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Lillu Ram v. The Additional Civil Judge(Sr.D) Gurgaon - CWP-172-2006 [2006] RD-P&H 4158 (14 July 2006)

Civil Writ Petition No. 172 of 2006. 1

...

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

Civil Writ Petition No. 172 of 2006.

Date of Decision : July 25, 2006

Lillu Ram

... Petitioner

Versus

The Additional Civil Judge (Sr. Division) Gurgaon and others.

.. Respondents

Present : Shri Ashok Aggarwal, Senior Advocate, with Shri Sanjiv Bansal, Advocate,

for the petitioner.

Shri M.L.Sarin, Senior Advocate,

with Shri Hemant Sarin, Advocate,

for respondent No.2.

PRITAM PAL, J.

Lillu Ram, petitioner, has brought this petition under Civil Writ Petition No. 172 of 2006. 2

...

Articles 226/227 of the Constitution of India for issuance of a writ in the nature of mandamus, certiorari or any other suitable writ, order or direction, quashing impugned order dated 2.1.2006 (Annexure P/6) passed in Election Petition No. 18 of 2.5.2005, whereby, learned Additional Civil Judge (Senior Division), Gurgaon has directed the scrutiny and recounting of valid votes polled for the post of Sarpanch of Gram Panchayat, Village Nathupur, District Gurgaon.

Brief facts culminating to the commencement of this writ petition may be recapitulated thus :

Smt. Shiela, respondent No.2 (hereinafter referred to as "the respondent") filed a petition under Section 176 of the Haryana Panchayati Raj Act, 1994 (hereinafter referred to as "the Act") with the averments that she had contested the election for the post of Sarpanch of Gram Panchayat, Village Nathupur, Tehsil and District Gurgaon, held on April 9, 2005. She was one of the 8 candidates, including Lillu Ram, the present petitioner,(hereinafter referred to as "the writ petitioner"), who had also contested the election. Lillu Ram was declared elected having secured 973 votes, whereas, the respondent was declared to have secured 971 votes. In this way, there was a margin of only two votes between the two.

Civil Writ Petition No. 172 of 2006. 3

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The respondent has challenged this election for the post of Sarpanch held on 9.4.2005 on the grounds that the same was conducted against the provisions of the Act. According to her, the said election was held in Government Primary School, Nathupur. The doors of the said polling station were closed at 3.45 PM, while the polling time was upto 4.00 p.m. and before the polling time was over, the ballot boxes were carried out, at the instance of the Returning Officer and the then Sub Divisional Magistrate, Gurgaon and the same were placed in a bus parked behind the polling station from where, they were transferred to John Hall, Gurgaon. Thereafter, the respondent and her agent were prevented from entering the said Hall at the time of counting of votes by the Returning officer and the then SDM, Gurgaon, whereas, the writ petitioner and his agent were allowed to enter the John Hall. In this way, the counting of votes was done in the absence of the respondent and her agent. Ultimately, the writ petitioner was illegally declared as elected by a margin of only two votes. Further, it was also the case of the respondent before the Court below that bogus votes were also manufactured in favour of the writ petitioner and that there was also improper rejection of the valid votes and improper acceptance of invalid and bogus votes, which had affected the result of the election.

Civil Writ Petition No. 172 of 2006. 4

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Ultimately, the result was announced on the basis of wrong and illegal counting of votes. It was then also claimed that the number of total votes polled in the presence of agent of the respondent, at the polling booth in Village Nathupur, was 2925, whereas, in the record, a total number of 2896 votes were shown to have been cast. On the same day, the respondent had moved an application to the District Collector with a request for re-counting of the votes, but the same was not accepted.

On the other hand, the writ petitioner denied the allegations of the respondent in his written statement filed before the Court below and took some preliminary objections regarding the maintainability of the petition, principle of estoppel etc. It was then claimed that the petition filed by the respondent before the Court below was on account of political rivalry. According to him, the election for the post of Sarpanch was held in a free and fair manner. All the allegations put forth by the respondent were termed as baseless and frivolous. In fact, the said election was conducted on 9.4.2005 in accordance with the provisions of the Act. It was then also controverted that the election staff, i.e., Returning Officer and the then S.D.M. Gurgaon, had prevented the respondent from entering the John Hall, Gurgaon, where the counting of the votes polled was done. Later on, as per Annexure Civil Writ Petition No. 172 of 2006. 5

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P/3, an application for re-counting of votes was also moved by the respondent, taking by and large the same grounds, as mentioned above, in her main election petition.

Again the writ petitioner, in his reply, Annexure P/4, denied the allegations of the respondent and later on, in his application dated 23.12.2005, Annexure P/5, the writ petitioner made a prayer for framing of issues and recording of evidence before deciding the question of re-counting of votes.

Learned Presiding Officer of the Court below, after hearing learned counsel for the parties on the aforesaid application and keeping in view the provisions of Section 176(4)(b) of the Act and while relying upon the case law, referred to in Radha Krishan V. The Election Tribunal-cum-Sub Judge, Hissar, 1999(4) RCR (Civil) 79, and Badlu Ram Vs. Ram Niwas and others 1997 (2) RCR (Civil), 439, ordered for scrutiny and re-counting of valid votes.

This is how, feeling aggrieved, the writ petitioner has come up before this Court, by filing the present writ petition.

I have heard learned counsel for the parties and have also gone through the file of the case.

Shri Ashok Aggarwal, learned Senior counsel appearing on Civil Writ Petition No. 172 of 2006. 6

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behalf of the writ petitioner, at the outset of his arguments, vehemently submitted that in fact, the learned Additional Civil Judge (Senior Division), Gurgaon (hereinafter referred to as "Civil Judge") has failed to appreciate the provisions as envisaged under Section 176(4)(b) of the Act, while passing the impugned order for scrutiny and recounting of valid votes. He then clamoured that the learned Civil Judge made up her mind without there being any such material or any affidavit or documents for making out a prima facie case for recounting of the votes.

At the same time, Shri Aggarwal also argued that the recounting cannot be directed on mere asking of a candidate to the election as it is very important to maintain secrecy of ballot and the same should not be allowed to be violated on frivolous, vague and indefinite allegations. At the last leg of his arguments, it was also submitted that in fact, the Returning Officer had conducted the election for the post of Sarpanch in accordance with rule 69 of the Haryana Panchayati Raj Election Rules, 1994 (hereinafter referred to as "the Rules"). In support of his aforesaid points of arguments, learned counsel for the petitioner also relied upon Radha Kishan Vs. The Election Tribunal-cum-Sub-Judge, Hissar 1999 (4) R.C.R. (Civil) 79; V.S.Achuthandan Vs. P.J.Frances and another 1999 (3) SCC 737; and Smt. Ram Rati Vs. Saroj Devi and Civil Writ Petition No. 172 of 2006. 7

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others AIR 1997 Supreme Court 3072 (1).

On the other hand, Shri M.L.Sarin, learned Senior counsel appearing for the contesting respondent, repelled the aforesaid points of arguments, raised on behalf of the writ petitioner and at the same time, it was emphatically contended that in fact, the writ petitioner and the election staff including the Returning Officer and the then Sub Divisional Magistrate of the area, in connivance with each other, had not allowed the respondent and her agents to enter in the John Hall, where counting of the votes was being done. In this way, counting of the votes, after the polling, was done in the John Hall in contravention of rule 63 of the Rules and ultimately, in the absence of the respondent, who is a lady, the writ petitioner was declared elected illegally by a margin of two votes. Shri Sarin then made reference to an application dated 9.4.2005 (Annexure R/2-2), which was made by the respondent and her agent on the same day to the Deputy Commissioner, Gurgaon for recounting of votes, but her that application was not accepted. Further, Shri Sarin has specifically repelled the submission of Shri Aggarwal regarding non-filing of affidavit in support of the allegations made in paragraph (iv) of the Election Petition before the learned Civil Judge.

On his request, the trial Court record, which was received in this case in Civil Writ Petition No. 172 of 2006. 8

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a sealed cover, was got opened and perused. It was then revealed that a duly attested affidavit dated 29.4.2005 of the respondent was filed before the Civil Judge in support of her allegations contained in the Election petition. Learned counsel for the respondent, at the fag end of his arguments, contended that the learned Civil Judge, in the given facts and circumstances of this case, is perfectly justified in passing the order of scrutiny and recounting of valid votes. In support of his aforesaid points of arguments, learned senior counsel relied upon the following catena of judgments :-

Bhira alias Nada v. State of Haryana and others 2001 (2) PLJ 460.

Jibontara Ghatowar V. Sarbananda Sonowal and others (2003) 6 Supreme Court Cases 452

A. Neelalohithadasan Nadar Vs. George Mascrene and others 1994 Supp (2) Supreme Court Cases 619;

Smt. Rajwati Vs. Smt. Rajesh Kumari and others.

1996 (2) PLR 141.

I have given my thoughtful consideration to the above submissions made on behalf of the parties and have also gone through the above cited rulings.

Before I proceed further, it would be pertinent to reproduce Civil Writ Petition No. 172 of 2006. 9

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the provisions of Section 176 of the Act, under which, the Election Petition was initially filed by the respondent before the learned Civil Judge. The same read as under :-

"176. Determination of validity of election enquiry by Judge and procedure. - (1). If the validity of any election of an member of a Gram Panchayat, Panchayat Samiti or Zila Parishad or Sarpanch of Gram Panchayat, Chairman or Vice Chairman, President or Vice President of Panchayat Samiti or Zila Parishad respectively is brought in question by any person contesting the election or by any person qualified to vote at the election to which such question relates, such person may at any time within thirty days after the date of the declaration of results of the election, present an election petition to the civil Court having ordinary jurisdiction in the area within which the election has been or should have been held, for the determination of such question.

(2). A petitioner shall not join as respondent to his election petition except the following persons :- (a). where the petitioner in addition to challenging the validity of the election of all or any of the returned candidates claims a further relief that he himself Civil Writ Petition No. 172 of 2006. 10

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or any other candidate has been duly elected, all the contesting candidates, other than the petitioner and where no such further relief is claimed, all the returned candidates;

(b). any other candidate against whom allegations of any corrupt practices are made in the election petition.

(3). All election petitions received under sub- section (1) in which the validity of the election of members to represent the same electoral division is in question, shall be heard by the same civil Court.

(4). (a). If on the holding such inquiry the civil Court finds that a candidate has, for the purpose of election committed a corrupt practice within the meaning of sub-section (5), he shall set aside the election and declare the candidate disqualified for the purpose of election and fresh election may be held.

(aa). If on holding such enquiry the Civil Court finds that -

(i). on the date of his election a returned candidate was not qualified to be elected.

ii). any nomination has been improperly rejected; or iii). the result of the election, in so far as it Civil Writ Petition No. 172 of 2006. 11

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concerns a returned candidate, has been materially affected by improper acceptance of any

nomination or by any corrupt practice committed in the interest of the returned candidate by an agent other than his election agent or by the improper reception, refusal or rejection of any vote or the reception of any vote which is void or by any non- compliance with or violation of the provisions of the Constitution of India or of this Act, or any rules or orders made under this Act,

election of such returned candidate shall be set aside and fresh election may be held.

(b). If, in any case to which clause (a) or clause (aa) does not apply, the validity of an election is in dispute between two or more candidates, the court shall after a scrutiny and computation of the votes recorded in favour of each candidate, declare the candidate who is found to have the largest number of valid votes in his favour to have been duly elected.

Provided that after such computation, if any, equality of votes is found to exist between any candidate and the addition of one vote will entitle any of the candidates to be declared elected, one additional vote shall be added to the total number of valid votes found to Civil Writ Petition No. 172 of 2006. 12

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have been received in the favour of such candidate or candidates, as the case may be, elected by lot drawn in the presence of the Judge in such manner as he may determine.

(5). A person shall be deemed to have committed a corrupt practice -

a). who with a view to induce a voter to give or to refrain from giving a vote in favour of any candidate, offers or gives any money or valuable consideration, or holds out any promise or individual profit, or holds out any threat of injury to any person, or

b). who, with a view to induce any person to stand or not to stand or to withdraw or not to withdraw from being a candidate at an election, offers or gives any money or valuable consideration or holds out any promise or individual profit or holds out any threat of injury to any person; or

c). who hires or procures whether on payment or otherwise any vehicle or vessel for the conveyance of any voter (other than the person himself, the members of his family or his agent) to and from any polling station.

Explanation 1. - A corrupt practice shall be deemed to Civil Writ Petition No. 172 of 2006. 13

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have been committed by a candidate, if it has been committed with his knowledge and consent by a person who is acting under the general or special authority of such candidate with reference to the election.

Explanation 2. - The expression "vehicle" means any vehicle used or capable of being used for the purpose of road transport whether propelled by mechanical power or otherwise and whether used for drawing other vehicles or otherwise."

(emphasis supplied)

Thus, a perusal of Section 176 (4) (b) of the Act, reproduced above, indicates that when no enquiry regarding the allegations of corrupt practice within the meaning of sub-section (5) of the Act is required, and the validity of an election in dispute between the two or more candidates can be disposed of without such inquiry, in that situation, the Civil Judge, after being satisfied on the basis of material made available to it, is justified in ordering recounting of valid votes.

Here in the instant case, as is evident from the impugned order, Annexure P/6, learned counsel for the respondent, during the course of his arguments, had not pressed other allegations pertaining to Civil Writ Petition No. 172 of 2006. 14

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casting of bogus/dead votes, before the learned Civil Judge. In this view of the matter, the case of the respondent was found to have been covered under the restricted scope of Section 176 (4)(b) of the Act, which provides for scrutiny and computation of the votes recorded in favour of each candidate. It is also pertinent to mention here that both the learned senior counsel appearing for the parties have also laid emphasis on the observations made by their Lordships in the Full Bench decision in Radha Krishan's case (supra), wherein, their Lordships in paragraphs 42 to 44 have observed as under :-

"42. In the petition detailed circumstances were stated and the petition was duly verified. The petitioner Smt.

Darshana on 18.5.1996, had given up all the grounds of corrupt practices or otherwise and had confined her relief and claim to the recount and scrutiny and computation of the valid votes. The learned Judge vide order dated 14.8.1996 had come to the conclusion that in order to do justice between the parties and on the basis of the averments made in the petition supported by documents, it would be imperative to direct recount/scrutiny and computation of valid votes. The order dated 14.8.1996 is a well reasoned order and we are of the considered view that it fully satisfies the basic and underlying requirements of section 176 (4)(b) of the Act.

Civil Writ Petition No. 172 of 2006. 15

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Consequently, we also see no reason to interfere in the order dated 14.8.1996 challenged by Smt. Surjani.

"43. The cumulative effect of the above discussion persuades us to settle the legal controversy in relation to the nature and scope of Section 176(4)(b) of the Act as under :

With respect and for the reasons recorded above, we are not quite in agreement with either of the extreme views taken by the Hon`ble Division Benches of this Court in the cases of Sunehri Devi V. Narain Devi, C.W.P. No. 6381 of 1995, decided on 20.10.1995 and Bharat Singh v. Dalip Singh and others, C.W.P. No. 9671 of 1995 decided on 6.10.1995. We would prefer to adopt the middle path and practical oriented approach so as to achieve the purpose of the Act. The scrutiny and computation by recount of votes arises in such election more than often. Such request de hors of the corrupt practices or other allegations prima facie may justify passing of an order within the scope of section 176(4)(b) of the Act. The legislative intent requiring expeditious disposal of a petition and passing of an order of scrutiny and computation without detailed inquiry is explicit in the language of these provisions. Without placing Civil Writ Petition No. 172 of 2006. 16

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unnecessary emphasis on the language of the Section and to make the law susceptible to the situations likely to arise in the cases to which such provisions are applicable and with intention to obstracise the possibility of confusion we would interpret the Section on its cumulative reading and in synthesis with the scheme of the Act." "44. Ergo we hold that recounting of votes in such an election cannot be directed on mere asking and in a routine manner. The applicant, if makes definite averments on verification supported by unambiguous details, in accordance with law, supported by documents, if any, and where the applicant makes out a prima facie case to the satisfaction of the court, nothing prevents the Court from ordering scrutiny and computation of votes on recount in the case falling within restricted scope of section 176(4)(b) of the Act. In other words, the court would not be justified in declining such a relief for the reason that the applicant, irrespective of above, must lead evidence through detailed enquiry. Such detailed enquiry is neither postulated nor would be necessary within the purview of said provisions in the limited cases, afore-referred.

Resultantly both the writ petitions are dismissed without any order as to costs."

Thus, a perusal of the above observations made in Civil Writ Petition No. 172 of 2006. 17

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paragraphs 42 to 44, by the Full Bench in Radha Kishan's case (supra), as well as the provisions of Section 176 (4)(b) of the Act, referred to above, goes a long way to show that the Court is neither expected nor required to pass an order in mechanical manner, on mere asking of an applicant. In fact, the Court has to first satisfy itself that a prima facie case exists and required averments supported by an affidavit (in accordance with the rules) and some documents have been placed on record in support thereof, which would justify invoking of the powers of the Court under Section 176 (4)(b) of the Act. Definite averments supported by an affidavit in accordance with rules and preferably some documents in support thereof would be sine qua non to the passing of an order for scrutiny and computation/recounting of votes by the Court considering the election petition.

Here in the instant case, the contention of learned counsel for the writ petitioner that there was no material or any affidavit in support of the allegations contained in the Election petition for making out a prima facie case for scrutiny and recounting of votes, is devoid of any merit, inasmuch as the respondent had specifically filed a detailed affidavit (Annexure R/2-1), which was duly attested, before the learned Civil Judge, in support of her allegations, wherein, it was inter-alia Civil Writ Petition No. 172 of 2006. 18

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averred that doors of the polling station were closed at 3.45 PM though, the time for the polling was uptil 4.00 PM and before the polling time was over, the ballot boxes were removed, at the instance of the Returning Officer and the then S.D.M. Gurgaon, to John Hall, Gurgaon where the respondent and her agent were not allowed to enter at the time of counting of votes. However, the Returning Officer and the then S.D.M., Gurgaon allowed the writ petitioner and his agents to enter John Hall, Gurgaon at the time of counting. An application dated 9.4.2005 (Annexure R/2-2) is also there on the file submitted by the respondent and her agent to the Deputy Commissioner, Gurgaon requesting for recounting of votes, which too was not accepted.

From the allegations contained in the petition, which is supported by an affidavit, filed by the respondent before the learned Civil Judge, it is apparent that she alongwith her election agent was prevented from entering into John Hall, Gurgaon where counting of the votes was done by the Returning Officer. On the other hand, it is also apparent from the record that the writ petitioner and his agent were very much present in the John Hall,Gurgaon at the time of counting. It is further established from the application for recounting (Annexure P/3) that when the respondent and her agent were enforced to remain away from Civil Writ Petition No. 172 of 2006. 19

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the scene of counting, then they had immediately, on the same day, requested the Deputy Commissioner for recounting of votes vide application (Annexure R/2-2), but that too was not accepted. As per version of the writ petitioner, the counting of the votes was free and fair.

If it was so, then it is not understandable as to why he is afraid of the scrutiny and recounting of valid votes. Here in the instant case, the margin of votes secured by the parties i.e., the respondent and the writ petitioner, is very thin and all other allegations of corrupt practice have already been given up by learned counsel for the respondent.

In this view of the matter and in order to maintain the purity of election, which must prevail over secrecy of ballot, it is held that the present case is fully covered under the restricted scope of the provisions of Section 176(4)(b) of the Act.

In the result, the impugned order, Annexure P/6, ordering scrutiny and recounting of valid votes, is maintained and consequently, this writ petition is dismissed. No costs.

The records and other material received from the Court below be sent back forthwith so that further action in the matter may be taken by the Court below in accordance with law and without any further Civil Writ Petition No. 172 of 2006. 20

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delay.

[ PRITAM PAL ]

July 25, 2006 JUDGE

som

To be referred to Reporter : Yes/No.


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