- (1.) THE instant petition arises from the order dated 22.06.2011 (Annexure ­ P/1) passed by the Sub Divisional Officer (Revenue) (Election Tribunal) (for short 'the Tribunal), Janjgir- Champa, in Revenue Case No.01/A-89(21)/2009-10, whereunder, the petition filed by the respondents No.1 (Election petitioner) was allowed and Tribunal directed to recount votes in respect of polling booth No. 234 and 236 on finding that there were discrepancies in the records.
(2.) THE facts, in brief, are that the petitioner was declared as elected Sarpanch of the Gram Panchayat of Village Salkhan, Tahsil Nawagarh, District Janjgir-Champa, in the election held on 25.01.2010. Being aggrieved, the respondent No. 1 filed an election petition on 08.02.2010 (Annexure P/2) seeking a direction for recounting of the votes cast in the election. In the pleadings, it was pleaded that in polling booth No. 234, the return candidate got 60 votes, and the election petitioner secured 62 votes. It was further pleaded that irregularities were committed in counting of votes of polling booth No. 234. In the result sheet, 184 votes were shown to have been secured by the return candidate and only 9 were shown to have been secured by the election petitioner, and as such, the writ petitioner was declared as elected. It was further alleged that the respondent No. 24 and 25, namely V.K.Lakra, Tahsildar and R.S.Patel, the Prescribed Officer of Polling Booth No. 234, have manipulated the votes. The petitioner filed his reply contradicting the averments made by the election petitioner in the election petition holding that there was no irregularity and also the election petition be rejected as the election petitioner ought to have made an application for re-counting before declaration of the result. It was further contended that the counting slip was prepared which has no endorsement of the prescribed authority and as such, the same may be rejected. The Presiding Officer of the Election Tribunal, by order dated 26.04.2010 directed re-counting of the votes which was challenged before this Court in W.P.(227) No. 2144/2010. In the meantime, recounting was done. Thereafter, the election petition was decided on 30.04.2010 in favour respondent No. 1. Both the orders were challenged in W.P.(227) 2144/2010. This Court, after hearing the parties, quashed both the orders i.e. 26.04.2010 and 30.04.2010 and directed the Election Tribunal to consider and decide the case in accordance with the provisions of law, after framing proper issues, by order dated 30.06.2010 (Annexure P/6). The Tribunal, subsequently, by order dated 30.08.2010, directed the Chief Executive Officer to hand over the charge of the Sarpanch to the election petitioner. Both the orders dated 25.08.2010 and 30.08.2010 were challenged before this Court in W.P.(C) No. 5735/2010 and 6583/2010. This Court heard both the petitions jointly and quashed the orders directing the Tribunal to conclude hearing as per the direction dated 30.06.2010 passed by this Court in W.P.(S) No. 2144/2010 and then pass the final order. Thereafter, the election petition was heard and after framing of the issues, the impugned order was passed.
(3.) SHRI B.P.Gupta, learned counsel appearing for the return candidate (writ petitioner) would submit that the petitioner examined the records of the case which was fixed for final hearing on 25.06.2011 wherein it was found that the Tribunal, recorded the evidence and examined the witnesses produced by the election petitioner and posted the matter for argument and proceeded against the election petitioner, ex-parte. There was no objectivity. The Sub Divisional Officer was biased as the complaint was accordingly made to the Collector (Annexure P/4). The Tribunal has decided the entire case on the basis of written statement of the respondent No. 2 to 23 and 25 without affording an opportunity of hearing to the return candidate for examination as well as cross examination. The respondent No. 3 and 12, in their affidavits have clearly stated that they have not filed any written statement nor they have engaged any counsel and also stated that there was no illegality in the election result. The Tribunal relied on a piece of paper which was neither certified copy nor was filed by the competent officer. The election petitioner has disputed the votes of polling booth No. 234, without producing the sufficient evidence in support of his contention. Affidavit filed by the respondent No. 3 and 12 have completely been overlooked. The Tribunal has gone against the well settled principles of law that secrecy of the votes should not be disturbed unless there is strong proof in support of the allegation. The election petitioner, as required under the provisions of the Evidence Act has failed to prove his case and the documents annexed thereto, in the petition were also not proved in accordance with law.;