PRITAM PAL, J. - (1.)Lillu Ram, petitioner, has brought this petition under 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.
(2.)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.
(3.)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. 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.
3. 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 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.