S.B.Sinha, J. - (1.) LEAVE granted.
(2.) GRAM Panchayat Ralla is situated in the District of Mansa in the State of Punjab. Election to the post of Sarpanch of the said GRAM Panchayat was held on 29.6.2003. The appellant and the first respondent herein were the only two contestants, polling wherefor was held in four booths being nos. 41, 42, 43 and 44. The appellant was declared elected having polled 2004 votes as against 1900 by the first respondent. 147 votes were rejected. The first respondent herein allegedly made all attempts to disturb the counting process. He, however, did not lodge any complaint with the Returning Officer. The wife of the first respondent incidentally was elected as Sarpanch in the earlier term. An election petition was filed by the first respondent on 28.7.2003 inter alia praying for the following relief: "Therefore, the petition is presented it is prayed that the petition may kindly be accepted with costs and the recounting of the votes for the election of Sarpanch may kindly be ordered and election of respondent no. 1 as Sarpanch may be set aside and the petitioner be declared as the elected Sarpanch of Gram Panchayat of Village Ralla." In the said election petition, it was inter alia averred: "That at the time of issuing the ballot paper every illiterate voter was required to mark his thumb impression, as a result of which the ink of the stamp pad would get affixed to the thumb of such voters. At the time of folding the ballot this ink would leave thumb impression on the ballot. 42 such votes which were polled in favour of the petitioner were wrongly declared invalid whereas 48 such votes which had been poled in favour of respondent no. 1 instead of being declared invalid were considered as valid and counted in favour of respondent no. 1. In this manner during the process of counting similar types of votes, different criteria were adopted which is completely wrong and illegal."
(3.) IN the said proceedings by an order dated 4.6.2004, recounting of votes was directed whereagainst the appellant herein filed a writ petition being CWP No. 9269 of 2004. The High Court summoned the original ballot papers. Upon inspection thereof, it was observed that everything was in a total mess stating: "We have heard learned counsel for the parties at some length. During the course of hearing it appeared to us that in the interest of justice we would direct the box containing the votes to be opened. Therefore, we directed seals of the box to be removed in presence of counsel for the parties and the Reader of Court. The seals were removed and box opened by the officials in their presence. It has been containing the votes, particularly, in relation to booth no. 41, which envelope was opened, clearly show that they are not being maintained in a proper way. There is no separate envelope to indicate rejected votes. Wrongly counted votes and the votes in favour of each of the candidate to the election. At this stage, we would not make any further observations to avoid any prejudice to the rights and contentions of either party to these proceedings. Arguments have been concluded. We direct that the envelope as well as the box be sealed in the presence of counsel for the parties and the seal should be clearly marked so as to establish its identity at a subsequent stage before the competent forum. Judgment reserved." By an order dated 2.9.2004, the writ petition was dismissed stating: "In the back-drop of definite allegations in regard to irregularities, improper counting of votes and particularly, keeping in mind the fact that when boxes containing the ballot papers were opened before this court it came to the notice that votes were not even being kept in a segregated manner in proper bundles, in our opinion, the respondent herein had made a prima-facie case for recounting of votes. The Tribunal has exercised jurisdiction vested in it within the purview and scope of Rules 33 and 37 of the Rules. Exercise of such jurisdiction neither suffers from a patent error of law nor is contrary to the record, in order to justify interference with such as interim order, heavy onus lay on the petitioners before us to show that the impugned orders ex-facie suffer from erroneous errors of law. In our opinion, the petitioners have not been able to exhibit any such error. The conclusions arrived at by the learned Tribunal are based upon the averments made in the petition, supported by oral evidence led by the parties during the course trial of election petition, which are no way contrary to the well established principles of law. Consequently, we dismiss both these petitions leaving the parties to bear their own costs." ;