V.S.AGGARWAL, J. - (1.) VIDYA Sagar petitioner has invoked Article 226 of the Constitution of India and seeks quashing of the order dated 21.8.2000 and the judgment dated 6.9.2000 passed by respondent No. 1 (Additional Civil Judge (Senior Division) Kurukshetra whereby election of the petitioner as Sarpanch of village Khairi had been set aside and respondent No. 2 has been declared elected as Sarpanch of the village.
(2.) THE relevant facts alleged are that election for the office of Sarpanch of the village referred to above was held on 12.3.2000. The petitioner as well as respondents No. 2 and 3 contested the election. After the counting of the votes, the petitioner and respondent No. 2 were found to have secured 403 votes each. 8 votes had been rejected. It is contended that the Presiding Officer and the Supervisor wanted to declare the result by draw of lots to which the petitioner objected. In his absence and in the presence of respondent No. 2 draw of lots was held. The petitioner was declared to have been elected and respondent No. 2 had signed the declaration. Respondent No. 2 filed Election Petition under Section 176 of the Haryana Panchayati Raj Act, 1994 challenging the election of the petitioner. Additional Civil Judge (Senior Division) Kurukshetra, ordered the recounting of votes on 21.8.2000 and after recounting had set aside the election of the petitioner. It is asserted that the orders so passed are illegal and contrary to law because no recounting of votes could be ordered. The election petition was lacking in material facts and particulars. No serial numbers of ballot papers were mentioned in the election petition nor any booth number was mentioned as to in which booth the ballot papers were wrongly counted in favour of the petitioner and as to in which booth number three invalid votes were put in the bundle of the petitioner. It was also asserted that respondent No. 2 had not moved any application before the Presiding Officer for recounting of votes. Under Rule 69 of the Haryana Panchayati Raj Election Rules, 1994, such a recount can be asked at the time of declaration of the result. At that time, respondent No. 2 or his agents were present. Furthermore, it is asserted that the learned Tribunal had not correctly and rightly done the recounting because the total votes found at the time of initial counting were 964 while the record prepared shows 950 votes.
(3.) NEEDLESS to state that the petition as such had been contested primarily by respondent No. 2. It is asserted that when petitioner appeared before respondent No. 1, he had admitted on oath that he has no objection in recounting of the votes. The writ petition was further stated to be not maintainable because of the provisions of Section 176(4)(b) of the Panchayat Raj Act, as applicable to Haryana, which provides for recounting of valid votes. It is also the defence that the petitioner did not challenge the order dated 21.8.2000. It is denied that there is any mistake in the counting as such and it is asserted instead that under the facts it was rightly directed that there should be a recount because there were proper pleadings.;