G.R.MAJITHIA, J. - (1.) The petitioner has challenged the order, dated 31/12/1991 of the Deputy Commissioner, Karnal ordering repoll for election of Sarpanch of Gram Panchayat, Kurana, District Karnal in this Civil Writ Petition under Arts. 226/227 of the Constitution of India. 1A. Facts first : Election for the office of Sarpanch of Gram Panchayat, Kurana was held on 24/12/1991. There were four polling booths at the polling station. Each contestants was allotted a separate ballot box at every polling station. After the polling, counting started and after counting of votes of three polling booths having concluded, the counting of ballot papers of booth No. 47 commenced. The ballot papers were counted as per rules. When the ballot box of Raghbir Singh, respondent No. 3 at booth No. 47 was opened, it was found that out of the total ballot papers polled in his favour, only 213 were in countable position and the remaining had been destroyed by acid. The Presiding Officer did not announce the result and sent a report to the Deputy Commissioner. The Deputy Commissioner on receipt of the report ordered repoll in the entire Constituency. This order has been challenged in this writ petition. The impugned order has not been produced by either of the parties. The factual position has also not been disputed by either of them.
(2.) The learned counsel for the petitioner submitted that even if the votes which were found to have been destroyed by acid had been counted in favour of respondent No. 3, even then the petitioner would have been declared elected having secured more votes than him and the Deputy Commissioner gravely erred in ordering the repoll. The assertion made by the learned counsel for the petitioner was not vouchsafed by the record. We, therefore, thought it proper to summon the Director, Development and Panchayats Department, Haryana, to examine the election records and submit his report if the assertion made by the learned counsel for the petitioner is correct. After consulting the election record, he submitted an affidavit, dated 12/07/1993. He has stated that 950 ballot papers were issued at booth No. 47, out of which 783 ballot papers were used. After opening of the ballot boxes of booth No. 47, the position of votes was as under : - 1. Shri Dhanpat (petitioner) 162 2. Shri Rajinder Singh 13 (Respondent No. 4) 3. Shri Raghbir Singh 213 Respondent No. 3 4. Shri Shamsher Singh 25 (Respondent No. 5) 5. Shri Satyawan 258 (Respondent No. 6)@@@ No ballot paper was found to be invalid. The total number of ballot papers, which were counted, comes to 671. The balance ballot papers numbering 112 were not in a countable position. If all these ballot papers had been counted in favour of Shri Raghbir Singh respondent No. 3, then he would, have secured more votes than any of the contestants and had to be declared elected. The submission of the learned counsel for the petitioner that even if the uncountable ballot, papers were counted in favour of Raghbir Singh, even then he could not be declared elected as a Sarpanch is factually incorrect. The net result is that more than 112 ballot papers were recovered from the ballot box of respondent No. 8, which were not countable. In the background of this factual position, the Deputy Commissioner ordered repoll for the election of the office of Sarpanch of the Gram Panchayat.
(3.) Written statement on behalf of the State of Haryana and the Deputy Commissioner has been filed by the Deputy Commissioner, Panipat. In their written statement, they have taken a positive stand that the counting had taken place of the three booths and partly of the 4th booth. The Polling Agents and the Contesting candidates were present at the time of counting and had complete knowledge of the polled/counted votes and if he had ordered repoll only of the 4th booth, there would have been a possibility of bargain for the votes at a very high level. He felt that it would be unjust to order repoll of the 4th booth and ordered repoll of the election.;