S.S.NIJJAR,J - (1.) THIS Letters Patent Appeal is against the order dated 25.07.2006, passed by the learned Single Judge in C.W.P. No. 172 of 006.
(2.) THE elections to the Gram Panchayats in the State of Haryana were held on 9.4.2005. The appellant Lillu Ram contested the election for the office of Sarpanch, Gram Panchayat, Nathupur, Tehsil and District Gurgaon. There were eight candidates including the appellant and Smt. Shiela (Respondent No. 2) who contested for the office of Sarpanch. In the elections that were held, the appellant secured 973 votes whereas Smt. Sheela (Respondent No. 2) secured 971 votes. There was, therefore, a difference of two votes only between the said two candidates. After declaration of the election result, Smt. Sheela (Respondent No. 2) filed an election petition dated 29.4.2005 (Annexure P-1) under Section 176 of the Haryana Panchayati Raj Act, 1994 ("Act" for short). The said provision provides for the determination of validity of election inquiry by Judge and the procedure therefor. The election petition was registered as Petition No. 18 of 2.5.2005. The Respondent No. 2 in her petition also sought the re-counting of votes and for nullifying the entire election process; besides for declaring her as elected to the office of Sarpanch of Gram Panchayat, Nathupur. The setting aside of the election was inter alia sought on the grounds that the doors of the polling station of the elections which was at Government Primary School, Nathupur were closed at 3.45 P.M. while the time for polling was till 4.00 P.M. Before the polling time was over, the ballot boxes were brought out to a bus parked behind the polling station at the instance of Om Parkash, Returning Officer (respondent No. 9) and the S.D.M. Gurgaon. The ballot boxes without prior notice to respondent No. 2 were then transferred to John Hall, Gurgaon. The Respondent No. 2 and her agent were stopped from entering and being present at the time of counting of votes. The appellant and his agents were, however, allowed to enter the John Hall and be present at the time of counting. The counting was, therefore, done without the presence of Respondent No. 2 or her agent. It was a conspiracy of the election staff and its officers so as to manipulate the votes and declare the appellant as elected. The Respondent No. 2 further alleged that she has reasons to believe that bogus/coined votes were manufactured in favour of the appellant during the counting of votes, which were taken as votes that had been validly cast. The respondent No. 2 could not at that time pray for re-count of votes as she was prevented from being present at the time of counting. There has, thus, been an improper rejection of valid votes and improper acceptance of invalid and bogus votes which materially affected the result of the election. It is also alleged that in the voters' list prepared for election of the Nathupur Panchayat, voters of the Gram Panchayat of village Paroli, Tehsil and District Faridabad were also enrolled. They had cast their votes at Paroli and also at Nathupur. Besides, several persons cast their votes twice in villages Alawardi and Nathupur. A list of the various voters which has been prepared, has been indicated in the election petition (Annexure P-1). The votes of many voters who had died, had also been polled by others. The names of the dead persons and the votes polled have also been indicated. It is also alleged that in the presence of the agent of respondent No. 2 at the polling booth in village Nathupur, the total number of votes that were polled was 2925 votes. However, in the result declared on 9.4.2005 only 2896 votes had been shown to have been polled. The Respondent No. 2 through her agent moved an application dated 9.4.2005 (Annexure R-2/2) before the Deputy Commissioner, Gurgaon, stating therein that in the counting of votes respondent No. 2 had been declared elected but on the pretext of calculation she was shown as defeated by a margin of two votes. Besides, their request for re-counting had been turned down by the S.D.M. Moreover, number of votes cast on their side had been rejected. The appellant filed his written statement dated 31.10.2005 (Annexure P-2) to the election petition of respondent No. 2. Preliminary objections were raised to the effect that the petition was not maintainable in the present form and was liable to be summarily dismissed. Besides, the respondent No. 2 was estopped from filing the petition by her own act, conduct, omissions, admissions, acquiescence and laches. It was further alleged that the petition was bad for non-joinder of necessary parties, she had no cause of action and locus standi to file the petition. Moreover, the Court did not have jurisdiction to entertain and decide the petition. It was also stated that the petition was wholly vague, frivolous, baseless, untenable and false to the knowledge of respondent No. 2. The respondent No. 2 had not approached the Court with clean hands and she had intentionally suppressed and concealed material facts. Therefore, she was not entitled to any relief. The petition in fact had been filed on account of ill-will and political rivalry with the appellant. It had been filed with a view to harass and pressurize the appellant. In fact, proper, free and fair election had been held and respondent No. 2 having lost the election filed the petition due to frustration. There was no ground, whatsoever, for setting aside the election of lawful, validly and democratically elected Sarpanch. The respondent No. 2 and her associates were themselves guilty of wrongs and misdeeds and they could not derive any advantage therefrom. It was denied that the conduct of election was illegal or against the provisions of the Act. The allegation regarding doors of the polling station being closed at 3.45 P.M. was denied. It was also denied that before polling time was over, the ballot boxes were carried out at the instance of the Returning Officer (respondent No. 9) and S.D.M. Gurgaon to a bus parked behind the Polling Station. It was further denied that without prior notice, the boxes were transferred to John Hall, Gurgaon. The gate of the polling station, it is stated, remained open till the scheduled time. It is only after the polling time was over that the ballot boxes were shifted to John Hall, Gurgaon where they were scheduled to be brought for counting purpose. This was done in the presence of and with the full knowledge of the candidates, their respective agents and supporters. The allegations of the Respondent No. 2 being stopped from entering John Hall at the time of counting of votes by the election staff, the Returning Officer and the S.D.M. Gurgaon have also been denied. The allegations of conspiracy of the election staff or its officers to manipulate the votes so that the appellant could be declared elected, was also denied. The other allegations as made by the Respondent No. 2 were also denied. It was stated that the Respondent No. 2 and her agent were very much present throughout the counting and they never raised any objection, whatsoever because the counting was done fairly, properly and as per law. It was stated that in fact the petition filed was an after thought.
(3.) THE Respondent No. 2 also filed an application (Annexure P-3) seeking re- counting of votes. It was alleged that the Act provides for the presence of all candidates and/or their counting agents at the time of counting. However, the petitioner and her agent were both excluded from the place where the counting took place. The other allegations as made in the election petition (Annexure P-1) were reiterated in the application seeking re-count of votes.;