RAKESH KUMAR JAIN,J. - (1.) THE following substantial questions are involved in this appeal : (i) Whether in case of equality of votes or a tie in the election of Sarpanch or Panch under the Haryana Panchayati Raj Act, 1994, Returning officer should proceed to decide by lots or by toss of a coin. (ii) Whether in the absence of any provision under the Haryana Panchayati Raj Election Rules, 1994, Returning Officer (Panchayat) has the jurisdiction to decide by toss of the coin between the candidates whose votes are equal.
(2.) THE case of the appellant is that she is a permanent resident of village Luthera, Tehsil Ratia having vote No. 196 serial No 56 in ward No 2. It is alleged that on 9.4.2005, elections to the post of Sarpanch of Gram Panchayat, Luthera were held and polling took place in Government Primary School, Luthera where 456 votes were polled. The Returning Officer announced 222 votes in favour of the appellant, 220 votes in favour of the respondent, 13 votes were declared cancelled, one vote was found missing and the appellant was declared elected by margin of 2 votes. But later on, the result was changed by the Returning officer who announced that both the appellant and respondent have secured 219 votes each, 17 votes were invalid, one vote was found missing and since there was an equality of votes and a tie, the Returning Officer (Panchayat) by toss of a coin, which fell in favour of the respondent, declared him as Sarpanch. The appellant challenged the election of the respondent under Section 176 of the Act by filing an Election petition but that was dismissed by the Additional Civil Judge (Sr.Divn.) Ratia vide his order dated 12.4.2007. The appellant then filed appeal which was also dismissed by learned District Judge, Fatehabad vide his judgment and decree dated 8.11.2007. In the present appeal, learned counsel for the appellant has challenged the impugned order dated 12.4.2007, judgment and decree of the Appellate Court dated 8.11.2007, as well as the action of the Returning Officer (Panchayat) for declaring the respondent elected by toss of a coin, on the ground that there is no provision of toss either in the Haryana Panchayati Raj Act, 1994 (for short the Act') or in the Haryana Panchayati Raj Election Rules, 1994 (for short the Rules'). It is rather alleged there is a specific Rule 71 in the Rules according to which in case of equality of votes the result has to be decided on the basis of lot only.
(3.) IT is correct that to deal with a contingency of equality of votes or a tie, Rule 71 has been provided in the Rules, which is reproduced as under for ready reference : "Rule 71 - Equality of votes - If, after the counting of votes equality of votes is found to exist between any candidates and an addition of one vote will entitle any of those candidates to be declared elected, the Returning Officer (Panchayat) shall forthwith decide between those candidates by lot and proceed as if the candidate on whom the lot fall has received one additional vote." ;