ORDER
N.C. Khichi, J.
1. This revision petition has been filed for quashing the interim order dated January 9, 1997 (Ann. P-3), passed by the Addl. Civil Judge (Senior Division), Loharu, in exercise of the powers under Section 176(4) of the Haryana Panchayati Raj Act, 1994 (hereinafter referred to as ‘the Act’).
2. The brief facts of the case giving rise to the filing of this revision petition are that in the election held for the office of Sarpanch, Gram Panchayat Bardu Chaina, Tehsil Loharu, District Bhiwani. On December 15, 1994, the petitioner (Partap) was declared elected as Sarpanch who had secured 371 valid votes as against Hoshiar Singh respondent No. 1 who secured only 369 votes. An election petition under Section 176 of the Act was filed by Hoshiar Singh, challenging the election of the petitioner which is now pending in the Court of Addl. Civil Judge (Sr. Division), Loharu. By the impugned order, the learned Addl. Civil Judge, on recounting found that Partap (present petitioner) and Hoshiar Singh respondent No. 1 secured 370 votes each whereas Beg Raj respondent No. 2 had secured 159 votes and 37 votes were rejected.
3. The learned counsel for the petitioner has assailed the impugned order on the ground that there is no finding to the effect that a prima facie case has been made out for recounting of the disputed votes. He has further argued that prior to June 13, 1996, there was no order on the file qua recounting of the votes but from the perusal of the order dated June 13, 1996 (Ann. P-1), it came to light that the trial Court had summoned the ballot papers for recounting of the votes.
4. On the other hand, the learned counsel for respondent No. 1 has contended that evidence of both the parties was recorded and after the close of evidence, the order regarding recounting of votes was passed by the prescribed authority on June 5, 1996 and that order has not been challenged by the petitioner so far.
During the course of arguments, the learned counsel for the petitioner asserted that no order for recounting of votes was passed on June 5, 1996 and the case was simply adjourned to June 13, 1996. On this, the record of the trial Court was requisitioned.
5. After hearing the learned counsel for the parties and on perusal of the record, the contention of the learned counsel for the petitioner is found to be without any force and substance.
6. In the election petition it was specifically alleged by respondent No. 1 that there have been illegalities and material irregularities in the counting of votes. Numerous ballot papers in his favour were mixed up with the ballot papers and were counted as votes in favour of Partap, petitioner. Perusal of the summoned file reveals that on June 5, 1996, following order was passed :–“Present : Counsel for the parties.
One RW present and examined. Ld. counsel for the respondents has closed the evidence. Now, the case 10 come up on 13-6-96 for recounting of votes. The Distt. Election Officer, Bhiwani, is hereby directed to produce the Ballot Boxes containing the votes of the Post of Sarpanch of Gram Panchayat Bardu Chaina held on 15-12-1954 on 13-6-96. Separate letter be written to the Distt. Election Officer, Bhiwani.”
On June 13, 1996, one envelop containing the disputed votes of Sarpanch of Village Bardu Chaina, was produced by Sh. Ishwar Singh, It was opened in the presence of the counsel lor the petitioner and respondent No. 1, However, in the envelop, the votes pertaining to village Hariya was, instead of the disputed votes were found. The Addl. Civil Judge then asked the District Election Officer, Bhiwani, to take stern departmental action against the defaulter. Ishwar Singh, who had produced the envelop, was directed to produce the envelop containing the disputed votes for the office of Sarpanch of village Bardu Chaina, on the next date of hearing i.e. July 31, 1996. Again on this date, the case was adjourned in the presence of the counsel for the parties, for recounting of the voles. Record was not being received from the proper source. However, when the record was received, the petitioner moved an application on January 2, 1997, with the request that the authenticity of the disputed ballot papers be got ascertained/proved from the responsible Slate Election Officer at the time of recounting of the same. This application was dismissed on January 8, 1997, as the same was moved purely on the basis of suspicion. The matter was then again adjourned for recounting of votes to January 9, 1997. On this date, the votes were recounted and the impugned order was passed. The case was then adjourned for arguments and rebuttal. Petitioner then filed an appeal against the impugned order before the learned Addl. District Judge, Bhiwani, which was dismissed on February 20, 1997 being not maintainable. Perusal of the record would show that the order for recounting of the voles was passed on June 5, 1996 in the presence of the counsel for the parties. Nobody raised any objection. The case was adjourned from time to time till the envelop containing the ballot papers pertaining to village Bardu Chaina, was produced. Again, the order dated June 13, 1996, was passed in the presence of the parties when the District Election Officer, Bhiwani, was directed to take stern departmental action against the defaulter, who did not produce the correct envelop containing the ballot papers pertaining to village Bardu Chaina. Again, the petitioner did not raise a little finger as to why the ballot papers were to be recounted when there was no specific order on the file. Even when the ballot papers were scrutinised/recounted on January 9, 1997, vide impugned order, no objection was raised by the petitioner.
7. Perusal of the record would show that the order dated June 5, 1996, for recounting of votes was passed in the presence of the counsel for the parties. The petitioner did not challenge the same till date. From the facts and circumstances of the case, it is quite evident that the order dated June 5, 1996 for recounting of votes was passed with the consent of the parties and now the petitioner cannot be heard to say that there was no order for recounting of votes prior to the passing of the impugned order. The petitioner thus cannot challenge the impugned order dated January 9, 1997, after recounting has been done in the presence of the parties and their counsel. There was specific allegation that the votes polled in favour of respondent No. 1 were wrongly counted in favour of the petitioner. Admittedly, there was margin of only two votes secured by the present petitioner and respondent No. 1. Otherwise too, in the facts and circumstances of the case, the learned Addl. Civil Judge, was fully justified, to order the recounting vide order dated June 5, 1996. After having consented to the order of recounting dated June 5, 1996, the petitioner cannot be heard to say that the impugned order dated January 9, 1997, passed by the learned Addl. Civil Judge, was not a valid order. Where the parties have consented for recounting of the votes, such a recount cannot be held to be against law. The prescribed authority passed the order in the presence of the counsel for the parties. No application was moved by the petitioner or his counsel that the order dated June 5, 1996, was passed in his absence. In this connection, reference can be made to a Division Bench decision of this Court in Bharat Singh v. Dalip Singh, 1996 (112) Pun LR 70 : (AIR 1996 Punj & Har 271), for advantage.
8. It is proved that the order for recounting of votes was passed by the trial Court for the first time on June 5, 1996 and vide impugned order only actual recounting was done. The petitioner at no point of time challenged the legality and validity of order dated June 5, 1996. Therefore, he is not entitled to challenge the subsequent order dated January 9, 1997.
9. In view of what has been stated above, the revision petition is dismissed being without any merit. The parties through their counsel are directed to appear before the learned Addl. Civil Judge (Sr. Division), Loharu, on April 28, 1998, who shall further proceed in the matter in accordance with law. Record of the trial Court be sent forthwith.