Mukul Mudgal, C.J.@mdashThis appeal challenges the judgment of the learned Single Judge dated 21.7.2010. Facts of the case are that on 6.6.2010, election to the posts of Panches of Ward No. 2, Village Jalalpur, District Jind was held. It is not in dispute that the appellant Mehta Singh and respondent No. 7 Bala Devi both secured 94 votes. It is also not in dispute that the Returning Officer issued certificates to both, the appellant and respondent No. 7 on 6.6.2010, though according to the appellant the certificate in favour of respondent No. 7 was issued belatedly on 10.6.2010 and back dated. The main plea of the appellant was that election results once having been declared, writ jurisdiction was not the appropriate remedy and once Form Nos. 14 and 18 were issued, the only course of action was by way of election petition. For this purpose, reliance has been placed on a Division Bench judgment of this Court reported as
2. As regards the judgment in Jasmail Kaur''s case (supra), the learned Single Judge rightly distinguished the judgment since there was no dispute with regard to the actual conduct of toss/draw of lots and the only dispute was with regard to recourse to that procedure and it was in that context that the Division Bench had held in Jasmail Kaur''s case (supra) that toss is not an appropriate remedy to resolve such a dispute. The learned Single Judge has also recorded that respondent No. 6 i.e. the Duty Magistrate had not only not conducted election properly, rather the whole election process had been subverted, and respondent No. 5 i.e. the Returning Officer has, in fact, been convicted under the Contempt of Courts Act, as he tried to mislead the writ Court.
3. Learned counsel for the appellant has submitted that toss of coin with the consent of parties was resorted to and since the appellant succeeded in that process and follow up action of issuing the certificate including Form Nos. 14 and 18 was carried out in his favour, the writ jurisdiction could not be resorted to and the only remedy was to file an election petition.
4. Learned counsel for the respondents has, on the other hand, relied upon a judgment of the same Division Bench of this Court reported as 10. After hearing counsel for the parties on this point, in the above facts and circumstances of the case, we are not inclined to accept the contention of learned counsel for respondent No. 6. It is true that when the remedy of election petition is available, this Court should refrain the Constitution of India, questioning the election of the returned candidate, but in the facts and circumstances of this case, this Court cannot be a silent spectator, particularly when a fraud has been played by a Presiding Officer to the election process and electors of village....
