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1991 DIGILAW 81 (ALL)

Saddique Khan v. SDO

1991-01-11

S.N.SAHAY.

body1991
JUDGMENT S.N. Sahay, J. - This is a writ petition for quashing the order dated 26-11-1988 (Annexure-1) passed by Sub Divisional Officer, Mohammadi, District Kheri, directing the District Panchayat Raj Officer to produce the record relating to the election of Pradhan of Gaon Sabha Kota for recounting. 2. The impugned order shows that Safique Khan, who is opposite party no. 2 in the writ petition has filed an election petition, under Section 12-C, U.P. Panchayat. Raj Act, 1947, challenging the election of Saddique Khan, petitioner as Pradhan of Gaon Sabha Kota. It is alleged in the election petition that at the time of counting of votes, which took place on 6-6-88, it was found that an equal number of votes that is to say 288 were polled by the petitioner and opposite party no. 2 and as a result of lots drawn at that time the petitioner was declared to be duly elected. The opposite party no. 2 has alleged that some votes cast in his favour have been wrongly counted in favour of the petitioner and some votes cast in favour of the opposite party no. 2 have been improperly rejected. It was also alleged that in all 587 votes were cast at the time of polling but 588 were discovered to have been cast at the time of counting of votes. On the basis of these allegations it was prayed by the opposite party no. 2 that an order may be passed or recounting of votes and he may be declared to have been duly elected. 3. The petitioner fled a written statement contesting the election petition. He denied the allegations made by the opposite party no. 2 and asserted that equal number of votes were polled by the contesting parties and so lots were drawn and the petitioner was declared elected. The learned Sub Divisional Officer alter hearing the learned counsel for the parties and going through the record reached to the conclusion that since the number of votes polled by the contesting candidates was equal, the objection of opposite party no. 2 with regard to the invalid votes and with regard to wrong counting of votes could he decided on the basis of recounting of votes and the election record to be produced for that purpose. 4. 2 with regard to the invalid votes and with regard to wrong counting of votes could he decided on the basis of recounting of votes and the election record to be produced for that purpose. 4. The learned counsel for the petitioner has urged that there was no application or request made on behalf of opposite party no. 2 for recounting of votes and the impugned order was passed by the learned Sub Divisional Officer on 20-11-88 suo motu. He has further submitted that there was no material on record to establish the prima facie case to justify the order for recounting. In support of his contention, the learned counsel has relied on the Full Bench case of Ram Adhar Singh v. District Judge, Ghazipur and others, 1985 ALJ 615 and Ranveer Singh v. Sub-Divisional Magistrate, 1988 ALJ 1104. 5. In the first mentioned case it has been held by the Full Bench that before an authority hearing the election petition under the aforesaid Act can be permitted to look into or to direct inspection of the ballot papers, following two conditions must co-exist : (1) that the petition for setting aside an election contains the grounds on which the election of the respondent is being questioned as also the summary of the circumstances alleged to justify the election being questioned on such ground ; and (2) the authority is, prima facie, satisfied on the basis of the materials produced before it that there is ground for believing the existence of-such ground and that making of such an inspection is imperatively necessary for deciding the dispute and for doing complete justice between the parties. 6. It, therefore, follows that in the absence of any specification with regard to the ground on which the election of the respondent is being questioned together with summary of the circumstances alleged to justify election being questioned on such ground it is not open to the authority dealing with an application under Section 12-C of the U.P. Panchayat Raj Act, either to look, into or direct inspection of ballot papers merely on the ground that it feels that it would be in the interest of justice to look into or permit inspection of the ballot papers. In the context, such satisfaction has necessarily to be based on specific averments made in and the materials indicated in the election petition which could, prima facie, satisfy the authority about the existence of the ground on which the election is sought to be questioned. 7. In the other case of Ranveer Singh, which relates to an election held under the U.P. Co-operative Societies Act, 1966, it has been held that the power to order inspection of ballot and recount is not an unlimited and unguided power which is to be exercised sparingly subject to the statutory restriction about the secrecy of ballot papers, envisaged under the relevant provisions of the Act and Rules, in that behalf. Considering the utmost importance and insistence to maintain the secrecy of ballot an order for inspection may not be granted as matter of course. It may not be apt for the concerned authority either to look into or permit the inspection on mere asking or on vague and indefinite allegations. The exercise of such powers would also not be permissible in order to permit a party to fish out materials for declaring the election void or to launch a roving inquiry. 8. In the present case it will be seen that the case was fixed for hearing on 28-11-88 & the impugned order was passed by the learned Sub Divisional Officer after hearing the learned counsel for the parties. The opposite party no. 2 has made a specific prayer in the election petition for directing recount of votes. Therefore, there is no substance in the contention raised on behalf of the petitioner that there was no application or request for recounting of votes and the impugned order was passed by the learned Sub Divisional Officer on his own motion. So far as the merits are concerned, the contention of the petitioner is equally without force. At the time of counting of votes, 12 votes were declared to be invalid and it was found that 288 vote were polled each by the petitioner and the opposite party no. 2. The latter has made a clear averment in the election petition that at the time of polling 587 votes were cast and, therefore, the total number of votes counted being 588 itself indicates that there was some wrong somewhere, Moreover, the opposite party no. 2. The latter has made a clear averment in the election petition that at the time of polling 587 votes were cast and, therefore, the total number of votes counted being 588 itself indicates that there was some wrong somewhere, Moreover, the opposite party no. 2 has given full particulars of the nature and number of votes, which were wrongly counted. In this connection, the allegations made in paras 8 to 11 of the election petition, copy of which has been filed as Annexure-2, to the writ petition, are relevant. Thus, the tests laid down in the Full Bench case have been fully satisfied. In the election petition the opposite party no. 2 has made specific averments regarding existence of the circumstances justifying recounting of votes and has indicated materials, which could prima facie satisfy the learned Sub Divisional Officer about the existence of the ground for inspection of ballot papers and recounting of votes. Under the circumstances, no interference can be made with the impugned order in the writ petition. 9. The writ petition fails and is hereby dismissed. Parties will bear their own costs.