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2007 DIGILAW 1958 (ALL)

Reeta Yadav v. State of U. P.

2007-07-23

ARUN TANDON

body2007
JUDGMENT : ARUN TANDON, J. 1. Heard Shri Ashok Khare, Senior Advocate on behalf of the petitioner. Shri Shashi Nandan, Senior Advocate on behalf of respondents. 2. Counsel for the parties agree that the writ petition be disposed of at this stage itself without calling for further affidavits. 3. Petitioner Reeta Yadav was elected as the Block Pramukh Kshetra Panchayat Sadad District Ghazipur in the elections held in the month of February, 2006. Smt. Geeta Yadav the other contestant filed election petition before the District Judge, Ghazipur. The petition has been numbered as Case No. 01 of 2007. In paragraph 4 to 6 of the election petition it has been stated that 10 first preference votes which were cast in favour of the election petitioner were wrongly declared invalid. It is admitted on record that the election petitioner has lost by a margin of 7 votes only. If these 10 votes of first preference are counted in her favour the result would be materially effected and the election petitioner would be declared elected. 4. In the election proceedings before the Election Tribunal, statement of Santosh Kumar Yadav, the husband of the election petitioner has been recorded. The pleadings of paragraph 4 to 6 of the petitioner have been reiterated in the oral testimony and it has been explained that there is no Issue qua the first preference recorded in the ballot paper these ballot paper been declared invalid only because of some over-writing etc. qua the 2nd and 3rd preference only. 5. On the pleadings and the statement on record, the Election Tribunal by means of 14.5.2007 has declared that the packets containing valid as well as invalid may be opened. This order of the 14.5.2007 has been challenged in the present writ petition. 6. Counsel for the petitioner Shri Ashok Khare, Senior Advocate submits that in view of Rule 26 (3) of the U.P. Shetra Panchayat Raj Act, 1994 the ballot paper for exercising preferential votes is one and, therefore Irregularities in respect of 2nd and 3rd preference would render the entire Ballot as invalid. The first preference recorded cannot be segerated so as to be taken into account. It is further stated that in view of the full Bench of this Court reported in 1985 UPLBEC 317 fishing and roving enquiry is not permissible, therefore the order passed is legally not justified. 7. The first preference recorded cannot be segerated so as to be taken into account. It is further stated that in view of the full Bench of this Court reported in 1985 UPLBEC 317 fishing and roving enquiry is not permissible, therefore the order passed is legally not justified. 7. Shri Shashi Nandan, Senior Advocate assisted by Shri Arvind Srivastava in reply contends that a ballot paper can be declared invalid. Only if any or more of the conditions mentioned in various clauses of Rule 21 (3) of the U.P. Kshetra Panchayats (Election of Pramukhs and Up-Pramukhs and Settlement of Election Disputes) Rules, 1994, are satisfied. Counsel for the respondents points out that none of the contentions as per Rule 21 (3) are attracted in the facts of the present case so as to declare that 10 ballot papers as invalid. There are material pleadings for recounting which have been corroborated in the oral evidence of the husband of the petitioner. In such circumstances the order passed by the Election Tribunal does not warrant any interference. 8. Counsel for the respondents relied upon the judgment of the Hon'ble Supreme Court reported in Mahendra Pal vs. Ram Dass Malanger and Others, (2000) 1 SCC 261 . 9. I have heard learned Counsel for the parties and have gone through the records of the case. 10. It is no doubt true that the full bench of this Court in the case of Ram Ajadhar Singh vs. District Judge, 1985 UPLBEC 317 has held that directions for inspection of the ballot papers and recounting can be provided for only if conditions laid down in the said judgments are satisfied. Paragraph 19 of the said judgment reads as follows: 19. Applying the principle with regard to inspection of ballot paper enunciated by the Supreme Court in cases arising under the Representation of People Act to an election petition dealt with under the provisions of the U.P. Panchayat Raj Act, there is no escape from the conclusion that before an authority hearing the election under the said Act can be permitted to look into or to direct inspection of the ballot papers, following two condition must co exist: (1) that the petitioner for setting aside an election contains the grounds on which the election on the respondent is being questioned as also summary of the circumstances alleged to justify the election being questioned on such ground. (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 for doing complete justice between the parties. 11. It has to be examined in the facts and circumstances of the case as to whether election petition contains the grounds and circumstances for permitting inspection and recounting of the votes or not and further on the basis of the material produced, there is reason to believe qua the existence of such grounds and that inspection is imperatively necessary for deciding the dispute for doing complete justice between the parties for the Election Tribunal. Similarly the Hon'ble Supreme Court in the case of Vadivelu vs. Sundaram and Others, JT 2000 (Supp. 1) SC 408 has held that recounting of votes could be ordered very rarely and on specific allegation in the pleadings in the election petition. The election petitioner has to seek recounting after alleging and proving improper acceptance of invalid votes or improper rejection of valid votes with a further condition that it has to be established that purity of the elections has been tarnished and it has materially affected the result of the election. The Hon'ble Supreme Court has specifically referred to Rule 63 of the Tamil Nadu Panchayats (Elections) Rules, 1995 for the purposes of arriving at a conclusion as to whether the condition mentioned therein has been specified for declaring a ballot paper as invalid. Reference paragraph 24 of the said judgment. The Hon'ble Supreme Court after examining the requirement of the Rule has proceeded to record that rejection of votes as invalid contrary to the requirements of the rule was illegal. The Hon'ble Supreme Court in its reasoned judgment in the case of Tanaji Ramchandra Nimhan vs. Swati Vinayak Nimhan and Others, (2006) 2 SCC 300 has further clarified that for making out a case for recounting, specific allegations have to be averred and established. Reference may also be had to the judgment of the Hon'ble Supreme Court reported in Mahendra Pal vs. Ram Dass Malanger and Others, (2000) 1 SCC 261 wherein it has been provided that pleadings of the election petition are to be read as a whole for gathering the tenure and substance of the intention of the parties. , 12. Reference may also be had to the judgment of the Hon'ble Supreme Court reported in Mahendra Pal vs. Ram Dass Malanger and Others, (2000) 1 SCC 261 wherein it has been provided that pleadings of the election petition are to be read as a whole for gathering the tenure and substance of the intention of the parties. , 12. From the law as has been noticed herein above and relied upon by the counsel for the parties, this Court is required to examine as to whether there are specific allegations which have been substantiated for the purposes of justifying the order of examination and recount of ballot papers and as to whether provisions of Rule 26 (3) of the U.P. Kshetra Panchayats (Election of Pramukhs and Up-Pramukh's and Settlement of Election Disputes) Rules, 1994 stands satisfied in the facts and circumstances of the case so as to justify the exclusion of the 10 ballot papers which according to the election petitioner contains first preference vote in his favour and that discrepancy, if any is only with regard to the second and third preference recorded therein. 13. It is worthwhile to reproduce Section 26(3) which lays down the conditions on which a ballot paper can be reported as invalid. 26. (3) A ballot paper shall be rejected as invalid on which:- (a) the number 1 is not marked. (b) the number 1 is marked opposite the name of more than one candidate or is so marked as to render it doubtful to which candidate it is intended to apply. (c) the number 1 and some other numbers are marked opposite the name of the same candidate. (d) any mark is made by which the voter may afterwards is identified. 14. From the aforesaid provision it is apparently clear that ballot paper can be rejected if no, 1 is not marked or if No. 1 is marked opposite more than one person or so marked as to make it doubtful as to which candidate it is intended to apply or besides No. 1 other numbers have also been recorded against the name of the some other candidate and lastly any other mark has been made which may disclosed the identity of the voter. 15. 15. From the aforesaid provision it is apparently clear that at least one of the conditions mentioned in Rule 26 (3) therein has to be satisfied for declaring the ballot paper as invalid. If none of the conditions mentioned in the clause are attracted, the ballot paper cannot be declared invalid. 16. From the pleading of the parties as are on record it is apparently clear that orders marking of No. 1 is concerned, there is absolutely no dispute. It has been stated to be marked in favour of one person only and that it is not doubtful to decipher as to against which candidate it has been so marked. Lastly there is no allegation that the ballot paper contains any mark which may result the identity of the voter being disclosed. In the aforesaid circumstances, this Court has no hesitation to record that there is absolutely no material on record which could establish that any of the conditions mentioned in Rule 26 (3) of the aforesaid rules have been attracted so as to declare the 10 ballot papers invalid. Any discrepancy qua marking of 2nd and 3rd preference has not been made a ground for rejection of the ballot paper as invalid under the same rule. The Hon'ble Supreme Court in the case of Vadivelu vs. Sundaram and Others (supra) had specifically recorded that unless the conditions mentioned in the Rule are satisfied, a ballot paper cannot be declared as invalid. Reference paragraph 24 and 25 of the judgment. 17. This Court may record that any error with regards to recording of 2 preference and 3rd preference in the ballot papers has not been provided as a ground for declaring the ballot papers as invalid. 18. In the facts of the case there is no dispute with regards to marking No. 1 on the 10 ballot paper declared invalid. Accordingly there is little or no justification for such ballot paper being declared invalid. 19. Further from the pleadings of the' parties as well as from the statement of the husband of the election petitioner it is apparently, clear that not or material facts have been pleaded, the same have been established by cogent evidence on the basis whereof election tribunal has proceeded direct inspection of ballot papers. 20. 19. Further from the pleadings of the' parties as well as from the statement of the husband of the election petitioner it is apparently, clear that not or material facts have been pleaded, the same have been established by cogent evidence on the basis whereof election tribunal has proceeded direct inspection of ballot papers. 20. In the totality of circumstances as noticed herein above, this Court satisfied that there is no illegal or infirmity in the order passed by the Election Tribunal so as to warrant interference under Article 226 of the Constitution India. 21. Writ petition lacks merit and is accordingly dismissed.