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2007 DIGILAW 504 (UTT)

Ramesh Chandra Joshi v. District Judge, Almora

2007-10-05

B.S.VERMA

body2007
JUDGMENT This writ petition has been preferred for quashing the order dated 15-11-2003 passed by the District Judge, Almora in Election Petition No.1 of 2003 (Annexure No.7 to the writ petition), whereby the recounting of ballot papers was directed in presence of learned counsel for both the parties in presence of the Tribunal as mentioned in the impugned order. 2. Relevant facts rise to the present writ petition in brief are that the petitioner as well as the respondent no. 2 and one Mohan Singh contested the election of Members of District Panchayat in the year 2003 from 43- Bhasori Zila Panchayat Constituency, Almora and the petitioner is the returned candidate and a certificate to that effect was issued by the Returning Officer on 1-4-2003. The said election has been challenged before the District Judge, Almora by respondent no. 2 Diwan Singh Bhaisora on the ground that the brother of the petitioner, namely Deoki Nandan Joshi, who is a teacher in Government Inter College Danya, had participated in the counting of votes. When the respondent no. 2 came to know of this fact, he made an oral request to the Assistant Returning Officer and a written request was also made in that regard before the declaration of result. The respondent no. 2 also made a complaint to the District Magistrate Almora as well as the State Election Commissioner Uttaranchal on 341-3-2003 and request was also made for recounting of votes but to no avail. The grievance of the respondent no. 2 is that the result was declared in favour of the petitioner Ramesh Chandra Joshi due to undue influence of the brother of the petitioner Deoki Nandan Joshi, who had participated in the counting of votes, which is against the Rules. 3. The petitioner resisted the election petition and filed his written statement and denied the allegations made in the petition. In the additional pleas, it was stated that the allegations of para nos. 3 and 5 were made on imagination and were concocted and false and frivolous ones. It may be mentioned that the petitioner has nowhere denied that his brother Deokinandan Joshi had participated in the counting of votes on 30-3-2003 in Block Office Dholadevi. 4. In the additional pleas, it was stated that the allegations of para nos. 3 and 5 were made on imagination and were concocted and false and frivolous ones. It may be mentioned that the petitioner has nowhere denied that his brother Deokinandan Joshi had participated in the counting of votes on 30-3-2003 in Block Office Dholadevi. 4. At the stage of evidence, the learned Tribunal summoned the ballot papers in sealed cover and the same were ordered to be kept in sealed cover in the custody of the Returning Officer. At the time of final arguments, learned counsel for the election petitioner (respondent no.2) submitted before the District Judge that few ballot papers, which were cast in favour of the petitioner were counted in favour of the returned candidate and few other ballot papers, which were cast in favour of the election petitioner were wrongly rejected as invalid. The request was opposed by the returned candidate on the ground that there is no provision to recount or inspect the ballot papers. 5. The learned District Judge after hearing both the parties and perusing the material on record found favour with the contention of the election petitioner and permitted the inspection of the ballot papers by the parties' counsel subject to statutory restriction of secrecy vide impugned order dated 15-11-2003, which gave rise to the presence writ petition. 6. The impugned order passed by the District Judge Almora has been challenged mainly on the ground that the order impugned is contrary to the provision of law. 7. I have heard learned counsel for both the parties and have considered the averments made in the writ petition, the counter affidavit filed on behalf of the respondent no.2 and the rejoinder affidavit filed by the petitioner. I have also considered the supplementary affidavit filed by the petitioner and the Annexures filed along with the same. 8. It is not disputed that the result of the election in question was declared on 1-4-2003 by the Returning Officer. The allegation of the respondent no. 2 that the prayer for recounting of votes was made by him prior to declaration of result and an application to that effect was made on 30-3-2003 has not been specifically denied. It has also not been specifically denied that the brother of the elected candidate namely Sri Deokinandan Joshi was very much present in the counting. 9. 2 that the prayer for recounting of votes was made by him prior to declaration of result and an application to that effect was made on 30-3-2003 has not been specifically denied. It has also not been specifically denied that the brother of the elected candidate namely Sri Deokinandan Joshi was very much present in the counting. 9. Learned counsel for the petitioner has urged that the impugned order passed by the learned Tribunal is not tenable because there is no evidence to show that counting of ballot papers suffered from serious flaw, which could have materially affected the result of the election. The learned counsel has placed reliance upon the case of Mahender Pratap Vs. Krishan Pal and others [(2003) 1 S.C.C. page 390]. The election petitioner herein has specifically alleged that the result of the election had been materially affected because of the presence of the brother of the returned candidate at the counting. Moreover, in paragraph no. 10 of the election petition, the election petitioner has alleged that few of the legitimate ballot papers in favour of the applicant were wrongly rejected. 10. In paragraph no. 4, the learned District Judge has observed as under: "4. The case of the petitioner is based on the ground inter alia that 15 votes, which were cast in favour of the petitioner, were wrongly rejected as invalid and few others were counted in favour of the elected respondent and, therefore, according to the petitioner to decide the dispute and to do complete justice between the parties, inspection of the ballot paper before the Tribunal is necessary." 11. It is pertinent to mention that the order of recounting has been passed by the District Judge after recording of evidence at the time of final arguments. The above observation made by the District Judge is obviously the outcome of the perusal of the evidence on record. The ratio of the case of Mahender Pratap (supra) cannot be disputed, but the facts of the case at hand are quite distinct. 12. It may be noted that in the election petition in paragraph no. 8, the election petitioner has alleged that he secured 2779 votes in all while the returned candidate secured total 2782 votes. The ratio of the case of Mahender Pratap (supra) cannot be disputed, but the facts of the case at hand are quite distinct. 12. It may be noted that in the election petition in paragraph no. 8, the election petitioner has alleged that he secured 2779 votes in all while the returned candidate secured total 2782 votes. Thus, there had been a defeat by a margin of three votes, while the ground of challenge as indicated above is rejection of 15 votes which were alleged to have been validly cast in favour of the election petitioner. 13. Learned counsel for the petitioner has further submitted that the prayer for recounting could not have been allowed by the District Judge merely on the basis of general and bald allegations. He has placed reliance upon the case of Vadivelu Vs. Sundaram and others [(2000) 8 Supreme Court Cases, 355], wherein it has been held in paragraph no 16 that "the result of the analysis of the above cases would show that this Court has consistently taken the view that re-count of votes could be ordered very rarely and on specific allegation in the pleadings in the election petition that illegality or irregularity was committed while counting. The petitioner who seeks re-count should allege and prove that there was improper acceptance of invalid votes or improper rejection of valid votes. If only the court is satisfied about the truthfulness of the above allegation, it can order re-count of votes. Secrecy of ballot has always been considered sacrosanct in a democratic process of election and it cannot be disturbed lightly by bare allegations of illegality or irregularity in counting. But if it is proved that purity of elections has been tarnished and it has materially affected the result of the election whereby the defeated candidate is seriously prejudiced, the court can resort to recount of votes under such circumstances to do justice between the parties." 14. The petitioner has filed supplementary affidavit in this Court on 28-9-2007. Along with the affidavit, copy of statements of P.W.1, Diwan Singh Bhaisora (respondent no.2), D W.1 Ramesh Chandra Joshi (the returned candidate/petitioner) and DW.2 Ramchandra Bhardwaj (Election Officer) have been annexed. The petitioner has filed supplementary affidavit in this Court on 28-9-2007. Along with the affidavit, copy of statements of P.W.1, Diwan Singh Bhaisora (respondent no.2), D W.1 Ramesh Chandra Joshi (the returned candidate/petitioner) and DW.2 Ramchandra Bhardwaj (Election Officer) have been annexed. P.W.1 has stated that 15 defective votes which did not bear seal or thumb impression marks and were cast in favour of the returned candidate were counted in his favour, while 10 such votes which did not have seal etc. cast in favour of election petitioner were rejected under the influence of Sri Deokinandan Joshi. At the close of his examination-in-chief, the respondent no.2 Diwan Singh Bhaisora (election petitioner) has clearly stated that due to illegalities of his brother Deokinandan Joshi, Sri Ramesh Joshi won the election otherwise he would have been declared elected. Thus, it is obvious that the impugned order has been passed by the District Judge Almora after considering the evidence led by the parties. 15. As mentioned above, the learned District Judge has not passed the impugned order merely on the basis of the allegations made in election petition, rather the order of recounting has been passed after close of the evidence led by both the parties exercising the powers under Rule 58 of the U.P. Kshettra Panchayats and Zila Panchayats (Election of Members) Rules, 1994 (for short the Rules). It is also crystal clear that the impugned order has been passed at the stage of final arguments after the evidence was led by the parties and that too after having been satisfied on the basis of the evidence of the parties. 16. Apart from above, for a just decision of the writ petition, a reference to Rule 49 of the Rules is necessary, inasmuch as the election petitioner had questioned the presence of the brother of the returned candidate at the counting and the application for recounting was filed on that ground before the Returning Officer on 30-3-2003 before close of counting. Rule 49 of the Rules reads as under : "49. Persons who may be present at the counting.- (1) The Nirvachan Adhikari shall not allow any person to be present at the counting of votes except such persons as he may appoint to assist him in counting of votes and every contesting candidate, his Nirvachan Abhikarta and his Ganana Abhikarta. Rule 49 of the Rules reads as under : "49. Persons who may be present at the counting.- (1) The Nirvachan Adhikari shall not allow any person to be present at the counting of votes except such persons as he may appoint to assist him in counting of votes and every contesting candidate, his Nirvachan Abhikarta and his Ganana Abhikarta. (2) No person who has been employed by or on behalf of, or has been otherwise working for, a candidate in or about the election shall be appointed to assist the Nirvachan Adhikari in counting the votes. (3) Any person who during the counting of votes misconducts himself or fails to obey the lawful directions of Nirvachan Adhikari may be removed from the place where the votes are being counted by the Nirvachan Adhikari or by any Police Officer on duty or by any person authorized in this behalf by the Nirvachan Adhikari. " 17. A copy of election petition has been annexed as Annexure No.3 to the writ petition by the petitioner. In paragraph no.3 thereof, it has been alleged that the brother of respondent Ramesh Chandra Joshi, Sri Deokinandan Joshi, who is a teacher in the Government Inter College Danya, was present at the time of counting of votes. In para 5, it has been alleged that since the bother of the respondent (Ramesh Chandra Joshi) was coming frequently bearing the badge of counting, therefore, there was apprehension of fraud in the process of counting. The petitioner has filed a copy of the written statement filed by him before the District Judge in the election petition. The averments made in paragraph nos. 3 and 5 of the election petitioner were denied. There is a general denial of the averments in additional pleas, but it has not been denied that the brother of the petitioner was present at the time of counting of votes as alleged in para nos. 3 and 5 of the election petition. 18. DW.1 Ramesh Chandra Joshi (petitioner) in his examination in chief has deposed that his real brother is Deoki Nandan Joshi, who is posted at Government Inter College as a teacher, was deputed in counting of votes. Admittedly, the real brother of the petitioner (returned candidate) was appointed to assist the Nirvachan Adhikari in counting the votes. 19. 18. DW.1 Ramesh Chandra Joshi (petitioner) in his examination in chief has deposed that his real brother is Deoki Nandan Joshi, who is posted at Government Inter College as a teacher, was deputed in counting of votes. Admittedly, the real brother of the petitioner (returned candidate) was appointed to assist the Nirvachan Adhikari in counting the votes. 19. Learned counsel for the petitioner has lastly contended that there is no provision for recounting of votes in the Rules, therefore, the impugned order is not tenable. I do not agree with the contention of the learned counsel for the petitioner for the simple reason that sub-rule (3) of Rule 51 of the Rules which deals with the grounds for rejection of ballot papers provides that "the decision of the Nirvachan Adhikari as to the validity of a ballot paper or of a vote given on any such ballot paper shall be final subject, however, to any decision to the contrary given on the trial of an election petition calling in question the election." 20. Moreover, sub-rule (1) of Rule 58 of the Rules which provides for production and inspection of election papers reads as under : "58. Production and inspection of election papers.- (1) While in the custody of the District Panchayat Raj Officer the packet of ballot papers, whether valid, rejected or tendered and of the market copy of the electoral roll shall not be opened and their contents shall not be inspected by or produced before any person or authority except under the order of a Competent Court or of a District Judge hearing an election petition. The inspection so ordered shall be subject to the payment of a fee at the rate of rupees two per day on which the inspection is done." 21. Thus, it is clear that the order of recounting can very well be passed by the Tribunal in the course of trial of election petition if the evidence led by the parties so warrants. 22. In view of the reasons and the discussion aforesaid, I am of the considered view that the learned District Judge was well within his jurisdiction to pass order for recounting of votes. He has not committed any perversity or illegality in passing the impugned order thereby' ordering recounting of votes in presence of parties, counsel. 22. In view of the reasons and the discussion aforesaid, I am of the considered view that the learned District Judge was well within his jurisdiction to pass order for recounting of votes. He has not committed any perversity or illegality in passing the impugned order thereby' ordering recounting of votes in presence of parties, counsel. The impugned order passed by the District Judge Almora does not suffer from any manifest error of law. The writ petition is devoid of merit and is liable to be dismissed outright. 23. The writ petition is dismissed with no order as to costs. 24. The interim order dated 28-11-2003 is vacated. 25. All applications stand disposed of.