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2008 DIGILAW 2067 (ALL)

SHIV SHANKER CHAUHAN v. KAUSHAL CHAUHAN

2008-09-29

TARUN AGARWALA

body2008
JUDGMENT Honble Tarun Agarwala, J.—Heard Sri R.K. Jain, the learned senior counsel assisted by Sri R.K. Awasthi, the learned counsel for the petitioner and Shri Shashi Nandan, the learned senior counsel assisted by Shri D.B.Yadav, the learned counsel for the contesting respondent No. 1. Since, the remaining respondent Nos. 2 to 10 are proforma respondents, the writ petition is being decided at the admission stage with the consent of the learned counsel for the parties, without calling for a counter affidavit since no factual controversy is involved. 2. It transpires that the petitioner was elected as a Pradhan in the year 2005. The petitioner secured 538 votes and the contesting respondent No. 1 secured 535 votes. 57 votes were declared invalid and the Returning Officer declared the petitioner as the elected Pradhan under the provisions of the U. P. Panchayat Raj Act, 1947. The contesting respondent No. 1 filed an election petition under Section 12-C of the U.P. Panchayat Raj Act on various grounds. During its pendency, the contesting respondent moved an application dated 23.1.06 before the prescribed authority for the recounting of the votes and on this application, an order dated 7.2.06 was passed summoning the original record and the ballot papers. The petitioner, being aggrieved by the said order, filed writ petition No. 57567 of 2006, in which an interim order dated 19.10.06 was passed staying further proceedings before the prescribed authority. Subsequently, the Writ Court, by an order dated 2.3.07 modified the earlier interim order by staying the order dated 7.2.06 and directing the prescribed authority to proceed with the election petition and to dispose of the petition expeditiously. The writ Court, by the said order dated 2.3.07, found that the impugned order of 7.2.06 did not contain any reason for summoning the ballot papers and consequently directed the prescribed authority not to take any action pursuant to the said order. 3. Based on the aforsaid order of the Court, the election petition proceeded and the evidence of the parties were recorded, and finally by the impugned order dated 19.9.08, the election petition was allowed and a direction was issued for the recounting of the votes. The petitioner, being aggrieved by the said order, has filed the present writ petition. 4. 3. Based on the aforsaid order of the Court, the election petition proceeded and the evidence of the parties were recorded, and finally by the impugned order dated 19.9.08, the election petition was allowed and a direction was issued for the recounting of the votes. The petitioner, being aggrieved by the said order, has filed the present writ petition. 4. From a perusal of the impugned order, the Court finds that the justification given by the prescribed authority for the recounting of the votes is, that the Returning Officer had earlier recounted the votes. Further, the petitioner had not filed any evidence to show that the recounting of the votes was not necessary, and therefore, held that the recounting of the votes would neither prejudice the petitioner nor would affect his right, if any. Further, the prescribed authority found that the principles of natural justice requires recounting of the votes in the larger interest and that the secrecy of votes will not be affected, if such a direction was issued. 5. The purity of election and the secrecy of ballot are two central pillars which supports our democracy. 6. In S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra and others, AIR 1980 SC 1362 , the Supreme Court held : “Nothing can diminish the overwhelming importance of that cross or preference indicated by the dumb sealed lip voter. That is his right and the trust reposed by the Constitution in him is that he will act as a responsible citizen choosing his masters for governing the country for the period prescribed by it.” The Supreme Court in the aforesaid case further held : “Secrecy of ballot undoubtedly is an indispensable adjunct of free and fair elections. That is his right and the trust reposed by the Constitution in him is that he will act as a responsible citizen choosing his masters for governing the country for the period prescribed by it.” The Supreme Court in the aforesaid case further held : “Secrecy of ballot undoubtedly is an indispensable adjunct of free and fair elections. A voter had to be statutorily assured that he would not be compelled to disclose by any authority as to for whom he voted so that a voter may vote without fear or favour and is free from any apprehension of its disclosure against his will from his own lips.” And at another place held : “But this basic postulate of constitutional democracy, namely, secrecy of ballot was formulated not in any abstract situation or to be put on a pedestal and worshipped but for achieving another vital principle sustaining constitutional democracy, viz., "free and fair election” and “If free and fair election is the life-blood of constitutional democracy and if secrecy of ballot was ensured to achieve the larger public purpose of free and fair elections either moth must be complimentary to each other and co-exist or one must yield to the other to serve the larger public interest.” And yet another place, the Supreme Court held : “If free and fair election is the life-blood of constitutional democracy and if secrecy of ballot was ensured to achieve the larger public purpose of free and fair elections either both must be complimentary to each other and co-exist or one must yield to the other to serve the larger public interest.” 7. On the question of recounting of votes, the position of law has now been crystallised by a large number of decisions. On the question of recounting of votes, the position of law has now been crystallised by a large number of decisions. The Supreme Court in the case of Bhabhi v. Sheo Govind and others, AIR 1975 SC 2117 , held as under : “(1) That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations; (2) That before inspection is allowed the allegations made against the elected candidate must be clear and specific and must be supported by adequate statements of material facts; (3) The Court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations made for a recount; (4) That the Court must come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties; (5) That the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fish materials for declaring the election to be void; and (6) That on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a recount, and not for the purpose of fishing out materials.” 8. In view of the aforesaid, the principle of secrecy of ballot cannot stand in isolation and in confrontation to the foundation of free and fair elections, namely, purity of election. The secrecy of ballot is a privilege of the voters and cannot be destroyed its secrecy for the purpose of recounting of the votes. 9. In Vadivelu v. Sundaram and others, 2000(8) SCC 355 , the Supreme Court after analysing various judgments, held that a recount of votes could be ordered only on rare occasions and on specific allegation in the pleadings in the election petition alleging illegality or irregularity committed while counting and that the election petitioner who seeks recounting of the votes should allege and prove that there was improper acceptance of the invalid votes or improper rejection of the valid votes and if the Court was satisfied about these allegations only then the Court could order recounting of the votes. The Supreme Court observed that the secrecy of the ballot was sacrosanct in a democratic process of the election and that it cannot be disturbed on mere allegation of illegality or irregularity in the counting of votes. The Supreme Court further observed that the election petitioner must prove that the purity of elections was tarnished and that the result of the election was materially affected which could only be cured by the recounting of the votes. 10. Similarly, the Supreme Court in Tanaji Ramchandra Nimhan v. Swati Vinayak Nimhan, 2006 ACJ 707, held that an order for recounting should not be made as a matter of course, unless there was clinching evidence to support the case set up by the election petitioner. 11. Similar view was taken by me in the decision in Smt. Sushma Devi v. State of U.P. and others, 2008 (104) RD 57. 12. A Full Bench in the case of Ram Adhar Singh v. District Judge, Ghazipur and others, 1985 ACJ 196, held that an order of recounting could be justified only when there exists certain material on the record. The Full Bench held : “16. Applying the principle with regard to inspection of ballot papers enunciated by the Supreme Court in cases arising under the Representation of the 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 petition under the said Act can be permitted to look into or to direct inspection of the ballot papers, following two conditions must co-exists: (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 an inspection is imperatively necessary for deciding the dispute and for doing complete justice between the parties." 13. In the light of the aforesaid decision, it is clear that the prescribed authority was required to be prima facie satisfied on the basis of the material available on the record, to come to a conclusion that a ground exists for the recounting of the votes. In the light of the aforesaid decision, it is clear that the prescribed authority was required to be prima facie satisfied on the basis of the material available on the record, to come to a conclusion that a ground exists for the recounting of the votes. The authority cannot direct recounting of votes on the mere asking of a party. 14. Free and fair election is the lifeline of our Constitutional democracy and the secrecy of the ballot could not be jeopardised by vague allegations. The secrecy of the ballot has to be preserved at all cost. A voter is statutorily assured under the Constitution that he would not be compelled to disclose by any authority as to for whom he voted so that a voter may vote without fear or favour. 15. In the light of the aforesaid, the Court finds that the authority was influenced by the fact that the recounting was earlier done by the Returning Officer and that the margin of victory was by 3 votes, the authority found that in the larger interest, recounting should be done and that it would not prejudice any legal right of the petitioner. 16. In my view, the approach adopted by the prescribed authority is patently erroneous and against the dictum laid down in various decisions as mentioned aforesaid. The authority is required to come to a prima facie satisfaction that there exists certain grounds for the recounting of the votes. In the present case, the order of recounting was done on mere apprehension without giving any conclusive finding. 17. In the case of Nimhan’s (supra), the Supreme Court held that there must be clinching evidence before the recounting of the votes is ordered. Further, this Court finds that the authority has allowed the election petition and thereafter directed the recounting of the votes. This is not permissible. Once the election petition is allowed, nothing further remains to be done, and therefore, no direction for recounting of the votes could be issued. The authority, if it finds that recounting was required to be done, must pass an order before allowing the election petition. 18. In view of the aforesaid, the impugned order passed by the prescribed authority cannot be sustained and is quashed. The writ petition is allowed. The authority, if it finds that recounting was required to be done, must pass an order before allowing the election petition. 18. In view of the aforesaid, the impugned order passed by the prescribed authority cannot be sustained and is quashed. The writ petition is allowed. The matter is remitted again to the prescribed authority to decide the election petition afresh within six weeks from the date of the production of a certified copy of this order. Parties shall bear their cost. 19. A certified copy of this order shall be made available to the parties on or before 1.10.08 on the payment of usual charges. ————