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2012 DIGILAW 2459 (ALL)

Malti Singh v. Sub-Divisional Officer and Others

2012-10-16

DEVENDRA KUMAR ARORA

body2012
Devendra Kumar Arora, J.;— Heard Sri A. Z. Siddiqui, learned counsel for the petitioner and Sri Vikas Vikram Singh, learned counsel for opposite party no. 2. By means of present writ petition, the petitioner has challenged the order dated 25.9.2012, passed by Sub Divisional Officer, Sadar/Prescribed Authority, Hardoi in Election Petition No. 9 of 2011 (year 2010-11), filed under section 12 -C of U.P. Panchayat Raj Act by which directions have been issued for re-counting of votes to be held on 17.10.2012 at 11 A.M. Submission of learned counsel for petitioner is that the election of the Office of Pradhan of the Gram Panchayat Kautheliya, Pargana-Bangar Vikas Khand Sursa, tehsil and district Hardoi was held on 28/29.10.2010 and the petitioner secured total 391 votes whereas opposite party no. 2 secured 389 votes. Accordingly, petitioner won the election by margin of two votes and was elected Pradhan of Village Panchayat Gram Kauthheliya. Being aggrieved, the opposite party no. 2 filed Election Petition under section 12-C of the U.P. Panchayat Raj Act against the petitioner with the prayer of re-counting of votes. Submission of learned counsel for petitioner is that the sole ground taken by the opposite party no. 2 in the election petition was that 403 votes were cast at booth no. 1 in respect of Ward Nos. 1 to 7 and at second booth total 428 votes were cast for ward no. 8 to 11, in total 831 votes were cast. Opposite Party No. 2 further averred in the petition that on the day of counting i.e. on 28.10.2010, in first round opposite party no. 2 got 187 votes and the petitioner got 210 votes. In second round, opposite party no. 2 got 220 votes and the petitioner got 181 votes. On 29.10.2010, opposite party no. 2 was informed that she won the election by 16 votes but later on certain irregularities were committed by the Returning Officer and other officials and thereby the petitioner was declared elected by 02 votes. The petitioner on receipt of summons, contested the election petition and filed Written Statement on 10.1.2011 denying the allegations made in the Election Petition and emphasized that counting was done in accordance with the provisions of U.P. Panchayat Raj Act (Election of the Members, Pradhan and Up-Pradhan) Rules, 1994 and no irregularity was committed in the counting. The petitioner on receipt of summons, contested the election petition and filed Written Statement on 10.1.2011 denying the allegations made in the Election Petition and emphasized that counting was done in accordance with the provisions of U.P. Panchayat Raj Act (Election of the Members, Pradhan and Up-Pradhan) Rules, 1994 and no irregularity was committed in the counting. It is also submitted that the Election Petition has not been filed properly as the compliance of Order 6 Rules 4 & 11 of the Code of Civil Procedure was not done and, therefore, Election Petition is liable to be dismissed being not maintainable. The opposite party no. 2 filed her own affidavit as well as four other affidavits as witnesses. It is also submitted by learned counsel for the petitioner that the opposite party no. 2 has not appeared in witness box and, as such, she could not be cross-examined and the Prescribed Authority without determining the point in issue, directed for re-counting of votes. Sri Vikas Vikram Singh, learned counsel for opposite party no. 2, while opposing the writ petition, submitted that after filing of Election Petition, Opposite Party no. 2 met with the accident on 9.10.2012 and she is suffering with neurological problem, because of which she could not appear as a witness but rest of witnesses gave their statements in support of opposite party no. 2 and the Prescribed Authority after examining the record framed four issues and gave finding for re-counting of votes on 17.10.2012. As such, writ petition is liable to be dismissed. I have considered the submissions of learned counsel for parties and gone through the record. The election-petitioner alleged in the election petition that the procedure of counting of votes was defective and also that her valid votes were declared invalid and the invalid votes of the present petitioner were declared valid by the concerned employees involved in the counting process. The impugned order, passed by the Prescribed Authority reveals that four issues were framed by the Prescribed Authority and after examining the issues on the basis of the evidence as well as the material available on record, came to the conclusion that re-counting of votes is the demand of justice. Accordingly, the Prescribed Authority directed for re-counting of votes on 17.10.2012. The Prescribed Authority while considering the issue no. Accordingly, the Prescribed Authority directed for re-counting of votes on 17.10.2012. The Prescribed Authority while considering the issue no. 1, opined that Rule 52 of the U.P. Panchayat Raj Election and Registration Rules provides for preparing 'Election Vivrani' and the issue can only be decided after examining the record. While examining the issues no. 2 and 3, the Prescribed Authority after examining the evidence produced by both the sides also observed that an immediate demand was raised for re-counting of votes but the same was not taken care by the authorities concerned. On due consideration, I do not find any illegality in the order passed by the Prescribed Authority. Even otherwise also, taking into consideration the allegations made in the Election Petition and winning of election by the petitioner by the margin of two votes, this Court finds that the order of the Prescribed Authority of re-counting of votes is perfectly legal and justified.Keeping in view the margins of difference of votes I find that had the grievance of the opposite party no. 2 been redressed during the course of counting of votes, the result of the election might have been otherwise. At this stage, learned counsel for the petitioner prayed that it would be in the interest of justice that re-counting of votes be done under the supervision of the District Judge, Hardoi. Learned Standing Counsel as well as learned counsel for opposite party no. 2 have no objection to this prayer of learned counsel for the petitioner. Writ Petition is, therefore, disposed of finally with the direction to the concerned Prescribed Authority to get the re-counting of votes done under the supervision of the learned District Judge, Hardoi. It has been informed that re-counting of votes has been postponed from 17th October to 5th November, 2012. The learned District Judge, Hardoi is directed to supervise re-counting of votes scheduled to be held on 5th November, 2012. After re-counting of votes, the Prescribed Authority will proceed with the Election Petition in accordance with law. The Registrar of this Court is directed to communicate the order of this Court to the authorities concerned for the purpose of compliance. _____________