Research › Search › Judgment

Allahabad High Court · body

2013 DIGILAW 2258 (ALL)

KAILASH TIWARI v. STATE OF U. P.

2013-09-10

TARUN AGARWALA

body2013
JUDGMENT Hon’ble Tarun Agarwala, J.—Heard Sri Dr. S.K. Yadav, the learned counsel for the petitioner and Sri R.N. Yadav, the learned counsel for the respondents. 2. The petitioner is an elected Pradhan. His election was challenged by respondent No. 3 by means of an election petition. The said respondent alleged in paragraphs 8 to 12 of his election petition that various irregularities have been committed by the Pradhan during voting and counting of the election. During the pendency of the election petition, respondent No. 3 filed an application dated 16th July, 2012 for recounting of the votes. This application was allowed by the impugned order, against which, the petitioner has filed the present writ petition. 3. Having heard the learned counsel for the petitioner and having perused the impugned order, the Court finds that the approach adopted by the authority was patently erroneous. The Tribunal held that so far as the irregularities are committed as depicted in paragraphs 8 to 12, the same would be decided on the basis of the evidence led by the parties on merit at a later stage, but considering the overall scenario and the narrow margin of votes, by which, the petitioner has won, it would be appropriate to summon the record, namely, the valid and invalid votes for recounting. 4. In the opinion of the Court, no justifiable ground exists for recounting of the votes. The principle of law for recounting of the votes has been crystallised on series of judgments of this Court as well as of the Supreme Court. 4. In the opinion of the Court, no justifiable ground exists for recounting of the votes. The principle of law for recounting of the votes has been crystallised on series of judgments of this Court as well as of the Supreme Court. In the case of Bhabhi v. Sheo Govind and others, AIR 1975 SC 2117 , the Supreme Court 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 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.” A Full Bench of this Court in Ram Adhar Singh v. District Judge, Ghazipur and others, 1985 ACJ 196, 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 can be permitted to look into or to direct inspection of the ballot papers, following two conditions must Co-exist: (1) that the petitioner 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) that 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. It, therefore, follows that in the absence of any specifications with regard to the ground on which the election of the respondent is being questioned together with summary of the circumstances alleged to justify the 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 indicates in the election petition which could, parima facie, satisfy the authority about the existence of the ground on which the election is sought to be questioned.” 5. In the light of the aforesaid, the Court finds that the impugned order cannot be sustained and is quashed. The writ petition is allowed. The Tribunal is directed to decide the matter finally within three months from the date of production of a certified copy of the order.