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2013 DIGILAW 2357 (ALL)

SABARUNNISHA v. TAHIRA

2013-09-20

TARUN AGARWALA

body2013
JUDGMENT Hon’ble Tarun Agarwala, J.—The petitioner is the elected candidate who is aggrieved by the order of the Election Tribunal allowing recounting of the votes. The defeated candidate being aggrieved filed an election petition. 2. In paragraph 4, 5 and 6 of the election petition, the candidate has given various irregularities committed in the reception of the votes and in the recounting of the votes, namely, that the seal of the ballot boxes was found to be broken and that invalid votes were counted in favour of the elected candidate and that 20 votes of the defeated candidates were added in the valid votes of the elected candidate and that there were irregular counting of the ballot papers which resulted in the declaration of the result in favour of the petitioner. It was alleged that the defeated candidate had secured 950 votes but was only shown to have secured 458 votes whereas if the votes were recounted, the defeated candidate would have secured 40 more votes than the petitioner. 3. The elected candidate denied the allegations. Evidence was led and the witnesses were duly examined and cross-examined. 4. The Election Tribunal, after considering the material evidence on record found that there was no irregularity in the reception of the votes or in the counting of the votes but held that in order to remove the doubts and give substantial justice to the parties, recounting should be done so that the matter is resolved once and for all. The petitioner, being aggrieved by this order of recounting, has filed the present writ petition. 5. Heard Sri Keshari Nath Tripathi, the learned Senior Counsel assisted by Sri Tripathi B.G. Bhai, the learned counsel for the petitioner and Sri M.D. Singh Shekhar, the learned Senior Counsel assisted by Sri Ganesh Shankar Srivastava for the contesting respondent. 6. The learned counsel for the petitioner contended that a roving and fishing inquiry had been made and in the absence of any prima facie case being made out, no order for recounting of the votes could be done. The learned Senior Counsel contended that in the facts and circumstances of the case, the allegations made by the defeated candidate in his election petition had not been proved nor any prima facie case was made out warranting the recounting of the votes. The learned Senior Counsel contended that in the facts and circumstances of the case, the allegations made by the defeated candidate in his election petition had not been proved nor any prima facie case was made out warranting the recounting of the votes. The learned counsel submitted that an order for recounting cannot be passed on the mere “ipse dixie” of the Tribunal and on the ground that an order of recount would do substantial justice to the parties especially in the absence of any cogent evidence or prima facie case being made out. 7. On the other hand, the learned Senior Counsel Mr. M.D. Singh Shekhar, vehemently contended that the entire assertion made by the election petitioner was duly proved and supported by evidence and the order of the Tribunal consequently did not suffer from any error of law. The learned Senior Counsel went on to suggest that this was a fit case where an order of recounting was rightly ordered and if the order was set aside, then in no case, an order of recount could be justified. In support of his submission, the learned counsel placed reliance upon a decision of this Court in Narendra v. Prescribed Authority, S.D.M. Dadri, Gautambudh Nagar and others, 2010(1) ADJ 146 , wherein the Court held that even though the Election Tribunal did not record its prima facie satisfaction but in the opinion of the Court there was sufficient material to arrive at a prima facie opinion regarding irregularity or illegality while counting of votes and, therefore, the writ Court directed recounting of the votes in the given circumstances. 8. Having heard the learned counsels for the parties, the Court is of the opinion that the decision cited by the learned counsel for the respondents is not applicable and was passed in the given facts and circumstances of that case. It is settled principles of law that secrecy of the ballot papers is sacrosanct and is required to be maintained at all cost and that recounting should not be allowed to be ordered on frivolous, fake and indefinite allegations. 9. In Raghbir Singh Gill v. Surcharan Singh Tohra and others, AIR 1980 SC 1362 , the Supreme Court held- “Secrecy of ballot undoubtedly is an indispensable adjunct of free and fair elections. 9. In Raghbir Singh Gill v. Surcharan Singh Tohra and others, AIR 1980 SC 1362 , the Supreme Court 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 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.” At 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.” and again held- “ The principle of secrecy of ballot cannot stand aloof or in isolation and in confrontation to the foundation of free and fair elections, viz., purity of election. They can co-exist but as stated earlier, where one is used to destroy the other, the first one must yield to principle of purity of election in larger public interest. In fact secrecy of ballot, a privilege of the voter, is not inviolable and may be waived by him as a responsible citizen of this country to ensure free and fair election and to unravel foul play.” 10. In fact secrecy of ballot, a privilege of the voter, is not inviolable and may be waived by him as a responsible citizen of this country to ensure free and fair election and to unravel foul play.” 10. On the question of recounting of votes the position of law has been crystalized in a catena of cases by the Supreme Court starting from Bhabi v. Sheo Govind and others, AIR 1975 SC 2117 , in which, the Supreme Court held: “(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 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.” A Full Bench of this Court in Ram Adhar Singh v. District Judge, Ghazipur and others, 1986 (2) RD 151 (FB), held that the authorities while hearing the election petition under the provision of U.P. Panchayat Raj Act can be permitted to look into or can direct the inspection of the ballot papers only upon the existence of two conditions, namely; “ 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. 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 ground and that making of such an inspection is imperatively necessary for deciding the dispute and for doing complete justice between the parties.” 11. The right of a defeated candidate to assail the validity of an election result and seek recounting of the votes is subject to the basic principle that the secrecy of the ballot is sacrosanct unless the defeated candidate alleges and is able to substantiate by means of evidence that a prima facie case of a high degree exists for the recounting of the votes. The salutary rule is, that the preservation of the secrecy of the ballot is a sacrosanct principle which cannot be broken unless there is a prima facie case and that a genuine case is made out. The justification for an order or re-examination of ballot papers and recounting of the votes is not to be arrived at from hindsight or by the result of the recount of the votes. The justification for recounting of the votes must be made out from the material available on the record. 12. In the light of the aforesaid decisions, the right of a defeated candidate to assail the validity of an election result and seeking recounting of the votes is subject to the basic principle that the secrecy of the ballot papers is sacrosanct and that a recount would can be done only when a prima facie case is made out. 13. On the basis of the material brought on record, in the instant case, evidence has been produced and the Election Tribunal itself records that there was no irregularity in the reception of the votes or in the recounting of the votes but goes on to hold that in order to do substantial justice between the parties recounting of the votes was the best method and accordingly ordered recounting. 14. 14. The Court finds that in view of the decision of the full Bench of this Court and of the Supreme Court in Bhabi v. Sheo Govind and others, AIR 1975 SC 2117 and other cases before allowing inspection, the Court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations made for recounting which in the instant case is absent. In the absence of a prima facie case it was not open to the Tribunal to order a recount. 15. For the reasons stated aforesaid, the impugned order cannot be sustained and is quashed. 16. The writ petition is allowed. The Tribunal is directed to decide the matter finally within six months.