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2013 DIGILAW 2359 (ALL)

MUNESH DEVI v. STATE OF U. P.

2013-09-20

TARUN AGARWALA

body2013
JUDGMENT Hon’ble Tarun Agarwala, J.—The petitioner is the elected Pradhan having won by 21 votes. The petitioner received 410 votes whereas the contesting respondent received 389 votes. The defeated candidate, being aggrieved by the result of the election, filed an election petition alleging that 13 votes were cast by those persons who were actually dead and that 36 votes were cast by such persons who were not the resident of the village in question. On this premise, the defeated candidate contended that if these votes are excluded, the result would be that he would get elected instead of the petitioner. 2. The allegations made in para 7 of the election petition were not supported or accompanied by any documentary proof. Consequently, these allegations were required to be proved by way of oral and/or documentary evidence. Prior to the evidence being led, the defeated candidate’s application for inspection of the ballot papers was allowed by an order dated 7.2.2013. The order of inspection was passed on the basis of certain affidavits filed by certain persons reiterating the contention raised by the defeated candidate in his election petition and, on that basis, the Tribunal held that a prima facie case was made out for the inspection of the ballot papers. 3. The elected candidate, being aggrieved by this order, filed the present writ petition questioning the veracity of the order in seeking inspection of the ballot papers and in disturbing the secrecy and purity of the election. This Court, while entertaining the writ petition, passed an interim order dated 14.2.2013 directing the Election Tribunal to continue with the proceedings but restrained the Tribunal from passing any final orders. It transpires that the Tribunal proceeded to inspect the ballot papers and finding no major irregularity, passed an order for recounting of the ballot papers. This order was passed on an application moved by the defeated candidate on the same date. It transpires that the recounting was done on 16.2.2013 in which it was depicted that the defeated candidate secured more votes than the petitioner. The order of 16.2.13 has also been questioned by the petitioner in this writ petition by moving an amendment application which has already been allowed. 4. Heard Sri M.A. Qadeer, the learned Senior Advocate assisted by Sri Mohd. The order of 16.2.13 has also been questioned by the petitioner in this writ petition by moving an amendment application which has already been allowed. 4. Heard Sri M.A. Qadeer, the learned Senior Advocate assisted by Sri Mohd. Akram, the learned counsels for the petitioner and Sri D.K. Singh, learned counsel for the respondents and learned standing counsel for the State. 5. 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. 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.” 6. 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. 7. In the light of the aforesaid principles of law, the Court finds that in the instant case an assertion of fact has been made in paragraph 7 of the election petition with regard to the alleged irregularities. Certain affidavits have also been filed but these affidavits are not proof of the alleged irregularities and is only an aid to support such allegations. Issues have been framed and documentary and oral evidence is required to be given in order to prove the allegations made in the election petition. 8. The Court is of the opinion that the Tribunal was not justified in ordering inspection of the ballot papers and thereafter recounting the votes. In the absence of any clinching evidence, there was no prima facie satisfaction of the Tribunal to come to the conclusion that a case was made out for inspection and for recounting of the votes. 8. The Court is of the opinion that the Tribunal was not justified in ordering inspection of the ballot papers and thereafter recounting the votes. In the absence of any clinching evidence, there was no prima facie satisfaction of the Tribunal to come to the conclusion that a case was made out for inspection and for recounting of the votes. The secrecy of the ballot was sacrosanct and purity of the elections was required to be maintained strictly. The secrecy of the ballot could not be violated on the mere ipsi dixie of the Tribunal in the absence of a prima facie case of a compulsive nature being made out by the defeated candidate. 9. The learned counsel for the respondents contended that even though the order of inspection and recounting may contain certain defects but once recounting has been done pursuant to the said order and the recounting declares a different result, the will of the people is known to everyone, and consequently, it is a “fait accompli” and that the clock cannot be turned back even if the secrecy of the ballot had been violated. The learned counsel contended that at the end of the day, the person who has got the maximum votes should be declared elected and once this exercise has been done, the will of the people must be honoured and respected. The learned counsel submitted that on a recount, the elected candidate has secured more votes than the petitioner and therefore the elected candidate should now be declared elected and that the writ petition should be dismissed. In support of his submission, the learned counsel has placed reliance upon a decision of the Supreme Court in T.A. Ahammed Kabeer v. A.A. Azeez, (2003) 5 SCC 650 , wherein the Supreme Court, in paragraph 28, held- “28. It is true that a re-count is not to be ordered merely for the asking or merely because the Court is inclined to hold a re-count. In order to protect the secrecy of ballots the Court would permit a re-count only upon a clear case in that regard having been made out. To permit a re-count only upon a clear case in that regard having been made out. To permit or not to permit a re-count is a question involving jurisdiction of the Court. In order to protect the secrecy of ballots the Court would permit a re-count only upon a clear case in that regard having been made out. To permit a re-count only upon a clear case in that regard having been made out. To permit or not to permit a re-count is a question involving jurisdiction of the Court. Once a re-count has been allowed the Court cannot shut its eyes on the result of re-count on the ground that the result of re-count as found is at variance with the pleadings. Once the Court has permitted re-count within the well-settled parameters of exercising jurisdiction in this regard, it is the result of the re-count which has to be given effect to.” 10. The Supreme Court held that once the recount has been allowed, the Court cannot shut its eyes on the ground that the result of the recount was found at variance with the pleadings. The Supreme Court held that once the Court had permitted a recount within the well-settled parameters of exercising jurisdiction in this regard, it was the result of the recount which had to be given effect to. The same principle was followed by this Court in Arshadi v. Prescribed Authority/Sub Divisional Magistrate, Jakhania, Ghazipur and others, 2004(4) AWC 3667 . 11. Having perused the said judgements, the Court finds that the said decisions are not helpful to the defeated candidate, for the reasons stated herein. 12. In the Full Bench decision of this Court in Ram Adhar Singh v. District Judge, Ghazipur and others (supra), the facts were that the defeated candidate filed an election petition and obtained an order for recounting of the votes. Recounting was done and the defeated candidate was declared elected. The full Bench of this Court considered the matter and held that since the very basis for recounting of the votes was illegal and contrary to the accepted position of law, all subsequent orders, including the order of recounting of the votes, was illegal and had to be set aside. 13. In P.K.K. Shamsudeen v. K.A.M. Mappillai Mohindeen and others, AIR 1989 SC 640 , the Tribunal allowed the petition and declared the defeated candidate as having been duly elected as he had secured more votes on a recount. 13. In P.K.K. Shamsudeen v. K.A.M. Mappillai Mohindeen and others, AIR 1989 SC 640 , the Tribunal allowed the petition and declared the defeated candidate as having been duly elected as he had secured more votes on a recount. The High Court allowed the petition holding that the Tribunal had erred in directing recounting of the votes and that the petitioner had not made out a prima facie case for an order of recount. In Special Leave Petition, the Supreme Court held that an order of recount of votes must stand or fall on the nature of averments made and the evidence adduced before the order of recounting was made and not from the results emanating from the recounting of the votes. 14. In Satyanarain Dudhani v. Uday Kumar Singh and others, AIR 1993 SC 367 , the facts in this case were that the elected candidate won by a narrow margin of 24 votes. The defeated candidate challenged the election by way of an election petition. The Election Tribunal rejected the contention of the defeated candidate for the recounting of the votes. The High Court ordered a recount and allowed inspection of the ballot papers. As a result of recounting, the defeated candidate was found to have polled more votes and as such was declared elected. The High Court accordingly allowed the election petition and declared the defeated candidate to be duly elected. The matter went to the Supreme Court and the Supreme Court held that the High Court was not justified in ordering recount and allowing inspection of the ballot papers. The Supreme Court, accordingly, set aside the order of the High Court as well as the declaration of the result of the election of the defeated candidate as a result of recounting. 15. In the light of the aforesaid decisions, the Court finds that the Supreme Court in the case of T.A. Ahammed Kabeer (supra) as stated in paragraph 28 that once the Court has permitted recount within the well-settled parameters of exercising jurisdiction of recounting it is only then that the result of recount has to be given effect to. 15. In the light of the aforesaid decisions, the Court finds that the Supreme Court in the case of T.A. Ahammed Kabeer (supra) as stated in paragraph 28 that once the Court has permitted recount within the well-settled parameters of exercising jurisdiction of recounting it is only then that the result of recount has to be given effect to. It necessarily means that if the Court finds that the order of recount was correct and valid then the result of the recount has to be given effect to, but if the order of recount was illegal and against the settled principles of law then the result of the recount pursuant to such illegal order could not be sustained and had to be set aside. 16. In the instant case, the Court finds that there was no clinching evidence to show any irregularity or illegality in the counting of the votes or in the reception of the votes. The only allegation was that certain votes of dead persons were cast and certain outsiders have cast the votes. These are bald allegations which are required to be proved by documentary and oral evidence, which stage has not arrived as yet. 17. This Court is of the opinion that it was not a proper exercise to order recount on the basis of bare allegations in the election petition. The Court has gone through the pleadings in the election petition and is satisfied that the grounds given in the election petition does not justify recounting of the votes or allowing inspection of the ballot papers at this stage. The Election Tribunal committed a manifest error in violating the secrecy of the ballot papers and tinkering with it. 18. In the light of the aforesaid, the impugned orders dated 7.2.2013 and order dated 16.2.2013 cannot be sustained and are quashed. The writ petition is allowed. 19. The Trial Court is directed to decide the matter within six months.