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2013 DIGILAW 2847 (ALL)

Daldapat Bahadur Singh v. State of U. P.

2013-11-20

SATYENDRA SINGH CHAUHAN

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JUDGMENT Satyendra Singh Chauhan,J. – Heard learned counsel for the petitioner, learned Standing Counsel for the State and learned counsel for opposite party no.3. 2. Through this petition, the petitioner has challenged the order dated 2.1.2013. 3. The election for the office of Pradhan, Gram Panchayat Dadra, Block and Tehsil Musafirkhana, District Amethi was held on 15.10.2010, in which the petitioner and opposite party nos.3 to 16 were the contesting candidates. After conclusion of polling, counting was done on 28.10.2010 and after counting, result was declared on the same day. Opposite party no.3 filed election petition on 20.1.2011, challenging the election of the petitioner, inter alia, on the ground that counting was not done properly and there was irregularity in counting. The issues were framed on 11.7.2011. The opposite party no.3 examined himself and one Sandeep Singh in support of his case, proved the contents of the election petition and the facts stated therein. The petitioner i.e. defendant no.1 in the election petition examined himself and one Ranveer Singh and stated that no irregularity was committed in recounting. However, on demand made by opposite party no.3, recounting was done by the returning officer in which, no illegality was found. Further, the parties adduced their evidence in support of their claim and after considering the evidence of the parties i.e. petitioner and opposite party no.3, the prescribed authority passed an order for recounting of votes on 2.1.2013 fixing 8.1.2013 for recounting. The said order has been challenged in this writ petition. 4. Submission of learned counsel for the petitioner is that merely on the basis of discrepancy in form nos. 11 and 6 of booth nos. 17 and 23, no recounting could have been ordered. The opposite party no.3 was supposed to lead specific evidence in support of his pleading and as and when, pleading was complete and evidence adduced thereof was sufficient to make out the case for recounting, only then recounting could have been ordered. He has placed reliance upon the judgment in the cases of Mahendra Pal vs. Shri Ram Dass Malanger and others 2002(20) LCD 993 and Amit Narain Rai vs. State of U.P. and others (2012) 2 UPLBEC 1582 . 5. He has placed reliance upon the judgment in the cases of Mahendra Pal vs. Shri Ram Dass Malanger and others 2002(20) LCD 993 and Amit Narain Rai vs. State of U.P. and others (2012) 2 UPLBEC 1582 . 5. Learned counsel for opposite parties, on the other hand, has submitted that in Para-(Ya) of the election petition, it has been specifically pleaded that while Appendix-4 was being prepared, after scrutiny and after preparation of lot of votes received of elected and other candidates, the total polled votes were 439, but 441 votes were found in the said ballot box. An objection was raised to the said discrepancy and it was assured that it will be taken care of, after counting is over. He further submits that in booth no.13, there were total 13 invalid votes, but despite of objection of the petitioner, three invalid votes which were kept in the bundle of doubtful votes, were taken out and they were put in the bundle of the petitioner and thereafter Appendix-4 was prepared. Objection was also raised by the election agent of the petitioner, namely, Vinay prakash, but the same was not entertained. Learned counsel further submits that the pleadings in respect of invalid votes were complete and opposite party no.3 also appeared and proved the aforesaid fact. In the cross examination, nothing was asked from opposite party no.3 in respect of the aforesaid pleadings and rather it was avoided by the petitioner. In Examination in Chief, opposite party no.3 has specifically stated that three votes were illegally included in the votes of the petitioner, on account of which, he was declared elected. 6. I have heard learned counsel for the parties and perused the record. 7. The election for the office of Pradhan, Gram Panchayat Dadra, Block and Tehsil Musafirkhana, District Amethi was held on 15.10.2010, in which the petitioner and opposite party nos.3 to 16 were the contesting candidates. After conclusion of polling, counting was done on 28.10.2010 and after counting, result was declared on the same day. The petitioner was declared elected having secured 818 votes. An election petition was filed by opposite party no.3 challenging the aforesaid election of the petitioner. Issues were framed on 11.7.2011 and thereafter, order for recounting was passed on 2.1.2013. 8. After conclusion of polling, counting was done on 28.10.2010 and after counting, result was declared on the same day. The petitioner was declared elected having secured 818 votes. An election petition was filed by opposite party no.3 challenging the aforesaid election of the petitioner. Issues were framed on 11.7.2011 and thereafter, order for recounting was passed on 2.1.2013. 8. Argument of learned counsel for the petitioner is that merely on the basis of discrepancy in appendix, recounting could not have been ordered. In order to appreciate the argument of learned counsel for the petitioner, the Court has perused the order passed by the prescribed authority and the prescribed authority has specifically recorded a finding on the basis of evidence that in booth no.17, there were total 33 invalid votes and in Examination in Chief, it has been stated that in booth no.17, there were 33 doubtful votes, out of which, three votes were taken out and kept in the bundle of the petitioner and thereafter Appendix-4 was prepared. After preparation of Appendix-4, the same was handed over to the Assistant Returning Officer. Thereafter, complaints were made in that respect to the authorities, but they were assured that at the end of counting, the same will be taken care of. In the cross examination, nothing was asked in respect of the aforesaid fact, rather the petitioner, avoided to ask any question in respect of discrepancy of votes. It was also stated that in respect of 439 votes, 441 votes were found in booth no.17, but 439 votes were found. The prescribed authority considered the aforesaid evidence and after considering the aforesaid evidence, came to the conclusion that a specific case for recounting was made out, as according to Appendix-11, 3304 votes were fold, but at the time of counting, the Counting Supervisor prepared Appendix-4 on the basis of counting slip. According to Appendix-6, there were only 3300 votes. Thus, the votes which were polled and counted had a difference of 4 votes. Opposite party no.3 has specifically led evidence in this regard and has stated that 439 votes were polled, but 441 votes were found at the time of counting, so it cannot be said that only on the basis of discrepancy in Appendix-11 and 6, recounting was ordered. 9. If the petitioner has avoided to ask specific question in respect of that evidence, then he has to blame himself. 9. If the petitioner has avoided to ask specific question in respect of that evidence, then he has to blame himself. The petitioner could have asked and confronted opposite party no.3 that no excess votes were found in booth no.17, but no such question was asked and the appendix, which was placed on record, was considered by the prescribed authority alongwith pleadings and evidence led in respect of claim of opposite party no.3 and thereafter, proceeded to pass the order for recounting. 10. It is a wrong assumption on the part of the petitioner that only on the basis of discrepancy in Appendix-11 and 6, recounting has been ordered, but in fact the said evidence was placed on record to prove that discrepancy was existing and excess votes were taken into consideration and were counted and three votes were taken out in the bundle of doubtful votes and kept in the bundle of the petitioner. 11. The case laws cited by the counsel for the petitioner do not come to the rescue of the petitioner, as in the case of Amit Narain Rai (supra), it was found that there was no pleading nor any evidence shown or adduced to support the case. In the case of Mahendra Pal (supra), it was held that narrow margin itself cannot be a ground for recounting of votes, but it was emphasized that such allegations must not be clearly made but also proved by cogent evidence. 12. As I have indicated above that the evidence and the pleadings in respect of the claim setup in the election petition was complete and found substantiated from the record, this Court while granting an interim order, directed the prescribed authority to proceed with the recounting, but he shall not declare the result and will produce the same before this Court by filing his personal affidavit. A personal affidavit has been filed by the prescribed authority and in recounting, it was found that two ballot papers were illegally included in the votes of booth no.17 and so they were taken out, therefore, the contention of opposite party no.3 to that extent stands corroborated and proved. A personal affidavit has been filed by the prescribed authority and in recounting, it was found that two ballot papers were illegally included in the votes of booth no.17 and so they were taken out, therefore, the contention of opposite party no.3 to that extent stands corroborated and proved. So far the second allegation of opposite party no.3 that three votes which were taken out from the invalid votes and were kept in the bundle of the petitioner was also checked and counted, it was found that 9 invalid votes were found to be included in the bundle of the petitioner's votes and the aforesaid 9 votes were taken out from the bundle of the petitioner and thereafter a modified result was prepared. In respect of booth nos. 19, 20, 21, 22 and 23, no discrepancy was found as alleged by opposite party no.3, but so far allegation in respect of both no. 17 is concerned, that was found to be established and thereafter 9 votes were taken out from the bundle of the petitioner. 13. The opposite party no.3 secured 816 votes but after 9 invalid votes were taken out from the bundle of the petitioner, his votes were reduced from 818 to 809 votes and even the prescribed authority added one untraceable vote in respect of the petitioner from booth no.23, then he would be securing 810 votes whereas opposite party no.3 would be securing 816 votes and thus opposite party no.3 has secured more votes and since result of recounting has been stayed by this Court, therefore, it is directed that the result as submitted to this Court be declared and opposite party no.3 is declared elected. The prescribed authority is directed to declare the result and implement the same forthwith. 14. The writ petition has no force and is dismissed.