Research › Search › Judgment

Allahabad High Court · body

2022 DIGILAW 1191 (ALL)

Rukhsani v. State of U. P.

2022-07-29

SAUMITRA DAYAL SINGH

body2022
JUDGMENT : 1. Heard Sri G.K. Singh, learned Senior Advocate, assisted by Sri H.P. Sahi, learned counsel for the petitioner; Sri Udai Chandani, learned counsel appearing for private respondents and learned Standing Counsel for the State-respondents. 2. Present writ petition has been filed to challenge the order dated 12.01.2022 passed by the Sub-Divisional Magistrate, Handia, District -Prayagraj in Case No. 02002 of 2021 (Smt. Soni Vs. Rukhsani & Ors.) being proceedings in the nature of election petition under Section 12-C of the U.P. Panchayat Raj Act, 1947 (hereinafter referred to as the 'Act'). By that order, the election tribunal has directed for recount of votes cast at the election for gram panchayat -Baraut. 3. Preliminary objection has been raised by Sri Udai Chandani, learned counsel appearing for the private respondents, as to maintainability of the present writ petition. Referring to the impugned order, he would submit, the election tribunal has determined issue nos. 1 to 5 framed in the election petition and thereafter proceeded to pass an order of recount. Relying on a decision of a learned Single Judge of this Court in Athar Hussain Vs. Razda Begum & Ors., 2017 (1) 35 RD 128 as followed in Smt. Maneeta Devi Vs. State of U.P. & Ors. in Writ -C No. 10442 of 2022, decided on 13.04.2022, it has been submitted, the only remedy available to the petitioner is to file a revision. 4. On the other hand, learned Senior Advocate appearing for the petitioner would submit, the order dated 12.01.2022 is only an interlocutory order. He would refer to the five issues framed by the election tribunal and submit, of that four issues pertain only to the recount of votes. No final finding could have been returned on that without first seeking a report of recount. Therefore, in face of issues framed in the present case, it may never be asserted, the order of recount is a final order as may allow the petitioner to maintain the revision proceedings. 5. Referring to the discussion and finding recorded in the impugned order, it has been then asserted, in the first place, no evidence was led as may have resulted in the satisfaction that there was any material defect or irregularity in the original counting of votes. 5. Referring to the discussion and finding recorded in the impugned order, it has been then asserted, in the first place, no evidence was led as may have resulted in the satisfaction that there was any material defect or irregularity in the original counting of votes. Then, it has been submitted, no reasoning has been offered and no satisfaction has been drawn on appraisal of material and evidence on record that the original counting of votes suffered from any error or defect as may have justified a recount. Third, emphasis has been laid to the fact, upon recall application and further application filed in the same proceedings, the election tribunal has itself described the order dated 12.01.2022 as an interlocutory order. 6. In that regard, heavily relying on the division bench decision of this Court in Mohd. Mustafa Vs. Up Ziladhikari, Phoolpur, Azamgarh & Ors., 2007 (6) AWC 5536, it has been submitted, the impugned order is only an interlocutory order. 7. On merits, Sri Udai Chandani would submit, after hearing the parties, the election tribunal has reached a conclusion that recount of votes has become necessary. He has heavily relied on Smt. Maneeta (supra). 8. Having heard learned counsel for the parties and having perused the record, the law on the issue is clearly laid down in the division bench decision of this Court in Mohd. Mustafa (supra). In paragraph no. 6 of that report, it was observed as below: "The procedure of counting, therefore, is also an integral part of the process of election and any error in counting, which materially affects the result of the election, can also be questioned through an election application. The process of counting, therefore, if pointed out to be erroneous, can be a ground for questioning the election and for that purpose, an application for recounting is maintainable in the proceedings when an election dispute is raised under Section 12-C of the Act. The Prescribed Authority is empowered to pass such orders in accordance with the law as may be necessary for disposing of an application for recounting. The order passed by the Prescribed Authority, therefore, is an order in aid of the final determination which has to be made in respect of the election which have been made the basis for claiming a recount. The order passed by the Prescribed Authority, therefore, is an order in aid of the final determination which has to be made in respect of the election which have been made the basis for claiming a recount. The disposal of such an application by itself does not finally touch upon the result of the election and is not a final decision on the reliefs claimed in an election application. The ultimate relief claimed in an election application is to set aside the election of a successful candidate. Unless and until such an order is passed, finally determining the fate of the election, it cannot be said that an order passed for mere recount attaches finality to the proceedings. The order of recount by itself does not dispose of the election application finally and something more remains to be done thereafter, namely, the final decision on the basis of the evidence led on the question of recount. There is every possibility of the election application being dismissed in case it is ultimately found upon a recount that there is no material irregularity and conversely an election application can only be allowed after the Tribunal comes to the conclusion that the recount has materially affected the results and has tilted the balance in favour of the election petitioner. It is, therefore, obvious that the final disposal will occur only after a decision is rendered upon the outcome of the recount. As indicated above, the mere reasons given or the mere passing of an order for recount does not attach finality to the proceedings arising out of an election application under Section 12-C of the Act. It is the declaration of either the ultimate success or failure of the election application that attaches finality to the proceedings." 9. Then, after discussing the submission advanced and the law on the issue, it has been further observed as under: "22. The intention of the Legislature, while not providing the remedy of revision against any order passed during the pendency of the election application, seems to be to avoid prolonged litigation ad infinitum as it would not be in the interest of justice to allow a party to obtain a decision at primary point, challenge the same before the superior Court up to the Hon'ble Supreme Court to great disadvantage to the other side. Thus, the intention of the Legislature seems to be that no revision would be maintainable against an order passed by the Prescribed Authority unless the election application itself stands disposed of finally. 23. We have carefully examined the reasoning given by a learned Single Judge in Abrar's case (supra) wherein the learned Single Judge opined that the disposal of an application for recount would amount to be a final order as it disposes of the application for recount finally. As explained by us, hereinabove, a mere order for recount does not finally alter the status of the contesting parties and it does not, in any way, finally determines the status of an elected candidate. The finality comes only after the disposal of the election application as the relief of setting aside an election or dismissing an election application comes at the final stage and not by mere disposal of an application of recount or ordering recount on deciding the issue framed for this purpose." 10. Then, in paragraph no. 25 of that report, it was further held as below: "25. It is evident from the order impugned that only the order of recount has been passed. However, the other issues are yet to be decided after recount of ballot papers as to whether the election had been held in accordance with law and as to whether the votes cast in favour of the contesting respondent has been mixed up with the votes of the returned candidate and on the basis of which the petitioner has been declared elected. It is further to be decided as to whether the election application is to be allowed or dismissed. Therefore, by no stretch of imagination, it can be held that the order of recount of votes has finally disposed of the election application." 11. In the present case, the following issues were framed by the election tribunal: 12. Plainly, the only issue raised in the election petition is with respect to irregularity in the original counting of votes, no other issue was raised. In that fact, if an order of recount of votes is made by way of an interlocutory order, there had to arise prima facie evidence to establish the correctness of the challenge raised. Correspondingly, in that event, evidence in rebuttal may also arise. In that fact, if an order of recount of votes is made by way of an interlocutory order, there had to arise prima facie evidence to establish the correctness of the challenge raised. Correspondingly, in that event, evidence in rebuttal may also arise. It is on that evidence, submissions could have been advanced on which election tribunal could draw a satisfaction based on reasons to justify the order of recounting of votes. That has clearly not been done in the present case. The election tribunal has only made vague and sweeping observations. In fact, it appears to have wrongly placed the burden on the petitioner in having not led any evidence to establish that the recount was done in a proper/legal manner. 13. In the context of election petition, the burden to establish irregularity or illegality including with respect to counting of votes would rest on the shoulder of the challenger that is the election petitioner. Unless evidence is led by the election petitioner, there would arise no occasion for evidence in rebuttal. Also, merely because other parties in the election petition may have supported the case of the election petitioner, insofar allegations were levelled of illegalities committed on the original counting of votes it would have no legal consequence. That stand of the other parties could not be given the status of evidence of any illegality committed in the original counting of votes. That evidence would have to arise on its own strength based on specific allegations or facts. 14. Therefore, recital in the order issue nos. 1 to 5 are decided in favour of the election petitioner, is merely an observation not supported by any cogent finding. At present, it has arisen in absence of any material and evidence on record. That being the case, the said observation cannot have the effect of giving the colour or description of finality to the impugned order. It would remain an interlocutory order in its true spirit and character. 15. This conclusion is being recorded in peculiar facts of the present case where the only challenge was as to the original counting of votes as is clear from the issue nos. 1 to 4 framed by the election tribunal. Unless an issue framed is shown to have been actually decided, it may never be concluded that the order is in the nature of final order. 1 to 4 framed by the election tribunal. Unless an issue framed is shown to have been actually decided, it may never be concluded that the order is in the nature of final order. Here, the only issue was and continues to be with respect to counting of votes in the original counting. It is plainly open for consideration by the election tribunal in face of its own orders providing for further listing of the case for recount. Here, no conclusion could be recorded on those issues unless result of recount is available. 16. In the case of Smt. Maneeta (supra), nine issues were framed. Of that three issues were pertaining to counting of votes. 17. In view of the above, present writ petition is allowed. The order dated 12.01.2022 passed by the Sub-Divisional Magistrate, Handia, District -Prayagraj cannot be sustained. It is hereby set aside. The matter is remitted to the election tribunal to pass a fresh order after allowing the parties fresh opportunity to lead evidence to establish if recount of votes is necessary. Once that evidence is led, proper and reasoned order may arise to justify the recount of votes, if any. 18. For the above purpose, the respondent shall have one month time to lead evidence. The petitioner shall have 15 days thereafter to lead evidence in rebuttal. The election tribunal shall thereafter fix a date for hearing within a period of two weeks therefrom and pass appropriate orders within a further period of one month. Thus, proceedings on the election seeking recount may be concluded within a period of three months from today.