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2022 DIGILAW 1287 (ALL)

Neelam Devi v. State Of U. P.

2022-08-11

SIDDHARTHA VARMA

body2022
JUDGMENT : 1. Heard Sri Ashish Kumar Singh, Advocate along with Sri Prashant Kumar Tripathi, learned counsel for the petitioner, learned Standing Counsel and Sri Ramendra Asthana, learned counsel appearing for the respondent no.5. 2. Sri Ramendra Asthana, learned counsel appearing for respondent no.5 states that he would not file counter affidavit and would argue the matter at the admission stage itself. The petition, therefore, after being heard, is be decided finally. 3. An election was held on 19.4.2021 for the post of Pradhan of village Rakhi Nevada, Kshetra Panchayat Sevapuri, Tehsil Rajatalab, District Varanasi. The Election Commission had allocated polling booth nos.163, 164, 165 and 166 for the said election. In the election, the petitioner-Neelam Devi was declared elected. Respondent no.5-Asha Devi, filed an Election Petition questioning the election of the petitioner. In the election petition there were various allegations with regard to the method of voting as also with regard to the method of counting of votes. Ultimately, the Election Tribunal framed as many as eight issues for the decision of the election petition. The issues are being reproduced here as under :- ^^1- D;k ;kfpdkdrhZ iz'uxr ;kfpdk esa vuqrks"k ikus dh vf/kdkjh gSa \ 2- D;k erx.kuk ds nkSjku erx.kuk fd;s tkus esa /kk/kyh dh x;h gS \ 3- D;k iz'uxr izdj.k esa dqy Mkys x;s erksa dh la[;k ,oa dqy x.kuk fd;s x;s erksa dh la[;k esa vUrj gS \ 4- D;k ;kfpdkdrhZ }kjk i;kZIr U;k; 'kqYd vnk fd;k x;k gS\ 5- D;k iz'uxr izdj.k esa voS/k erksa ds iqujh{k.k dh vko';drk gS \ 6- D;k ;kfpdkdrkZ pquko ;kfpdk esa ;kfpr vuqrks"k ikus dk vf/kdkjh gS\ 7- D;k ;kfpdk vuko';d i{kdkjksa dks i{kdkj cuk;s tkus vFkkZr i{kdkjksa ds dqla;kstu ls ckf/kr gSA 8- D;k izLrqr pquko ;kfpdk iks"k.kh; gS\^^ 4. From the perusal of the impugned judgment dated 4.7.2022, the Court finds that even before the issues were decided, the Election Tribunal undertook the exercise of seeing whether the ballot papers ought to be recounted. Thereafter, without deciding the issues, the election petition was allowed and an order was passed that re-counting was to be done. Aggrieved thereof, the petitioner had approached the Revisional Court by means of a Revision. Thereafter, without deciding the issues, the election petition was allowed and an order was passed that re-counting was to be done. Aggrieved thereof, the petitioner had approached the Revisional Court by means of a Revision. When the Revision was pending and the recounting was still taking place, the petitioner had approached this Court by means of an application under Article 227 of the Constitution of India being Application No.5338 of 2022 wherein a direction was issued that the Revision be decided and till the decision of the Revision, recounting was stayed. Thereafter when the Revision itself was dismissed on 3.8.2022 and a date was fixed for 11.8.2022 for the recounting of votes, the petitioner approached this Court by means of the instant application under Article 227 of the Constitution of India. 5. Learned counsel for the petitioner has argued that during the course of the decision of the election petition, if the Court considers that recounting of ballot papers was essential, then the recounting could have been done. Learned counsel for the petitioner further submits that if the recounting was not essential then definitely no recounting had to be done. He further submits that if during the course of the decision of any issue, it was essential that recounting was required then the recounting could have been done. Learned counsel further submitted that after the order of recounting was passed, the Tribunal could not have outright stated that the election petition itself was disposed of. Learned counsel for the petitioner submitted that the result of recounting could have been only an evidence for the Court to come to the conclusion as to whether the election petition could be allowed or could be dismissed. Learned counsel, therefore, submits that the order impugned dated 4.7.2022 be set-aside. He further submits that because of the fact that the election petition had been decided finally, the Revision also ought to have been entertained. Learned counsel for the petitioner further submitted that even otherwise no ground was made out for the opening of the ballot box and recounting of the ballot papers. He further submits that because of the fact that the election petition had been decided finally, the Revision also ought to have been entertained. Learned counsel for the petitioner further submitted that even otherwise no ground was made out for the opening of the ballot box and recounting of the ballot papers. The Prescribed Authority could have ordered for recount of the ballot papers only where; (i) the election petition contained an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting were made; (ii) on the basis of evidence adduced such allegations were prima facie established and afforded a good ground for believing that there had been a mistake in counting; and (iii). the court trying the petition was prima facie satisfied that the making of such an order was imperatively necessary to decide the dispute and to do complete and effective justice between the parties. He, therefore, submitted that in the Full Bench decision of this Court in Ram Adhar Singh vs. District Judge & Ors. reported in 1985 ACJ 196, it had been laid down that on vague and indefinite allegations recounting could not be ordered and that recounting could not be made as a matter of course. Recount of votes could be ordered very rarely and on specific allegation in the pleadings in the Election Petition that illegality or irregularity was committed while counting. The election petitioner who seeks recount should allege and prove that there was improper acceptance of invalid votes or improper rejection of valid votes. If only the Court was satisfied about the truthfulness of the allegations, could it order the recount of votes. Secrecy of ballot has always been considered sacrosanct in a democratic process of election and it cannot be disturbed lightly by bare allegations of illegality or irregularity in counting. And if it is proved that purity of elections has been tarnished and it has materially affected the result of the election whereby the defeated candidate is seriously prejudiced, the Court can resort to recount of votes to do justice between the parties. 6. And if it is proved that purity of elections has been tarnished and it has materially affected the result of the election whereby the defeated candidate is seriously prejudiced, the Court can resort to recount of votes to do justice between the parties. 6. Sri Ramendra Asthana, learned counsel who appears for the election petitioner, in reply, submitted that the recounting order need not be interfered with as there were substantial grounds on the basis of which the recounting was ordered and even if this Court was of the view that the petition could not have been finally allowed after the passing of the recounting order, the order for recounting need not be interfered with. Learned counsel has very fairly conceded that even if the Revision was not filed, this Court could have looked into this aspect of the matter as to whether recounting had been validly ordered. Learned counsel further submitted that the recounting would enhance the concept that "purity of election" has always to be given supremacy. He submitted that the predominant feature of a democracy is that only such incumbent should represent a constituency who had in fact been chosen by the majority of electors. In this regard he has drawn the attention of the Court to a decision of the Supreme Court in A. Neelalohithadasan Nadar vs. George Mascrene & Ors. reported in 1994 Supp. (2) SCC 619 and submitted that the principle of secrecy of ballot box must yield to the principle of purity of election in larger public interest. Learned counsel also submitted that secrecy of ballot cannot stand aloof or in isolation and in confrontation to the foundation of free and fair election. He submitted that "secrecy of ballot" and "purity of free and fair election" have to co-exist and one concept cannot be used to destroy the other. Secrecy of ballot must yield to the principle of purity of election in public interest. 7. Having heard learned counsel for the parties, I am of the view that the order dated 4.7.2022 cannot be sustained in the eyes of law. From the perusal of the judgment, the Court finds that there were as many as eight issues framed and without the decision of any of the issues, the election petition itseslf has been finally decided. This approach of the Election Tribunal was patently erroneous. From the perusal of the judgment, the Court finds that there were as many as eight issues framed and without the decision of any of the issues, the election petition itseslf has been finally decided. This approach of the Election Tribunal was patently erroneous. During the decision of any issue, an order could have been passed for the recounting of votes but the Election Tribunal could not have separately, without deciding any of the issues, ordered for the recounting of votes. 8. Further more, this Court is of the view that a bare suspicion in the mind of the Election Tribunal that in Booth Nos.163, 164, 165 and 166, the votes might have been irregularly counted could not be a ground for ordering recount. Still further the Court is of of the view that the recounting could not have been ordered because the petitioner had won by only one vote. 9. Under such circumstances, the order impugned dated 4.7.2022 is set-aside. Since the Revisional Court has also failed in its duty to consider as to whether the Election Tribunal had decided the election petition correctly, the order of the Revisional Court dated 3.8.2022 is also set-aside. The matter is remanded to the Election Tribunal which shall decide the case afresh and if while deciding any particular issue, it is of the view that the recounting had to be done, then it can always order for the recounting provided it adheres to the provisions of law as have been mentioned above. For the purpose of recounting, it has to give specific reasons. 10. The Court expects that the election petition shall be decided within a period of three months from the date of presentation of a certified copy of this order. 11. The instant application under Article 227 of the Constitution of India is, accordingly, partly allowed.