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2023 DIGILAW 1814 (ALL)

Rookame Alam v. State Of U. P.

2023-07-28

MANJU RANI CHAUHAN

body2023
JUDGMENT : 1. Heard Mr. Zafar Abbas and Mr. Imtiaz Husain, learned counsel for the petitioner and Mr. Pradeep Kumar Rai, learned counsel for the respondent no.3 and Mr. Aseem Mukherjee, learned Standing Counsel for the State-respondents. 2. This writ petition has been filed by the petitioner with a prayer to quash the order dated 20.06.2023 passed by the Prescribed Authority/Sub-Divisional Magistrate, Bilari in Election Petition No.T202113540205476 of 2021 (Javed vs. Rookame Alam and others), under Sections 13-C of Panchayat Raj Act, 1947 whereby it was ordered for recounting of votes in the election held in the year 2021 of Gram Panchayat in Gram Lalpur Gangwari, Block Kundarki, Tehsil-Bilari, Moradabad and further prayer to direct the respondent no.2 not to take any further step for recounting in pursuance of order dated 20.06.2023. Brief facts; 3. Brief facts of the case are that:- i) The petitioner and respondent no.3; Javed contested the elections for the post of Pradhan in gram panchayat Lalpur Gangwari. Polling took place on 26.04.2021 whereby after counting, the petitioner was declared as winning candidate with the margin of 04 votes from the runner up candidate; Javed. ii) The respondent no.3, who was defeated by margin of 04 votes, preferred election petition under Section 12(c) of Uttar Pradesh Panchayat Raj Act, 1947[“The Act, 1947”] (hereinafter referred to as ''the Act, 1947'') on 01.07.2021 stating therein that at the time of counting, Dr. Minzar s/o Abrar, Bhura s/o Yusuf and Alam s/o Nanhe colluded with the petitioner and seven ballots votes cast in favour of respondent no.3; Javed were declared invalid and one vote was kept in other category. Despite objection being raised by respondent no.3; Javed before Assistant Returning Officer/Returning Officer, nothing was done. iii) In the aforesaid election petition, the notices were issued to the other parties and on 19.05.2023, the said election petition was dismissed by Prescribed Authority/Sub Divisional Magistrate for want of prosecution. Thereafter, on 26.05.2022, the respondent no.3 filed recall application and by order dated 01.07.2022, the order dated 19.05.2022 was recalled and the matter was fixed for 21.07.2022 directing the petitioner (respondent in election petition) to file written statement before the court below. iv) The petitioner has filed his written statement on 14.12.2022 to which rejoinder has been filed on 06.02.2023 by respondent no.3, thereafter, date was fixed for framing of issues. iv) The petitioner has filed his written statement on 14.12.2022 to which rejoinder has been filed on 06.02.2023 by respondent no.3, thereafter, date was fixed for framing of issues. On 31.05.2022, the S.D.M. Bilari has framed nine issues and closed the opportunity for producing the evidence and fixed the matter for final hearing on 07.06.2023. v) subsequently, without providing an opportunity to the parties to appear for the statement and cross examination, the impugned order dated 20.06.2023 has been passed directing for recounting of votes. Hence the present writ petition has been filed. Preliminary objection; 4. Learned counsel for the respondent no.3 has raised preliminary objection regarding maintainability of writ petition on the ground that against the order dated 20.06.2023 directing for recounting of votes, the petitioner had statutory remedy of filing a revision under Section 12-C (6) of the Act, 1947, therefore the writ petition is not maintainable. In support of his contention, he has relied upon the judgment of the Co-ordinate Bench of this Court in the case of Smt.Maneeta Devi vs. State of U.P. and 8 others decided on 13.04.2022 passed in Writ-C No.10442 of 2022. 5. Answering the aforesaid preliminary objection, learned counsel for the petitioner, placing reliance upon the judgment of this Court in the case of Mohd. Mustafa vs. U.P. Ziladhikari, Phoolpur, Azamgarh and others reported in 2007 (7) ADJ 1 , submits that the writ petition against the interlocutory order of recount of votes passed by the Presiding Officer, is maintainable. 6. Considering the preliminary objection, this Court has carefully perused the judgments of the Division Bench of this Court in the cases of Mohd. Mustafa vs. U.P. Ziladhikari, Phoolpur, Azamgarh and others reported in 2007 (7) ADJ 1 , and Abrar vs. State of U.P. and others reported in 2004 (5) AWC 4088 and found that the facts of the present case are similar, therefore, preliminary objection is refused by holding that no revision lies against an order of recount of votes passed by the Prescribed Authority, therefore, the present writ petition is maintainable. Submission on merits; 7. Learned counsel for the petitioner submits that the impugned order for recounting has been challenged on the ground that every election petition has to be tried by the Sub Divisional Officer following the procedure applicable under the Code of Civil Procedure, 1908 (hereinafter referred as “C.P.C.”). Submission on merits; 7. Learned counsel for the petitioner submits that the impugned order for recounting has been challenged on the ground that every election petition has to be tried by the Sub Divisional Officer following the procedure applicable under the Code of Civil Procedure, 1908 (hereinafter referred as “C.P.C.”). The Presiding Officer proceeded in a hurried manner to decide the election petition without adopting the legal procedure, which has to be followed. 8. The Prescribed Authority has framed nine issues, however, without taking any evidence, has closed the opportunity of providing evidence and fixed the case for final hearing. Though issues have been framed, but no findings with respect to the same has been recorded and that to without providing opportunity to the parties to appear for the statements and cross-examinations, which is against the provision of the C.P.C., which has to be followed while deciding the election petition. 9. He further submits that though the respondent no.3 has taken an objection with respect to collusion of the counting agents, declaring 7 ballot votes cast in favour of the respondent no.3 as invalid, but no findings in this regard has been recorded while passing the impugned order. Only vague and false allegation have been made in the election petition, there being no evidence of either oral or documentary in support thereof. 10. The Prescribed Authority, on the basis of complaint and evidence adduced by the petitioner in the election petition (respondent no.3 herein) has recorded that there is difference of 4 votes between the petitioner and respondent no.3 and has passed the impugned order directing for recounting, which cannot be sustained in the eye of law. 11. He further submits that impugned order is ex facie illegal and arbitrary and based on non-application of mind. Sub-Divisional Magistrate has committed manifest error of law by passing order of recounting of votes particularly when no details or any particular with regard to allegations as levelled in plaint has been provided by election petitioner. The assertion made in election petition was absolutely vague, baseless, bald and scandalous and lacking material facts and particulars which are essential for seeking any relief in election petition. The assertion made in election petition was absolutely vague, baseless, bald and scandalous and lacking material facts and particulars which are essential for seeking any relief in election petition. Placing reliance on the Full Bench judgment of this Court in the case of Ram Adhar Singh vs. District Judge and others, reported in 1985 AWC 246 ,he submits that before an authority hearing election petition under Act, 1947 can be permitted to look into or to direct inspection of ballot papers except when following two conditions must co-exist:- "(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." 12. Placing reliance upon the judgment of this Court in the case of Dharmawati vs. State of U.P. and 13 others decided on 01.05.2023 passed in Writ-C No.14662 of 2023, learned counsel for the petitioner submits that the secrecy of ballot has to be maintained and order of recount cannot be passed as a matter of choice of the parties and it requires a very critical analysis of the material placed and in accordance with the procedure prescribed for deciding election disputes. 13. Learned counsel for the petitioner further submits that during the proceedings of election petition filed by the respondent no.3, nine issues were framed, however, the order impugned has been passed without deciding even a single issue. He further submits that only the averments contained in the election petition has been dealt with and no finding has been recorded with respect to specific averment made in para 8&9 of the election petition. 14. He further submits that there is no written complaint before the Review Officer or Assistant Review Officer regarding allegation as made against the recounting agents with respect to collusion with the petitioner. 15. On the cumulative strength of the aforesaid submissions, it is submitted by learned counsel for the petitioner that the impugned order dated 20.06.2023 for recounting of votes may be quashed by this Court. 15. On the cumulative strength of the aforesaid submissions, it is submitted by learned counsel for the petitioner that the impugned order dated 20.06.2023 for recounting of votes may be quashed by this Court. Submission on behalf of the respondents; 16. On the other hand, learned Standing Counsel as well as learned counsel for the respondent no.3 has opposed the submission made by the learned counsel for the petitioner and submitted that nine issues have been framed and after analysing the specific averments made in para 9 & 10 of the election petition wherein it was mentioned that 7 valid votes cast in favour of the petitioner were declared invalid in collusion with the counting agents, i.e. Dr. Minzar s/o Abrar, Bhura s/o Yusuf and Alam s/o Nanhe, the impugned order of recounting has been passed, hence there is no illegality in the aforesaid order. 17. In support of his contention, learned counsel for the respondent no.3 has relied upon the judgments of the Apex Court in the cases of Pawan Singh vs. Presiding Officer/S.D.M., Kunda and others; reported in 2014 SCC OnLine All 15946, Harmaya vs. State of U.P. and others; reported in 2017 SCC Online All 3332, Athar Hussain vs. Razda Begum and others; reported in 2017 SCC Online All 3216 and Amar Chandra vs. State of U.P. and others; reported in 2019 (1) ADJ 750 18. He further submits that the objection as raised by the respondent no.3 was not considered by the Prescribed Officer and the same was ignored. On the basis of pleadings and written statement, five issues were framed on 31.05.2023. Thus after considering the aforesaid pleadings, the impugned order has been passed. Therefore, no illegality, infirmity or perversity is found in the impugned order, hence no interference is required by this Court. Observation of the Court; With the consent of learned counsel for the parties, this writ petition is being finally decided at this stage without calling for a counter affidavit. 19. I have heard learned counsel for the petitioner and learned Standing Counsel and perused the records. 20. Observation of the Court; With the consent of learned counsel for the parties, this writ petition is being finally decided at this stage without calling for a counter affidavit. 19. I have heard learned counsel for the petitioner and learned Standing Counsel and perused the records. 20. This Court finds that Rule 4 of the U.P. Panchayat Raj Act (Settlement of Election Disputes) Rules, 1994[“The Rule 1997”] clearly provides that subject to the provisions of the Act and these Rules, every election petition shall be tried by the Sub Divisional Officer, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 for the trial of suits. 21. In view of the above, the election petition has to be tried in the same manner as a civil suit is tried by the civil court, i.e. to say that apart from the pleadings of the parties, issues have to be framed, documentary evidence has to be laid, statements of witnesses have to be recorded, they have to be cross-examined, and only thereafter, after recording findings on all the issues, either separately or jointly, the election petition can be decided. 22. In the present case, the procedure prescribed in Rule 4 has been violated and despite the fact that 9 issues were framed during the course of the trial of election petition, none of the said issues has been decided and, directly, an order of recount of votes has been passed. 23. It is well settled in catena of decisions of this Court as well as the Apex Court that the secrecy of ballot has to be maintained and order of recount cannot be passed as a matter of choice of the parties and it requires a very critical analysis of the material placed and in accordance with the procedure prescribed for deciding election disputes. 24. 24. In the judgment of Apex Court in the case of Bhabhi vs. Sheo Govind while considering the scope of Section 100 (1)(d), 101, 102, 92 and the conduct of election Rules, 1963, the Apex Court has laid down certain guidelines, which were imperative:- (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 to 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.” 25. In the judgment of this Court in the case of Dhani Prasad vs. Sub-Divisional Officer, reported in 1974 All LJ 371 while considering the question of inspection an election petition; under Section 12-C of the U.P. Panchayat Raj Act, held that:— “Once a ballot paper is accepted by the Returning Officer containing the valid, vote: in favour of the returned candidate there is presumption that the ballot paper contained valid vote. The Election Tribunal is not entitled to interfere with the decision of the Returning Officer unless evidence is produced before it to show that the Returning Officer failed to comply with the provisions of Rule 21(m) of the U.P. Panchayat Raj Act, presumption of correctness of acceptance or rejection of ballot paper by the Returning Officer cannot be questioned unless evidence is produced that the Tribunal is satisfied that the Returning Officer failed to comply with, the provisions of the Act and the Rules in counting the ballot papers. The Election Tribunal has no jurisdiction to order recount or general scrutiny of the entire ballot papers on mere general allegations. An election petitioner is required to make out a prima facie case leading evidence and the Tribunal has to satisfy itself on the evidence produced before it that a prima facie case is made out for inspection or general scrutiny of the ballot papers. In the absence of any such evidence or satisfaction by the Tribunal no order for general inspection or scrutiny of the ballot paper is permissible under law.” 26. The Court has relied upon the earlier decisions of the Supreme Court reported in the case of AIR 1964 SC 1249 : 1964 All LJ 569, Ram Sewak Yadav vs. Hussain Kamil Kidwai, AIR 1966 SC 773 , Dr. Jagjit Singh vs. Giani Kartar Singh, (1969) 2 SCC 433 : AIR 1970 SC 276 , Jitendra Bahadur Singh vs. Krishna Bihari, and (1973) 3 SCC 330 : AIR 1973 SC 215 , Sumitra Devi v. Shri Sheo Shanker Prasad Yadav. 27. Jagjit Singh vs. Giani Kartar Singh, (1969) 2 SCC 433 : AIR 1970 SC 276 , Jitendra Bahadur Singh vs. Krishna Bihari, and (1973) 3 SCC 330 : AIR 1973 SC 215 , Sumitra Devi v. Shri Sheo Shanker Prasad Yadav. 27. This issue stands finally settled by a judgment of Full Bench of this Court in the case of Ram Adhar Singh vs. District Judge, Ghazipur, reported in 1985 UPLBEC 317 : 1985 All LJ 615, wherein it has been held at page 326 of UPLBEC:— “Before an authority hearing the election under the said Act can be permitted to look intoor to direct inspection of the ballot papers following two conditions must co-exist; (1) that the petition for setting aside an election contains the ground on which the election on the respondent is being questioned as also 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 for doing complete justice between the parties.” 28. It is settled that order of recounting cannot be passed only for the sake of it and on the basis of vague allegation without specifying any particular irregularity in counting as well as how it would affect election result materially. In the present case, in the body of election petition, vague assertions have been made regarding illegal rejection of valid votes which are not substantiated either in examination of election petitioner or otherwise on the basis of record available. Parties have to take proper pleadings by adducing evidence that by particular irregularity or illegality, result of election has been materially affected. There is no dispute to the settled legal proposition that as a rule, relief not founded in pleadings should not be granted. The judgments relied upon by the learned counsel for the petitioner are clearly distinguishable in the facts of the present case. 29. There is no dispute to the settled legal proposition that as a rule, relief not founded in pleadings should not be granted. The judgments relied upon by the learned counsel for the petitioner are clearly distinguishable in the facts of the present case. 29. To be more specific, this Court feels, it is well settled that it is important to maintain secrecy of ballot which is sacrosanct and it should not be allowed to be violated on frivolous, vague and indefinite allegations and before inspection is allowed, the allegations made against elected candidate must be clear and specific and must be supported by adequate statements of material facts (See, Bhabhi vs. Sheo Govind and others, AIR 1975 SC 2217 and Ram Sewak Yadav vs. Hussain Kamil Kidwai and others, AIR 1964 SC 1249 ). The discretion conferred on Courts should be not exercised in such a way so as to enable election petitioner to indulge in a roving enquiry in order to fish out materials for declaring election to be void. 30. In the present case, the Prescribed Authority/Sub-Divisional Magistrate has exercised its jurisdiction of recounting only on the basis of roving inquiry without substantial ground or evidence on record. Conclusions arrived by Sub-Divisional Magistrate are based on vague submissions and without any substantial material produced by the election petitioner (respondent no.3 herein), therefore, the order impugned suffers from illegality and liable to be set aside. 31. In view of the above, the impugned order dated 20.06.2023 passed by Prescribed Authority is set aside. 32. However, it is directed that the respondent no.2, i.e. the Prescribed Authority may decide the election petition, after hearing both the parties, in accordance with the procedure as prescribed under the relevant Act and Rules, within a period of two months from the date of production of certified copy of this order, without granting unnecessary adjournment to either of the party. 33. With the aforesaid observations/directions, the present writ petition is, accordingly, allowed. 34. Office is directed to give a copy of this order to learned Chief Standing Counsel, who shall communicate this order forthwith to the respondent no.2, i.e. Prescribed Authority/Sub-Divisional Magistrate, Bilari for compliance.