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2023 DIGILAW 269 (ALL)

Sunil Kumar v. State Of U. P.

2023-01-27

SAURABH SHYAM SHAMSHERY

body2023
JUDGMENT : 1. Heard Sri Sharad Sharma, learned counsel for the petitioner, Sri Santosh Kumar Shukla, learned counsel appearing for contesting respondents and learned Standing Counsel for the State respondents. 2. The petitioner is the winning candidate for election of Gram Pradhan whereas respondent no. 2 (election petitioner) remained runner up. The margin of victory was 37 votes. 3. The election petitioner filed an election petition under Section 12-C of U.P. Panchayat Raj Act, 1947 mainly on ground that Election Officer has illegally declared valid votes cast in favour of the election petitioner as invalid as well as there was discrepancy between total valid votes and number of total votes cast after taking note of declared invalid votes. 4. After the exchange of pleadings, learned Tribunal by impugned order dated 31.10.2022, passed interim order for recounting deciding issue nos. 6, 7 and 8 mainly on ground that number of votes shown by the Election Officer in Proforma No. 46 were different from number of votes declared at the time of counting and specific objection was taken by the election petitioner in this regard during counting. However, without considering it, the petitioner was declared elected by 37 votes as well as few voters have cast their votes at two places as well as to maintain fairness in the election and also took note that despite service no reply was filed on behalf of the Election Officer. 5. Sri Sharad Sharma, learned counsel for the petitioner submitted that averments made by the election petitioner were vague and were not supported by any materials or any documents to disturb the secrecy of ballots. 6. In order to buttress to his argument, learned counsel for the petitioner has placed reliance on the judgement passed by Full Bench of this Court in Ram Adhar Singh vs. District Judge and others, 1985 AWC 246 . 6. In order to buttress to his argument, learned counsel for the petitioner has placed reliance on the judgement passed by Full Bench of this Court in Ram Adhar Singh vs. District Judge and others, 1985 AWC 246 . Paragraph 19 of the said judgement is reproduced as under: “Applying the principle with regard to inspection of ballot papers enunciated by the Supreme Court in cases arising under the Representation of the People Act to an election petition dealt with under the provisions of the U.P. Panchayat Raj Act, there is no escape from the conclusion that before an authority hearing the election petition under the said Act can be permitted to look into or to direct inspection of the ballot papers, 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. It, therefore follows that in the absence of any specification with regard to the ground on which the election of the Respondent is being questioned together with summary of the circumstances alleged to justify the election being questioned on I such ground, it is not open to the authority dealing with an application under Section 12-C of the U.P. Panchayat Raj Act, either to look into or direct inspection of ballot papers merely on the ground that it feels that it would be in the interest of justice to look into or permit inspection of the ballot papers. In the context, such satisfaction has necessarily to be based on specific averments made in and the materials indicated in the election petition which could, prima facie satisfy the authority about the existence of the ground on which the election is sought.” 7. learned counsel for the petitioner also placed reliance upon a judgement passed by Co-ordinate Bench of this Court in Writ-C No. 2951 of 2022, decided on 29.7.2022. Paragraph 12 and 13 are as under: “12. learned counsel for the petitioner also placed reliance upon a judgement passed by Co-ordinate Bench of this Court in Writ-C No. 2951 of 2022, decided on 29.7.2022. Paragraph 12 and 13 are as under: “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. 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.” 8. The above submissions are opposed by Sri Santosh Kumar Shukla, learned counsel appearing on behalf of election petition (respondent no. 2) that the election petitioner has raised specific grounds in regard to irregularities committed during counting in the election petition and placed material facts that due to irregularity recounting is required. There was prima facie difference between the number of votes counted and the number of votes polled. 9. 2) that the election petitioner has raised specific grounds in regard to irregularities committed during counting in the election petition and placed material facts that due to irregularity recounting is required. There was prima facie difference between the number of votes counted and the number of votes polled. 9. That Election Tribunal has rightly taken note that a written complaint was made by election petitioner at the time of counting raising objections, however, it was not considered and that grounds for recounting were based on definite allegations supported by documents on record and it was necessary and imperative to grant prayer for inspection of votes to do justice between the parties. 10. Heard learned counsel for the parties and perused the record. 11. Before adverting to the rival submissions following paragraphs of the judgement passed by this Court in Smt. Sajida vs. Sub Divisional Magistrate Kairana District Shamli/Prescribed Authority And 15 Others, (SCC OnLine) would be relevant. “16. 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 of 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. 17. In the present case, 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, therefore, the order impugned suffers from illegality and liable to be set aside.” 12. I have carefully perused contents of the election petition and for reference paragraph nos. 8, 9 and 10 thereof are mentioned hereinafter: 13. The above averments are sufficient to justify that the material facts in regard to the irregularity were mentioned in the election petition. After the exchange of pleadings the Election Tribunal framed following 9 issues: 14. I have carefully perused contents of the election petition and for reference paragraph nos. 8, 9 and 10 thereof are mentioned hereinafter: 13. The above averments are sufficient to justify that the material facts in regard to the irregularity were mentioned in the election petition. After the exchange of pleadings the Election Tribunal framed following 9 issues: 14. Learned Tribunal further considered the issue nos. 6, 7 and 8 in the light of the material before it as well as the statements of the witnesses. Learned Tribunal in the absence of any reply on behalf of the Election Officer accepted the averment that at the counting centre no. 45 that there was a difference between the total number of votes cast and the total number of votes counted and the relevant finding is mentioned hereinafter: 15. The above material finding is based on without inspection of Proforma 45 as the Election Tribunal despite power has not called the documents for verification in regard to verify allegations of difference between the number of votes cast and the number of vote counted. The above finding is completely based on an oral assertion as mentioned in the election petition as well as in the impugned order that the Election Officer orally communicated a different number of total votes cast. The petitioner has not submitted any document in support of their assertion made in the election petition though the assertion made in election petition appears to be sufficient but in absence of any supporting documents are not sufficient to pass any order of recounting as observed above that for purpose of recounting assertions made in the election petition must have support from the documents which is not the case in hand. 16. The assertion in absence of documentary support became vague and it would not be a good ground for believing that there has been a mistake in counting. 16. The assertion in absence of documentary support became vague and it would not be a good ground for believing that there has been a mistake in counting. It is well settled law that it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous and vague and indefinite allegations, therefore, the order impugned of recounting is based on assertions which become vague in absence of any supporting documents as well as the Tribunal without verifying the assertions made in the election petition from the Election Commission has wrongly interfered with the secrecy of ballot papers, therefore, the impugned order is unsustainable in the eyes of law. 17. Accordingly, the order dated 31.10.2022 is hereby set aside. 18. The writ petition is allowed.