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2023 DIGILAW 95 (ALL)

Abaad Ali v. State of U. P.

2023-01-10

ABDUL MOIN

body2023
JUDGMENT Abdul Moin, J. Heard learned counsel for the petitioner, Dr. Udaiveer Singh, learned Additional Chief Standing counsel appearing for the State-respondents and Sri Gyanendra Mishra, learned counsel appearing for the respondent no. 5. 2. Instant petition has been filed praying for the following main reliefs:- "(i) Issue a writ, order or direction in the nature of Certioari quashing the impugned order dated 30.12.2022 passed by Sub Divisional Magistrate/Prescribed Authority District- Sultanpur in Case No. T20214680607476 of 2021 (Nizam Haider v. Abaad Ali and Ors), as contained in Annexure No. 01 to this writ petition. (ii) Issue a writ, order or direction in the nature of Mandamus commanding the Sub Divisional Magistrate/Prescribed Authority District Sultanpur to proceed in Case No. T20214680607476 of 2021 (Nizam Haider v. Abaad Ali and Ors), in fair, transparent and impartial manner strictly in accordance with law." 3. The case set forth by the petitioner is that an election for the post of Gram Pradhan had taken place. After election, the petitioner was declared elected as Gram Pradhan. The respondent no. 5 being aggrieved with the election of the petitioner filed an election petition under Section 12C of the Uttar Pradesh Panchayat Raj Act, 1947 (hereinafter referred to as "Act, 1947"). The said case was registered as Case No. 7476 of 2021 In re; Nizam Haider v. Abaad Ali. The learned election tribunal framed various issues of which issue no. 2 was as to whether the applicant is entitled for re-counting keeping in view the averments made in the election petition. The said issue has been decided vide order dated 30.12.2022, a copy of which is annexure no. 1 to the writ petition with the direction to the Tehsildar and Block Development Officer to recount the votes on 16.01.2023. Videography has also been directed to be done. A representative each of the applicant and the petitioner herein has also been required to be present at the time of recounting. The concerned authority has been required to make available the votes polled in order to enable the recounting in police presence. The Recounting officer has been directed to make available the result of recounting to the election tribunal and the matter has been listed on 17.01.2023 for the purpose of deciding the issues no. 1, 3 & 11. 4. The concerned authority has been required to make available the votes polled in order to enable the recounting in police presence. The Recounting officer has been directed to make available the result of recounting to the election tribunal and the matter has been listed on 17.01.2023 for the purpose of deciding the issues no. 1, 3 & 11. 4. The grounds taken by the learned counsel for the petitioner while challenging the said order are that:- (a) it is only the election tribunal which could have counted the votes and there has been delegation of power to the Tehsildar and Block Development Officer which could not have validly been done. In this regard, reliance has been placed on the judgment of this Court in the case of Khilari v. The IVth Additional District Judge, Sonbhadra and other reported in AIR 1992 ALLD 186. (b) the aforesaid officers cannot decide the validity of the invalid/valid votes which has been considered to be done while deciding the issue no. 2. (c) recounting had already taken place prior to filing the election petition as such, no recounting can be directed to be done by the learned election tribunal. (d) while directing for recounting, the election tribunal has patently erred in law inasmuch as it should have called for the evidence of the returning officer and assistant returning officer with regard to allegations pertaining to form 46. 5. No other ground has been urged. 6. On the other hand, Dr. Udaiveer Singh, learned Additional Chief Standing counsel as well as Sri Gyanendra Singh, learned counsel for the respondent no. 5 argue that the order passed by the election tribunal while deciding the issue no. 2 only directs for recounting of the votes. They contend that despite the fact that the issue no. 2 has been decided in favour of the applicant/respondent no. 5 herein wherein the issue which was as to whether the applicant is entitled for recounting was framed and while deciding the said issue it has been indicated that the invalid and valid votes and part no. 1 & 2 of recounting slips and the appendix are to be seen yet the final order is only for directing for a recounting of the votes and as such it is always open for the election tribunal, after having the result of the recounting before it, to pass the final order in the matter. 1 & 2 of recounting slips and the appendix are to be seen yet the final order is only for directing for a recounting of the votes and as such it is always open for the election tribunal, after having the result of the recounting before it, to pass the final order in the matter. It is thus contended that the instant petition has only been filed on the basis of an apprehension on the part of the petitioner/elected Gram Pradhan apprehending that when the final recounting is done it may result in the true facts coming to the knowledge of the election tribunal of the elected Gram Pradhan having secured less votes and hence the petition has only been filed in order to avoid and delay the final outcome of the election petition. 7. Heard learned counsel appearing for the contesting parties and perused the records. 8. From a perusal of records it emerges that after the petitioner had been declared as elected Gram Pradhan, an election petition under Section 12C of the Act, 1947 has been filed by the respondent no. 5 herein challenging the election of the petitioner on various grounds. The learned Election tribunal framed various issues of which issue no. 2 was as to whether the applicant is entitled for recounting keeping in view the averments made in the election petition. The learned Election tribunal has discussed issue no. 2 threadbare and was of the view that there has been over writing and cutting in the result form no. 46 pertaining to booth no. 43 which cutting/overwriting has also not been countersigned, apart from there being difference in the valid/invalid/cancelled votes and has placed reliance on the judgment of this Court in the case Ravindra Singh v. State of U.P and Ors reported in (2008) 105 RD 88 to take the view that where either on account of improper acceptance or improper rejection of votes or there are apparent mistakes in the counting which has affected the election result or where there are overwriting and cutting on the counting sheet then the same raises a strong suspicion of the fairness of the counting procedure.Thereafter, the learned Election tribunal has passed an order requiring the Tehsildar and Block Development Officer to recount the votes and to submit the result by means of the order impugned dated 30.12.2022. 9. 9. The aforesaid order dated 30.12.2022 has been challenged on various grounds as have been indicated above and now the Court proceeds to deal with the said grounds. 10. The first and second grounds of challenge to the order impugned are being dealt together. The said grounds are that (a) it is only the election tribunal which could have counted the votes and there has been delegation of power to the Tehsildar and Block Development Officer which could not have validly been done and (b) the aforesaid officers cannot decide the validity of the invalid/valid votes which has been directed to be done while deciding the issue no. 2. 11. In this regard, reliance has been placed on a judgment of this Court in the case of Khilari (supra) to contend that it is only the election tribunal which could have counted the votes and not the Tehsildar and Block Development Officer. 12. A perusal of the judgment in the case of Khilari (supra) would indicate that the order impugned before this Court in the case of Khilari (supra) was that the election tribunal had delegated the power of recounting and declaration of result to the Tehsildar and it is in those circumstances that this Court in the case of Khilari (supra) has held that as the election tribunal was acting in quasi judicial capacity it had no power to delegate. 13. The facts in the instant case are entirely different inasmuch as the Tehsildar and Block Development Officer have been directed by means of the impugned order dated 30.12.2022 to count the votes and then submit the records thereof to the learned election tribunal for passing orders upon the same on 17.01.2023. Thus, it is apparent that the learned tribunal has not delegated the power of declaration of the result as was the case in the case of Khilari (supra). Consequently, said grounds are not found tenable and are rejected. 14. The ground (c) of challenge to the order impugned is that the recounting had already taken place prior to filing the election petition as such, no recounting can be directed to be done by the learned election tribunal. 15. Suffice it to say that even if recounting had been taken place prior to filing of the election petition yet now it is the election of the elected Gram Pradhan which has been challenged through the election petition. 15. Suffice it to say that even if recounting had been taken place prior to filing of the election petition yet now it is the election of the elected Gram Pradhan which has been challenged through the election petition. For the purpose of seeing as to whether the election of the petitioner was valid it is within the power of election tribunal to order for recounting of the votes. While deciding the issue no. 2 the learned election tribunal was of the view that certain invalid votes have also been considered. Thus, even if recounting had taken place prior to filing the election petition, the same would make no difference to the learned election tribunal in directing for a recounting as it has jurisdiction to do so while deciding an election petition and has thus required a recounting of votes consequently, the said ground is not found tenable and is rejected. 16. The ground (d) of challenge to the order impugned is that while directing for recounting, the election tribunal has patently erred in law inasmuch as it should have called for the evidence of the returning officer and assistant returning officer as the allegations with regard to form 46. Suffice it to say that once the learned election tribunal, upon perusal of the records as were produced before it as finds mentioned in detail while considering the ground (2), was of the view that there is cutting and overwriting in various forms which is also not countersigned as such, it was within the power of learned election tribunal upon being satisfied, to order for recounting as has been done in the instant case. Consequently, the said ground is rejected. 17. Even otherwise, a perusal of the order passed by the learned election tribunal while discussing the issue no. 2 pertaining to recounting of votes indicates that the learned Tribunal has considered threadbare the grounds as were raised before it and also has perused the material and only after perusal of the material before it and having found cutting/overwriting not being countersigned that the learned election tribunal has directed for recounting. 18. This aspect of the matter has already been considered by this Court in the case of Ravindra Singh (supra). For the sake of convenience, relevant observations made in the case of Ravindra Singh (supra) are reproduced below:- "4. 18. This aspect of the matter has already been considered by this Court in the case of Ravindra Singh (supra). For the sake of convenience, relevant observations made in the case of Ravindra Singh (supra) are reproduced below:- "4. The law with regard to recount of votes is fairly well settled. In Beli Ram Bhalaik v. Jai Behari Lal Kachi the Supreme Court cautioned that since an order for a recount touches upon the secrecy of ballot, it should not be made lightly or as a matter of course. Although no cast iron rule of universal application can be or has been laid down, yet, from a bedroll of the decisions of this Court, two broad guidelines are discernible; that the court would be justified in ordering a recount or permitting inspection of the ballot papers only where (I) all the material facts on which the allegations of irregularity, or illegality in counting are founded, are pleaded adequately in the election petition, and (ii) the Court/Tribunal trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties. In Suresh Prasad Yadav v. Jai Prakash Mishra, Chanda Singh v. Ch. Shiv Ram, Manphul Singh v. Surinder Singh, same principles were upheld. In Suresh Prasad Yadav v. Jai Prakash Mishra, Chanda Singh v. Ch. Shiv Ram, Manphul Singh v. Surinder Singh, same principles were upheld. These principles were reiterated in Bhabhi v. Sheo Govind : AIR 1975 SC 2117 as follows: (1) That it is important to maintain the secrecy of the ballot which is acrosant 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 supported by adequate statements of material facts; (3) That 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 the 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. 5. In S. Raghubir Singh Gill v. S. Gurucharan Singh Tohra it was held as under: True, re-count cannot be ordered just for the asking. A petition for re-count cannot be ordered after inspection of ballot papers must contain an adequate statement on material facts on which the petitioner relies in support of his case and secondly the Tribunal must be prima satisfied that in order to decide the dispute and to do complete justice between the parties an inspection of the ballot papers is necessary. The discretion conferred in this behalf should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fishing out materials for declaring the election void. 6. The discretion conferred in this behalf should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fishing out materials for declaring the election void. 6. In M.R. Gopalakrishanan v. Thachady Prabhakaran, it was held that the demand of defeated candidate for re-count of votes has to be considered keeping in view that secrecy of the ballot is sacrosanct in a democracy, and therefore, unless the election petitioner is able not only to plead and disclose the material facts but also substantiate the same by means of evidence of reliable character that there existed a prima facie case for re-count, no Tribunal or Court would be justified in directing a re-count. 7. In Vadivelu v. Sundaram same principle was reiterated with emphasis in paragraph 16 quoted as below: The result of the analysis of the above cases would show that this Court has consistently taken the view that re-count of votes could be ordered very rarely and on specific allegation in the pleadings in the election petition that illegality irregularity was committed while counting. The 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 is satisfied about the truthfulness of the above allegation, it can order 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. But 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 under such circumstances to do justice between the parties. 8. In V.S. Achuthanandan v. P.J. Francics, Supreme Court went to the extent of holding that once a recount is validly ordered and the statistics revealed by the re-count are available to be used for deciding election dispute, the facts revealed by re-count cannot be relied upon by the election petitioner to support the prayer and sustain the order for re-count if the pleadings and material available on record anterior to actual recount did not justify grant of the prayer for inspection and re count. 9. 9. In this case the Prescribed Authority has found that there were sufficient pleading with material particulars with regard to irregularities in counting of votes affecting the elections. He has set down the pleading in which it was stated by the election petitioner that after the election petitioner was declared elected with a difference of four votes, manipulations were made in the election documents. In booth No. 167 instead of 532, 464 valid and 71 invalid votes, a total of 535 votes were reported, whereas in the counting sheet only 532 votes were recorded. As against booth Nos. 169, 170 and 171 the total number of votes were not written in the counting sheet. Two votes in booth No. 169; 4 in booth No. 170 and 2 in booth No. 171 were reduced by manipulations by overwriting and that instead of 2221 votes 2216 votes namely 5 votes were not shown, and 3 votes were increased in booth No. 167. These manipulations were made to defeat the election petitioner. When he requested for recounting, the request was denied." 19. From a perusal of the judgment of this Court in the case of Ravindra Singh (supra) it emerges that this Court was seized of an order of the learned election tribunal which had directed for recounting of votes and had summoned entire records before it. After considering of the said order passed by the learned election tribunal, this Court was of the view that the Hon'ble Supreme Court has cautioned that since an order for a recount touches upon the secrecy of ballot, it should not be made lightly or as a matter of course yet no cast iron rule of universal application can be laid down. However, two broad guidelines are discernible; that the court would be justified in ordering a recount or permitting inspection of the ballot papers only where (i) all the material facts on which the allegations of irregularity, or illegality in counting are founded, are pleaded adequately in the election petition, and (ii) the Court/Tribunal trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute. 20. As already indicated above, the learned election tribunal while considering the issue no. 2 has arrived at a specific finding of there being cutting/overwriting without the said cutting/overwriting being countersigned. 20. As already indicated above, the learned election tribunal while considering the issue no. 2 has arrived at a specific finding of there being cutting/overwriting without the said cutting/overwriting being countersigned. Thus, the principle of law as laid down by this Court in the case of Ravindra Singh (supra) would be squarely applicable. When the order impugned is seen in the context of finding given to the issue no. 2 viz-a-viz the judgment of this Court in the case of Ravindra Singh (supra) this Court does not find any infirmity or illegality in the order directing for recounting of the votes and the grounds taken by the petitioner in this regard. Accordingly, the writ petition is dismissed.