Research › Search › Judgment

Allahabad High Court · body

2024 DIGILAW 1049 (ALL)

Shashi Kushwaha v. Seema Shahu

2024-04-12

DINESH PATHAK

body2024
JUDGMENT : Dinesh Pathak, J. - Heard learned counsel for the parties and perused the record on board. 2. The petitioner has invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India assailing the order dated 20.03.2024 passed by Revisional Court in Election Revision No.21 of 2024 reversing the order dated 08.01.2024 passed by Prescribed Authority/Election Tribunal in an election petition under Section 12-C of U.P. Panchayat Raj Act, 1947 (in brevity 'Act 1947'). 3. Facts culled out from the record are that in the Panchayat Election 2020-21 pertains to village Magrasa, Block Bidhanu, Tehsil Sadar, District Kanpur Nagar as many as eight persons had contested the election of Pradhan, out of them present petitioner has been declared successful as a Pradhan securing 334 votes. However, Seema Sahu (respondent no.1 herein) has been declared first runner securing 333 votes. In said election total 2010 votes were counted, whereas number of the votes casted were 2016. Apart from that 120 votes were declared invalid, wherein, as per claim of the respondent no.1, eighteen (18) votes casted in her favour has illegally been declared invalid. Having been aggrieved with the result, an application dated 02.05.2021 (paper no.11) has been moved by the husband of the respondent no.1 before the Returning Officer to recount the ballot papers intending to short out the difference of six ballot papers. Subsequently, representation dated 03.05.2021 (paper no.12) has been moved to Election Officer, Kanpur Nagar pointing out the discrepancies during the counting. On the same day representation was moved as well before the State Election Commissioner and the Chief Election Commissioner of India, New Delhi. Thereafter, representation dated 04.05.2021 has been moved to all concerned through registered post beseeching recounting of the ballot papers. Last representation was moved on 11.05.2021 to the Election Officer and the State Election Commissioner including the Chief Minister complaining about the discrepancies in the counting of ballot papers. Lastly, respondent no.1 has filed election petition dated 28.05.2021 under Section 12-C of Act 1947 with the specific prayer for recounting of ballot papers. Learned Prescribed Authority, vide its order dated 08.01.2024, has rejected the election petition. Lastly, respondent no.1 has filed election petition dated 28.05.2021 under Section 12-C of Act 1947 with the specific prayer for recounting of ballot papers. Learned Prescribed Authority, vide its order dated 08.01.2024, has rejected the election petition. On revision being filed on behalf of the election petitioner (respondent no.1), learned District and Sessions Judge, Court NO.19, Kanpur Nagar (Revisional Court) has allowed the revision and relegated the parties before the Prescribed Authority with the specific direction to recount the ballot papers, after scrutinizing the 18 invalid ballot papers, under the provisions as enunciated under Rule 104 (f) of Uttar Pradesh Panchayat Raj (Election of members, pradhans and up-pradhans) Rules, 1994 (in brevity 'Election Rules, 1994'), which is under challenge before this Court. 4. Learned counsel for the petitioner has advanced two fold submissions, first with regard to the ex-part order passed by the revisional court inasmuch as notice has illegally been shown to be served upon her whereas no such notice was served either to the petitioner or her husband. Secondly, he has questioned the jurisdiction of the revisional court to issue a direction for recounting of ballot papers and submitted that the provision of revision as enunciated under Section 12-C Rules 6 of the Act, 1947 is akin to the revisional power under Section 115 C.P.C., therefore, revisional court has got no jurisdiction to enter into the factual aspect of the matter except to examine the jurisdictional error committed by the Prescribed Authority in deciding the election petition. In support of his submission learned counsel for the petitioner has cited the case of Guru Prasad v. Additional District Judge, Misc. Writ Single No.27 of 2013 decided on 22.02.2013, (2013) 2 LAWS (All) 288 and the case of Jagdamba Prasad v. Kripa Shankar, (2014) 4 LAWS (SC) 10 decided by Hon'ble Supreme Court in Civil Appeal No.4457 of 2005, vide decision dated 04.04.2014. 5. Writ Single No.27 of 2013 decided on 22.02.2013, (2013) 2 LAWS (All) 288 and the case of Jagdamba Prasad v. Kripa Shankar, (2014) 4 LAWS (SC) 10 decided by Hon'ble Supreme Court in Civil Appeal No.4457 of 2005, vide decision dated 04.04.2014. 5. Per contra learned counsel for the respondent no.1 has vehemently opposed the submissions as advanced by learned counsel for the petitioner and supported the remand order made by the revisional court with a contention that under Section 12-C (8) of the Act, 1947, revisional court has an ample power to affirm, vary or rescind the order of the prescribed authority or remand the case for rehearing, therefore, revisional jurisdiction is not confined only to examine the jurisdictional error committed by the Prescribed Authority while deciding the election petition. It is further contended that, vide order dated 29.12.2024, service of notice has been treated to be sufficient upon the present petitioner through denial, therefore, revisional court has no option to decided the revision on merits. In support of his submission learned counsel for the respondent has cited the case of Shobhnath v. State of U.P. and others, decided by co-ordinate Bench of this Court, 1999 (90) RD 50. It is next contended that the instant writ petition is devoid of merits, therefore, same may be dismissed in limine. 6. Having considered the rival submissions advanced by learned counsel for the parties and perusal of the record, it is manifested that in the election of Pradhan, present petitioner has been declared successful by securing the 334 votes, however, respondent no.1 has been declared first runner by securing 333 votes, therefore, there is a difference of only one vote between the winner and the first runner. Questioning the counting process, objection at different stages had already been made on behalf of the respondent no.1 before the authorities concerned as mentioned above (paper nos.11, 12, 14, 15 and 17 to 20), however, authorities concerned have given their cold shoulders to the grievances of the respondent no.1. In pressing circumstances, she moved election petition under Section 12-C of Act, 1947 with the specific prayer to recount the ballot papers casted in the election of Pradhan (Panchay Election 2020-21) dated 02.05.2021. In pressing circumstances, she moved election petition under Section 12-C of Act, 1947 with the specific prayer to recount the ballot papers casted in the election of Pradhan (Panchay Election 2020-21) dated 02.05.2021. While deciding the revision, revisional court has formulated three points for determination; first point relates to the difference between the votes casted and vote counted; second point was formulated to examine the prima-facie case for recounting; and third point was formulated to scrutinize the 18 ballot papers casted in favour of respondent no.1, which were declared invalid. While deciding the point no.1, revision court has given a specific finding that after perusal of Form-36 and Form-46, it is evident that total 2017 ballot papers were casted, however, only 2010 ballot papers were counted. Therefore, there is a difference of seven ballot papers between the casted votes and counted votes, however, Smt. Shashi Kushwaha (petitioner herein) has been declared successful only with the margin of one vote. While deciding the point nos.2 and 3, revisional court came heavily on the process of counting with the specific finding that despite the repeated representations dated 02.05.2021, 03.05.2021, 04.05.2021 and 11.05.2021 grievance of the petitioner for recounting of ballot papers has not been redressed and in the facts and circumstances of the present case, prima-facie, it appears that allegation made by the revisionist is not mere speculation rather it stands on material footing. Revisional court has given specific finding that despite the repeated request her 18 ballot papers, which were declared invalid, have not been scrutinized under Rule 104 of Election Rules, 1994, therefore, same are required to be scrutinized to reach right conclusion. In this backdrop of the facts revisional court has directed for recounting of votes, so that, justice would be done. 7. I am very skeptical of the submission advanced by learned counsel for the petitioner questioning the jurisdiction of the revisional court in exercise of its power under Section 12-C (6 to 9) of Act, 1947. For ready reference provisions as enunciated under Section 12-C subsection 6 to 9 are quoted herein below:- "12-C. Application for questioning the election. - (1) ...... (2) ...... (3) ...... (4) ...... (5) ...... For ready reference provisions as enunciated under Section 12-C subsection 6 to 9 are quoted herein below:- "12-C. Application for questioning the election. - (1) ...... (2) ...... (3) ...... (4) ...... (5) ...... (6) Any party aggrieved by an order of the prescribed authority upon an application under sub-section (1) may, within thirty days from the date of the order, apply to the District Judge for revision of such order on any one or more the following grounds, namely - (a) that the prescribed authority has exercised a jurisdiction not vested in it by law; (b) that the prescribed authority has failed to exercise a jurisdiction so vested; (c) that the prescribed authority has acted in the exercise of its jurisdiction illegally or with material irregularity. (7) The District Judge may dispose of the application for revision himself or may assign it for disposal to any Additional District Judge, Civil Judge or Additional Civil Judge under his administrative control and may recall it from any such officer or transfer it to any other such officer. (8) The revising authority mentioned in subsection (7) shall follow such procedure as may be prescribed, and may confirm, vary or rescind the order of the prescribed authority or remand the case to the prescribed authority for rehearing and pending its decision pass such interim orders as may appear to it to be just and convenient. (9) The decision of the prescribed authority, subject to any order passed by the revising authority under this section, and every decision of the revising authority passed under this section, shall be final." 8. Section 12-C (6) of the Act 1947 denotes three grounds on which revision can be preferred, thereafter, to clarify the power of the revisional jurisdiction, subsection 8 of Section 12-C denotes that revisional authority may either confirm, vary or rescind the order passed by the prescribed authority or remand the case before the prescribed authority for rehearing. Moreover, revisional court is empowered as well to accord interim protection as may appear to be just and convenient during pendency of the election petition before the prescribed authority while same has been remanded. Apart from that, under subsection 9 of Section 12-C, order passed by the prescribed authority is subject to the order passed by the revisional authority and such order passed by the revisional authority shall be final. Apart from that, under subsection 9 of Section 12-C, order passed by the prescribed authority is subject to the order passed by the revisional authority and such order passed by the revisional authority shall be final. Conjoint reading of the provisions of subsection 6 with the subsection (8)&(9) of Section 12-C of Act 1947, prima-facie, evince the intention of legislation to empower the revisional court to appreciate the evidence on record as well while examining the ground of revision as enunciated under subsection 6 of Section 12-C. Grounds (a) and (b) as imbibed under subsection 6 of Section 12-C is exclusively relates to the jurisdictional error committed by Prescribed Authority wherein revisionist has to prove that authority concerned has inherent lack of jurisdiction to entertain the election petition or he has failed to exercise its jurisdiction so vested in it by law. Ground -(c), subsection 6 of Section 12-C confers immense power upon the revisional authority to examine the material irregularity and the illegality committed by the Presiding Officer while exercising its jurisdiction. Thus, I am of the view that revisional authority can reappreciate the evidence (documentary as well as oral) to examine the material irregularity or any illegality committed by the Prescribed Authority, while exercising its revisional jurisdiction. Sanctity of the ballot papers and the election in the democratic setup are paramount consideration while deciding the election petitions. Therefore, glaring material irregularity and illegality committed during the counting process and deciding the election petition cannot be ignored to be scrutinized, otherwise very purpose of election in the democratic process would severely be affected and the faith of the general public in democratic setup would be shaken. Restrict the revisional power only to examine the jurisdictional error, if any, in the order passed by the prescribed authority would, in my opinion, deface the countenance of legislation intend to secure the election free and fair. Power entrusted upon the revisional court to confirm, vary or rescined or relegate the parties before the prescribed authority for rehearing and, furthermore, grant interim protection during the pendency of the proceeding before the prescribed authority cannot be elucidated in a restrictive manner in order to deprive the revisional court from examining the material on record. Power entrusted upon the revisional court to confirm, vary or rescined or relegate the parties before the prescribed authority for rehearing and, furthermore, grant interim protection during the pendency of the proceeding before the prescribed authority cannot be elucidated in a restrictive manner in order to deprive the revisional court from examining the material on record. Case of Jagdamba Prasad (supra), relied by learned counsel for the petitioner, is not of much avail to strengthen the submission that provisions under Section 12-C (6) of the Act, 1947 is par materia to section 115 of C.P.C. He has pressed following paragraph Nos. 13, 14 and 15, in his support which is quoted herein below: "13. Based on the rival factual and legal contentions raised by the parties, the following points would arise for our consideration: 1. Whether the Revisional Authority exceeded its jurisdiction under Section 48 of the Uttar Pradesh Consolidation of Holdings Act, 1953 in entertaining additional document at revision stage 2. Whether the High Court was correct in concurring with the findings of the Revisional Authority 3. What order the appellants are entitled to Answer to Point No. 1 14. Section 48 of the Act is pari materia to section 115 of the Code of Civil Procedure, 1908. It is pertinent to mention at this point the decision of this Court given in the case of Sher Singh v. Joint Director of Consolidation & Ors., (1978) 3 SCC 172 ] The relevant paragraphs read as under: "4. The principal question that falls for our determination in this case is whether In passing the Impugned order, the Joint Director of Consolidation, exceeded the limits of the jurisdiction conferred on him under Section 48 of the 1953 Act. For a proper decision of this question, it is necessary to advert to Section 48 of the 1953 Act as it stood on the relevant date before its amendment by Act VIII of 1963: "Section 48 of the U.P. Consolidation of Holdings Act. For a proper decision of this question, it is necessary to advert to Section 48 of the 1953 Act as it stood on the relevant date before its amendment by Act VIII of 1963: "Section 48 of the U.P. Consolidation of Holdings Act. The Director of Consolidation may call for the record of any case if the Officer (other than the Arbitrator) by whom the case was decided appears to have exercised a jurisdiction not vested in him by law or to have failed to exercise jurisdiction so vested, or to have acted in the exercise of his jurisdiction illegally or with substantial irregularity and may pass such orders in the case as it thinks fit." 5. As the above section is pari materia with section 115 of the Code of Civil Procedure, it will be profitable to ascertain the scope of the revisional jurisdiction of the High Court. It is now well-settled that the revisional jurisdiction of the High Court is confined to cases of illegal or irregular exercise or non-exercise or illegal assumption of the jurisdiction by the subordinate courts. If a subordinate court is found to possess the jurisdiction to decide a matter, it cannot be said to exercise it illegally or with material irregularity even. If it decides the matter wrongly. In other words, it is not open to the High Court while exercising its jurisdiction under section 115 of the Code of Civil Procedure to correct errors of fact howsoever gross or even errors of law unless the errors have relation to the jurisdiction of the court to try the dispute itself." 15. According to the legal principle laid down by this Court in the case mentioned above, the power of the Revisional Authority under Section 48 of the Act only extends to ascertaining whether the subordinate courts have exceeded their jurisdiction in coming to the conclusion. Therefore, if the Original and Appellate Authorities are within their jurisdiction, the Revisional Authority cannot exceed its jurisdiction to come to a contrary conclusion by admitting new facts either in the form of documents or otherwise, to come to the conclusion. Therefore, we answer point no. 1 in favour of the appellants by holding that the Revisional Authority exceeded Its jurisdiction under Section 48 of the Act by admitting documents at revision stage and altering the decision of the subordinate courts." 9. Therefore, we answer point no. 1 in favour of the appellants by holding that the Revisional Authority exceeded Its jurisdiction under Section 48 of the Act by admitting documents at revision stage and altering the decision of the subordinate courts." 9. Cited case of Jagdamba Prasad (supra) is arising out of consolidation proceeding which is not much relevant in the facts and circumstances of the present case. In the cited case Hon'ble Supreme Court has discussed the jurisdictional realm of High Court exercising its power under Section 115 C.P.C. However, no specific discussion has been made qua jurisdiction entrusted upon the Deputy Director of Consolidation except grounds which are available to prefer a revision. Council for the petitioner has also cited the case of Guru Prasad (supra) to strengthen his submission that revisional court utmost can remit the matter before the Prescribed Authority rather to decide the same. He has highlighted paragraph No. 15 of the aforesaid judgment which is quoted herein below: "15. Considering the peculiar facts and circumstances of the case, I am of the considered opinion that in case the revisional Court was of the opinion that certain material evidence was ignored or not properly considered by the prescribed authority, the appropriate course would have been to remand the matter back to the prescribed authority to reconsider the entire matter in the light of the observations made by the revisional Court and pass appropriate orders in accordance with law. The revisional Court was not justified in issuing direction for recounting of votes itself." 10. I am not much persuaded with the judgment of Guru Prasad cited by learned Council for the petitioner. No much discussion has been made explaining the power of the revisional court under section 12-C (8) of Act, 1947. It would not be befitting to make any comment/ observation to the judgment passed by co-ordinate Bench of this Court. However, same is distinguishable in the facts and circumstances of the present case. The jurisdictional power of the revisional court under the Act 1947 cannot be confined only to the cases of illegal or irregular exercise or non-exercise or illegal assumption of jurisdiction by the Prescribed Authority. However, same is distinguishable in the facts and circumstances of the present case. The jurisdictional power of the revisional court under the Act 1947 cannot be confined only to the cases of illegal or irregular exercise or non-exercise or illegal assumption of jurisdiction by the Prescribed Authority. Any such restriction on the revisional court in exercise of its power under section 12-C (8) of the Act, 1947 would frustrate the very purpose of election petition which has to be prioritized in its culmination considering the limited time between the two panchayat elections. 11. Having considered the glaring discrepancies in the counting process, revisional court has pointed out difference of 7 ballot papers between the casted votes i.e. 2017 and counted vote i.e. 2010. Declaring 120 votes to be invalid, wherein 18 ballot papers have been claimed to be validly casted in favour of the respondent no.1, is also a matter of concerned which has rightly been considered by the revisional court to be scrutinized in the interest of justice. It is apposite to mention that the respondent no.1 has taken specific ground of discrepancies in the counting process and given details to prove the prima-facie unfair counting of votes and, accordingly, final prayer has been made in the election petition to recount the ballot papers inasmuch as margin of votes between the elected candidate and the first runner is one (1). Thus, revisional court, having considered the discrepancies on the basis of the documents on record and the prayer made in the election petition, has rightly relegated the matter before the prescribed authority to recount the ballot papers and scrutinize the 18 invalid ballot papers which were casted in favour of the respondent no.1, under the provisions as enunciated under Election Rules, 1994. Therefore, I do not find any substance in the submission as advanced by learned counsel for the petitioner questioning the jurisdiction of the revisional court whereby he has issued a direction for recounting of the ballot papers. 12. Another submission qua point of opportunity of hearing as advanced by learned counsel for the petitioner is also not much convincing to me inasmuch as, vide order dated 29.02.2024 passed by the revisional court, service of notice upon the petitioner has been deemed to be sufficient. 12. Another submission qua point of opportunity of hearing as advanced by learned counsel for the petitioner is also not much convincing to me inasmuch as, vide order dated 29.02.2024 passed by the revisional court, service of notice upon the petitioner has been deemed to be sufficient. Though in the body of the writ petition an evasive denial has been made with respect to the service of notice, however, no specific ground has been taken in the ground of writ petition in this regard. Even assuming for the sake of argument as submitted by learned counsel for the petitioner that opportunity was not accorded to the petitioner by the revisional court before passing the recounting order, the same would be pale into significance in the light of the fact that revisional court has returned its categorical finding based on the documents produced by the District Election Officer i.e. Form-36 and Form 46 which cannot be said to be a private document of the respondent no.1. Representations/complaints moved on behalf of the respondent no.1 were already on the record while deciding the election petition. After scrutinizing the election documents available on record, revisional court came to the conclusion that the election petition has not been filed based on speculation, however, there is a credible material on record to recount the ballot papers in order to meet the ends of justice. On a pointed query raised to the leaned counsel for the petitioner, he has failed to point out any perversity in the finding returned by the revisional court. Despite affording full opportunity to the counsel for the petitioner, he failed to point out any ambiguity and perversity in the order passed by the revisional court except alleged violation of natural justice and jurisdictional error allegedly committed by the revisional court which are baseless and without any substance. 13. In this conspectus, as above, I do not find any justification to entertain the instant writ petition and interfere in the order passed by the revisional court whereby direction has been issued to recount the ballot papers and scrutinize those 18 ballet papers, which were casted in favour of the respondent no.1 and declared invalid, under Rule 104 (f) of Election Rules, 1994. Glaring discrepancies have been found in the counting of votes wherein present petitioner has been declared elected with the margin of single vote by securing 334 votes in comparison to first runner (respondent no.1), who has secured 333 votes. Difference of 7 ballot papers between the ballot papers casted and counted is one of the paramount consideration which cannot be averted on technical ground, if any, that too such technicality has got no significance in order to meet the ends of justice. Declaration of 18 ballet papers being invalid, which were casted in favour of the respondent no.1, is also a matter of consideration which cannot be leftover unguarded without properly scrutinizing. This Court is not oblivious to the sanctity of ballet papers, which would be secured at any cost, however, in the light of the finding returned by the revisional authority, which has not been refuted by the petitioner in the instant writ petition, this Court is of the view that revisional court has rightly issued a direction for recounting of the ballot papers, so that, proper justice would be done between the parties. There is no illegality, perversity, irregularity or ambiguity in the order under challenge so as to warrant the indulgence of this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India. There is nothing on the record to demonstrate as to how petitioner is prejudiced, or if there is any likelihood of causing miscarriage of justice to him, owing to the order under challenge. 14. Resultantly, instant writ petition, being misconceived and devoid on merits, is dismissed with no order as to costs.