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2024 DIGILAW 1147 (SC)

Ashraf Khan v. Kehkashan

2024-11-13

SURYA KANT, UJJAL BHUYAN

body2024
ORDER : 1. Leave granted. 2. The controversy revolves around the election of the Gram Pradhan of village Mohammadpur Kashi, Tehsil Chandausi, District Sambhal. The election was held on 29.04.2021, wherein respondent no.1 (Kehkashan) was declared the winner. This prompted the appellant to file an Election Petition before the Election Tribunal, under the Uttar Pradesh Panchayat Raj Act, 1947. The Election Petition was allowed by the Tribunal to the extent of directing the recounting of votes on 23.09.2024. The reason for such direction was that the appellant’s agent was allegedly arrested during the counting process and, thus, the votes were not counted in the presence of the appellant’s agent. Consequently, a complaint had been filed by the agent alleging that a review of the counting of votes had not been proceeded with by the District Collector. 3. In the recounting of votes, the appellant allegedly received 660 votes, whereas respondent no.1 secured 657 votes. The appellant was, thus, declared the winner. respondent no.1 then challenged the order of the Election Tribunal through a Writ Petition before the High Court and the High Court vide the impugned order allowed the same in part, while setting aside the order of the Election Tribunal. The High Court sought to remit the matter to the Election Tribunal-cum-Sub Divisional Magistrate to decide the Election Petition afresh after permitting the parties to adduce evidence. In this regard, the High Court has relied upon two of its own previous decisions. 4. The appellant feeling aggrieved by the order of the High Court has filed the instant appeal in which, owing to the very thin margin of votes, it was deemed appropriate to direct recounting of the votes in the presence of the Court Commissioner appointed by us. A self-speaking order to this effect was passed on 23.10.2024. 5. In deference thereto, the recounting exercise was once again undertaken, whereby the appellant has secured 659 votes as against 657 votes polled in favour of respondent no.1. However, 114 votes have been declared invalid. The learned Court Commissioner’s Report cites that the objections regarding the validity or invalidity of the votes were rejected or accepted by the Sub-Divisional Magistrate, who took a decision thereupon in accordance with the relevant rules. 6. In light of this, on 06.11.2024, we directed that the 114 votes declared invalid be produced in original for the purpose of prima facie formation of opinion. 6. In light of this, on 06.11.2024, we directed that the 114 votes declared invalid be produced in original for the purpose of prima facie formation of opinion. Consequently, the learned State counsel has produced the requisite 114 votes declared invalid. We have minutely seen some of them randomly. 7. We have also heard learned counsel for the parties and perused the record. 8. As of now, the appellant appears to have an edge over respondent no.1 in view of the fact that in the fresh recounting conducted under the supervision of the Court Commissioner, the appellant received 659 votes as against the 657 votes found polled in favour of respondent no.1. However, there are debatable issues with regard to some of the votes declared invalid. Since the margin is of two votes only, we are of the view that it may be in the interest of justice to relegate the parties before the High Court. In that case, all the 114 rejected votes shall be required to be produced before the High Court. In our considered view, some of the votes examined are such that they are liable to be rejected out-rightly. The High Court will be well within its right not to invite objections so far as those votes are concerned. However, if there are some votes with respect to which there are arguable issues, we request the High Court to accord one week’s time to the parties to submit their objections and thereafter, instead of remanding the case to the Election Tribunal, let the High Court take a final decision. We say so for the reason that substantial part of the term of Gram Pradhan is already concluded and in the event of further remand, the matter faces the threat of becoming infructuous. 9. For the aforesaid reasons, the instant appeal is allowed. The impugned judgment of the High Court is set aside and the matter is remitted to the High Court to decide the writ petition filed by respondent no.1 afresh and in the light of the observations made hereinabove. Accordingly, the parties are directed to appear before the High Court on 20.11.2024. 10. The impugned judgment of the High Court is set aside and the matter is remitted to the High Court to decide the writ petition filed by respondent no.1 afresh and in the light of the observations made hereinabove. Accordingly, the parties are directed to appear before the High Court on 20.11.2024. 10. Learned counsel for the parties may produce a copy of this order before the Registrar General of the High Court, who in turn is directed to put up the same before Hon’ble the Chief Justice of the High Court, so that the matter may be entrusted to an appropriate Bench as per roster, with a special request that the same may be decided on merits as soon as possible, and preferably within a period of three weeks. 11. Till such time, appellant-Ashraf Khan shall continue to perform the duties of the Gram Pradhan. However, he will act as an interim Gram Pradhan and shall not be entitled to take any decisions involving financial implications. The original invalid votes be returned to the State counsel to enable him to produce the same before the High Court.