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2024 DIGILAW 1708 (ALL)

Poonam v. State of U. P.

2024-07-22

DINESH PATHAK

body2024
JUDGMENT : Hon'ble Dinesh Pathak, J.-Heard Sri Shivnath Singh, learned Senior Advocate, assisted by Sri Satyam Singh, learned counsel for the petitioner, Sri Devesh Kumar Verma, learned counsel for the private respondent No. 5 as well as the learned Standing Counsel for the State-respondent Nos. 1 to 4 and perused the record on Board. 2. The petitioner is aggrieved with the order dated 20.3.2024 passed by Additional District and Sessions Judge (Court No. 19), Kanpur Nagar in Revision No. 97 of 2023, whereby a direction has been issued for recounting of ballot papers and to scrutinize three (3) invalid ballot papers allegedly cast in favour of respondent No. 5, reversing the order dated 2.3.2023 passed by Sub-Divisional Officer Sadar/Prescribed Authority rejecting the election petition filed by respondent No. 5 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, the present petitioner has been declared returned candidate on the post of Pradhan, Village-Pargahi Bangar, Vikas Khand-Kalyanpur, District-Kanpur Nagar. As per schedule, the election was held on 15.4.2021 and result after counting was pronounced on 2.5.2021. In the final result, the present petitioner has secured 270 votes, however, respondent No. 5 (election petitioner) has secured 262 votes. Thus, there is a margin of eight (8) votes between the successful candidate and the runner-up. Having been dissatisfied with the panchayat election result dated 2.5.2021, respondent No. 5 has filed an election petition dated 28.5.2021 under Section 12-C of the Act 1947, inter alia, on several grounds including unfair counting, which is relevant for the purposes to decide the instant writ petition, with the plea that three (3) ballots cast in favour of the election applicant have illegally been declared invalid; that at booth No. 1 total 500 ballots were cast, however, while the ballot box opened only 497 ballots were founded, thus, there is a difference of three ballot papers; that likewise at booth Nos. 2 and 3 there is a difference of one ballot paper each between the ballot paper cast and ballot paper counted; that Returning Officer in collusion with the husband of the successful candidate has declared those ballots invalid which were cast in favour of election petitioner and pronounced unfair election result; that bundle of the ballot papers which were cast in favour of the petitioner was consisting of 51 ballot papers, however, same has been counted pretending it to be bundle of only 50 ballot papers; that ballot papers cast in favour of election petitioner has illegally been kept in the bundle of retuned candidate and counted for him; Returning Officer/Assistant Returning Officer have got Form- 46 prepared by unfair counting and declare the opposite party No. 1 (petitioner herein) successful; that despite the objection raised by the election petitioner, she has forcibly been ousted from the counting center. The Prescribed Authority/Election Tribunal has rejected the Election Petition vide an order dated 2.3.2023. Revisional Court, on revision being filed on behalf of the respondent No. 5, has allowed the revision reversing the order passed by the Prescribed Authority and issued a direction for recounting of ballot papers as well as scrutiny of three ballot papers cast in favour of the petitioner which were declared invalid, which is under challenge before this Court. 4. Learned counsel for the petitioner has submitted that bald and vague allegations have been made by the election petitioner (respondent No. 5) in his election petition and no substantial material has been filed in support of allegations. During counting, no complaint/application had been moved on behalf of respondent No. 5, however, after declaration of the result on 2.5.2021 an application had been filed for recounting of ballot papers that too on vague grounds that she has deliberately been defeated by the Election Officers. It is next submitted that the election petitioner has not proved her allegations levelled against the present petitioner in the election petition filed before the Prescribed Authority. She neither appeared before the Election Tribunal to prove the allegations nor adduced any evidence in support of the pleading made by her. She has simply filed an affidavit which is not sufficient to prove the allegations. She neither appeared before the Election Tribunal to prove the allegations nor adduced any evidence in support of the pleading made by her. She has simply filed an affidavit which is not sufficient to prove the allegations. It is next submitted that Revisional Court, while passing the order for recounting, has not recorded his personal satisfaction as to why order of recounting is necessary or is it required for doing complete justice between the parties. It is next submitted that the order of recounting is a result of fishing and roving inquiry, therefore, is liable to be quashed. In support of his submission, learned counsel for the petitioner has relied upon the following judgments : (i) Bhabhi v. Sheo Govind and others, AIR 1975 SC 2117 (ii) Chandrika Prasad Yadav v. State of Bihar and others, AIR 2004 SC 2036 (iii) Sajida v. Sub Divisional Magistrate Kairana District Shamli/Prescribed Authority and others, 2023(2) ADJ 78 . (iv) Ashok Kumar v. Upper Distt. Judge Court No. 4, Raebareli and others, 2019(6) ADJ 817 . 5. Per contra, learned counsel for the respondent No. 5 has contended that the Prescribed Authority has decided the election petition in a very perfunctory manner without summoning the relevant election records. Respondent No. 5 came with a specific plea pointing out difference in numbers of ballot papers between cast and counted at different polling booths which materially affects the election result. It is next submitted that the Revisional Court, while issuing a direction for recounting and scrutiny of invalid ballot papers, has given a specific finding after the appraisal of Form 36 and 46 that there is a difference of three ballot papers between the votes cast i.e. 1207 and votes counted i.e. 1204. It is next submitted that while deciding the point for determination No. 2, the Revisional Court has pointed out difference of 11 ballot papers which would materially affect the final result of the election. In deciding the point for determination No. 3, the Revisional Court has discussed the provisions as enunciated under Rule 104 (f) of Uttar Pradesh Panchayat Raj (Election of Members, Pradhans and Up-Pradhans) Rules, 1994 (in brevity 'Rules 1994') and justified the scrutiny of the three ballot papers which were cast in favour of the respondent No. 5, however, illegally declared invalid. It is next contended that Revisional Court has rightly issued a direction for recounting and scrutiny of three ballot papers, thus, there is no illegality, perversity or infirmity in the order under challenge so as to warrant the indulgence of this Court under Article 226 of the Constitution of India. 6. In support of his case learned counsel for the respondent has relied upon following judgments : (i) Nirdosh Tyagi v. State of U.P. and others, 2017 (136) RD 136 (ii) Shobh Nath v. State of U.P., 1999 (90) RD 50 (iii) Khursheed Ahmad v. Additional District Judge (Alld. H.C.), 2023(7) ADJ 514 (iv) Usha Devi v. Chandrakanta and others, 2018 ADJ Online 0571 7. Having considered the rival submissions advanced by learned counsel for the parties and perusal of record, it is manifested that while allowing the revision filed on behalf of respondent No. 5 Revisional Court has formulated four points for determination which are quoted here in below: - 8. While deciding the point No. 1 Revisional Court has returned categorical finding that after perusal of Form 36 and 46 it is evident that there is a difference of three ballot papers in votes cast i.e, 1207 and votes counted i.e, 1204. In Form 36 number of used ballot papers have been shown to be 1207, however, in Form 46 number of counted ballot papers have been shown to be 1204. Therefore, difference of three ballot papers has shown glaring irregularity in the counting process of ballot papers. While deciding the point No. 2, learned Revisional Court has pointed out 11 ballot papers to be questioned. He has recorded his prima facie satisfaction that there are some discrepancy in the counting process which are not only simple speculation rather based on material on record, which can materially affect the final result, thus, recounting is required. Needless to say, as decided by several decisions of Hon'ble Supreme Court, that secrecy of ballot papers is sacrosanct in a democracy and should not be allowed to be violated on frivolous, vague and indefinite allegations. While dealing with the issue of recounting, Hon'ble the Supreme Court in the matter of Bhabhi (supra) has laid down as many as six conditions which has to be considered by the election tribunal before issuing a direction for recounting. relevant paragraph No. 15 of the aforesaid judgment is quoted here in below: - ''15. While dealing with the issue of recounting, Hon'ble the Supreme Court in the matter of Bhabhi (supra) has laid down as many as six conditions which has to be considered by the election tribunal before issuing a direction for recounting. relevant paragraph No. 15 of the aforesaid judgment is quoted here in below: - ''15. Thus on a close and careful consideration of the various authorities of this Court from time to time it is manifest that the following conditions are imperative before a Court can grant inspection, or for that matter sample inspection, of the ballot papers : (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.'' 9. In the matter of Shobh Nath (supra), coordinate Bench of this Court has discussed several decisions of Hon'ble the Supreme Court and the High Court intending to point out the importance of ballot papers and its secrecy. It has discussed the conditions as well wherein recounting order could be passed. For ready reference Paragraph Nos. 7, 8 and 9 of the aforesaid judgment is quoted here in below: - ''7. The first case in the series, which is required to be referred is Jagjit Singh v. Gyani Kartar Singh, AIR 1966 SC 773 . It has discussed the conditions as well wherein recounting order could be passed. For ready reference Paragraph Nos. 7, 8 and 9 of the aforesaid judgment is quoted here in below: - ''7. The first case in the series, which is required to be referred is Jagjit Singh v. Gyani Kartar Singh, AIR 1966 SC 773 . It was observed that in a proper case, the election Tribunal can order the inspection of the ballot boxes and may proceed to examine the objections raised by the parties in relation to the improper acceptance or rejection of the voting papers. In exercising this power, the Tribunal has to bear in mind certain important considerations, such as that the petition should contain a concise statement of the material facts on which the petitioner relies and in every case where a prayer is made by the petitioner for the inspection of the ballot boxes, the Tribunal must enquire whether the application made by the petitioner in that behalf contained a concise statement of the material facts on which he relied. In an earlier case of Ram Sewak Yadav v. Hussain Kamil Kidwai, AIR 1964 SC 1249 , the Apex Court set out the circumstances when an order of inspection of ballot papers can be made in the following terms: ''An order for inspection may not be granted as a matter of course; having regard to the insistence upon the secrecy of the ballot papers, the Court would be justified in granting an order for inspection provided two conditions are fulfilled: (i) that the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support of his case; and (ii) the Tribunal is prima facie satisfied that an order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary. But an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The case of the petitioner must be set out with precision supported by averments of material facts.'' In Narayanan v. Semmalai, (1980) 1 SCR 571 (1980) 2 SCC 537 : AIR 1980 SC 206 , the above principle was reiterated. The case of the petitioner must be set out with precision supported by averments of material facts.'' In Narayanan v. Semmalai, (1980) 1 SCR 571 (1980) 2 SCC 537 : AIR 1980 SC 206 , the above principle was reiterated. In P.K.K Shamsudeen v. K.A.M Mappillai Mohindeen, (1989) 1 SCC 526 : AIR 1989 SC 640 , in paragraph 13 of the report, it has been observed: ''13. Thus the settled position of law is that the justification for an order for examination of ballot papers and recount of votes is not to be derived from hind sight and by the result of the recount of votes. On the contrary, the justification for an order of recount of votes should be provided by the material placed by an election petitioner on the threshold before an order for recount of votes is actually made. The reason for this salutary rule is that the preservation of the secrecy of the ballot is a sacrosanct principle which cannot be lightly or hastily broken unless there is prima facie genuine need for it. The right of a defeated candidate to assail the validity of an election result and seek recounting of votes has to be subject to the basic principle that the secrecy of the ballot is sacrosanct in a democracy and hence unless the affected candidate is able to allege and substantiate in acceptable measure by means of evidence that a prima facie case of a high degree of probability existed for the recount of votes being ordered by the Election Tribunal in the interests of justice, a Tribunal or Court should not order the recount of votes.'' 8. Besides placing reliance on the aforesaid rulings, the learned counsel for the petitioner further made a reference to the decision of the Apex Court in Ram Autar Singh Bhaadauria v. Chaudhari Ram Gopal Singh, (1976) 1 SCC 43 . The view taken in the said case was that a general scrutiny and recount of the ballot papers should not be lightly ordered. Before making such an extra ordinary order, the Court must satisfy that all the material facts have been pleaded and proved and that such a course is imperatively necessary in the interests of justice. The view taken in the said case was that a general scrutiny and recount of the ballot papers should not be lightly ordered. Before making such an extra ordinary order, the Court must satisfy that all the material facts have been pleaded and proved and that such a course is imperatively necessary in the interests of justice. Another case relied upon by learned counsel for the petitioner is Satyanarain Dudhani v. Uday Kumar Singh, 1993 Supp (2) SCC 82, in which it was observed that recount of votes should not be ordered as a matter of course in the absence of pleadings of material facts supported by the contemporaneous evidence In that case. the Court found that a cryptic application claiming recount was made by the petitioner before the Returning Officer. No details of any kind were given in the said application. Not even a single instance showing any irregularity or illegality in the counting was brought to the notice of the Returning Officer. Even the material in the election petition had been pleaded with the object of having a fishing enquiry which did not inspire confidence. The other case relied upon by the learned counsel for the petitioner is M.R Gopal Krishnan v. Thachady Prabhakaran, 1995 Supp (2) SCC 101, in which it was ruled that an election petition in order to seek an order of recount has to place material and make out a prima facie case on the threshold and before an order of re-count is actually made. If the election petitioner is not able to plead and disclose the material facts, and also fails to substantiate the same by means of evidence of reliable character that there existed a prima facie case for the recount, no Tribunal or Court would be justified in directing recount. Similarly in Ram Rati (Smt.) v. Saroj Devi, (1997) 6 SCC 66 , it was held that recount should be ordered in rare cases and that too on giving satisfactory grounds for recounting. There must be an application in writing giving reasons in support thereof. 9. Besides the above decisions of the Apex Court, I would feel contented by making a reference to a Full Bench decision of this Court in the case of Ram Adhar Singh v. District Judge, Ghazipur, 1985 UPLBEC 317. There must be an application in writing giving reasons in support thereof. 9. Besides the above decisions of the Apex Court, I would feel contented by making a reference to a Full Bench decision of this Court in the case of Ram Adhar Singh v. District Judge, Ghazipur, 1985 UPLBEC 317. This case is an authority on the point that the law with regard to recounting of votes with reference to the election petition under Section 12C of the U.P Panchayat Raj Act is the same as is applicable in an election petition filed under Section 80 of the Representation of People Act, and, therefore, the various decisions of the Supreme Court relating to recounting of the votes in the petitions falling under the Representation of Peoples Act would be applicable to the election petitions under the U.P Panchayat Raj Act. It was observed that neither of the two enactments countenances the Court or the authority to permit the election petitioner to make or indulge into making of a roving enquiry with a view to fish out material for declaring an election void; and it is this weighty factor which impels the Court or the authority not to look into or permit inspection of ballot papers unless the foundation for the purpose has been properly laid in the petition by specifying the ground and the material or the circumstances in support of such ground. In conclusion, the Full Bench held that in an election petition under 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 respondents 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.'' 10. Now, having considered the ratio decided by the Hon'ble Supreme Court as well as Hon'ble full bench of this Court as discussed above, in the given circumstances of the present case, it is evident that, in paragraph Nos. 8, 9, 10, 11 and 12 of the election petition, the election petitioner came with the specific plea that there is a difference of ballot papers which were used to cast and counted. It has also been pointed out that each bundle of ballot papers which were cast in favour of the petitioner was consisting of 51 ballot papers, however, each bundle has been counted only for 50 ballot papers which materially affect the result of the election petitioner. Dealing with the allegations made by election petitioner in her election petition, Prescribed Authority has negated all the allegations without framing any issue in this regard. Prescribed Authority has laid emphasis on the fact that at the time of counting process no allegation has been made in this regard, therefore, at later stage, moving an application questioning the counting process with the prayer to recount the ballot papers cannot be entertained. Prescribed Authority has returned specific finding that there is no material on record to prove that Counting Officer has committed any error in counting of ballot papers. Revisional Court while reversing the judgment passed by Prescribed Authority has reversed this finding and laid emphasis on the difference of three ballot papers between the votes cast and the counted votes, as evident from Form 36 and Form 46. It is admitted to both the parties that during the counting process no objection has been raised on behalf of the respondent No. 5 pointing out any error or discrepancy in the counting, however, after declaration of result, respondent No. 5 has moved an application to recount the ballot papers. In my considered opinion, once the result is declared the Election Officer (Nirvachan Adhikari) became functus officio to recount the ballot papers, however, before declaration of the result he could entertain such application in case he found some material in support of the allegations made in the application. Conversely, he can reject the application as well in case he found no substance in the allegation made in the application for recounting. Conversely, he can reject the application as well in case he found no substance in the allegation made in the application for recounting. Revisional Court has given categorical finding that election petition was supported by an affidavit of election petitioner, however, contents of the said affidavit has not been controverted/rebutted by the affidavit filed on behalf of other side. In this view of the matter, allegations as averred in the affidavit filed on behalf of respondent No. 5 is deemed to be correct. There is no doubt that mere filing an affidavit in support of the allegation made in the election petition does not create any valid ground for recounting of ballot papers. However, despite this proposition, this Court cannot oblivious to the fact that there is a glaring discrepancy between the counted votes and the votes cast, which is sufficient to make out a valid ground for recounting of ballot papers. While deciding the point for determination No. 1, learned revisional Court has mentioned the details of CH Form 36 which is quoted herein below : 11. Form 46 (page No. 38 of the writ petition) reveals that the total valid votes are 1159 and the invalid votes are 45 (total vote counted 1204). However, CH Form 36, as mentioned above, reflects that total 1207 ballot papers were used to cast in all three booths i.e. booth Nos. 72, 73 and 74. Therefore, difference of three votes, as discussed above, is clearly make out a discrepancy in the counting of ballot papers, and to ensure complete justice between the parties recounting cannot be averted. 12. So far as the scrutiny of three invalid ballot papers, which were allegedly cast in favour of respondent No. 5, is concerned I am of the considered view that the Revisional Court has committed error in deciding the point for determination number three (3) in affirmative. He has simply observed in paragraph No. 24 that Election tribunal has not scrutinised the cancelled ballot papers which are 45 in numbers. To strengthen his observation for scrutiny of ballot papers, learned Revisional Court has placed reliance upon the provisions as enunciated under Section 104(f) of Rules 1994, which is quoted here in below: - ''104. Procedure at the counting.- ------ (a)....... (b)...... (c)....... (d)....... (e)....... To strengthen his observation for scrutiny of ballot papers, learned Revisional Court has placed reliance upon the provisions as enunciated under Section 104(f) of Rules 1994, which is quoted here in below: - ''104. Procedure at the counting.- ------ (a)....... (b)...... (c)....... (d)....... (e)....... (f) The Nirvachan Adhikari shall allow the candidates, their Nirvachan Abhikartas and Ganana Abhikartas, who may be present, reasonable opportunity to inspect all ballot papers which in the opinion of the Nirvachan Adhikari are liable to be rejected, but shall not allow them to handle those or any other ballot papers. The Nirvachan Adhikari shall on every ballot paper, which is rejected, endorse rejection thereon in Hindi. If any candidate or his Nirvachan Abhikarta questions the correctness of the rejection of any ballot paper, the Nirvachan Adhikari shall also record briefly on such ballot paper grounds for his rejection;'' 13. Bare perusal of the rule as mentioned above, it is evident that Nirvachan Adhikari is empowered to allow the candidates and their agents, who are present at the relevant time, reasonable opportunity to inspect the ballot papers which in the opinion of Nirvachan Adhikari are liable to be rejected, Thus, respondent No. 5 and her agent had full opportunity at the time of counting process, while the ballot papers were declared invalid/rejected. However, at that relevant time, they had not chosen to raise any objection in this regard. Rule 104 (f) makes it clear that if any candidate or his agent questions the correctness of rejection of any ballot papers the Nirvachan Adhikari shall also record briefly on such ballot papers, the ground for his rejection. It is neither the case of the respondent No. 5 (election petitioner) nor is there any evidence on record to show that at the stage of rejection of the ballot papers, any objection was raised on her behalf pointing out any discrepancy in the ballot papers, which were declared to be rejected. Unequivocal provision is enunciated under Rule 104(f) for declaring any ballot paper to be rejected. Once a ballot paper is rejected under Rule 104, there is no subsequent stage to get said ballot paper validate by questioning its rejection, therefore, at this juncture, it would not be justified to scrutinise the ballot paper rejected and breach the secrecy of those ballot papers. Once a ballot paper is rejected under Rule 104, there is no subsequent stage to get said ballot paper validate by questioning its rejection, therefore, at this juncture, it would not be justified to scrutinise the ballot paper rejected and breach the secrecy of those ballot papers. Learned Revisional Court has misread and misinterpreted the provisions as initiated under Rule 104 (f) of Rules 1994 and illegally decided the point for determination number three in affirmance for scrutinising three ballot papers, cast in favour of the respondent No. 5, which were declared invalid. 14. In this conspectus, as above, in my considered opinion, discrepancy pointed out by the Revisional Court between the vote cast and the vote counted, as emerged from perusal of Form 36 and 46, could be considered as material irregularity in the counting process. In the light of the said discrepancy, all the ballot papers which were used to cast in election for the post of Pradhan, except declared invalid, are liable to be recounted to ascertain the correct result of the election and to ensure the complete justice between the parties. Learned revisional Court has recorded his personal satisfaction in this regard. 15. Resultantly, the instant writ petition succeeds and is partly allowed. The order impugned dated 20.3.2024, passed by the Additional Districts & Session Judge, Court No. 19, Kanpur Nagar, in revision No. 97 of 2023, is partly quashed insofar as it relates to the scrutiny of three invalid ballot papers, which were allegedly cast in favour of contesting respondent No. 5. The remaining direction issued by the learned revisional Court qua the recounting of ballot papers is affirmed. The prescribed authority concerned is hereby directed to recount the ballot papers as per the direction of the revisional Court dated 20.3.2024 from the date of production of certified copy of order of the date and declare the result accordingly.