Allahabad High Court
Godawari vs Zubaida And 5 Others on 13 October, 2020
Equivalent citations: AIR 2020 ALLAHABAD 237, AIRONLINE 2020 ALL 2089
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 39 Case :- WRIT - C No. - 8526 of 2018 Petitioner :- Godawari Respondent :- Zubaida And 5 Others Counsel for Petitioner :- Deepak Kumar Jaiswal,Omkar Nath Rai Counsel for Respondent :- C.S.C.,Ashok Kumar Ojha,Satish Chandra Mishra,Sudhir Tiwari Hon'ble Ashwani Kumar Mishra,J.
1. Upon an application filed by respondent no.1 under Section 12-C of the U.P. Panchayat Raj Act, 1947, the prescribed authority has directed for recount of votes on 9.3.2018 vide order impugned dated 28.2.2018. Aggrieved by this order the the petitioner, who is elected Pradhan, has filed the present petition.
2. Elections were notified for the office of Pradhan of Gram Sabha Sarisawan, Nyay pachayat Koriyan Khiriyan, Block Dudahi, Tahsil Tamkuhiraj, District Kushinagar. Petitioner as also respondent nos.1, 2 and 3 contested the election for which voting took place on 9.12.2015. Votes were counted on 13.2.2018 at Adarsh Anglo Inter College, Dudahi, Block Dudahi, Tahsil Tamkuhiraj, District Kushinagar in Room No.1. Booth Nos.49Ka and 50kha were set up. 1626 voters were registered. Petitioner was allotted symbal of 'Imli' whereas respondent no.1 was assigned 'Kanni' as the election symbol. Respondent no.2 was assigned election symbol of 'Anaj Ugata Hua Kisan' while respondent no.3 has 'Car' as her election symbol. According to the election petitioner, a total number of 1139 votes were cast whereas at the time of counting only 1129 votes were found available. As per the election petitioner ballots from serial no.9181001 to 9181623 were cast on booth no.49Ka while on other booth ballots from serial no.9180401 to 9180916 numbering 516 votes were cast. Total of the above number reportedly works out to 1139 votes but at the time of counting only 1129 votes were found. 37 votes were declared invalid. Petitioner with 546 votes was declared elected while the election petitioner secured 544 votes. The victory margin was for 2 votes. The other two contestant secured 1 vote each. An application for recount of votes was moved on 13.12.2015 itself. The Returning Officer, however, rejected the application by observing that results have already been declared and it is no longer possible to direct recounting of votes. It is in this background that election petition came to be filed under Section 12C of the Act of 1947. In para 9 it is averred that the election petitioner had nominated two counting agents but the Returning Officer and Assistant Returning Officer were in the influence of present petitioner so as to ensure her success. In para 10 it is stated that at the time of counting of votes on 13.12.2015 the election agents were required to stand at a long distance from the place of counting and as the ballots could not been seen and they raised an objection but the respondents removed them from the counting site. In para 11 it is averred that the Returning Officer in collusion with the elected Pradhan surreptitiously removed 10 ballots notwithstanding strong protest by her. It is further alleged that 37 votes cast in favour of petitioner were declared invalid arbitrarily. In para 16 it is stated that in the event all votes casted were counted then election petitioner would have won the election. An objection has been filed by the returned candidate denying the averments made in the election petition.
3. An objection to the maintainability of the election petition was filed by the petitioner. This objection was considered on 9.8.2017 vide annexure-1 to the counter affidavit. The prescribed authority has observed that election petition has been filed by the petitioner in accordance with law and all relevant parties have been impleaded as defendants. Initially, an order was passed on 26.10.2018 to proceed exparte but later on objections were filed by the petitioner on 12.5.2017. The prescribed authority has therefore observed that there is no further requirement of passing any order and that the election petition has been entertained subject to final orders passed therein.
4. After considering the respective pleadings and evidences led the prescribed authority has directed for recounting of votes vide order impugned.
5. Law relating to recount of votes has been examined in a larger number of decisions of this Court, relying upon the adjudications made by the Apex Court. A Full Bench of this Court in Ram Adhar Singh vs. District Judge, Ghazipur, 1995 All CJ 196 summarized the principles in following words:-
"'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.'"
6. The above view expressed in Ram Adhar Singh's case (supra) has since been consistently followed. It is settled that order for recount of votes should not be passed as a matter of course unless there exists clinching evidence on record to support the election petition.
7. In Pratap Singh vs. State of U.P. and others, 2008 (3) AWC 2974 this Court observed as under:-
"Although no cast iron rule of universal application can be or has been laid down, yet, from a bed-roll decision 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 in prima facie satisified that the making of such an order is imperatively necessary to do complete and effectual justice between the parties."
8. Various judgements have been relied upon by the parties in support of their respective submissions but the principles noticed hereinabove are not disputed. It is in light of the above principles that the facts of the case needs to be examined.
9. The prescribed authority has taken note of the respective submissions advanced by the parties. The result sheet has been taken note of as per which 1129 votes were counted while 37 votes declared invalid. The contention advanced on behalf of the election petitioner that in fact 1139 votes were cast as against 1129 votes that were available at the time of counting has been noticed. It has also been observed that margin of victory is only 2 votes while 37 votes have been declared invalid. The prescribed authority has therefore observed that where margin of victory is narrow in comparison to large number of votes declared invalid then such facts would be relevant for arriving at a decision about recounting of votes. It is submitted that sanctity of election is of prime consideration for successful functioning of democracy. It has been observed that facts pleaded on behalf of the election petitioner have been substantiated by the evidence, and therefore, it would be necessary to direct recounting of votes so that sanctity of elections is not compromised.
10. Sri Deepak Jaiswal, learned counsel appearing for the petitioner states that the election petition has not been filed by the respondent no.1 as such the same is not maintainable. It is also urged that results of election has been declared on the basis of correct facts, and therefore, the direction to conduct recounting is merely to institute a roving and fishing enquiry which is impermissible.
11. Learned counsel for the respondents, however, submtis that the order of recount has correctly been passed on the basis of evidence on record.
12. I have learned counsel for the parties and have perused the materials brought on record.
13. Facts as have been noticed above are not in dispute. The margin of victory in the facts of the present case is of two votes. The election petitioner has pleaded that 10 votes have been misplaced while 37 ballots have been arbitrarily declared invalid.
14. So far as the casting of 1139 votes is concerned, the oral evidence on behalf of election petitioner is specific inasmuch as number of ballots have been clearly specified. Although the elected Pradhan states that only 1129 votes have been casted but the details of ballot numbers specifically narrated on behalf of election petitioner has not been challenged. It is also not disputed that 37 votes have been declared invalid. Specific allegations have been made against the Returning Officer and Assistant Returning Officer who are alleged to have acted in collusion of the Pradhan concerned. Specific prayer for recount of votes was made before the Returning Officer but the same has been rejected. It is clear that from the very initial stages an objection was being raised by the petitioner and her election agents which includes her husband but the same was not being examined. The Returning Officer appears to have summarily rejected the request of recount and the issues framed before him have apparently not been considered. A serious triable issue has been raised on behalf of the election petitioner in respect of which necessary pleadings have also been made. Whether or not 10 votes have been less counted or 37 votes have been wrongly excluded can be conclusively established only at the time of recount of votes. Allegations to doubt correctness of votes cast have been specifically made which is duly supported by the evidence led by the election petitioner. It is not a case of roving or fishing inquiry on the asking of election petitioner inasmuch as pleadings are specific and evidence has also been lead in its support. Sanctity of the election process requires a further scrutiny in the facts of this case, which is possible only if a recount is ordered. Small margin of victory and large number of votes having been declared invalid is also a circumstance which cannot be brushed aside lightly in view of attending facts. The election petition is also filed by respondent no.1 as is clearly recorded in the order dated 9.8.2017.
15. In such circumstances, if the prescribed authority has directed a recount of votes to be carried out this Court finds no error of jurisdiction or arbitrariness in the order which may require any interference. Writ petition lacks merit and is, accordingly, dismissed.
Order Date :- 13.10.2020 Ashok Kr.