Allahabad High Court
Sarita Yadav vs Saroja Devi And 8 Others on 9 August, 2023
Author: Manju Rani Chauhan
Bench: Manju Rani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Neutral Citation No. - 2023:AHC:160002 Reserved Court No. - 6 Case :- WRIT - C No. - 21891 of 2023 Petitioner :- Sarita Yadav Respondent :- Saroja Devi And 8 Others Counsel for Petitioner :- Ram Pravesh Pandey Counsel for Respondent :- C.S.C,Raj Karan Yadav,Vidya Dhar Yadav,Yadvendra Kumar Yadav Hon'ble Mrs. Manju Rani Chauhan,J.
1. This writ petition has been filed by the petitioner with a prayer to quash an order dated 03.07.2023 passed by Sub-Divisional Officer/ Prescribed Authority, Mirzapur in Election Petition No. 7687 of 20211, whereby an order directing for recounting of votes has been passed.
2. Brief facts of the case are that elections of Panchayat in Uttar Pradesh were held in the year 2021, the petitioner was one of the candidates for the post of Pradhan of Gram Panchayat Kolahi, Development Block - Chhanbe, Tehsil Sadar, District Mirzapur2. The Gram Panchayat was reserved for 'OBC Category Candidate'. The petitioner, being eligible, contested the aforesaid election, having been allotted 'Car' as election symbol. The polling was conducted on 26.04.2021 and counting took place on 02.05.2021. Petitioner secured 471 votes and was declared elected as Pradhan of the said Gram Panchayat. The respondent3 no. 1, namely, Saroja Devi secured 448 votes and thus the petitioner was declared elected by a margin of 23 votes.
3. Challenging the aforesaid election on several grounds, stating that election was not conducted in free and fair manner, respondent no.1 - the defeated candidate filed an election petition under Section 12-C of the U.P. Panchayat Raj Act, 19474 inter alia on the following grounds:
3.1 Valid votes cast in favour of Saroja Devi - respondent no. 1 herein, (election petitioner), were declared invalid;
3.2 Valid votes cast in favour of respondent no. 1 - Saroja Devi were mixed in bundles of petitioner Sarita Yadav (opposite party5 no. 1 in election petition) and respondent no. 7 - Neelam (opposite party no. 2 in election petition);
3.3 Number of votes, which were declared invalid, were mixed in the bundle of petitioner and were counted in her favour;
3.4 Number of votes cast in favour of the petitioner which were declared invalid were counted as valid votes in her favour.
4. The aforesaid fact regarding illegalities as done in counting was pointed out by husband of respondent no. 1 - Saroja Devi, who was present as her agent, raising objections in this regard before Counting Supervisor - Paryavekshak (i;Zos{kd) and counting agents (x.kukdehZ) but no attention was paid. It has also been alleged in the election petition that, after completion of counting, respondent no. 1 having election symbol 'Kitab' (fdrkc), the bundle of valid papers of respondent no. 1 were more than that of the petitioner. It was informed by Paryavekshak and Gadnakarmi to the counting agent, present on behalf of respondent no. 1/ election petitioner that she had secured 448 votes whereas the petitioner herein (opposite party no. 1 in election petition) having symbol 'Car' had secured 413 votes, whereas opposite party no. 2 in election petition - Neelam Devi having election symbol 'Imli' (beyh) had secured 60 votes, opposite party no. 3, namely, Anita Devi having symbol 'Anaj Osata Kisan' (vukt vkslkrk fdlku) got 2 votes, opposite party no. 4 having symbol 'Kanni' (dUuh) secured 1 vote and total 80 votes were rejected.
5. After giving the aforesaid information, Paryavekshak and Gadnakarmi asked husband of respondent no. 1, who was present as counting agent on her behalf, to call respondent no. 1, so that certificate in this respect could be given to her. It has also been alleged in paragraph-6 of the election petition that Paryavekshak and Gadnakarmi had made a chart accordingly. Receiving the aforesaid information, the counting agent left the counting hall in order to call his wife / respondent no. 1. He, standing at the door of counting centre Kanya Inter College, asked his wife to come inside the centre.
6. In paragraph-7 of the election petition, it has been alleged that as soon as the counting agent entered the aforesaid counting centre along with his wife, namely, Saroja Devi / respondent no. 1, they saw that the Paryavekshak and Gadnakarmi, without preparing the counting chart, had opened the bundle of booth nos. 158 and 159, to manipulate / do Herapheri, do some bungling which was objected by the election petitioner, but no attention was paid, ignoring the objection, they forcefully, as per their convenience made the bundle and started preparing counting chart / Parishisht. After the aforesaid, the respondent no. 1 was shown to have obtained 448 votes whereas the petitioner had secured 471 votes declaring her as winning candidate by 23 votes.
7. It has also been alleged that only 44 votes were declared invalid in place of 80 votes. The certificate was also issued to the petitioner in a hurried manner. In paragraph-8 of the election petition, it has been alleged that the voter list indicated total 1354 voters, out of which 1004 votes were cast for the election of Pradhan, Member Kshetra Panchayat, Member Zila Panchayat but proceeding in unfair manner, manipulated, and in Prapatra, 22 extra votes have been shown. 80 invalid votes have been shown only in place of 44, rest 36 have been counted in favour of the petitioner by putting the invalid votes in her bundle and showing 471 votes on top of the petitioner's bundle.
8. Specifying the aforesaid aspect, it has been alleged in paragraph-9 of the election petition that in polling booth 158, total 573 votes were cast; whereas in polling booth no. 159, 431 votes were cast thus total 1004 votes were cast, but, 36 invalid votes were placed in the bundle of petitioner and from 413 votes which were counted earlier, 471 votes have been shown in her favour, accordingly, making Prapatra and declaring the petitioner to have won by the margin of 23 votes.
9. Emphasizing upon the bungling/ manipulation, which has been done in the elections of Pradhan, it has been alleged in paragraph-11 of the election petition that in Matgadna Chart, Gadna Parchi, Parishishth 5 Prapatra 43 and Parishisht 7 Prapatra 45, Parishisht 8 Prapatra 46, wrong entries have been made after cutting and accordingly, the result has been declared, which is illegal.
10. An affidavit of husband of respondent no. 1, who was her agent at the time of counting of votes, was submitted as an evidence to prove the allegations as made in the election petition. The petitioner cross-examined the witness produced by respondent no. 1.
11. The Prescribed Authority summoned the record of election like the counterfoil of ballot paper and also the voter list, on the basis of which the order dated 03.07.2023 directing for recounting of votes has been passed, thus the present writ petition challenging the aforesaid order has been filed.
12. Sri R.P. Pandey, learned counsel appeared for the petitioner, Sri Vijay Prakash Mishra, learned Standing Counsel for the State, and Sri C.B. Yadav, learned Senior Advocate, assisted by Sri V.D. Yadav, learned counsel for private respondents.
13. Learned counsel for the petitioner, while challenging the impugned order whereby recounting of votes has been ordered, submits that, the election petition has been filed on the following grounds:
13.1 Improper rejection of valid votes;
13.2 Improper acceptance of invalid ballot papers, and counting the same as valid votes in favour of writ petitioner;
13.3 Gross irregularities / mistakes committed during the course of counting ballot papers;
13.4 Making wrong entries in total number of votes by cutting and overwriting in Prapatra;
13.5 Lastly, disputing the total number of votes cast on the said date for the post of Pradhan being 1004 in place of 1026.
14. Learned counsel for the petitioner submits that the Court would be justified in ordering recounting of ballot papers only where the election petition contains an adequate statement of material facts on which the allegations of irregularity or illegality in counting are found, and on the basis of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting, as also, if the court 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 support of his submissions, learned counsel for the petitioner has relied upon a judgement of the Supreme Court in the case of Mahendra Pal v. Shri Ram Dass Malanger & Ors.6.
15. Learned counsel for the petitioner next contends that an order for inspection of ballot papers cannot be granted to support vague pleas, not supported by material facts or to fish out evidence to support such pleas. The case must be set out with provision supported by averments of material facts and mere allegation that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection. Reference has been made in this regard to a judgement of Full Bench of this Court in the case of Ram Adhar Singh v. District Judge7.
16. Placing reliance upon a judgement of the Supreme Court in the case of R. Narayanan v. S. Semmalai And Ors.8, learned counsel for the petitioner submits that law on the subject regarding circumstances under which recount could be ordered has been summarized as follows:
"The Court would be justified in ordering a recount of the ballot papers only where:
(1) The election petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded;
(2) On the basis of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting; and (3) The court 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."
17. Learned counsel for the petitioner further submits that allegations which have been made, must not only be clearly made but also be proved by cogent evidence and the narrow margin of votes undoubtedly, is an important factor to be considered, but the same would not by itself vitiate the counting or justify recounting. In support of his submission, he has placed reliance on a judgement of of this Court in the case of Surendra Singh v. State of U.P. and others9.
18. Thus, such an election petition with vague and indefinite allegation, without there being any basis to prove the aforesaid situation, cannot be entertained and the order directing for recounting is liable to be aside.
19. Learned counsel for the respondent submits that there is no illegality in the order impugned, vide which recounting of votes has been directed. He submits that there is specific allegation with respect to valid votes in favour of election petitioner being declared invalid, valid votes cast in favour of election petitioner being mixed in bundles of the petitioner Sarita Yadav and one Neelam, and invalid votes being mixed in bundle of petitioner and counted in her favour as well as invalid votes of the petitioner being counted as valid votes in her favour. The same being supported by statement of election agent, namely, Suryamani Yadav - husband of the defeated candidate. There is also a definite allegation with respect to total number of votes cast i.e. 1004, which were manipulated and total votes cast were shown 1026.
20. Learned counsel for the respondent further submits that the respondent - election petitioner has specifically made allegations regarding the aforesaid irregularities and has proved the same on the basis of statement of counting agent, thus to maintain purity of elections, the order of recounting should be passed where it has materially affected the result of election, whereby the defeated candidate is seriously prejudiced in order to do justice between the parties. In support of his submissions, he has relied upon a judgement of this Court in the case of Smt. Harmaya v. State of U.P. And 5 Others10.
21. Learned counsel arguing on behalf of respondent next submits that sufficient material was there in the form of statement of counting agent to clearly make out a prima facie case for the unexplained discrepancy in the number of votes cast as well as other allegations with respect to valid votes being declared invalid and votes in favour of the defeated candidate being counted in favour of the petitioner, therefore, there is no illegality in the order directing for recounting and objection was also raised by the defeated candidate for the aforesaid, but the same has not been considered. He has relied upon a judgement of this Court in the case of Om Prakash Upadhyay v. State of U.P. and others11, wherein, it is stated in relevant paragraphs of the election petition that, at the time of counting, on the influence of certain persons, undue pressure was exercised and void votes cast in favour of the defeated candidate were added in the bundle of winning candidate, wherein objection was made against the illegalities, the order directing for recount for the unexplained discrepancy in the total number of votes is not bad.
22. Learned Senior Counsel for the respondent also contends that the election petition contains an adequate statement of all facts on which allegations of irregularity or illegality, are found, there being specific averments made in relevant paragraphs of the election petition and the same have not been specifically denied by the petitioner, evidence being adduced in support of the same by the counting agent of respondents in support of the averments made in the election petition, prima facie establish a good ground to believe that there has been illegality and irregularity in counting, therefore, to decide the dispute and do complete and effectual justice between the parties, the order of recounting by the election tribunal on its prima facie satisfaction cannot be said to suffer from any irregularity as in the present case. In support of his submission, he has relied upon a judgement of this Court in the case of Smt. Usha Devi v. Smt. Chandrakanta and Others12.
23. Mr. Yadav has also placed the provisions of U.P. Panchayat Raj (Election of Members, Pradhans and Up-Pradhans), Rules, 199413, wherein provisions of from Rules 76 to 96 indicate that the returning officer shall, at close of polling, prepare ballot papers in specified form and if the aforesaid papers are counted, the polling agents have every right to know about the actual votes cast in the polling, therefore, the aforesaid fact that the polling agents were not aware of the number of votes cast and after manipulation, Prapatra was prepared by cutting and overwriting, such allegation being fair and proper can be looked into only after directing for recount of votes, thus to know about the aforesaid as to how many votes were cast, whether 1004 or 1026, the Tribunal has rightly called for the voter list and counterfoil and seeing discrepancy in the same, the order impugned has been passed, which is not illegal, therefore, no interference is required and the writ petition is liable to be dismissed.
24. I have heard learned counsel for the parties and perused the record.
25. With the consent of learned counsel appearing for the parties, the writ petition is being heard finally, without calling counter affidavit, at this stage, in terms of Rules of the Court.
26. The only question which falls to be determined in this regard is whether the order directing for recount is justified in the facts of the present case. In considering this question, material provisions of the U.P. Panchayat Raj Act, 1947 read with Uttar Pradesh Panchayat Raj (Settlement of Election Disputes) Rules, 199414 may first be noticed.
27. It would be apt to mention relevant part of Section 12-C of the Uttar Pradesh Panchayat Raj Act, 1947, which is as under:
"12-C. Application for questioning the elections.--(1) The election of a person as Pradhan15[* * *] or as member of a Gram Panchayat [x x x ]16 shall not be called in question except by an application presented to such authority within such time and in such manner as may be prescribed on the ground that--
(a) the election has not been a free election by reason that the corrupt practice of bribery or undue influence has extensively prevailed at the election, or
(b) that the result of the election has been materially affected--
(i) by the improper acceptance or rejection of any nomination; or
(ii) by gross failure to comply with the provisions of this Act or the rules framed thereunder."
28. From the aforesaid it is clear that the election petition should contain a concise statement of material fact, on which the petitioner relies, and material supporting the allegations made thereunder. It also reveals that the ground on which the election of Gram Pradhan and its members can be challenged are (a) the election has not been a free election by reason that the corrupt practice of bribery or undue influence has extensively prevailed at the election, or (b) that the result of the election has been materially affected.
29. Sub-section (3) of Section 12-C of the Act, 1947 provides the procedure for filing application under sub-section (1) of which hereinafter shall be referred to as 'election petition'. The Statute says that election petition shall contain such particulars as may be prescribed.
30. In respect to further procedure, the Statute contemplates its prescription by Settlement of Election Disputes Rules, 1994. Rule-3 of the said Rules, 1994 is relevant to be reproduced hereunder:
"3. Election Petition.-(1) An application under sub-section (1) of Section 12-C of the Act shall be presented before the Sub-Divisional Officer, within whose jurisdiction the concerned Gram Panchayat lies, within ninety days after the day on which the result of the election questioned is announced and shall specify the ground or grounds on which the election of the respon- dent is questioned and contain a summary of the circumstances alleged to justify the election being questioned on such ground."
31. Rule-4 of the Settlement of Disputes Rules, 1994 prescribes a procedure to be followed by the Tribunal while hearing the petition. It provides that subject to provisions of the Act and these Rules, every election petition shall be tried by a Sub-Divisional Officer as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908. Rule-4 is quoted herein-below:
"4. Hearing of the petition.-(1) Subject to the provisions of the Act and these rules, every election petition shall be tried by the Sub-Divisional Officer, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, for the trial of suits."
32. The procedure for holding election has been prescribed under the U.P. Panchayat Raj (Election of Members, Pradhans and Up-Pradhans), Rules, 1994. Rules 96, 104 & 112 are necessary to be mentioned below:
96. Account of ballot papers.---The Matdan Adhyaksh shall at the close of the poll prepare a ballot paper account in the specified form.
*** *** ***
104. Procedure at the counting.---On the date and at the time and place appointed under Rule 101, the Nirvachan Adhikari shall proceed as follows:
(a) The Nirvachan Adhikari shall satisfy himself that all the ballot boxes used at the poll and which are to be counted at that place have been received and accounted for;
(b) The Nirvachan Adhikari shall then allow the candidates and their Nirvachan Abhikartas and Ganana Abhikartas present at the counting an opportunity to inspect the ballot boxes and their seals for satisfying themselves that they are in order;
(c) The Nirvachan Adhikari shall also satisfy himself that none of the boxes has in fact been tampered with. If any ballot box is found by him to have been tampered with or destroyed or lost, the Nirvachan Adhikari shall not proceed with the counting of votes and the provisions of Rule 100 shall apply.
(d) If the Nirvachan Adhikari is satisfied that all such ballot boxes which are to be counted at such place have been received and are in order, he shall take up the counting of ballot papers contained in the ballot boxes. All the ballot boxes used at a polling place shall be opened, and the counting of the ballot papers found in those boxes proceeded with, in accordance with the instructions of the State Election Commission, at the same time;
(e) An account of the ballot papers found in the boxes of the polling place shall be recorded in a statement in the form specified by the State Election Commission;
(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;
(g) After the counting of all ballot papers contained in the ballot boxes of the polling place has been completed the Nirvachan Adhikari shall cause all such ballot papers to be kept in a separate packet on which shall be indicated such particulars as will identify the name of the Gram Panchayat to which the ballot papers relate.
*** *** ***
112. Production and inspection of election papers.---(1) While in the custody of the Assistant District Election Officer (Panchayat and Local Bodies) the packets of ballot papers whether valid, rejected or tendered, and of the marked copy of the electoral roll shall not be inspected by or produced before any person or authority except under the order of a competent Court or of an authority hearing an election petition.
(2) Copies of the election return forwarded by the Nirvachan Adhikari under sub-rule (1) of Rule 111 shall be furnished by the Assistant District Election Officer (Panchayat and Local Bodies) on payment of a fee of rupees twelve for each copy.
(3) All other papers relating to the election shall be opened to public inspection subject to such condition and subject to the payment of such fees as may be specified by the State Election Commission."
33. Rule-95 of the Rules, 1994 speaks about sealing of ballot boxes, etc., after poll; Rule-96 of the Rules, 1994 deals with account of ballot papers in specified form; Rule-97 says about transmission of ballot boxes, etc., to the Election Officer; Rule-103 is about person who may be present at the counting; Rule-106 envisages verification of accounts submitted by the Matdan Adhyaksh; Rule 107 enumerates election return by the Election Officer. Other provisions with respect to appointment of time, place and date for counting, Ganana Adhikari, procedure of counting, grounds for rejection of ballot papers, equality of votes, declaration of result are provided between Rules 101 to 109.
34. While deciding the election petition, it has to be kept in mind and as is well settled, that a right to elect is fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. To be more specific, right to elect, right to be elected and right to dispute an election are statutory creations, therefore, are subject to statutory limitation. An election petition is not an action at common law, nor in equity. It is a statutory proceeding to which neither the common law nor principles of equity applies but only those Rules apply, which the Statute makes. It is a special jurisdiction and special jurisdiction has always to be exercised in accordance with the Statute creating it. Meaning thereby that in the trial of election disputes, court is put in straitjacket.
35. In the case of F.A. Sapa etc. v. Singora and others17, the Court said, "it is fairly well settled that "our election law being statutory in character must be strictly complied with since an election petition is not guided by ever changing common law principles of justice and notions of equity. Being statutory in character, it is essential that it must conform to the requirements of our election law. But, at the same time, the purity of election process must be maintained at all costs and those who violate the statutory norms must suffer for such violation".
36. In another case of Mr. V. Narayanaswamy v. Mr. C.P. Thirunavukkarasu18, in paragraph-23 the Court observed "an election petition is based on the rights, which are purely the creature of statute, and if the statute renders any particular requirement mandatory, the court cannot exercise dispensing powers to waive non-compliance".
37. From the above discussion, it is clear that the provisions, as narrated above, have to be kept in mind while deciding an election petition.
38. It has been held in a catena of decisions that secrecy of ballot papers is sacrosanct and is required to be maintained at all costs and that recounting should not be allowed to be ordered on frivolous, fake and indefinite allegations. Thus, the right of defeated candidate to assail the validity of an election result and seek recounting of votes is subject to basic principle that the secrecy of ballot paper is sacrosanct and that a recount can be done only when a prima facie case is made out. Reference may be made to the judgement in the case of Sabarunnisha v. Tahira and others19.
39. Starting from the case of Ram Sewak Yadav v. Hussain Kamil Kidwai and others20 to the case of Bhabhi v. Sheo Govind and others21, and several other cases it has been held that an order of inspection / recounting may not be granted as a matter of course, having regard to the insistence upon secrecy of ballot papers, the Court would be justified in granting an order of inspection / recounting provided two conditions are fulfilled: (i) that the petition for setting aside an election contains an adequate statement of material facts on which the petitioner relies in support of his case and (ii) the tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of ballot papers is necessary.
40. From the aforesaid, it is clear that an order for inspection of ballot papers cannot be granted to support vague pleas as made in the writ petition, not supported by material evidence or to fish out evidence to support such pleas. The case of the election petitioner must be set out with precision supported by averments on material facts. To establish a case so pleaded an order of inspection may undoubtedly, if the interest of justice requires, be granted. But a mere allegation that the election petitioner, suspects or believes, that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection/ recounting.
41. Thus, the question which arises is, as to what will be the material facts in the petition seeking recount. This point is not res integra, as it came up several times before the Hon'ble Supreme Court for decision. The consensus of all the decisions, is, 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. In the case of Ram Sewak Yadav (supra), which is a leading case on the point of recount, the Supreme Court observed as:
"8. There can therefore be no doubt that at every stage in the process of scrutiny and counting of votes the candidate or his agents have an opportunity of remaining present at the counting of votes, watching the proceedings of the returning officer, inspecting any rejected votes, and to demand a re-count. Therefore a candidate who seeks to challenge an election on the ground that there has been improper reception, refusal or rejection of votes at the time of counting, has ample opportunity of acquainting himself with the manner in which the ballot boxes were scrutinized and opened, and the votes were counted. He has also opportunity of inspecting rejected ballot papers, and of demanding a re-count. It is in the light of the provisions of Section 83(1) which require a concise statement of material facts on which the petitioner relies and to the opportunity which a defeated candidate had at the time of counting, of watching and of claiming a re-count that the application for inspection must be considered."
42. From the aforesaid discussion, it is manifest that every candidate and his agents having had sufficient opportunity to watch proceedings of counting, it must be clearly stated in the petition as, how, in whose presence and in which round of counting, the irregularity took place and how that irregularity was objected to at the time of counting. In facts of the present case, the allegations are with respect to improper rejection of valid votes, improper acceptance of invalid ballot papers and the dispute with respect to total number of votes cast being 1004 in place of 1026. The allegations, as made in various paragraphs of the election petition are not specific and are supported by the statement of polling agents wherein no dispute has been raised regarding irregularities at the time of polling. Making it more specific the allegations in the writ petition are not with respect to any irregularity at the time of polling till reaching of the ballot boxes to the place of counting. In none of the paragraphs in election, such stand has been taken that there was any manipulation at the time of polling, therefore, no question of difference of number of ballot papers could arise at the time of counting, when after the close of poll, as provided under Rule-95 of the Rules, 1994, the Matdan Adhyaksh has to close the slit of each ballot box and seal up the slit in presence of the contesting candidate or his Abhikarta (agent), who may be present to seal of the same. The aforesaid fact is also evident from the statement of polling agent, which is as follows:
"tks ernku ds i'pkr tks ckDl lhy fd;s Fks lHkh ,tsUV ekStwn Fks ernku esa fdlh izdkj dh /kka/kyh ugha gqbZ Fkh bldh tkudkjh FkhA"
43. Rule-106 provides that Election Officer shall verify the statement submitted by Polling Officer under Rule-96 by comparing it with a number of counted votes and rejected ballot papers with the unused or spoilt ballot papers in his possession and the tendered votes list. He shall re-close and re-seal each packet which has been opened by him and shall record on each packet a description of its contents, the name of the Gram Panchayat, the date of the election to which it refers. As per Rule-107 of the Rules, 1994, Nirvachan Adhikari shall prepare and certify an election return in the specified form setting forth-
"(a) the names of the candidates for whom valid votes have been given;
(b) the number of valid votes given for each candidate;
(c) the total number of valid ballot papers;
(d) the number of rejected ballot papers;
(e) the number of tendered ballot papers; and
(f) the name of the candidate elected.
He shall also permit any contesting candidate or his Nirvachan Abhikarta or Ganana Abhikarta to take a copy of or an extract from such return"
44. Thus, as per provisions of Rule-107 of the Rules, 1994, a copy of election return as prepared by Nirvachan Adhikari is also given to the contesting candidate, or Nirvachan Abhikarta or Ganana Abhikarta / polling agent, but there is no averment in this regard as to whether there was any difference in the number of votes as mentioned in the election return and no specific averment is there in the election petition nor any reference of same in statement of polling agent, given in support of election petition, referred about it. Therefore, the allegations as made in the election petition are not definite, precise, therefore, no such order, directing for recounting, could have been passed in such circumstances.
45. It would also be apposite to refer the judgement of the Supreme Court in the case of Jitendra Bahadur Singh v. Krishna Behari22, wherein the Apex Court has observed thus:
"8. ...In the instant case apart from giving certain figures whether true or imaginary, the petitioner has not disclosed in the petition the basis on which he arrived at those figures. His bald assertion that he got those figures from the counting agents of the Congress nominee cannot afford the necessary basis. He did not say in the petition who those workers were and what is the basis of their information? It is not his case that they maintained any notes or that he examined their notes, if there were any. ..."
46. Lastly, reference may be made to the judgement in the case of N. Narayanan v. S. Semmalai23, in which the Supreme Court held that the relief of recounting cannot be accepted merely on the possibility of there being an error.
47. Applying the principle of the aforesaid decision of the Supreme Court, it may not be unhesitatingly stated that in a case demanding recounting, the election petitioner not only should give the figures of votes, which according to him was improbably accepted or rejected, but the basis of allegations must also be disclosed.
48. In the instant case, apart from giving certain figures whether true or imaginary, the election petitioner has not disclosed in the election petition, the basis on which he arrived at those figures. His bald assertions that he got those figures from the counting agent, as told to him by Paryavekshak and Gadnakarmi, cannot hold the necessary basis of passing the order impugned. It would also be apt to mention that the allegations regarding improper acceptance, rejection and counting of votes after mixing the bundle as well as total number of votes cast, are general in nature, the basis of which is stated to have been told by all the agents who are present there. In support of the aforesaid assertions in the statement of the polling agent it has been said as follows:
"lHkh ,tsUVksa us dgk Fkk fd dqy 1004 er gh iM+k gS blh ds vk/kkj ij ;kfpdk nk;j dh x;h gSA"
49. There was ample opportunity to the election petitioner to make an application to get the account of ballot papers as the same is made in specified form as required under Rule-96 of the Rules, 1994, wherein the Matdaan Adhyaksh at the close of the poll prepare the ballot paper count in such a specified form. There is no mention in the election petition that the election petitioner tried to get the aforesaid account of ballot papers nor has any written objections been placed with respect to manipulation as alleged regarding improper acceptance or rejection of votes. It is also not pleaded at all in the election petition that, at any stage, during counting of votes, there was any contravention or violation of procedure prescribed under Rule-104 of the Rules, 1994.
50. In the present case, the main allegations are with respect to manipulation in valid votes, invalid votes, mixing and counting of votes in favour of other candidates. A prayer to recount the votes is justified only when the petitioner has set out his case with precision supported by material fact. Mere allegations that there has been manipulation with respect to valid votes of the election petitioner being declared invalid, or being mixed in another bundle being counted in favour of some other candidate or counting invalid votes of candidates as valid, will not be sufficient to support an order for recounting, that is to say, a candidate who seeks to challenge the elections on the aforesaid ground, in the light of provisions of relevant Act and Rules should give a concise statement of material facts on which the petitioner relies and the basis to prove the same so that the application for recounting may be considered. In case of Dr. Jagjit Singh v. Giani Kartar Singh and others24, the averment in the election petition was with respect to a large number of votes to have been cast in favour of appellant, had been improperly rejected and that materially affected the result of election. Thus, while emphasizing on the aforesaid and placing reliance on the judgement in Ram Sewak Yadav (supra), following law has been laid down by the Supreme Court in the case of Jitendra Bahadur Singh (supra):
"8. ...In the instant case apart from giving certain figures whether true or imaginary, the petitioner has not disclosed in the petition the basis on which he arrived at those figures. His bald assertion that he got those figures from the counting agents of the Congress nominee cannot afford the necessary basis. He did not say in the petition who those workers were and what is the basis of their information? It is not his case that they maintained any notes or that he examined their notes, if there were any. The material facts required to be stated are those facts which can be considered as materials supporting the allegations made. In other words they must be such facts as to afford a basis for the allegations made in the petition. The facts stated in paras 13 and 14 of the election petition and in Schedule 'E' are mere allegations and are not material facts supporting those allegations. This Court in insisting that the election petitioner should state in the petition the material facts was referring to a point of substance and not of mere form. ..."
51. The aforesaid authoritative pronouncement reflects that recount touches upon secrecy of ballot papers. The Court would not be justified to order for recount of votes, if all the material facts on which the allegations of irregularity or illegality in counting, are not pleaded adequately in the election petition. Where the allegations are general, vague, based on suspicion or belief of the petitioner or not precise, the relief of recounting, cannot be acceded merely on the possibility of there being an error.
52. From a perusal of the election petition as well as evidence in support thereof, it can be derived that the fact as to from where the information regarding the fact that initially the polling agent was informed about 80 invalid votes which were later said to be 36, the basis of which is neither disclosed in the election petition nor is supported in the evidence as laid, i.e., in the statement of polling agent, does not give the ground to entertain the election petition thus where in case of any manipulation, the polling agent present had ample opportunity to move an application in writing before the competent authority, which has not been done in the present case, there was no occasion for the Tribunal to call for the voter-list or counterfoil in order to read in between the lines. The fact which has not been alleged in the election petition, thus the allegations in the present case made by election petitioner in election petition are vague and general as nothing specific is stated in that regard. The allegations as made in the election petition, taken on the face value, are not supported by adequate statement of material evidence, on which the election petitioner relies in support of cause of action, therefore, the order directing recounting is not justified.
53. A perusal of the evidence in the form of statement of polling agent shows that contradictory evidence has been given by him in several pages, like at one place the polling agent has stated that there is no illegality in the polling and in the presence of all agents the ballot boxes were sealed, whereas, he is disputing the total number of votes cast, as once the ballot boxes are sealed, how can the number of ballot papers be added or reduced, thus total votes shown as 1026 for which the Prapatra was also made, cannot be disputed, there being no supportive evidence and no basis for the allegation as made in the election petition. It has also not been averred as to whether any other agent, who witnessed the counting, has been called for or has come up by himself to give any statement in this regard.
54. The next objection was with respect to cutting and overwriting in Prapatra. There is no written application in this regard before the competent authority prior to filing of election petition and the records as placed in the present petition do not show any such cutting or overwriting in the Prapatra. It would have been proper for the Tribunal to call for the records of Prapatra - 45 & 46 prior to directing for recount. The election petitioner should have also specifically mentioned regarding changes done after cutting and overwriting. Said allegation has no basis as when Prapatra is prepared after completion of the counting, same is shown to the polling agents, who should have raised alarm/ objection at that very stage itself.
55. From the above discussion and after consideration of the aforesaid decision as has been held in the case of Ram Singh v. Kazi Mohiuddin and others25, that since an order for recount touches upon secrecy of the ballot, it should not be made lightly or as a matter of course. The election petitioner should not only give the basis on which the allegations with respect to his valid votes being mixed with other bundles, invalid votes being counted as valid in favour of other candidates, but also the basis of allegations must be disclosed, which has not been done in the present case as there is contradiction in the statement of polling agent. The allegations which have not been made in the election petition, have been substituted by way of evidence in the form of statement of the polling agent of the defeated candidate and such an evidence cannot be read beyond pleadings as has been held in the case of Markio Tado v. Takam Sorang26.
56. While indicating the approach to be adopted in considering the pleadings and claim of secrecy of ballots and purity of an election, the Supreme Court has held in the case of S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra & Others27 as follows:
"22. ...Secrecy of ballot was mooted to ensure free and fair elections. If the very secrecy of ballot instead of ensuring free and fair elections strikes at the root of the principle of free and fair elections this basic postulate of democracy would be utilised for undoing free and fair elections which provide life-blood to parliamentary democracy. ..."
23. ...Secrecy of ballot though undoubtedly a vital principle for ensuring free and fair elections, it was enshrined in law to subserve the larger public interest, namely, purity of election, for ensuring free and fair election. The principle of secrecy of ballot cannot stand aloof or in isolation and in confrontation to the foundation of free and fair elections viz. purity of election. They can co-exist but as stated earlier, where one is used to destroy the other, the first one must yield to principle of purity of election in larger public interest. In fact secrecy of ballot, a privilege of the voter, is not inviolable and may be waived by him as a responsible citizen of this country to ensure free and fair election and to unravel foul play."
57. In another decision of the Supreme Court in the case of Km. Shradha Devi v. Krishna Chandra Pant and others28, it has been held that the election petition filed with a prayer for recounting on the allegations of valid and invalid votes being counted in favour of winning candidates or other candidates as well as discrepancy in the total number of votes cast, the election petitioner has to offer prima facie proof of the errors in counting and if error in counting is prima facie established, a recount can be ordered.
58. In the case of Suresh Prasad Yadav v. Jai Prakash Mishra & Others29, while summarizing the principles laid down by the court from time to time in granting a prayer directing for recount, it has been observed as follows:
"5. ...this Court has repeatedly said, that an order for inspection and recount of the ballot papers cannot be made as a matter of the course. The reason is twofold. Firstly such an order affects the secrecy of the ballot which under the law is not to be lightly disturbed. Secondly, the Rules provide an elaborate procedure for counting of ballot papers. This procedure contains so many statutory checks and effective safeguards against mistakes and fraud in counting, that it can be called almost trickery foolproof. ..."
59. The Supreme Court in Suresh Prasad Yadav (supra) stating that no hard and fast rule can be laid down, yet broad principles, as discernible from the aforesaid discussion can be indicated as follows:
"6. The Court would be justified in ordering a recount of the ballot papers only where:
(1) the election-petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded;
(2) on the basis of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting; and (3) the court 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."
60. From the above discussion, it is clear that averments of the election petition containing the grounds of challenge, the allegations regarding illegality or irregularity in the counting of votes are not only fake, even the basic material fact as could have been made, the election tribunal's prima facie satisfaction that recount of ballots are necessary, are missing in the petition. The evidence in the form of statement of polling agent is beyond the pleadings, therefore, the same cannot be taken into consideration. Similarly, a narrow margin of votes between returning candidate and election petitioner does not give a right to say that there has been illegality or irregularity in the counting of votes.
61. It is abundantly clear that the rules provide adequate opportunity to a candidate, election agent and counting agent to have a watch over the counting process before result is declared and if they raise any objection as to its validity or otherwise about any ballot paper or if the said objection is improperly rejected, the candidate, his counting and election agent are well informed of the nature of objection that was raised with regard to ballot papers and make a concise statement of material facts in the election petition in relation thereto. It is for these reasons that the courts have repeatedly held that secrecy of ballot has to be maintained and a demand of recount should not ordinarily be granted, unless the election petitioner makes out a prima facie case.
62. As it is clear that Rules provide adequate opportunity, a candidate and his election and counting agent, at every stage, have a watch over the counting process before the result is declared, therefore, the concise statement of material facts in the election petition should be there supported by the evidence in order to see as to whether direction for recounting would be proper or not. The same has been held by the Supreme Court in the case of M.R. Gopalkrishnan v. Thachady Prabhakaran and others30:
"16. After a cursory glance of the relevant provisions discussed above it is thus abundantly clear that the rules provide adequate opportunity to a candidate, his election agent and counting agent to have a watch over the counting process before the result is declared and if they raise any objection as to the validity or otherwise of any ballot paper and if the said objection is improperly rejected, the candidate, his counting and election agent are well informed of the nature of the objection that was raised with regard to the ballot papers and make a concise statement of material facts in the election petition in relation thereto. It is for these reasons that this Court has repeatedly held that the secrecy of the vote has to be maintained and a demand of re-count should not ordinarily be granted unless the election petitioner makes out a prima facie case with regard to the errors in the counting and is able to show that the errors are of such magnitude that the result of the election of the returned candidate is materially affected. The election petitioner, in order to seek an order of re-count, has to place material and make out a prima facie case on the threshold and before an order of re-count is actually made. The demand of a 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 the re-count, no tribunal or court would be justified in directing the re-count."
63. Taking into consideration the facts of the present case and settled position of law which has been summed up in Bhabhi (supra), while dealing with the question of direction for inspection and recount of votes, and after close and careful consideration of various authorities of this Court, certain guidelines and conditions which are imperative, before the Court can grant inspection and recount of ballot papers, are as follows:
"15. ...
(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."
64. This Court feels, that guidelines and conditions which are imperative to direct recount of ballot papers are not there in the facts of the present case. The petitioner has tried to add flavour of illegality and irregularity on the basis of vague pleadings which lack substance. The onus lies upon the person, who challenges the election of return candidate. One of the grounds for challenge of election, seeking recount, is irregularity in counting of votes, which can justify recounting to demonstrate any irregularity at the time of counting, however, pleadings in this regard are virtually silent and in any case extremely vague and cryptic. It is well settled that the pleadings play a significant role in the case of challenge to an election. In the evidence adduced by the polling agent, who was present at time of counting, no such fact has come as to from where he could support the averments of rejection of valid votes, acceptance of invalid votes, mixing of valid votes in bundle of other candidates or with respect to total number of votes cast. The tribunal has not been able to record any finding to demonstrate or even refer to any irregularity committed by the Election Officer at the time of counting. Without having any basis to call for voter-list or counterfoil and finding some discrepancy, in the two, the order of recount has been passed, which is arbitrary and unsustainable.
65. Analyzing / reading the provisions as provided under the Uttar Pradesh Panchayat Raj (Election of Members, Pradhans and Up-Pradhans) Rules, 1994, there was ample opportunity, at every stage from the time of sealing of ballot box to the count of ballot papers, procedure of counting, verification of accounts as submitted by Matdan Adhyaksh as well as election return by the Nirvachan Adhikari, to raise objection taking specific plea regarding number of votes being cast in favour of the election petitioner and other contesting candidates, but that has not been done in the present case.
66. The election rules also provide that Prapatra 45 & 46 are prepared after counting is taken place following the proper procedure as prescribed under law, and in case there was any shortcoming or irregularity at the time of counting that would have been very well known from the aforesaid Prapatra, which could have been one of the grounds, i.e., with respect to total number of votes cast, which had to be taken into account while directing for recounting, that too, in such a case, where allegations of overwriting and cutting are made in the Prapatra. The aforesaid averment in the petition is not supported by any evidence and, therefore, has no legs to stand. The tribunal has not taken into consideration the fact that as per well settled position of law in the case of Chandrika Prasad Yadav v. State of Bihar and others31, an order of recounting of votes can be passed when following conditions are fulfilled:
"(i) a prima facie case;
(ii) pleading of material facts stating irregularities in counting of votes;
(iii) a roving and fishing inquiry shall not be made while directing re-counting of votes; and
(iv) an objection to the said effect has been taken recourse to."
67. From the aforesaid discussion, this Court is of the opinion that the order directing for recounting, does sustain in the eyes of law. Accordingly, the impugned order dated 03.07.2023 passed by respondent no. 2 is set aside. A direction is issued upon respondent no. 2 to take all endeavours to decide the election petition, finally, in accordance with the procedure prescribed and relevant Act as well as Rules, expeditiously, preferably within a period of four months from the date of production of certified copy of this order, without granting any unnecessary adjournment to either of the parties and without being influenced by any of the observations made in this order.
68. The writ petition stands allowed accordingly.
69. No order as to costs.
Order Date:-09.08.2023 DS