Allahabad High Court
Smt. Lali Devi vs State Of U.P. Thru. Addl. Chief Secy. ... on 2 February, 2023
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 7 Case :- WRIT - C No. - 900 of 2023 Petitioner :- Smt. Lali Devi Respondent :- State Of U.P. Thru. Addl. Chief Secy. Panchayatiraj Civil Secrt. Lko. And 20 Others Counsel for Petitioner :- Dinesh Kumar Mishra Counsel for Respondent :- C.S.C.,Anilesh Tewari,Bina Kishore,Uma Shankar Sahai Hon'ble Abdul Moin,J.
1. Heard Sri H.G.S.Parihar, learned Senior Advocate assisted by Sri Dinesh Kumar Mishra, learned counsel appearing for the petitioner, Dr. Udai Veer Singh, learned Additional Chief Standing counsel appearing for the respondents no. 1 to 3 and Sri U.S.Sahai, learned counsel appearing for the respondent no. 5.
2. Instant writ petition has been filed praying for the following main reliefs:-
(i) Issue a writ order or direction in the nature of certiorari quashing the order dated 03.01.2023 passed by the learned Additional District Judge Court No. 2/Special Judge E.C.Act, Sitapur in Civil Revision No. 47 of 2022 Smt. Lali Devi Vs. S.D.:M.Maholi and Ors contained as Annexure No. 1 only to the extent denial of quashing the order of the re-counting to this petition in the interest of justice.
(ii) Issue a writ order or direction in the nature of certiorari quashing the order dated 02.09.2022 passed by the Sub Divisional Magistrate Maholi/ Prescribed Authority District Sitapur in Case No. 1678/2021 (Election Petition No. 19/23) Mahaveer Vs. Smt. Lali Devi and Ors U/S 12 (C) of the Uttar Pradesh Panchayat Raj Act, 1947 contained as Annexure No. 2 to this petition in the interest of justice.
(iii) Issue a writ order or direction in the nature of certiorari quashing the order dated 23.01.2022-23 by means which again the order of the re-counting has been passed by the prescribe authority contained as Annexure No. 3 to this petition in the interest of justice.
3. The case set forth by the petitioner is that an election of Gram Pradhan took place in the year 2021. The petitioner was declared elected as Gram Pradhan of Village Peerpur, Gram Panchayat Dadabad, Post Office- Hathiya Kasimpur, Nyaypanchayat Urdauli, Vikash Khand Maholi, Tehsil- Maholi District- Sitapur. The respondent no. 5 herein namely Sri Mahaveer filed an election petition under Section 12-C of the Uttar Pradesh Panchayat Raj Act, 1947 (hereinafter referred to as "Act, 1947") before the learned Election Tribunal challenging the election of the petition. A copy of the election petition has been filed as annexure 4 to the writ petition. The learned Election Tribunal vide order dated 02.09.2022, a copy of which is annexure 2 to the petition after framing various issues directed for re-counting of the votes and disposed of the election petition.
4. Being aggrieved, the petitioner filed a writ petition namely Writ-C No. 6140 of 2022 Inre; Smt. Lali Devi Vs. State of U.P and Ors and this Court vide order dated 08.09.2022, a copy of which is annexure 6 to the writ petition disposed of the writ petition with liberty to the petitioner to approach the statutory forum by filing of a revision under the provisions of Section 12-C (6) of the Act, 1947.
5. In pursuance thereof, the petitioner filed a revision bearing Revision No. 47 of 2022 Inre; Lali Devi Vs. S.D.M Maholi and ors before the Court of the learned Additional District Judge/Special Judge, Sitapur. The revisional Court vide order dated 22.09.2022, a copy of which is annexure 8 to the writ petition dismissed the revision.
6. The petitioner being aggrieved filed a writ petition bearing Writ-C No. 7328 of 2022 Inre; Lali Devi Vs. State of U.P and Ors and this Court vide order judgment and order dated 22.10.2022, a copy of which is annexure 9 to the writ petition set aside the order passed by the revisional Court dated 22.09.2022 and required the revisional Court to decide the matter expeditiously.
7. In pursuance thereof, the revisional Court vide order impugned dated 03.01.2023, a copy of which is annexure 1 to the writ petition has partly allowed the revision filed by petitioner and has set aside the order of the learned Election Tribunal so far as it had directed that the records of election petition be consigned to record. Further, the revisional Court has restored the election petition to its original number and has directed the learned Election Tribunal to dispose of the election petition as per law expeditiously.
8. Subsequently, the learned Election Tribunal vide order dated 23.01.2023 (wrongly typed as 23.01.2022), a copy of which is annexure 3 to the writ petition has directed for a re-counting to be held on 07.02.2023 for which purpose adequate security etc has also been required. The order dated 23.01.2023 has also been directed to form part of the earlier order dated 02.09.2022.
9. Being aggrieved with the orders dated 23.01.2023, 22.09.2022 and 03.01.2023, the instant writ petition has been filed.
10. Raising challenge to the aforesaid orders, learned Senior Advocate has primarily raised the following grounds namely (a) no reasons have been recorded by the learned Election Tribunal as to why re-counting has been directed (b) in the order dated 23.01.2023, the earlier order dated 02.09.2022 has been indicated to form part of the order. It is contended that doctrine of merger would be applicable and as such, once the revisional Court vide order dated 03.01.2023 had partly allowed the revision consequently, the order dated 02.09.2022 stood merged with the order of the revisional Court dated 03.01.2023 and consequently, there cannot be any occasion for the learned Election Tribunal to have directed in the order impugned dated 23.01.2023 that the order dated 02.09.2022 shall form part of the order (c) for the purpose of re-counting which has been directed by the learned Election Tribunal, the pleadings should have been made by the persons challenging the election indicating the irregularities while filing the petition under Section 12-C of the Act, 1947 and in the absence of pleadings such a casual order could not have been passed by the learned Election Tribunal and partly upheld by the revisional Court. In this regard, reliance has been placed on the judgments of the Apex Court in the case of Uday Chand Vs. Surat Singh and Anr reported in (2009) 10 SCC 170, Arikala Narasa Reddy Vs. Venkata Ram Reddy Reddygari and Anr reported in (2014) 5 SCC 312 as well as the judgment of this Court in the case of Amit Narain Rai Vs. State of U.P and Ors passed in Writ-C No. 63380 of 2011 decided on 09.04.2012 (d) the revisional Court in one part of the order impugned dated 03.01.2023 has recorded that the revision against the order dated 02.09.2022 is not maintainable it being an interlocutory order and in the other part of the order, it has been indicated that the revision would be maintainable which thus indicates that the revisional Court was itself not sure as to whether the revision was maintainable or not (e) none of the grounds in the memo of the revision have been considered by the revisional Court while deciding the revision and (f) the judgments which were indicated in the written argument have also not been considered by the revisional Court.
11. No other ground has been urged.
12. On the other hand, Sri U.S.Sahai, learned counsel appearing for the respondent no. 5 argues that after the election had taken place and the counting was done, it was noticed that there were certain irregularities in the counting which compelled the respondent no. 5 herein to move an application for the purpose of re-counting. The application for re-counting was allowed by the Returning Officer yet the Matgarna Paryavekshak only re-counted two bundles of votes and not the other votes. Thus once it is the Returning Officer who is the overall In-charge and was required to pass the order on the application of the respondent no. 5 and in fact did pass an order for the purpose of re-counting as such, the Matgarna Paryavekshak patently exceeded his jurisdiction in only re-counting two bundles of votes instead of the entire votes that had been cast. It is also contended that no objection was raised to the application filed by the respondent no. 5 for the purpose of re-counting of the votes by the petitioner herein.
13. As the re-counting was only done with respect to two bundles consequently, the petitioner was declared elected as a Gram Pradhan on the basis of one vote. Considering the aforesaid application that had been moved by the respondent no. 5 for the purpose of re-counting and which in fact has been allowed by the Returning Officer but not fully implemented by the Matgarna Paryavekshak consequently, this compelled the respondent no. 5 to file an election petition before the learned Election Tribunal. Placing reliance on paragraphs 5 & 6 of the aforesaid petition it is contended that this ground was specifically taken in the election petition which had been filed by the respondent no. 5 and which found favour with the learned Election Tribunal which has directed for re-counting of all votes.
14. On the ground urged by the learned counsel for the petitioner that the counting of votes should not be done casually reliance has been placed on a Full Bench judgment of this Court in the case of Ram Adhar Singh Vs. District Judge, Ghazipur and Ors reported in 1985 SCC OnLine All 246 as well as the judgment of this Court in the case of Prem Sheela Vs. Prescribed Authority/Sub Divisional Magistrate and ors reported in 2019 SCC OnLine All 5564 to contend that the situation in which re-counting can be directed, has been considered threadbare by the Full Bench of this Court after placing reliance on various judgments of the Apex Court and it has been held that where the Court trying the election 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, then the re-counting can be directed.
15. So far as the argument of the learned counsel for the petitioner that the revisional Court has not considered the grounds as were raised in the revision and that in one part of the order passed by the revisional Court it has been indicated that the revision is not maintainable while in the other part of the order it has been indicated that the revision is maintainable, it is submitted that where the issue was indicated by the revisional Court as to whether the revision is maintainable or not, the revisional Court has categorically come to the finding that the revision in fact is maintainable and has thereafter proceeded to partially allowed the revision and thus mere fact that while considering the ground (b) that had been taken in the revision that the Court may have cursorily observed that that the revision is not maintainable will not take away the jurisdiction of the revisional Court to have entertained and decided the issue.
16. So far as the ground of merger is concerned, it is contended that the revisional Court has only partly allowed the revision filed by the revisionist and only set aside the part of the order dated 02.09.2022 whereby the election petition had been finally disposed of/consigned to records meaning thereby that the rest of the order is still intact which has correctly been required to be part of the order dated 23.01.2023 by the learned Election Tribunal. Hence, there is no illegality or infirmity in the orders impugned and the writ petition deserves to be dismissed.
17. Heard the learned counsel appearing for the contesting parties and perused the records.
18. From the arguments as raised by the learned counsels appearing for the contesting parties and from a perusal of records, it emerges that an election for the post of Gram Pradhan had taken place in the village in question. After the counting of votes had taken place, respondent no. 5 gave an application to the Returning Officer for re-counting of votes indicating certain irregularities in the counting of votes. Admittedly, no objections to the said application were given by the petitioner. The Returning Officer directed for recounting of the votes that had been polled. The Matgarna Paryavekshak, however, only counted two bundles of votes. Subsequent thereto, the petitioner was declared as elected to the post of Gram Pradhan. The respondent no. 5 filed an election petition challenging the election of the petitioner on various grounds including the ground as finds place in the election petition that when the Returning Officer had directed for recounting of votes, the Matgarna Paryavekshak only recounted two bundles which was against the direction issued by the Returning Officer and thus, the recounting of votes was vitiated on this ground alone. Interpolation in records has also been observed. The said ground found favour with the learned Election Tribunal who vide order dated 02.9.2022 directed for recounting of votes and disposed of the election petition. Being aggrieved, the petitioner filed a writ petition but this Court vide order dated 8.9.2022 relegated the petitioner to the remedy of revision as available under the provisions of the Act, 1947. The petitioner filed a revision and the revisional Court vide order dated 22.9.2022 dismissed the revision which entailed the petitioner to file another writ petition before this Court and this Court vide judgment and order dated 22.10.2022 set aside the order passed by the revisional Court and required the revisional Court to decide the matter a fresh expeditiously. In pursuance thereof, the revisional Court vide order impugned dated 3.1.2023 partly allowed the revision filed by the petitioner and set aside the order of the learned Election Tribunal so far as it directed that the records of the election petition be consigned to records. The revisional Court also restored the election petition to its original number and the revisional Court has further been directed to dispose of the election petition in accordance with law. In pursuance thereof, the learned Election Tribunal vide order impugned dated 23.01.2023 has directed for re-counting to be held on 07.02.2023 and the order dated 02.09.2022 has also been directed to form part of the order dated 23.01.2023.
19. The challenge to the orders impugned have been raised on various grounds as have been indicated above.
20. The first ground of challenge is that no reasons have been recorded by the learned Election Tribunal as to why the re-counting has been directed.
21. The said ground is patently fallacious inasmuch as a perusal of the orders impugned dated 22.09.2022 and 23.01.2023 would indicate that the learned Election Tribunal has considered the fact that the application moved by the respondent no. 5 for the purpose of re-counting of votes had found favour with the Election Officer upon no objection being filed by the petitioner and thereafter directed for a re-counting of votes. The Matgarna Paryavekshak being bound by the order passed by the Returning Officer and for re-counting of votes, only restricted himself to counting of two bundles of votes which thus entailed the petitioner being declared as Gram Pradhan. The reasons which have prevailed on the learned Election Tribunal for directing of re-counting of votes is that when the order of the Returning Officer was for re-counting of the votes as such, the Matgarna Paryavekshak could not have confined himself to counting of only two bundles of votes rather all the votes should have been counted more particularly when no objections were filed by the petitioner to the said application filed by the respondent no. 5. In this view of the matter, this Court does not find the ground of challenge to be valid and accordingly the said ground is rejected.
22. The next ground of challenge is that the doctrine of merger would be applicable and when the revisional Court vide order dated 03.01.2023 had partly allowed the revision consequently, the order dated 02.09.2022 stood merged with the order of the revisional Court dated 03.01.2023 and there would not be any occasion for the learned Election Tribunal to have directed in the order impugned dated 23.01.2023 that the order dated 02.09.2022 shall form part of the order dated 23.01.2023.
23. In this regard, a perusal of the order passed by the revisional Court dated 23.01.2023 would indicate that the revisional Court has not set aside the entire order passed by the learned Election Tribunal dated 02.09.2022 rather only the order by which the learned Election Tribunal had consigned the matter to records had been set aside meaning thereby that it is only part of the order which was set aside and the rest of the order was affirmed. Thus, the doctrine of merger would not be applicable to the entire order of learned Election Tribunal dated 02.09.2022. Accordingly, this ground as raised by the learned counsel for the petitioner is also rejected.
24. Next ground for raising challenge to the orders impugned is that the pleadings in the election petition were casual pertaining to re-counting and on the basis of such casual pleadings, the order of re-counting could not have been passed.
25. A perusal of the election petition that had been filed by the respondent no. 5 would indicate that the specific ground had been taken by the respondent no. 5 as to why the re-counting was required inasmuch as it was specifically averred that the Returning Officer upon the application filed by the respondent no. 5 had allowed the said application for re-counting but the Matgarna Paryavekshak had only confined himself to re-counting of two bundles of votes. As already indicated above, the Matgarna Paryavekshak was bound by the orders of Returning Officer keeping in view Rule 4 of the Uttar Pradesh Panchayat Raj (Election of Members, Pradhan and Up-Pradhans Rules, 1994 (hereinafter referred to as "Rules, 1994). In this, regard Rule 4 of the Rules, 1994 would be relevant to be considered regarding the powers of the Returning Officer.
26. For the sake of convenience, Rule 4 of the Rules, 1994 is reproduced as under:-
"4. Nirvachan Adhikari- (1) For every Panchayat area, for every election to fill a seat or seats in the Gram Panchayat the District Magistrate shall appoint a Nirvachan Adhikari (Returning Officer) who shall be an officer of the State Government.
Provided that nothing in this rule shall prevent the District Magistrate from appointing the same person to be the Nirvachan Adhikari for more than one Panchayat area.
(2) The Nirvachan Adhikari shall perform the functions required to be performed under this Chapter and it shall be his general duty at any election to do all such acts and things as may be necessary for effectually conducting the election in the manner provided by the Act and these rules.
(3) Without prejudice to the generality of the provisions of sub- rule (2) the State Election Commission may if it so considers expedient, by order direct that such of the powers, duties and functions of the Nirvachan Adhikari under these rules as may be specified by it in general instructions shall be exercised or discharged by the Matdan Adhyaksh at the polling place subject to such restrictions and conditions as may be specified in the order."
27. Considering Rule 4 of the Rules, 1994 it is apparent that it is the Returning Officer who is appointed by the District Magistrate for every election to perform the function required to be performed under Chapter II of the Rules, 1997 and to do all acts and things as may be necessary for effectually conducting the election in the manner provided in the act and the rules.
28. Keeping in view Rule 4 of the Rules 1994, it is thus apparent that being under the control of the Returning Officer it was the duty of the Matgarna Paryavekshak to do all acts and things for effectual conduct of the election as was directed by the Returning Officer and as such, the Matgarna Paryavekshak was required to carry out the directions of the Returning Officer and thus all votes should have been counted as per the directions of the Returning Officer and the same not having been done and a specific ground having been taken in the election petition as such, the learned Election Tribunal was perfectly correct in the eyes of law for having directed for re-counting of all votes by means of the impugned orders.
29. In this regard, the judgments of the Uday Chand (supra), Arikala Narasa Reddy (supra) & Amit Narain Rai (supra) over which reliance have been placed by the learned counsel for the petitioner all indicate that a direction for re-counting of votes can be done and the Court would be justified in ordering a re-count of the ballot papers where 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.
30. In this regard, it would be apt to reproduce as to what has been held by the Apex Court in the case of Uday Chand (supra) :-
11. Before adverting to the merits of the issue raised by the parties with reference to the statutory provisions, it would be appropriate to bear in mind the salutary principle laid down in the election law that since an order for inspection and re-count of the ballot papers affects the secrecy of ballot, such an order cannot be made as a matter of course. Undoubtedly, in the entire election process, the secrecy of ballot is sacrosanct and inviolable except where strong prima facie circumstances to suspect the purity, propriety and legality in the counting are made out.
12. The importance of maintenance of secrecy of ballot papers and the circumstances under which that secrecy can be breached, has been considered by this Court in several cases. It would be trite to state that before an Election Tribunal can permit scrutiny of ballot papers and order re-count, two basic requirements viz.
(i) the election petition seeking re-count of the ballot papers must contain an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded, and
ii) on the basis of evidence adduced in support of the allegations, the Tribunal must be prima facie satisfied that in order to decide the dispute and to do complete and effectual justice between the parties, making of such an order is imperatively necessary, are satisfied.
(Emphasis by the Court)
31. Likewise, the Apex Court in the case of Arikala Narasa Reddy (supra) has held as under:-
13. It is a settled legal proposition that the statutory requirements relating to election law have to be strictly adhered to for the reason that an election dispute is a statutory proceeding unknown to the common law and thus, the doctrine of equity, etc. does not apply in such dispute. All the technicalities prescribed/mandated in election law have been provided to safeguard the purity of the election process and courts have a duty to enforce the same with all rigours and not to minimize their operation. A right to be elected is neither a fundamental right nor a common law right, though it may be very fundamental to a democratic set-up of governance. Therefore, answer to every question raised in election dispute is to be solved within the four corners of the statute. The result announced by the Returning Officer leads to formation of a government which requires the stability and continuity as an essential feature in election process and therefore, the counting of ballots is not to be interfered with frequently. More so, secrecy of ballot which is sacrosanct gets exposed if recounting of votes is made easy. The court has to be more careful when the margin between the contesting candidates is very narrow. "Looking for numerical good fortune or windfall of chance discovery of illegal rejection or reception of ballots must be avoided, as it may tend to a dangerous disorientation which invades the democratic order by providing scope for reopening of declared results". However, a genuine apprehension of mis- count or illegality and other compulsions of justice may require the recourse to a drastic step.
14. Before the court permits the recounting, the following conditions must be satisfied:
(i) The court must be satisfied that a prima facie case is established;
(ii) The material facts and full particulars have been pleaded stating the irregularities in counting of votes;
(iii) A roving and fishing inquiry should not be directed by way of an order to re-count the votes;
(iv) An opportunity should be given to file objection; and
(v) Secrecy of the ballot should be guarded."
(Emphasis by the Court)
32. The Full Bench of this Court in the case of Ram Adhar Singh (supra) has held as under:-
"11. In the case of Ram Sewak Yudav v. Hussain Kamil Kidwai AIR 1964 SC 1249, the Supreme Court while dealing with a similar question arising under the Representation of the People Act held that before an authority or court dealing with an election petition is not to look into or direct inspection of ballot papers unless following two conditions co- exist:
(i) that the petition for setting aside an election contains an adequate statement of the material facts on which the Petitioner relied in support of his case (the petition meets the requirement of Section 83(1) of the Representation of the People Act regarding contents of the election petition), 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 the ballot papers is necessary."
12. In this connection, the learned Judges of the Supreme Court went on to observe thus:
"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 provision supported by averments of material facts. To establish a case so pleaded an order for inspection may undoubtedly, if the interest of justice require, be granted. But a mere allegation that the Petitioner suspects or believes that there has been an Jim proper reception, refusal or rejection of votes will not be sufficient to support an order for inspection."
13. In the case of Bhabhi v. Sheo Govind AIR 1975 SC 2117, the Supreme Court approved the principles for inspection of ballot papers laid down in Ram Sewak's case (supra) and after noticing its decisions in the cases of Dr. Jagjit Singh v. Giani Kartar Singh : AIR 1966 SC 773, Jitendra Bahadur Singh v. Krishna Behari AIR 1970 SC 276, Shashi Bhusan v. Prof. Balraj Madhok: AIR 1972 SC 1251, Sumitra Devi v. Shri Sheo Shanker Prasad Yadav AIR 1973 SC 215, Beliram Bhalaik v. Jai Behari Lal Kachi AIR SC 283, Baldeo Singh v. Teja Singh : AIR 1975 SC 693 and Suresh Prasad Yedav v. Jai Prakash Misra : AIR 1975 SC 376, the Court observed thus:
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 satis action of the Court regarding the truth of the allegations made for a re-count, and not for the purpose of fishing out materials.
14. The principles laid down in Bhabhi's case (supra) have again been applied and followed by that Court in the case of N. Narayanan v. S. Semalai : AIR 1980 SC 206 wherein it observed thus:
Finally, the entire case law on the subject regarding the circumstances under which recount could be ordered was fully summarised and catelogued by this Court in the case of Bhabhi v. Sheo Govind : 1975 SCR 202 to which one of us (Fazal Ali, J.) was a party and which may be extracted thus:
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.
15. This Court has consistently applied aforementioned principles enunciated by the Supreme Court, for looking into and permitting inspection of ballot papers in cases arising under the Representation of the Peoples Act, to similar cases arising under the U.P. Panchyayat Raj Act as well. See Dhanai Prasad v. Sub-Divisional Magistrate, Chunar, District Mirzapur 1974 ALJ 371, Charon Singh v. Sub-Divisional Officer 1974 ALJ 748, Kali Prasad v. Prescribed Authority (SDO), Pratapgarh 1980 ALJ 378 and Mohammad Husain v. S.D.O. Shahabad 1983 AWC 430.
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18. Applying the principle with regard to inspection of ballot papers enunciated by the Supreme Court in cases arising under the Representation of the People Act to an election petition dealt with under the provisions of 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 Respondent 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."
33. As regards the ground that the revisional Court in one part of the order impugned dated 03.01.2023 has recorded that the revision against the order dated 02.09.2022 is maintainable and in the other part of the order it has been indicated that it is not maintainable, suffice it to say that a perusal of the order passed by the revisional Court would indicate that three points of determination arose before the revisional Court of which ground (a) was that as to whether a revision was maintainable. The finding of this ground has explicitly been given by the revisional Court that the revision against the impugned order was maintainable. The revisional Court while considering the second point for consideration namely the reasonablity of the order of re-counting and as to whether the same could be looked into in the revision only recorded for the purpose of argument that in case the said argument is accepted, the same would tantamount to colourable exercise of revisional jurisdiction which the revisional Court was not vested with. The fact of the matter remains that the revisional Court has held that the revision against the order of the learned Election Tribunal dated 02.09.2022 was maintainable. Accordingly, the said ground is also rejected.
34. So far as the grounds (e) and (f) that the ground in the memo of revision and the judgments which were indicated in the written statement have not been considered by the revisional Court, suffice to say that the issue before the revisional Court was as to whether the ground raised in the election petition made out a case for re-counting of votes as has been directed by the learned Election Tribunal vide order dated 02.09.2022. The grounds as raised in the petition have specifically been considered by the revisional Court as would be apparent from the points of determination framed by it. Thereafter, the revisional Court concluded that the re-counting of votes are means to arrive at the just and proper decision for disposal of election petition on merit. The grounds taken by the learned Election Tribunal in its order impugned for directing for re-counting of votes found favour with the revisional Court. Moreover, the point in issue before the revisional Court was only a short point which already stands settled by the decisions as have been cited above. Sufficient reasons emerge from the order passed by the learned Election Tribunal in the orders dated 02.09.2022 & 23.01.2023 as to why the re-counting has been directed. Thus, this Court does not find any illegality or infirmity with the reasons recorded by the learned Election Tribunal or the revisional Court while directing for a re-counting. Accordingly, the said grounds as taken by the petitioner are also rejected.
35. Keeping in view the aforesaid discussion, no case for interference is made out. The writ petition is dismissed.
36. Learned Standing counsel shall inform about this order to the authorities without waiting for a certified copy of this order.
Order Date :- 2.2.2023 Pachhere/-