Allahabad High Court
Kamal Kumar Dhuriya vs Prescribed ... on 14 November, 2019
Author: Rajan Roy
Bench: Rajan Roy
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 7 Case :- MISC. SINGLE No. - 18420 of 2019 Petitioner :- Kamal Kumar Dhuriya Respondent :- Prescribed Authority,S.D.M.,Lalganj,Dist.-Pratapgarh And Ors Counsel for Petitioner :- Anand Prakash Singh Counsel for Respondent :- C.S.C.,Ajeet Kumar Mishra,Sharad Pathak Hon'ble Rajan Roy,J.
Heard Shri Anand Prakash Singh, learned counsel for the petitioner, Shri Jagdish Prasad Maurya, learned Additional Chief Standing Counsel for the State and Shri Sharad Pathak, learned counsel for the opposite party no. 5.
This writ petition has been filed challenging an order dated 27.06.2019 passed by the Prescribed Authority/Sub-divisional Magistrate, Tehsil Lalganj, District- Pratapgarh ordering recounting of votes in proceedings of an election petition filed by the opposite party no. 5 i.e. runner up in the election. The petitioner is the elected Gram Pradhan.
On 05.07.2019 the following order was passed by this Court:-
"Heard Sri Anand Prakash Singh, learned counsel for the petitioner, learned Standing counsel on behalf of the respondent Nos.1 to 4 and to Sri Ajeet Kumar Mishra, learned Advocate, who has filed Caveat on behalf of the respondent No.5.
The petitioner has rushed to this Court, challenging an order dated 27.6.2019, passed in Election Petition No.3 of 2016 (Shiv Murti Prasad Tiwari Vs. Kamal Kumar), whereby direction has been issued for recounting of votes for the post of Pradhan of Gaon Sabha Dharaura, Development Area Laxmanpur, District Pratapgarh.
Under Section 12-C of U.P. Panchayat Raj Act, 1947, it has been provided that the person aggrieved in an election, has right to challenge the election by filing an election petition before the prescribed authority. Against the order passed by the prescribed authority, aggrieved party has right to challenge the same in revision before the District Judge on the ground referred under Section 12-C (6) of the U.P. Panchayat Raj Act, 1947.
The provisions in regard to entertainment of election petition has been provided under Section 12-C of the U.P. Panchayat Raj Act, 1947, which is quoted below :-
"12-C. Application for questioning the elections ? (1) The election of a person as Pradhan 2[* * *] or as member of a Gram Panchayat including the election of a person appointed as the Panch of the Nyaya Panchayat under Section 43 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.
(2) The following shall be deemed to be corrupt practices of bribery or undue influence for the purposes of this Act.
(A) Bribery, that is to say, any gift, offer or promise by a candidate or by any other person with the connivance of a candidate of any gratification of any person whomsoever, with the object, directly, or indirectly of including ?
(a) a person to stand or not to stand as, or withdraw from being, a candidate at any election; or
(b) an elector to vote or refrain from voting at an election; or as a reward to ?
i- a person for having so stood or not stood or having withdrawn his candidature; or ii- an elector for having voted or refrained from voting.
(B) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of a candidate or of any other person with the connivance of the candidate with the free exercise of any electoral right;
Provided that without prejudice to the generality of the provisions of this clause any such person as is referred to therein who ?
i- threatens any candidate, or any elector, or any person in whom a candidate or any elector is interested, with injury of any kind including social ostracism and ex-communication or expulsion from any caste or community; or ii- induces or attempts to induce a candidate or an elector to believe that he or any person in whom he is interested will become or will be rendered an object of divine displeasure or spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause.
(3) This application under sub-section (1) may be presented by any candidate at the election or any elector and shall contain such particulars as may be prescribed.
Explanation ? Any person who filed a nomination paper at the election whether such nomination paper was accepted or rejected, shall be deemed to be a candidates at the election.
(4) The authority to whom the application under sub-section (1) is made shall in the matter of ?
i- hearing of the application and the procedure to be followed at such hearing;
ii- setting aside the election, or declaring the election to be void or declaring the applicant to be duly elected or any other relief that may be granted to the petitioner, have such powers and authority as may be prescribed.
(5) Without prejudice to generality of the powers to be prescribed under subsection (4) the rules may provide for summary hearing and disposal of an application under sub-section (1).
[(6) Any party aggrieved by an order of the prescribed authority upon an application under sub-section (1) may, within thirty days from the date of the order, apply to the District Judge for revision of such order on any one or more the following grounds, namely ?
(a) that the prescribed authority has exercised a jurisdiction not vested in it by law;
(b) that the prescribed authority has failed to exercise a jurisdiction so vested;
(c) that the prescribed authority has acted in the exercise of its jurisdiction illegally or with material irregularity.
(7) The District Judge may dispose of the application for revision himself or may assign it for disposal to any Additional District Judge, Civil Judge or Additional Civil Judge under his administrative control and may recall it from any such officer or transfer it to any other such officer.
(8) The revising authority mentioned in sub-section (7) shall follow such procedure as may be prescribed, and may confirm, vary or rescind the order of the prescribed authority or remand the case to the prescribed authority for re-hearing and pending its decision pass such interim orders as may appear to it to be just and convenient.
(9) The decision of the prescribed authority, subject to any order passed by the revising authority under this section, and every decision of the revising authority passed under this section, shall be final.]"
On perusal of the provisions referred hereinabove, it has been provided that the election petition can be filed on certain grounds. Under Clause 4 (2), it has been provided that after setting aside the election or declaring the election to be void or declaring the the applicant to be duly elected or any other relief that may be granted to the petitioner.
In the present case, the prescribed authority has directed for recounting of electoral college and has disposed of the election petition without setting aside the election or declaring the election to be void or declaring the applicant to be duly elected.
In such view of the matter, the S.D.M., Tehsil Lalganj, District Pratapgarh Sri Mohan Lal Gupta is directed to file his personal affidavit explaining that in case recounting is done and if it is found that the elected candidate has obtained lesser votes than the election petitioner, then in what manner his election will be held to be void in case the election petition has been disposed of.
List this petition as fresh on 10.7.2019.
Office is directed to provide a copy of this order free of cost to Sri Shatrughan Chaudhary, learned Additional Chief Standing Counsel, who shall make available the copy of the order to the S.D.M., Tehsil Lalganj, District Pratapgarh so that the required affidavit may be filed on the date fixed."
On 10.07.2019 another order was passed in the following terms restraining the Prescribe Authority from issuing the Certificate of Election to the alleged selected candidate based on the records. On 17.07.2019 the following order was passed:-
"Heard Shri Anand Prakash Singh, learned counsel for the petitioner, Shri Dileep Pandey, learned Additional Chief Standing Counsel for the State and Shri Sharad Pathak, learned counsel for the contesting opposite parties.
Personal affidavit has been filed by Shri Mohan Lal Gupta, S.D.M., Lalganj, District- Pratapgarh. The same is taken on record.
Perused the affidavit. Prima facie, the same is not satisfactory the manner in which the S.D.M. has proceeded in the matter which is in the teeth of the law laid down by this Court, therefore, he is required to be summoned so that he may explain as to why some action may not be ordered against him in the matter especially when the order of this Court dated 05.07.2019 is said to have been served upon him on 06.07.2019 yet he proceeded to get the recounting done that too when in a similar matter a similar order passed by him i.e. the same Officer was quashed by this Court on 05.07.2019 which is also said to have been served upon him on 06.07.2019.
List/ put up day-after-tomorrow i.e. 19.07.2019.
The aforesaid S.D.M. shall appear before this Court on the next date at 10.15 sharp.
As the Certificate of Election has not been issued yet the same shall not be issued till the next date of listing.
The preliminary objection filed by Shri Pathak, learned counsel for the opposite parties shall be traced out and place on record.
Let the original records pertaining to the election petition on which the impugned orders have been passed be also placed before the Court on the next date.
Let a copy of this order be given to the learned counsel for the parties today itself on payment of usual charges."
In pursuance to the order dated 17.07.2019 the S.D.M. appeared before this Court on 19.07.2019.
In pursuance to the aforesaid a recounting was held and an order was passed by the S.D.M. on 08.07.2019 which is on record but by this order he has not disposed of the election petition instead had posted the matter on 15.07.2019 for further proceedings with the observations that the Certificate of Election was not being issued on account of pendency of Writ Petition No. 18420(M/S) of 2018.
The contention of the learned counsel for the petitioner is that the impugned order is a cryptic order which does not satisfy any of the requirements of the law laid down by the Supreme Court and this Court regarding recounting of votes and therebore being patently erroneous is liable to be struck down.
Shri Sharad Pathak, learned counsel for the opposite party no. 5 has raised a preliminary objection about the maintainability of this writ petition against impugned order on the ground that a revision lies against such an order under Section 12-C(6) of the U.P. Panchayat Raj Act, 1947 (hereinafter referred to as ''the Act, 1947').
As regards the preliminary objection of Shri Pathak this issue has been settled by a Division Bench of this Court in the case of Mohd. Mustafa Vs. Up Ziladhikari, Phoolpur, Azamgarh and Ors. reported in 2007 (103) RD 282. The said decision has also been followed recently by this very Bench while rendering a judgment on 12.04.2019 in Writ Petition No. 9609(M/S) of 2018. According to the said decision an order of recount being an interlocutory order which does not dispose of the proceedings finally no revision lies under Section 12-C(6) of the Act, 1947. The preliminary objection of Shri Pathak is, thus, rejected.
The fact that while passing the impugned order the Prescribed Authority has mentioned that he has accepted the election petition does not make any difference to the application of law as referred hereinabove for the reason the fact of the matter is that the election petition has not be disposed of in terms of the relevant rules and the law as already discussed in the aforesaid decisions. In fact, the use of the words ''election petition is accepted' itself is erroneous and such words should not be used, as, has been held recently by this very Bench vide a judgment dated 05.07.2019 rendered in Writ Petition No. 18344(M/S) of 2019. Whenever an order of recount is passed the election petition should be kept pending and after a result of the recounting final orders are required to be passed based thereon.
As regards the merits of the controversy six issues were framed by the Prescribed Authority which are mentioned in the impugned order. Issue no. 5 was as to whether recounting can be ordered ? The findings of the Prescribed Authority with regard to the Issues No. 1 to 6 are as under:-
"okn foUnq la[;k 01 ds lEcU/k esa ;kph }kjk pquko ;kfpdk esa ernku ds lEcU/k esa dksbZ vkjksi izR;kjksi ugha yxk;k x;k gS] ernku 'kq} :i ls lEiUu gqvk gSA erx.kuk ds lEcU/k vkjksi yxk;k x;k gS] ftldk leqfpr mRrj izfri{kh }kjk ugha fn;k x;k gS] bl izdkj okn foUnq la[;k 01 ;kph ds i{k esa fuLrkfjr dh tkrh gSA okn foUnq la[;k 02 o 03 o 04 ds lEcU/k esa dgk x;k gS] fd erx.kuk dehZ }kjk eri=ksa esa gsjkQsjh dh x;h gS] tSlk fd ernku ds fnu nksuksa cwFk ij dqy feykdj 950 er iMs+ FksA ;g ihBklhu vf/kdkjh }kjk ernku vfHkdrkZ dks fyf[kr fn;k x;k Fkk] ysfdu erx.kuk ds le; 923 er dh fxurh dh x;h ftlesa 27 erksa dh gsjkQsjh dj nh x;h] o izfri{kh la[;k 01 izHkko'kkyh o iwoZ iz/kku gksus ds dkj.k erx.kuk dehZ o lgk;d fuokZpu vf/kdkjh dh feyh Hkxr ls xyr rjhds ls izfri{kh la[;k 01 dks ftrk;k x;k FkkA bl izdkj okn foUnq la[;k 02 o 03 o 04 ;kph ds i{k esa fu.khZr fd;k tkrk gSA okn foUnq la[;k 05 ds lEcU/k esa dguk gS] fd ;fn erx.kuk dehZ o lgk;d fuokZpu vf/kdkjh }kjk ?kksj vfu;ferrk ,oa /kka/kyh dh x;h gSA ftlds dkj.k ;kph }kjk iqueZx.kuk djk;s tkus dk izkFkZuk&i= lgk;d fuokZpu vf/kdkjh }kjk Vky eVksy o vulquh dj fn;k tkrk gSA rks blls Li"V gksrk gS] D;ksa fd ek= 01 gh er dk vUrj FkkA tcfd 16 er voS/k ?kksf"kr fd;s x;s gS] tks thr gkj ds vUrj ls dbZ xquk vf/kd gSA bl izdkj okn foUnq la[;k 05 ;kph ds i{k esa fuf.kZr dh tkrh gSA okn foUnq la[;k 06 ds lEcU/k esa dguk gS] fd ;kph }kjk U;k;ky; esa mifLFkr gksdj 50 :i;s Vªstjh pkyku o e; 'kiFk&i= ,oa erx.kuk ifj.kke ?kksf"kr gksus ds i'pkr~ gh fe;kn ds vUnj izLrqr fd;k gsA bl izdkj okn foUnq la[;k 06 oknh ds i{k esa fu.khZr dh tkrh gSA"
On a bare perusal of the findings recorded by the Prescribed Authority it is evident that there is absolutely no discussion of the evidence adduced by the parties. The findings are absolutely cryptic and do not satisfy the requirement of the law laid down by the Supreme Court and this Court with regard to an order of recounting, as, laid down by the Supreme Court in the case of Kattinokkula Murali Krishna Vs. Veeramalla Koteswara Rao reported in (2010) 1 SCC 466 and the decision of the Full Bench of this Court in the case of Ram Adhar Vs. District Judge, Ghazipur reported in 1985 All Law Journal 85. The legal position is very well settled that an order of recount is not to be passed in a casual manner. It requires the satisfaction of certain pre-requisites which are (i) the election petition seeking recount of the ballot papers must contain an adequate statement of all the material facts on which the allegations of irregularities or illegalities in recounting are found 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.
In the aforesaid decision of the Supreme Court it was also held that the settled position of law is that the justification of an order for examination of ballot papers and recount of vote is not to be derived from hind sight by the result of the recount of the votes. On the contrary the justification for an order of recount of votes should be provided by the material placed by an election petitioner on the threshold before an order for recount of votes is actually made. The reason for this salutatory rule is that the preservation of secrecy of the ballot is a sacrosanct principle. In this regard the court held as under:-
"13. Thus, the settled position of law is that the justification for an order for examination of ballot papers and re-count of votes is not to be derived from hindsight and by the result of the re-count of votes. On the contrary, the justification for an order of re-count of votes should be provided by the material placed by an election petitioner on the threshold before an order for re-count of votes is actually made. The reason for this salutary rule is that the preservation of the secrecy of the ballot is a sacrosanct principle which cannot be lightly or hastily broken unless there is prima facie genuine need for it. The right of a defeated candidate to assail the validity of an election result and seek re-counting of votes has to be subject to the basic principle that the secrecy of the ballot is sacrosanct in a democracy and hence unless the affected candidate is able to allege and substantiate in acceptable measure by means of evidence that a prima facie case of a high degree of probability existed for the re-count of votes being ordered by the Election Tribunal in the interests of justice, a Tribunal or court should not order the re-count of votes."
It is also the settled law that the degree of proof required for ordering a recount of votes is of a very high standard and is required to be discharged by the Election Petitioner. Reference may be made in this regard to the decision in the case of in the case of M. Chinnasamy v. K.C. Palanisamy & Others reported in (2004) 6 SCC 341, Mahendra Pratap vs. Krishna Pal and others reported in (2003) 1 SCC 390 and M. Chinnasamy vs. K.C. Palanisamy & others reported in (2004) 10 SCC 479.
As would be evident from a bare reading of the findings of the Prescribed Authority there is no discussion as to whether the election petition contained an adequate statements of all the material facts on which the allegations of irregularity or illegalities in recounting were founded nor is there any prima facie satisfaction based on the evidence adduced in support of the allegations, by the Tribunal, that in order to decide the dispute and to do complete and factual justice between the parties such an order is imperatively necessary.
When confronted with the legal position as referred hereinabove, though, Shri Pathak made a valiant attempt to defend the interest of his client but could not satisfy the Court to change its view.
As regards the contention of Shri Pathak that in the recounting which has been held both the candidates have secured equal votes, therefore, lottery system was followed as per the prescribed rules which went in favour of his client i.e. opposite party no. 5 and the petitioner duly participated in the recounting, this aspect is not relevant so far as the validity of the order impugned in the writ petition is concerned which is dated 27.06.2019 for the reason that the validity of such an order is not to be considered by the result of the recounting as has already been held by the Supreme Court in the case of Kattinokkula Murali Krishna (supra).
Further more, the contention of Shri Pathak that even if this Court is inclined to set-aside the order but a fresh order of recounting is passed and if in that event again the votes are found to be equal then lottery system should not be resorted again, instead, the earlier result of the lottery should be accepted, is also not acceptable as whatever has happened consequent to the impugned order, which is being quashed, can not be sustained in any manner and any such exercise will have to be undertaken afresh.
In view of the above, not only this writ petition is maintainable against the order of recounting but the impugned order is also liable to be set-aside. Accordingly, it is set-aside. Consequently, the proceedings before the Prescribe Authority shall stand revived and the Prescribed Authority shall take fresh decision in the matter keeping in mind the observations made hereinabove and the law discussed.
Copies of the relevant judgments referred hereinabove shall be provided by the learned counsel for the parties to the Prescribed Authority.
As the contesting parties are present before this Court they shall appear before the Prescribed Authority on 02.12.2019 whereupon the Prescribed Authority shall conclude the hearing either on 02.12.2019 and if this is not possible for some reason positively by 07.12.2019. He shall thereafter render his judgment positively by 24.12.2019.
As there may be other parties in the election petition, although, most of them would be proforma parties the Prescribed Authority shall issue notice to them for appearing on 02.12.2019 as soon as this judgment is served upon him.
Shri Jagdish Prasad Maurya, learned Additional Chief Standing Counsel shall sent e-copy of this judgment to the Prescribe Authority at the earliest.
The parties are also at liberty to inform the Prescribe Authority accordingly and also the other parties and submit proof thereof before the Prescribe Authority.
With the aforesaid observations/directions, the writ petition is allowed without prejudice to the rights of the parties on the merits of the issues before the Prescribe Authority.
Order Date :- 14.11.2019
R.K.P. (Rajan Roy,J.)