Allahabad High Court
Panch Lal vs State Of U.P. And Ors. on 22 December, 2004
Equivalent citations: 2005(1)AWC853
Author: Ashok Bhushan
Bench: Ashok Bhushan
JUDGMENT Ashok Bhushan, J.
1. Heard Sri Ashok Khare senior advocate assisted by Sri V, K. Jaiswal advocate for the petitioner and Sri Vidya Sagar appearing for the contesting respondent No. 6.
2. By this writ petition the petitioner has prayed for quashing the order dated 8th October, 2004 passed by the Prescribed Authority Sub-Divisional Officer, Mirzapur directing for recount of the votes in an election petition filed by the respondent No. 6 under Section 12C of the U, P. Panchayat Raj Act, 1947 (hereinafter referred as "the Act") praying for setting aside the election of the petitioner as Gram Pradhan of village Aniruddh Purab Patti.
3. Brief facts pf the. case necessary for deciding this writ petition are :
Election for the office of the Pradhan of Gaon Sabha Aniruddh Purab Patti was held on 14.6.2000 In which the petitioner and the respondents No. 6 to 25 contested. Count of votes started on 24.6.2000. The returning officer declared the petitioner as elected candidate on 25.6.2000. Immediately after issuing the certificate in favour of the petitioner, the returning officer cancelled the said certificate and declared the respondent No. 6 as Pradhan of the Gaon Sabha by taking into consideration 17 votes of the office of Pradhan which were found in the ballot boxes of Zila Panchayat for which poll was held simultaneously. The petitioner filed a Writ Petition No. 28593 of 2000, Panch Lal v. State Election Commission, challenging the declaration in favour of the respondent No. 6. The writ petition was allowed by the Division Bench of this Court on 7.9.2000. The Division Bench while allowing the writ petition took the view that after declaration of the result the returning officer had become functus officio and he ceased to have any jurisdiction to recount the ballot papers and declare any other person to have been elected. Following was held by the Division Bench in the said judgment :
"We have heard learned counsel for the parties and have also perused the affidavits. The main question which required consideration hereinafter counting of votes and declaration of result a certificate has been issued in favour of a person is it open to the returning officer to recount the votes and issue certificate in favour of another person. This question was considered by us in Civil Misc. Writ Petition No, 29629 of 2000, Shambhu Singh v. State Election Commission and Ors., which was decided on 8.8.2000. It was held that the returning officer becomes functus officio after declaration of the result of the election by him and ceases to have any jurisdiction to recount the ballot papers and declare any other person to have been reelected as Pradhan and to issue another certificate. We are, therefore, of the opinion that the returning officer has exceeded his jurisdiction in recounting ballot papers and making a declaration that Jila Jeet respondent No. 4 had been elected as Pradhan and further directing the cancellation of the certificate issued in favour of the petitioner on 25.8.2000.
The writ petition accordingly succeeds and is hereby allowed. .It is directed that the petitioner Panch Lal shall be treated as the elected Pradhan of the Gaon Panchayat. It is made clear that we have not gone into the merits of the claim of the parties regarding the number of votes secured by them and it will be open to Jila Jeet respondent No. 4 to file an election petition In accordance with law for challenging the election of the writ petitioner."
4. Special leave petition filed by the respondent No. 6 against the said judgment was also dismissed. The respondent No. 6 filed an Election Petition No. 23 of 2000 praying for setting aside the election of the petitioner and seeking a declaration in favour of the election petitioner. Copy of election petition has been filed as Annexure-2 to the writ petition. The parties led evidence, on behalf of the election-petitioner, petitioner (respondent No. 6) and Lalmani appeared as P.W. 1 and P.W. 2 and on behalf of the respondent, he himself (petitioner) and Vijay Kumar appeared as D.W. 1 and D.W. 2. The Prescribed Authority by an order dated 8.10.2004 directed for recount of the votes. This writ petition has been filed challenging the order dated 8.10.2004 directing recount of the votes. This Court passed an interim order on 25.10.2004 that recount may take place but no final order shall be passed by the Prescribed Authority. Recounting has been held on 25.10.2004. The proceedings of the recount has been broughtion the record as Annexure-C.A. 3 to the counter-affidavit.
5. Sri Ashok Khare learned senior counsel appearing for the petitioner raised following submissions in support of the writ petition :
(1) There was no pleading and prayer of recount in the election petition hence the Prescribed Authority committed error in directing for recount of the votes.
(2) That 17 ballot papers in which votes were cast for the office of Pradhan were not found in the ballot boxes of Pradhan hence they were not valid votes and are liable to be cancelled in accordance with the Rule 93 of the U. P. Panchayat Raj (Election of Members, Pradhan and Up Pradhan) Rules, 1994. The said 17 votes could not have been directed to be counted.
(3) That no finding has been recorded by the Prescribed Authority as to whether 17 ballots subsequently found has been kept separately or mixed up with remaining ballots. There was no justification for directing recount of all ballots since no ground for recount of remaining ballots was either taken or proved before the Tribunal.
(4) That the result of recount cannot be taken into consideration for justifying the order of recount when the order of recount had already been challenged in this writ petition.
6. Learned counsel for the petitioner placed reliance on the Judgment of the Apex Court in Shankar Babji Savant v. Sakharam Vithoba Salunkhe and Ors., AIR 1965 SC 1424 ; V, S. Achuthanandan v. P, J. Francis and Anr., 20O1 (4) AWC 2.9 (SC) (NOC) : (2001) 3 SCC 81.
7. Sri Vidya Sagar learned counsel for the respondent No. 6 refuting the submissions of counsel for the petitioner contended that the Tribunal was fully justified in directing for recount. He contended that the ballot boxes for the Pradhan as well as for the member of the Zila Panchayat were kept in the same room meant for polling and 17 ballots were duly cast by the voters and they were also liable to be counted in counting. He contended that in view of the final result of recounting in which respondent No. 6 has secured 240 votes and the petitioner secured only 235 votes, the respondent No. 6 is entitled to be declared elected even if the votes received by the petitioner-respondent No. 6 out of 17 ballots subsequently found, are ignored. He further contended that the recounting having already taken place in which the petitioner had participated, he is not entitled to challenge the order of recount. Learned counsel has also placed reliance on the judgment in Basarat v. Sub Divisional Officer, Sambhal, District Moradabad and Ors., 1992 AWC 1199.
8. I have considered the submissions raised by counsel for both the parties and perused the record.
9. Before considering the other submissions it is necessary to consider the objection raised by the counsel for the respondent No. 6 that the petitioner having participated in the recount, he cannot challenge the order for recount. Reliance has been placed by the counsel on the judgment of this Court in Basarat's case (supra). This writ petition challenging the order of recount dated 8.10.2004 was filed in this Court on 15.10.2004. This Court passed an order on 25.10.2004 directing that the recount fixed for 25.10.2004 may take place and result be prepared, however, no final order shall be passed by the Prescribed Authority. The fact of filing of the writ petition by the petitioner on 15.10.2004 challenging the order of recount clearly proves that the petitioner did not acquiesce to the order of recount and immediately came to this Court challenging the order of recount. In Basarat's case (supra) the order directing for recount was passed on 11.5.1990 and in pursuance of which order reacount of ballot papers was done, but before the process for recount was completed the Prescribed Authority summoned the counter foils of ballot papers vide Order dated 6.7.1990. The writ petition was filed challenging the Order dated 6.7.1990 as well as the Order dated 11.5.1990. This Court in the above background of the facts made following observations :
"..........After having submitted to the order of recounting, passed by respondent No. 1 on 11th May, 1990 and having participated in the recounting, the petitioner cannot now challenge the order of recounting on the ground that subsequent order unfavourable to him has been passed by respondent No. 1. He having acquiesced In the order dated 11th May, 1990 and having participated in the recounting of ballot papers, cannot challenge the order dated llth May, 1990 now."
10. The above decision is not applicable in the present case. In the present case, the petitioner has never acquiesced to the order of recount rather he immediately challenged the order. The objections raised by the counsel for the respondent cannot be accepted.
11. The first submission of the counsel for the petitioner is that there is no pleading or prayer in the Election Petition seeking recount. Copy of the election petition has been filed as Annexure-2 to the writ petition. There is specific prayer in paragraph 19 of the Election Petition for recount of the votes and for declaring the election petitioner as elected. In paragraph 7 of the election petition the petitioner has given details of votes received by each candidate and it has been stated that in the ballot boxes of Pradhan 1688 valid votes and 118 invalid votes total 1806 votes have been found. It is stated in the said paragraph by the petitioner that the number of votes used at the time of polling by the voters were much more. In paragraph 8 it has been stated that the application was given by the petitioner to the returning officer that some ballot papers have gone in the ballot boxes of Zila Panchayat and B.D.C. hence the declaration be made of the returned candidate after looking to the said ballots. It is stated in paragraph 8 that the returning officer directed the assistant returning officer to look into the application and submit report. In paragraph 9 it has been stated that before completion of counting of Zila Panchayat and Kshetra Panchayat the petitioner was declared elected. In paragraph 10 of the Election Petition it has been stated that the .assistant returning officer submitted report that after examining the ballot boxes of Zila Panchaya t and Kshetra Panchayat regarding booths No. 39, 40, 41 and 42 it has transpired that 17 ballot papers of the office of Pradhan have been put in the said ballot boxes by mistake and out of the said 17 ballots one vote has been received by the petitioner and four votes have been received by the respondent No. 4, apart from other votes receive by other candidates. In paragraph 11 it has been stated that after .receiving the aforesaid report from the assistant returning officer the returning officer cancelled the declaration granted in favour of the petitioner. In paragraph 12 it has been stated that after the count of votes declaration was made in favour of the respondent No. 6 and he was administered oath. It has been stated in paragraph 18 that the petitioner cannot be declared elected on the basis of the entire ballots and it is the respondent No. 6 who has secured the maximum votes.
12. As noted above, the Division Bench of this Court has set aside the declaration granted in favour of the respondent No. 6 on the ground that the returning officer after declaring the petitioner as elected had became functus officio and could not have issued other declaration. The Division Bench, however, observed in the said judgment that the Court has not gone into the merits of the claim of the parties regarding number of votes secured by them and it will be open to Jila Jeet to file an election petition in accordance with law for challenging the election of the writ petitioner. The details of 17 ballots which were found in the ballot boxes of Zila Panchayat and B.D.C. were mentioned in the report of the assistant returning officer and were taken into consideration by the returning officer and treating the said votes as valid votes the returning officer has modified the result of the election as declared by him earlier by adding seventeen votes also in the tally of votes of each candidate. The averments of the election petition as noted above, clearly give sufficient materials with regard to seventeen ballots as noted above and the submission of the petitioner that there was no pleading in the Election Petition for recount, cannot be accepted.
13. The next submission of the counsel for the petitioner is that seventeen ballots having been not found in the ballot boxes of the office of Pradhan, could not have been directed to be counted and the said seventeen votes were not valid votes. Learned counsel for the petitioner has referred to the U. P. Panchayat Raj (Election of Members, Pradhan and Up Pradhan) Rules. 1994. Referring to Rule 88 it has been contended that unless the ballot paper is not inserted in the ballot box the ballot paper is not valid. Much emphasis has been laid on Rule 93 of the Rules which is quoted below ;
" 93. Ballot papers found outside ballot boxes.......... Of any ballot paper which has been issued to an elector has not been inserted by him into the ballot box and is found anywhere in or near the polling place, it shall be cancelled and dealt with in a manner similar to that laid down in Rule 91."
14. On the strength of Rule 93 the counsel for the petitioner contended that those 17 ballots which were found in the ballot boxes of the Zila Panchayat were liable to be cancelled. Rule 93 refers to Rule 91 which is extracted below :
"91. Return of ballot papers by an elector........... (1) If an elector decides not to use a ballot paper after he has obtained the same, he shall return it to the Matdan Adhyaksh.
(2) Every such ballot paper shall be marked as cancelled and kept in a cover set apart for the purpose and the M a t d a n Adhyaksh shall keep a record of all such ballot papers."
15. According to Rule 91 if an elector after obtaining a ballot decide not to use the ballot paper he shall return it to Matdan Adhyaksh. Rule 91 (2) further provides that every such ballot papers shall be marked as cancelled and kept in a cover set apart for the purpose. Rule 93 has to be read along with the entire scheme of polling as contained in Chapter III of the rules. Rule 93 provides that if any ballot paper which has been issued to an elector has not been inserted by him into the ballot box and is found anywhere in or near the polling place. It shall be cancelled and dealt with in a manner similar to that laid down in Rule 91. Under Rule 91 as extracted above, the ballot paper returned by an elector shall be cancelled by the Matdan Adhyaksh and kept in a separate cover. Cancellation of ballot paper contemplated under Rule 93 is cancellation of ballot paper by Matdan Adhyaksh, i.e., polling officer and the ballot papers cancelled under Rule 93 is to be kept in a separate cover. It is not the case of any of the parties that 17 ballots papers above mentioned were cancelled by the polling officer or, were kept in separate cover. Rule 93 thus confines its operation to those ballot papers which were found anywhere in or near the polling place and cancelled by the polling officer. In the present case 17 ballot papers were found in the ballot boxes which were kept for Zila Panchayat and B.D.C. it as come on the record that all the ballot boxes for Pradhan, Zila Panchayat and B.D.C. were kept in the same room and it was by mistake that some ballot papers of Pradhan were inserted in the ballot boxes meant for member of the Zila Panchayat or B.D.C. Rule 93 strictly is not applicable in the facts of the present case. Rule 93 mandates polling officer to cancel the ballot papers found anywhere near the polling place, i.e., at the time of polling in the present case the ballot papers have not been cancelled under Rule 93 rather they have been taken out from the ballot boxes. The submission of the petitioner on the strength of Rule 93 thus cannot be accepted.
16. Learned counsel for the petitioner relying on the Apex Court judgment in Shankar Babji Savant v. Sakharam Vithoba Salunkhe and Ors. case (supra) submitted that the Apex Court in the said judgment had held 19 ballot papers as not valid votes since they were not inserted in the ballot boxes. In Shankar Babji Savant v. Sakharam Vithoba Salunkhe and Ors.' case (supra) 19 voters went to cast their votes, their identity was challenged, the polling officer and the presiding officer issued ballots to those voters but the said 19 ballot papers were not inserted in ballot box but were kept in separate envelope. The Apex Court held that they were not valid votes since they never went into the ballot box. The decision of the returning officer not counting the said ballot papers was upheld by the Apex Court. In the present case 17 ballot papers were not kept in any separate envelope but were inserted in the ballot box. which were kept in the same room for members of the Zila Panchayat and B.D.C. The election for Pradhan, member Zila Panchayat and member B.D.C. was held simultaneously and some voters were issued ballots for all the offices and they had to insert the ballot papers in different ballot boxes. In the present case some voters Instead of putting the ballot papers in the ballot box meant for Pradhan put in the ballot box which was meant for member Zila Panchayat.
17. The Prescribed Authority in the impugned order has observed that 17 ballot papers which were found from the above ballot boxes were not counted in the presence of all the candidates hence the amended result prepared by the returning officer declaring respondent No. 6 as elected, cannot be accepted as it is. The Prescribed Authority further observed that 17 ballot papers must not have been kept separately hence it is necessary to count all the ballots papers. The Prescribed Authority has further observed that at the time of counting of ballots validity of the ballots has to be specifically taken care. The Prescribed Authority further directed that serial number of ballot papers and signatures of the Presiding Officer be necessarily checked to clear any doubt that the ballot papers have been subsequently mixed from out side. The case of election petitioner before the Tribunal was that the above mentioned 17 ballot papers were also required to be counted and taken into consideration and by not counting the said 17 ballot papers the returning officer acted contrary to the rules. The election Tribunal had every jurisdiction to consider the issue while considering the Election Petition, the question of wrongful refusal of votes at the time of polling as well as the act of the returning officer while refusing to count any ballot or any decision of the returning officer regarding validity or invalidity of the votes. In the order of recount the Prescribed Authority has left it open to both the parties to raise objections regarding validity of the votes at the time of recount.
18. The election Tribunal has also observed that looking to the little education of voter who were casting, votes for the office of Pradhan it was not improbability that Instead of inserting ballots in the ballot boxes kept for the office of Pradhan it was inserted in other ballot box kept for member of Zila Panchayat. In the present case since the voters having inserted the ballot papers in the ballot boxes though the ballot boxes were for the office of member of Zila Panchayat. under mistake hence the present case is clearly distinguishable from the facts of the judgment of the Apex Court in Shankar Babji Savant v. Sakharam Vithoba Salunkhe and Ors.' case (supra) where admittedly 17 ballots papers were not inserted in the ballot box and were kept in separate envelope. The second submission of the petitioner thus also cannot be accepted.
19. The third submission of the counsel for the petitioner Is that no finding has been recorded by the Prescribed Authority that seventeen ballot papers which were subsequently found in other ballot boxes have been kept separately or mixed up. It has further been contended that no grounds have been made out for recount of the entire ballots. From the facts which have been brought on record it is clear that after declaration of the result of the petitioner on 25.6.2000 on the same day seventeen ballot papers found from other ballot boxes, were taken into consideration and added in the tally of votes of all the candidates and the amended result was prepared declaring the respondent No. 6 as elected. The Prescribed Authority has observed in the order that in view of the fact that seventeen ballot papers were taken into consideration and amended result was prepared, those seventeen votes must not have been kept separately. The order of recount has been directed on the premise that seventeen ballot papers have not been kept separately. From the facts brought on the record specially the fact that seventeen ballot papers were counted for in the tally of votes of all the candidates including the petitioner and respondent No. 4 and the amended result was prepared, the said ballot papers were mixed with other ballots of Pradhan and no error has been committed by the Prescribed Authority in directing recount of all the ballot papers. The third submission of the counsel for the petitioner thus also cannot be accepted.
20. The last submission of the counsel for the petitioner relying on the judgment of the Apex Court in V. S. Achuthanandan v. P. J. Francis and Anr.' case (supra), is that if the validity of order of recount, is brought in issue the facts revealed by recount cannot be taken into consideration. The petitioner having challenged the order of recount, the validity of order of recount of the ballots is to be judged and the result of recount cannot be looked into for sustaining the order of recount. The Apex Court in V. S. Achuthanandan v. P. J. Francis and Anr.' case (supra) has laid down the above proposition in paragraph 14 which is being reproduced below :
"14. Once a recount is validly ordered the statistic revealed by the recount shall be available to be used for deciding the election dispute. However, if the validity of an order passed by the High Court permitting inspection of ballot papers and directing a recount is brought in issue before the Supreme Court, the facts revealed by recount cannot be relied upon by the election petitioner to support the prayer and sustain the order for recount if the pleadings and material available on record anterior to actual recount did not justify grant of the prayer for inspection and recount."
21. In view, of forgoing discussions no grounds have been made out to interfere with the Order of recount dated 8th October, 2004 passed by the Prescribed Authority by this Court under Article 226 of the Constitution of India.
22. The writ petition lacks merit and is ,dismissed.