Allahabad High Court
Smt. Sajida vs Sub Divisional Magistrate Kairana ... on 11 January, 2023
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 05.01.2023 Delivered on 11.01.2023 Court No. - 34 Case :- WRIT - C No. - 294 of 2023 Petitioner :- Smt. Sajida Respondent :- Sub Divisional Magistrate Kairana District Shamli/Prescribed Authority And 15 Others Counsel for Petitioner :- Nipun Singh,Sumit Suri Counsel for Respondent :- C.S.C.,Vineet Singh Parmar Hon'ble Saurabh Shyam Shamshery,J.
1. Petitioner before this Court is a returned candidate (Village Pradhan of Village Panchayat Pawatikalan, Kairana, District Shamli) whereas contesting Respondent-2/ Election Petitioner (Smt. Anita) is runner up candidate and the margin of victory was only three votes.
2. The election petitioner (Respondent-2) filed an election petition under Section 12-C of U.P. Panchayat Raj Act, 1947 (hereinafter referred to as "Act, 1947") wherein after exchange of pleadings following five issues were framed:
"1. क्या पेटीशनर व अन्य प्रतिवादीगण ने ग्राम पावटीकलां से प्रधान पद हेतु विधि अनुसार आवेदन प्रस्तुत किया था यदि ना तो प्रभाव क्या?
2. मतगणना के दौरान वादी के एजेन्टों द्वारा क्या-2 आपत्ति उठायी गयी। क्या इन्हे प्रतिवादी सं. 15 व 16 द्वारा अस्वीकार किया गया यदि हाँ तो प्रभाव?
3. उक्त याचिका में किये गये कथनों के अनुसार मतगणना विधि व नियम के अनुसार नहीं की गयी यदि हां तो प्रभाव?
4. क्या याचिका में किये गये कथन के अनुसार पुन: मतगणना किया जाना है?
5. क्या वादी अन्य कोई अनुतोष पाने का हकदार है यदि हां तो क्या?"
3. Sub-Divisional Magistrate, Kairana after considering material on record by impugned order dated 23.12.2022 accepted election petition and disposed of same with direction of recounting. Petitioner has approached this Court directly without availing alternative remedy provided under Section 12-C(6) of Act, 1947.
4. A preliminary objection was raised by Sri Bhupendra Kumar Tripathi, Advocate holding brief of Sri Vineet Singh Parmar, learned counsel appearing for Respondent-2, with regard to maintainability of writ petition and he placed reliance on a Constitution Bench decision of Supreme Court in Hari Vishnu Kamath vs. Ahmad Ishaque, AIR 1955 SC 233 and relevant para 23 is reproduced as under:
"23. It may therefore be taken as settled that a writ of certiorari could be issued to correct an error of law. But it is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record. The real difficulty with reference to this matter, however, is not so much in the statement of the principle as in its application to the facts of a particular case. When does an error cease to be mere error, and become an error apparent on the face of the record? Learned Counsel on either side were unable to suggest any clear-cut rule by which, the boundary between the two classes of errors could be demarcated."
5. In reply to preliminary objection Sri Anurag Khanna, learned Senior Advocate assisted by Sri Nipun Singh and Sri Raghav Dev Garg, learned counsel for petitioner, placed reliance on a judgment passed by Division Bench of this Court in Mohd. Mustafa vs. U.P. Ziladhikari, Phoolpur, Azamgarh and others, 2007(7) ADJ 1 (DB) and he referred the answers to the question referred by learned Single Judge. Relevant para 27 is mentioned hereinafter:
27. We answer the questions referred to by the learned Single Judge as follows:
(I) A revision under Section 12-C(6) of the Act shall lie only against a final order passed by the Prescribed Authority deciding the election application preferred under Section 12-C(1) and not against any interlocutory order or order of recount of votes by the Prescribed Authority.
(II) The judgment of the learned Single Judge in the case of Abrar v. State of U.P. and Ors. (2004) 5 AWC 4088 does not lay down the law correctly and is, therefore, overruled to the extent of the question of maintainability of a revision petition, as indicated hereinabove.
(III) As a natural corollary to the above, we also hold that a writ petition would be maintainable against an order of recount passed by the Prescribed Authority while proceeding in an election application under Section 12-C of the U.P. Panchayat Raj Act, 1947."
6. Learned Senior Advocate also referred that facts of the matter under reference are similar to present case wherein election petition was finally disposed of with direction of recounting of votes and as such writ petition is maintainable against order of recounting passed by Sub-Divisional Magistrate, Kairana.
7. In order to consider the preliminary objection, I have carefully perused the judgment passed by Division Bench in Mohd. Mustafa (supra) as well as Abrar vs. State of U.P. and others, 2004(5) AWC 4088 and found that facts of present case are similar, therefore, preliminary objection is rejected by holding that present writ petition is maintainable.
8. Sri Anurag Khanna, learned Senior Advocate further submits that impugned order is ex facie illegal and arbitrary and based on non-application of mind. Sub-Divisional Magistrate has committed manifest error of law by passing order of recounting of votes particularly when no details or any particular with regard to allegations as levelled in plaint has been provided by election petitioner. The assertion made in election petition was absolutely vague, baseless, bald and scandalous and lacking material facts and particulars which are essential for seeking any relief in election petition. Learned Senior Advocate placed reliance on Full Bench judgment of this Court in Ram Adhar Singh vs. District Judge and others, 1985 AWC 246 that before an authority hearing election petition under Act, 1947 can be permitted to look into or to direct inspection of ballot papers except when 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."
9. Learned Senior Advocate also placed reliance on Supreme Court's judgment in Arikala Narasa Reddy vs. Venkata Ram Reddy Reddygari and another (2014) 5 SCC 312; T.A. Ahammed Kabeer vs. A.A. Azeez (2003) 5 SCC 650; Satyanarain Dudhani vs. Uday Kumar Singh and others 1993 Supp. (2) SCC 82; and, M.R. Gopalalkrishnan vs. Thachady Prabhakaran and others, 1995 Supp (2) SCC 101.
10. Per contra, learned counsel appearing for Respondent-2 has referred the findings on Issues No. 1, 2, 3, 4 and 5 that election petitioner has raised objection at the time of counting, however, she was ignored and during hearing of election petition Government Respondents have not come up with any explanation, why complaints made by election petitioner were rejected. Learned counsel further submits that returned candidate has made an assertion on affidavit that she has no objection for recounting.
11. I have heard learned counsel for parties and perused the material available on record as well as the judgments cited at Bar.
12. It is well settled that it is important to maintain secrecy of ballot which is sacrosanct and it should not be allowed to be violated on frivolous, vague and indefinite allegations and before inspection is allowed, the allegations made against elected candidate must be clear and specific and must be supported by adequate statements of material facts (See, Bhabhi vs. Sheo Govind and others, AIR 1975 SC 2217 and Ram Sewak Yadav vs. Hussain Kamil Kidwai and others, AIR 1964 SC 1249). The discretion conferred on Courts should be not exercised in such a way so as to enable election petitioner to indulge in a roving enquiry in order to fish out materials for declaring election to be void.
13. Election petitioner has made a assertion in election petition that vote given in her favour were placed in the bundle of votes given in favour of returned candidate and during counting when election petitioner came to know that number of votes given in her favour are 990 and in favour of elected candidate are 993 and number of rejected votes are 157, she raised an objection and prayed for recounting but Election Officer has not paid attention. A further assertion has been made that bundle of 157 rejected votes included some valid votes also.
14. As referred above, the Sub-Divisional Magistrate framed five issues. During proceedings witnesses appears and they were cross-examined also. Sub-Divisional Magistrate while considering Issues No. 2 and 3 has accepted version of election petitioner that counting was not done properly as well as that no proper explanation was afforded by Election Officer, why request of recounting was denied. However, in the impugned order there is no evidence that there are a good ground for believing that there is mistake in counting. Sub-Divisional Magistrate has accepted bald statement of election petitioner which was not supported by any material or evidence and for reference relevant part of impugned order is mentioned hereinafter:
"इस कथन से यह स्पष्ट होता है कि याचिकाकर्ता व विपक्षी नं. 1 जो 3 वोट से निर्वाचित घोषित हुई सन्तुष्ट नहीं है तथा जवाबदावा के पैरा नं. 19 में मतगणना की समस्त प्रक्रिया नियमानुसार पूरी कराकर परिणाम घोषित किया। इस प्रकार प्रतिवादी नं. 1 का कथन स्वयं विरोधाभाषी है। एक तरफ मतगणना नियमानुसार न किये जाने का कथन किया है तथा दूसरी तरफ मतगणना सही होना बताया इसलिये प्रतिवादी नं. 1 का कथन विरोधाभाषी व संदिग्ध है तथा विपक्षी नं. 15 जो निर्वाचन अधिकारी था उसने अपने लिखित उत्तर में मतगणना सही होना बताया तथा परिणाम सही घोषित करने का कथन किया। किसी के द्वारा पुनः मतगणना के लिए कोई प्रार्थना पत्र नहीं दिया गया। पुनः मतगणना किये जाने हेतु प्रार्थना पत्र देने का कथन अस्वीकार किया गया है। लेकिन विपक्षी नं. 15 ने अपने जवाबदावे में किये गये कथन की पुष्टि न्यायालय में उपस्थित होकर नहीं की है जबकि विपक्षी नं. 15 को साक्ष्य देने का अवसर दिया गया इसलिये विपक्षी नं. 1 के द्वारा दिये गये लिखित कथन की पुष्टि न होने के कारण कथन सही मानने का आधार पर्याप्त नहीं है।
विपक्षी नं 1 ने साक्ष्य में शपथ पत्र दिया तथा यह कथन किया कि मतगणना के समय वह उपस्थित नहीं थी उसका अभिकर्ता उसका पति डी0डब्लू0 2 उपस्थित था तथा विपक्षी नं. 1 ने अपनी जिरह में यह भी कथन किया कि पुनः मतगणना किये जाने में मुझे कोई आपत्ति नहीं है।"
15. I have carefully perused the statements of witnesses recorded before Sub-Divisional Magistrate. Petitioner has not mentioned in categorical terms that she raised any objection during counting including the prayer to recount on specific ground and that her husband was not present at counting centre though in later part of cross-examination she referred about complaint that her polling agent has communicated her that some votes were wrongly rejected. Therefore, there is no specific averment with regard to number of votes which have been declared wrongly invalid and could materially affected the election. In this regard following paragraph of judgment passed by Supreme Court in M.R. Gopalalkrishnan (supra) would be relevant:
"20. We now come to the third ground advanced by the learned counsel for the appellant that invalid votes were counted in favour of the returned candidate respondent No. 1 and that out of the total rejected votes of 1375, quite a large number of valid votes in favour of the appellant were rejected, which materially affected the result of the election. Learned counsel for the respondent submitted that the appellant has not set forth the concise statement of material fact with regard to the allegation of counting invalid votes in favour of the respondent No. 1 nor has given any particulars of such invalid votes which are alleged to have been counted in favour of respondent No. 1 He also submitted that similarly there are no particulars with regard to the rejection of valid votes in favour of the appellant nor number of such votes in order to support the allegation that such rejection of valid votes in favour of the appellant materially affected the result of the election. In our opinion there is no substance in these submissions made by the learned counsel for the appellant. In fact the appellant has neither pleaded the details and the number of such invalid votes which were counted in favour of respondent No. 1 nor has given the particulars of the number of such valid votes in favour of die, appellant which were wrongfully rejected during the course of counting. This apart, the Returning Officer, Supervisors and other officials were also present in the counting hall throughout the process of counting and the observers also visited the counting hall, but neither the appellant nor any of his counting agents pointed out or objected either orally or in writing that invalid votes were counted in favour of the respondent No. 1 or valid votes in favour of the appellant were rejected. The evidence of the Returning Officer, PW 16 clearly goes to show that no such complaint was made by any one during the course of counting. In these facts and circumstances it is difficult to accept the allegations made by the appellant which seem to be only an after thought and without any evidence or material to support the same."
16. It is settled that order of recounting cannot be passed only for the sake of it and on the basis of vague allegation without specifying any particular irregularity in counting as well as how it would affect election result materially. In the present case in the body of election petition vague assertions have been made regarding illegal rejection of valid votes which are not substantiated either in examination of election petitioner or otherwise on the basis of record available. Parties have to take proper pleadings by adducing evidence that by particular irregularity of illegality result of election has been materially affected. There is no dispute to the settled legal proposition that as a rule relief not founded in pleadings should not be granted [See, Arikala Narasa Reddy (supra)].
17. In the present case, Sub-Divisional Magistrate has exercised its jurisdiction of recounting only on the basis of roving inquiry without substantial ground or evidence on record. Conclusions arrived by Sub-Divisional Magistrate are based on vague submissions and without any substantial material produced by the election petitioner, therefore, the order impugned suffers from illegality and liable to be set aside.
18. In the result, writ petition is allowed. Impugned order dated 23.12.2022 passed by Sub-Divisional Magistrate, Kairana, District Shamli, is hereby quashed.
Order Date :-11.01.2023 AK