Allahabad High Court
Sharmajeet vs State Of U.P. And 8 Others on 23 March, 2018
Author: B. Amit Sthalekar
Bench: B. Amit Sthalekar
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 6 RESERVED Case :- WRIT - C No. - 18643 of 2017 Petitioner :- Sharmajeet Respondent :- State Of U.P. And 8 Others Counsel for Petitioner :- Nirvikalp Pandey,Raghuvansh Misra Counsel for Respondent :- C.S.C.,A K Singh,Surendra Nath Tripathi Hon'ble B. Amit Sthalekar,J.
Heard Sri Raghuvansh Mishra, learned counsel for the petitioner, Sri Surendra Nath Tripathi learned counsel for the respondent no.3 and learned standing counsel for the respondents no. 1, 2,5,6,7,8 and 9.
The petitioner in the writ petition is seeking quashing of the order dated 20.4.2017 passed by the Sub Divisional Magistrate, Kasimabad, Ghazipur in Election petition no. T 20151429104203 (Phool Chand Vs Sharmajeet and others) whereby he has ordered for recounting of the votes and to submit the fresh results before the prescribed authority.
Briefly stated the facts of the case are that election for the post of Gram Pradhan of Village Kodai, Tehsil Sadar, Nyay Panchayat Singera Block Mardah was held on 5.12.2015. The petitioner along with respondents no. 3 and 4 contested the election, counting took place on 13.12.2015 and the results were declared on the same date. The petitioner secured the highest number of votes being 715 whereas the respondents no. 3 and 4 secured 707 and 155 votes respectively. On 29.12.2015, the respondent no.3 filed an election petition no. T20151429104203, Annexure-3 to the writ petition, before the Sub Divisional Magistrate, Kasimabad, District Ghazipur under Section 12-C of the U.P. Panchayat Raj Act, seeking a direction that all the original records with regard to the election in question be summoned and the papers be re-examined and recounting be ordered and thereafter, the respondent no.3 i.e. the election petitioner be declared as elected as the winning candidate.
The SDM, Kasimabad by his order dated 20.4.2017 after hearing the parties directed for recounting of votes and thereafter, the matter be placed before him. The submission of the learned counsel for the petitioner is that the election petition itself was filed on wholly vague allegations. Reference has been made to para 3 of the election petition in which it was stated that three booths, namely, booth no. 73, 74 and 75 were made available. In polling centre no. 73, 469 votes were cast, in centre no. 74, 635 votes were cast and in centre no. 75, 500 votes were cast; total 1604 votes were cast out of 2224 electorates. In para 4 of the election petition, it is stated that about 10 -11 votes were such on which clear seal on the election symbol of ''Anaj Osata Kishan' was marked but it was declared invalid only because thumb impression was there. Whereas in respect of opposite party no. 1 (i.e. the petitioner herein) similar votes were held to be valid and taken for purposes of recounting. It was also alleged that in favour of opposite party no.1,petitioner herein, such votes which had a seal on the election symbol ''Imli' as well as symbol ''Kanni' was accepted as valid and, therefore, there was favoritism shown in favour of the opposite party no.1.
In para 5 of the election petition, it was alleged that the respondent no.3 submitted a written complaint for recounting but the Returning Officer took the complaint but did not take any action and only kept assuring that he would look into the matter. But later on, the election was declared in favour of the petitioner showing that he had received 715 votes whereas the respondent no.3-election petitioner had secured 707 votes and 12 votes were declared to be invalid. It is stated in para 7 of the election petition that total 1604 votes were cast out of which 1577 were declared valid and 27 votes were invalid votes.
The petitioner filed objections to the election petition, copy of which has been filed as Annexure-4 to the writ petition wherein his case was that the counting of votes was carried out in the presence of the counting agents of the petitioner as well as the respondent no.3 and 4 and the ballots were prepared in bundles of 50 and the bundles of invalid ballot was prepared separately. During the counting of votes or preparing the bundles the counting agents of the election petitioner never raised any objection which shows that the election as well as the counting of votes was held in absolutely correct manner and till the declaration of the result, the respondent no.3 did not raise any objections nor submitted any written application or complaint or oral complaint to the Returning Officer. The respondent no.3 also did not submit any application for recounting of votes prior to the declaration of the result. It was stated that all the election symbols bore proper seal of the voters and, therefore, those ballots cannot be declared to be invalid.
The statement of respondent no.3 was recorded, copy of which has been filed as Annexure-5 to the writ petition in which he has stated that some ballots bearing the 'Anaj Osata Kisan' which was his election symbol were declared invalid because it bore smudged thumb impression but some ballots with regard to election symbol ''Imli' which was the election symbol of the petitioner herein was declared to be valid and when he noticed these irregularities, his counting agent one Sri Mansur Ahmad immediately submitted an application before the Returning Officer but the Returning Officer only kept assuring but did nothing in the matter. He as further stated that in centre no. 73, 469 votes were cast, in centre no. 74, 635 votes were cast and in centre no. 75, 500 votes were cast i.e. total of 1604 votes were cast out of total electorate of 2224. He also stated that an application pointing out irregularities was submitted by the counting agent of the respondent no.3 to the Returning Officer but he did nothing in the matter. In his cross examination, Annexure-5 to the writ petition, the respondent no.3 stated that the election was held on 5.12.2015 and he received 717 votes whereas the candidate declared elected i.e. petitioner herein, received 715 votes. He could not state how many voters were there on each booth and how many votes were cast. He further stated that on the counting table, he was informed that he had received 717 votes. His counting agent Mansoor Ahmad had also informed him that he had received 717 votes and that the petitioner had received 715 votes. The election was held in some school but he did not remember the name of the school. In his cross examination he further states that out of the 717 votes which was cast in his favour there was not a single invalid vote and that not a single ballot of the Anaj Osata Kisan had smudged thumb impression. So far as the invalid votes cast in favour of Sharmajeet, the petitioner is concerned, the respondent no.3 in his cross examination stated that there was thumb impression on about 10-12 ballots and that he was scrutinizing the votes cast in favour of Sharmajeet very carefully. The petitioner in his cross examination has also stated that total 1604 votes were cast. On booth no. 73, 469 votes were cast, on booth no. 74, 635 votes were cast and on booth no. 75, 500 votes were cast. He received total 715 votes whereas the respondent no.3 received 707 votes and the respondent no. 4 received 155 votes and 29 votes were declared invalid. He further stated that in respect of votes which carried thumb impressions and double impression these votes were declared invalid.
At the outset what is noticed from the election petition is that the respondent no.3 could not state exactly as to how many, i.e. whether 10 or 11 votes were declared invalid for bearing a smudged thumb impression on his election symbol ''Anaj Osata Kisan'. The number should either be 10 or 11. It cannot be 10-11. He further states that similar ballot cast in favour of the petitioner on his election symbol ''Imli' was held to be valid. How may such ballots were there he has not disclosed in the election petition which shows that the allegation is absolutely vague and has been made only for purposes of the election petition. He further states that he gave a written complaint to the Returning Officer in this regard. No date of the complaint has been mentioned and it has also not been stated as to whether this complaint was made before declaration of result or after the declaration of the result.
In para 7 of the election petition it is stated that 1577 valid votes were cast and 27 votes were declared invalid. Total 1604 votes out of which 715 votes were cast in favour of the election petitioner, 707 votes were cast in favour of the respondent no.3 and 155 votes were cast in favour of the respondent no.4. In para 5 of the election petition it is stated that the respondent no.3 gave an application in writing to the Returning Officer with regard to the irregularities in the election but in his statement the respondent no.3 has stated that it was his counting agent Mansoor Ahmad who gave the application. No date of the application has been mentioned. It has also not been declared as to whether this application was given prior to the declaration of the result or after the declaration of the result. Sri Mansoor in his statement, copy of which has been filed at page 59-A of the writ petition has stated that 12 votes were cast in favour of the respondent no.3 which were declared invalid but 10 such similar votes bearing thumb impression on the election symbol of the petitioner were declared to be valid and that large number of similar votes were added to the bundle of votes in favour of Sharmajeet. No specific number has been mentioned. Sri Mansoor Ahmad has further stated that on the instructions of the respondent no.3, he gave another application on 13.12.2015 on which the Returning Officer kept giving assurances and later on without taking any action in the matter, the petitioner was declared elected. Phoolchand-respondent no.3 in his cross examination, Annexure-5 to the writ petition, has stated that at the counting table he was informed that he has received 717 votes. Who informed him, what was the name of the person who gave him this information, nothing has been stated in the election petition. Why that person was not summoned as witness? Further on he states that 717 votes were cast in his favour and that not a single voter of his Gram Sabha has put his thumb impression on the votes cast in his favour. This statement is self-contradictory since in his election petition he has himself admitted that out of 1604 votes cast, 27 votes were declared invalid and about 10-11 votes granted in his favour were declared invalid because they were smudged with thumb impression.
In the counter affidavit which has been filed on behalf of the respondent no. 3, it is stated that objections were raised by the election petitioner during the process of counting. Annexure. 1 to this counter affidavit is a photo copy of the written application dated 13.12.2015 purported to have been given by Sri Mansoor Ahmad, counting agent of respondent no.3 but this application does not bear the seal of the Returning Officer to show that it had been given at all to the Returning Officer. Therefore, it is quite clear that no such application was ever given by the counting agent of the respondent no.3 to the Returning Officer.
None of these above factors or contradictions in the election petitioner have been taken into consideration by the prescribed authority/SDM. The impugned order appears to have been passed in a routine and casual manner.
The law in this regard is well settled that recounting is not to be ordered in a routine and casual manner unless a prima facie case is made out which casts a shadow on the manner of holding the election. It must always be borne in mind that once a result is declared, the candidate who is declared to be the winning candidate acquires not only certain rights but also a legitimate expectation of feeling secure in his new found status as a Pradhan and that legitimate expectation must not be shattered in a casual and cavalier manner by ordering recounting.
The Supreme Court in the case of Bhabhi Vs Sheo Govind and others, (1976) 1 SCC 687, in paragraph 15 has held as under:-
"(15). 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 satisfaction of the Court regarding the truth of the allegations made for a recount, and not for the purpose of fishing out materials.
If all these circumstances enter into the mind of the Judge and he is satisfied that these conditions are fulfilled in a given case, the exercise of the discretion would undoubtedly be proper."
In the case of R. Narayanan Vs S.Semmalai and others, (1980) 2 SCC 537, the Supreme Court in paragraphs 17 and 18 has held as under:-
"(17) Lastly, the learned Judge was greatly influenced by the fact that the margin by which the appellant succeeded was very narrow. This was undoubtedly an important factor to be considered but would not by itself vitiate the counting of votes or justify re-counting by the Court.
(18). We would like to mention here that in fact the respondent had made an application before the Returning Officer for re-count but the actual application filed by the respondent has not been produced for the reasons best known to the respondent. It appears from Annexure II which is a certified copy of the order of the Returning Officer that three grounds were taken before the Returning Officer by the, respondent. In the first place, he expressed his suspicion that the votes would have been mixed relating to Narayanan (Congress) and other candidates; (ii) that many votes polled in his favour have been rejected, (iii) Postal ballots have been rejected without sufficient reasons. It may thus be pertinent to note that Dr. Chitale, learned counsel for the appellant's main plank of argument was that there was overwhelming evidence to show that there were several counting errors at Tables 2, 3, 7, 9, 12, 15, 17, 8, 10, 13 particularly stress was laid on Tables 2, 3, 6, 8, 9, 10 and 13. It was also said that despite protests being made by the respondent's agents to the polling staff no action was taken at all. Indeed, if this was so then we should have accepted such an allegation being made prominently in the application given by the respondent to the Returning Officer. The absence of any such allegation in the application of the respondent before the Returning Officer clearly shows that this allegation was clearly an after-thought and, therefore, no implicit reliance can be placed on the oral evidence by the respondent before the court. It would thus be seen that all the three grounds taken by the respondent before the Returning Officer were absolutely vague and could not make out a case for re-counting by the Returning Officer much less by the court. It may be relevant to note that in the application filed by the respondent the question that the appellant succeeded by a narrow margin was also not mentioned. On this application the Returning Officer passed the following order:-
"Under the above circumstances he requested that a recount may be ordered and justice rendered. The candidate, his election and counting agents were watching the process of counting and no objection or complaint was raised by any of them during the course of counting regarding any mistakes. The suspicion expressed by him that many of the votes relating to him would have been included in the votes relating to Narayanan and other candidates, is without basis and hence not correct. All the doubtful votes were scrutinised by me in the presence of candidates and their agents and orders passed. His version that many of the votes in his favour were rejected is not correct since the scrutiny was done in their presence. He has not made any specific mention about the round or table to be recounted. The petitioner has requested recount in general of all the votes polled for all candidates under the presumption that his ballot papers would have been mixed up in other bundles.
His petition is frivolous and unreasonable. This part of his request is therefore rejected."
In the case of Vadivelu Vs Sundaram and others, (2000) 8 SCC 355, the Supreme Court in paragraph 18 has held as under:-
"(18). From the above pleadings, it is evident that the appellant has not set forth material facts or particulars required for recount of votes. To justify his contention that there was irregularity or illegality in the counting, except making some general and bald allegations, no other details are given. Though an allegation is made that electoral roll contained the names of dead persons, that the 1st respondent took advantage of the same, and that some persons had impersonated and cast votes in his favour, no details are given as to who committed such irregularity. The appellant has also not mentioned as to how many such votes had been cast in favour of the 1st respondent. So also, the appellant has not alleged the nature of the illegality or irregularity said to have been committed by the Counting Officers. How and in what manner there was improper acceptance of invalid votes and improper rejection of valid votes, also is not explained by the appellant. In short, the Election Petition is bereft of all details and the appellant, while examined as PW1, could not supplement anything by way of evidence."
In the case of Mahendra Pal Vs Ram Dass Malanger and others, (2002) 3 SCC 457, the Supreme Court in paragraphs 5, 6, 7 and 8 as held as under:-
"(5). Undisputedly, after remand of this matter, the appellant was required to lead necessary evidence. The appellant has not examined any witness to establish that eight ballot papers which were found to be in excess in ballot boxes of 82 polling stations, were unauthorisedly added by someone. No such exercise was undertaken by the appellant. There was no reason for the appellant not to examine the Returning Officer or such other officer who was at the relevant time the Counting Supervisor. In support of his case, it is true that the appellant has examined PW1 Kamlesh Kumar Pant, Deputy Commissioner-cum-District Election Officer. However, he has stated that he was not the Returning Officer at the time when the elections of State Assembly were held in February, 1998. No questions were asked to him whether there was any mistake in total number of 35310 original forms 16-A or original forms 20-A prepared by the Returning Officer. On the contrary, he has stated that two tendered votes which were recorded were not reflected in polling booth nos.10 and 78. Similarly, one tendered vote was also not reflected in Ex.P. 83. He has also produced on record original consolidated statement of counting of votes, wherein total number of votes counted (valid and rejected) were 35318. He has also clarified that he was not present at the time of counting and he cannot identify the signatures of the officers on the documents which were produced on record. Thereafter, the appellant has not examined any other witnesses in support of his case except examining himself.
(6). In his deposition, appellant has stated that he was personally present at the time of counting; there were six tables for counting of votes and all ballot boxes pertaining to 82 polling booths were brought to the hall; after separating the ballot papers, counting of the total ballot boxwise was carried out and thereafter form 16-A was prepared. It was his say that the staff deployed for counting of votes of the Parliamentary Constituency had also crossed over to the tables set up for counting of votes of Assembly Constituency. The other persons who were working in the offices had also entered the counting hall and to that he had objected but his protest was not acceded to by the Returning Officer. It is his say that it appeared to him that some bungling might have taken place during such time resulting into the difference in total number of votes by eight in order to favour respondent no.1. He has also produced on record a copy of application for the purpose of recounting of votes given to the Returning Officer. In cross-examination, he has admitted that he had appointed two polling agents each in all the booths and that he had received complaint from polling agents only in respect of three fake votes having been cast i.e. one each at polling booth no.10, 76 and 78. He admits that he was not remembering as to who were his polling agents at booth number 10. He also admits that no written complaint was made by him to the authorities with regard to the fake votes having been cast at booth no.10. Similar is the statement for booth nos.76 and 78. He also admitted that he has not stated the aforesaid facts in his election petition or in the rejoinder. He pertinently admitted that no objection was raised by him with the Returning Officer during the course of any of the counting and the fact regarding the differences of votes was also not mentioned by him in his application for re-counting. It is his say that he has come to know about the difference of votes only after he had obtained the certified copy of the various statements and that he claimed re-counting only on the ground of small margin of victory of respondent no.1. No other irregularity in the counting was pointed out by him in such counting. Further, it is admitted by him that he has not filed any complaint against any member of election staff either before or after declaration of result. Finally, he also admitted that all the votes polled were counted in six rounds in presence of his counting agents and during the course of counting no objection was made by him with regard to number of votes found in each bundle either less or more. He denied the suggestion that total number of votes polled and found in counting were 35318 and a mistake was committed in mentioning a total as 35310 in Ex.P.83.
(7). As against this, respondent has led his evidence and stated that counting was in accordance with set procedure and no objection or complaint was made by any of the candidates during the course of counting. There was no dispute with regard to the correctness of the note prepared by the counting staff. It is his say that the appellant filed application for recounting after about half an hour of counting and that was rejected by the Returning Officer there and then after due consideration by a detailed order.
(8). From the aforesaid evidence, it cannot be held that there was any irregularity or illegality in counting of votes. The appellant has not even stated in his deposition that eight ballot papers were illegally inserted at the time of counting of votes. It is for the appellant to establish his case of irregularities or illegalities in counting of votes. If there is no evidence, in our view, the High Court rightly rejected the application for recounting."
In the case of M. Chinnasamy Vs K.C. Palanisamy and others, (2004) 6 SCC 341, the Supreme Court in paragraphs 43, 44, 45 and 46 as held as under:-
"(43). Furthermore, the High Court has not arrived at a positive finding as to how a prima facie case has been made out for issuing a direction for recounting. It is well- settled that prima facie case must be made out for scrutiny and recounting of ballot papers where it is of the opinion that the errors are of such magnitude as to materially affect the election. [See M.R. Gopalakrishan vs. Thachady Prabhakaran - 1995 Supp.(2) SCC 101].
Extent of proof (44). The requirement of laying foundation in the pleadings must also be considered having regard to the fact that the onus to prove the allegations was on the election petitioner. The degree of proof for issuing a direction of recounting of votes must be of a very high standard and is required to be discharged. [See Mahender Pratap vs. Krishan Pal and Others - (2003) 1 SCC 390].
(45). In T.H. Mustaffa (supra), this Court held that when the pleadings do not contain the material facts and necessary particulars, any amount of evidence would be insufficient.
(46). Even in the recount it was found that the returned candidate has not secured majority of the votes, the result could not have been disturbed unless prima facie case of high degree of probability existed for recount of votes. [See P.K.K. Shamsudeen vs. K.A.M. Mapillai Mohindeen - (1989) 1 SCC 526 at 530, 531]."
Therefore, on the facts of the case and in view of the law laid down by the Supreme Court, the impugned order dated 20.4.2017 cannot survive and is accordingly quashed.
The writ petition is allowed.
The parties shall bear their own costs.
Order Date :- 23rd March, 2018 Kirti