Allahabad High Court
Anita vs State Of U.P. Thru. Prin.Secy. ... on 13 December, 2022
Author: Manish Kumar
Bench: Manish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?A.F.R. Court No. - 20 Case :- WRIT - C No. - 8349 of 2022 Petitioner :- Anita Respondent :- State Of U.P. Thru. Prin.Secy. Panchayat Raj Deptt. Lko. And 10 Others Counsel for Petitioner :- Akhilesh Kumar Srivastav,Desh Raj Chaurasiya,Priyanka Singh Counsel for Respondent :- C.S.C.,Atul Kumar Dubey,Dev Mani Mishra Hon'ble Manish Kumar,J.
1. The present writ petition has been preferred for quashing of the judgment and order dated 08.11.2022 passed by the District Judge, Pratapgarh in the revision filed by the petitioner under Section 12-C(6) of U.P. Panchayat Raj Act, 1947 (hereinafter referred to as 'the Act, 1947') holding the revision is not maintainable and the order dated 15.10.2022 passed by the respondent no. 3 i.e. the Prescribed Authority/ Sub Divisional Officer, Patti, District Pratapgarh in Election Petition filed under Section 12-C of the Act, 1947 filed by respondent no. 6 by which a direction was issued for re-counting of the votes and with a further prayer to issue an ad-interim mandamus staying the operation and implementation of the judgment/order dated 15.10.2022 passed by respondent no. 3.
2. Notices to the respondent nos. 7 to 11 are hereby dispensed with as they had neither filed the election petition nor raised any objection against the declaration of result of the election in favour of the petitioner. The respondent no. 6, who has filed the election petition is represented by her counsel.
3. With the consent of the parties, the present writ petition is decided at the admission stage.
4. The brief facts of the case as per the petitioner are that the polling was held on 19.04.2021 for election on the post of Pradhan in village Ashapur Athgawan, Block Baba Belkharnath Dham, Pargana and Tehsil Patti, District Pratapgarh and total 922 votes were casted amongst the seven persons, who contested the election for the post of Pradhan including the petitioner and the respondent no. 6. All the parties had appointed their Counting Agent, who were present at the time of counting of the votes.
5. The counting of the votes was held on 03.05.2021 in the presence of aforesaid duly authorized Counting Agents of respective contestants. Out of total votes, 216 votes were found to be casted in favour of the petitioner and the respondent no. 6 each, under the surveillance of CCTV camera on single table. When the equal votes were found casted in favour of the petitioner and the respondent no. 6, then the duly authorized Counting Agent of respondent no. 6 i.e. husband of respondent no. 6 namely Mr. Sushil Kumar made an oral request for re-counting of the votes before the respondent nos. 4 & 5 which was accepted and twice the votes were counted and both the time, the result was found to be the same.
6. In the event of equal votes, casted in favour of the petitioner and the respondent no. 6, the Returning Officer while following the procedure as provided under Rule 108 of the U.P. Panchayat Raj (Election of Members, Pradhans and Up-Pradhans) Rules, 1994 (hereinafter referred to as the Rules, 1994 declared the result by adopting the procedure of lot and in the lot, the name of the petitioner had come so one additional vote was added in favour of the petitioner and the results were declared.
7. The petitioner after declaration of the result and issuance of certificate has taken the oath for the post of pradhan. After about two months of the declaration of the result, the election petition was filed by the respondent no. 6 on 01.07.2021 with a solitary prayer of recounting of votes.
8. Learned counsel for the petitioner has submitted that as per Section 12 C(1) of the Act, 1947 which provides for application of questioning the elections also mentions the grounds for challenging the election whereas in the present case, the respondent no. 6 has not challenged the election on none of the grounds provided under Section 12-C of the Act, 1947 but made a prayer only for recounting of the votes, which could be an ad-interim prayer in the election petition and once the respondent no. 6 has not challenged the election, the election petition is misconceived and is liable to be rejected. Section 12 C(1) provides for questioning the elections which has not been questioned in the election petition preferred by the respondent no. 6.
9. It is further submitted that in the election petition, the vague allegations have been made that polling agent of respondent no. 6 made a representation to the Returning Officer for recounting but neither the said representation has been enclosed in the list of the document filed along with the election petition nor any representation was made by the respondent no.6 or on her behalf to any higher authority that the Returning Officer had turned down their request for recounting of votes.
10. It is further submitted that Form 46 indicates 81 invalid votes. Respondent no. 6 in her election petition has alleged that out of 81 invalid votes, maximum votes were casted in favour of respondent no. 6. In support of the said averment, no material or evidence has been enclosed alongwith the election petition.
11. It is further submitted that the election petition has been filed on vague and bald allegations just for conducting a fishing and roving enquiry, which is not permissible as per the law laid down by Hon'ble the Supreme Court in the case of Udey Chand Vs. Surat Singh and another reported in (2009) 10 SCC 170 and the judgment in the case of Arikala Narasa Reddy Vs. Venkata Ram Reddy Reddygari and Another reported in (2014) 5 SCC 312.
12. On the other hand, learned counsel for the respondent no. 6 has submitted that the result was declared without adopting the procedure of lot as provided under Rule 108 of the Rules, 1994 and there is an overwriting on Form 46 which makes the counting of votes doubtful and there is no illegality in the order passed by the Prescribed Authority for recounting of votes.
13. It is further submitted that out of 81 votes shown to be invalid votes most of them were casted in favour of the respondent no. 6. Procedure of lot was not valid without there being any consent taken from the agent of respondent no. 6.
14. Learned Standing Counsel has submitted that there is no illegality in the revisional order as well as the in the order passed by the Prescribed Authority for recounting of votes.
15. Considering the submissions raised by learned counsel for the respective parties, going through the record, the provisions of the Act, 1947 as well as the Rules, 1994 and the judgments cited by learned counsel for the petitioner, the election petition preferred by the respondent no. 6 is only for recounting of votes without there being any prayer for setting aside the election and declare the candidate accordingly. The solitary prayer for recounting of votes could be an ad-interim prayer in the election petition with a prayer as provided under Section 12-C(4) of the Act, 1947 for 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, but there is no such prayer made by the respondent no. 6 in the election petition. Once the respondent no.6 is not aggrieved by the election, as there is no prayer for setting aside the same then there would be no occasion for passing an order for recounting of votes as the same will amount to be a futile exercise.
16. In the election petition preferred by the respondent no. 6, none of the grounds as provided under Section 12-C has been taken. For the convenience, Section 12-C (1)-(4) of the Act, 1947 are quoted hereinbelow:-
"12-C Application for questioning the elections. (1) The election of a person as Pradhan or as member of a Gram Panchayat including the election of a person appointed as the Panch of a 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."
17. As far as the submission of learned counsel for the respondent that no consent was taken from the Polling Agent of respondent no.6 while adopting the procedure of lot as provided under Rule 108 of the Rules, 1994 is also not tenable as there is no such requirement under Rule 108 of the Rules, 1994.
18. Rule 108 of the Rules, 1994 provides that if there are equal number of votes, the Returning Officer will adopt the procedure of lot forthwith and proceed as if the candidate in whose favour, the lot falls would be considered to have received an additional vote, for the convenience, the Rule 108 of the Rules, 1994 is quoted hereinbelow:-
"108. Equality of votes:- If after the counting of the votes is completed an equality of votes is found to exist between any candidates and the addition of one vote will entitle any of those candidates to be declared elected, the Nirvachan Adhikari shall forthwith decide between those candidates by lot, and proceed as if the candidate on whom the lot falls had received an additional vote."
19. The submission that there is an overwriting on Form 46 in the election petition is also not correct as there is no overwriting on Form 46 which has been enclosed as annexure no. 4 to the writ petition which has not been disputed by the learned counsel for the respondent no. 6 that the Form 46 enclosed by the petitioner is a forged document.
20. The submission of learned counsel for the respondent no. 6 that procedure for lot was not adopted is a vague averment in the election petition and the said submission also does not find support from the finding given in the order dated 15.10.2022 passed by the Prescribed Authority wherein a finding has been given that both the candidates had got the equal votes and from the record it has been found that one additional vote fell in favour of the petitioner but the same has been doubted by the Prescribed Authority merely on the ground that it is not disclosed as to by which order the procedure provided under Rule 108 of the Rules, 1994 was adopted, ignoring completely that there is no such requirement of passing an order under Rule 108 of the Rules, 1994 whereas, Rule 108 of the Rules provides that the Returning Officer will adopt the procedure of lot forthwith. The respondent no. 6 has not challenged this order passed by the Prescribed Authority that the findings given are wrong.
21. As per the law settled by Hon'ble the Supreme Court which has been followed by this Court in Writ C No. 63380 of 2011 in the case of Amit Narain Rai Vs. State of U.P. and others vide judgment and order dated 09.04.2012 and in Civil Misc. Writ Petition No. 47982 of 2009 in the case of Satyendra Pal Singh Vs. State of U.P. and others vide judgment and order dated 13.01.2010 wherein this Court has held that a petition for recount must contain adequate statement of material facts on which the election petitioner relies in support of his allegations and it must also be supported by some contemporaneous evidence to show any irregularity or illegality in the counting which are lacking in the present case as the respondent no. 6 in her election petition has not given any evidence in support of her submission to show any irregularity or illegality in the counting.
22. Hon'ble the Supreme Court in the case of Gurusewak Singh Vs. Avtar Singh and others reported in 2006 4 SCC 542 wherein it has been held that although we need not go into the law of re-counting, as the said question does not arise before us, we may notice a decision of this Court in Chandrika Prasad Yadav v. State of Bihar wherein it is stated: (SCC p. 337, para 20) "20. It is well settled that an order of re-counting of votes can be passed when the following conditions are fulfilled:
(i) a prima facie case;
(ii) pleading of material facts stating irregularities in counting of votes;
(iii) a roving and fishing inquiry shall not be made while directing re-counting of votes; and
(iv) an objection to the said effect has been taken recourse to".
23. In the present case, the election petition neither contains any specific pleading nor there is any evidence shown to support the case in the election petitioner.
24. It is found that respondent no. 6 made no prayer for 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. In these circumstances, any application under Section 12-C of the Act, 1947 confining the prayer only for recounting and nothing else, would not be maintainable. It has also been seen that the election petition does not plead any of the grounds challenging the election as prescribed under Section 12-C of the Act. There is also no reason to disbelieve that the Returning Officer adopted the procedure of lot in the event of equal votes in any manner not permissible under the law. He has to proceed with the procedure of lot 'forthwith' without there being any requirement of order in writing.
25. In view of the discussions made hereinabove, the writ petition is allowed. The impugned orders dated 08.11.2022 & 15.10.2022 passed by the District Judge, Pratapgarh and the respondent no. 3 i.e. the Prescribed Authority/Sub Divisional Officer, Patti, District Pratapgarh respectively are hereby quashed.
Order Date :- 13.12.2022 Nitesh