Allahabad High Court
Vijay Singh vs Rajdeep Singh And Another on 2 August, 2023
Author: Manju Rani Chauhan
Bench: Manju Rani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Neutral Citation No. - 2023:AHC:153832 Reserved On-18.07.2023 Delivered On-02.08.2023 Court No. - 6 Case :- WRIT - C No. - 23105 of 2023 Petitioner :- Vijay Singh Respondent :- Rajdeep Singh And Another Counsel for Petitioner :- Suchita Mehrotra,Kartikeya Saran Counsel for Respondent :- C.S.C.,Jaysingh Yadav Hon'ble Mrs. Manju Rani Chauhan,J.
1. Heard Mr. Kartikeya Saran and Ms. Suchita Mehrotra, learned counsels for the petitioner, Ms. Archana Tyagi, learned Additional Chief Standing Counsel and Mr. C.B. Yadav, Senior Advocate assisted by Mr. Jaysingh Yadav, learned counsel for caveator.
2. The Writ petition is directed against the order dated 05.07.2023 passed by learned District Judge, Lalitpur in Election Petition No.01/23, under Section 35 of Uttar Pradesh Kshetra Panchayats (Election of Pramukhs and Up-Pramukhs and settlement of election disputes) Rules, 1994, (hereinafter referred to as 'Rules of 1994') whereby the ballot papers of the elections of Pramukh of Kshetra Panchayat, Constituency Talbehat, have been summoned and recounting of votes in the election held on 10.07.2021 has been ordered.
3. The petitioner and respondent no.1 were the candidates who contested the elections to the office of Pramukh Kshetra Panchayat Talbehat Constituency, District Lalitpur. Polling took place on 10.07.2021. Respondent no.1 Rajdeep Singh preferred an election petition on 01.09.2021 under Section 35 of Rules of 1994, stating therein that the election of Pramukh Kshetra Panchayat, Constituency Talbehat was notified on 05.07.2021. As per the notification, 08.07.2021 was the last date of filing nomination for the elections scheduled for 10.07.2021 and counting was to be carried on the same day. Counting took place on 10.07.2021. The petitioner was declared the winning candidate as he obtained 39 votes out of total voting of 83 votes whereas respondent no.1 secured 38 votes and 6 votes were declared invalid. Respondent no.1, the election-petitioner, has stated in his petition that the elections were held adopting corrupt practice, in a wrong and illegal manner, against the provisions as contemplated in Rules of 1994 as well as the relevant guidelines issued by the Election Commission.
4. The main ground taken in the election petition is regarding 6 valid votes cast in favour of the election-petitioner were declared as invalid, in order to give benefit to the winning candidate, that is, the petitioner in the present case.
5. After condoning the delay in filing the aforesaid election petition, regular number has been allotted.
6. The petitioner has filed written statement/objection on 25.04.2023 wherein he has denied the averments as taken by the petitioner clearly submitting that no illegality has been committed and the elections have been conducted in a fair manner, after following the procedure as provided under law and there is no illegality of procedural effect. He has also detailed about the criminal history of the respondent/election-petitioner. Thereafter, on 27.04.2022, written statement has been filed by District Election Officer stating therein that the impugned elections have been duly conducted after following the directions of Election Commission and rules and regulations of the Rules of 1994. After the aforesaid, the respondent/election-petitioner filed an application on 01.05.2023, thereafter, the learned Court framed seven issues for determination by order dated 01.05.2023 in the election petition.
7. The election-petitioner filed an interim application No.50C-2 on 11.05.2023 praying for summoning of ballot papers of the impugned election for the purpose of recounting of votes, to which, an objection was filed by petitioner stating therein that the application is not maintainable as the same has been moved making omnibus allegations, there being no evidence in support thereof. On 22.05.2023, the petitioner filed an application requesting the learned Court to first and foremost decide the issue no.5 which was with respect to the jurisdiction of the Court. On the aforesaid application, order dated 22.05.2023 was passed by the concerned Court observing that as there is no evidence or affidavit in support of the election petition, hence, ballot papers of the election cannot be summoned at this stage, it was further observed that the order will be passed on the application after submission of evidence and the matter was posted for 03.07.2023 for the purpose of filing of evidence.
8. The respondent/election-petitioner Rajdeep Singh approached this Court by means of filing Matter under Article 227 No.6288 of 2023 with a prayer to direct the District Judge, Lalitpur to decide the election petition no.01 of 2023 and the aforesaid matter was disposed off by the co-ordinate Bench of this Court vide order dated 26.05.2023 directing the Court below to consider and decide the matter in accordance with law, expeditiously, but certainly after giving sufficient opportunity to the parties concerned.
9. On 03.07.2023, the respondent/election petitioner filed some documents in the Pen Drive before the learned District Court alongwith another interim application supported by an affidavit praying for summoning of ballot papers for the purpose of recounting of votes, to which, objection supported by an affidavit was filed by the petitioner on 05.07.2023 and another application was filed by the petitioner requesting for disposal of application dated 22.05.2023, filed for primary disposal of issue of jurisdiction i.e. issue no.5 before consideration of evidence. Without considering the request of the petitioner, learned District Judge proceeded to pass the impugned order dated 05.07.2023, hence, the present petition was filed.
10. Learned counsel for the petitioner contended that a roving and fishing enquiry has been made and in the absence of any prima facie case being made out, no order for recounting votes could be passed. He further contended that in the facts and circumstances of the case, the allegations made by the defeated candidate in his election petition had not been proved nor any prima facie case was made out warranting the recount of the votes. He further submits that an order for recounting cannot be passed on the mere "ipse dixie" of the Presiding Officer and on the ground that the order of recount would do substantial justice to the parties especially in absence of any cogent evidence or prima facie case being made out. Learned counsel for the petitioner further submits that the Court would be justified in ordering of recount of ballot papers, only when there is specific allegations in the pleadings in the election petition and oral or documentary evidence in support therein. In support of his submission, he has placed reliance upon the judgement of Apex Court passed in case of Bhabhi Vs. Sheo Govind and Ors., AIR 1975 SC 2117. He has also placed reliance upon the judgements passed by co-ordinate Bench of this Court in case of Sushil Kumar Vs. State of U.P. and Ors., 2019 (6) ADJ 549 and in another case of Smt. Sajida Vs. Sub Divisional Magistrate Kairana District Shamli/Prescribed Authority And 15 Others, passed in Writ C No.294 of 2023, decided on 11.01.2023.
11. Emphasising on the procedure to be followed while hearing the election petition as provided in Rule 40(1) of Uttar Pradesh Kshettra Panchayats (Election of Pramukhs and Up-Pramukhs and settlement of election disputes) Rules, 1994, (hereinafter referred to as 'Rules of 1994'), the election petition has to be tried in the same manner as a suit, therefore, the procedure applicable under the Code of Civil Procedure, 1908 in regard to suits has to be followed.
12. Accordingly, as per Order 7 Rule 14(3) of C.P.C., Order 12 Rule 2 C.P.C., documents have to be filed by the plaintiff along with plaint in order to be taken as evidence from the side of the plaintiff, in case, documents are not so filed, the same can be submitted after permission of the Court only after notice to the opposite party.
13. Learned counsel for the petitioner submits that the copy of the Pen Drive as submitted, was not given to the petitioner and the affidavit dated 03.07.2023 was also taken on record without notice to the petitioner.
14. Learned counsel for the petitioner further submits that the learned Court has passed the impugned order only on the basis of presumption made by the election-petitioner without recording any reasonable basis or finding to arrive at a conclusion that there was an error in counting of votes or declaration of validity of votes. He further submits that while passing the impugned order, the learned Court has not dealt with the objections as raised by the petitioner, the fact that issue no.5 should be considered first with respect to the jurisdiction of the Court. The petitioner has not been given opportunity to cross-examine on the evidence as submitted on 03.07.2023 and the copy of the Pen Drive provided to the petitioner has not been examined, thus the order impugned cannot be sustained and is liable to be set aside.
15. He lastly submits that petitioner has specifically denied all allegations as made by the election-petitioner in the election petition. Placing reliance upon judgement of Apex Court passed in case of Sabarunnisha vs. Tahira, 2013 0 Supreme (All) 2251, he submits that the right of a defeated candidate to assail the validity of an election result and pray for recounting of votes is subject to the basic principle that the secrecy of the ballot papers is sacrosanct and that a recount would be done only when a prima facie case is made out.
16. Learned counsel for the respondents, on the other hand, contended that the entire assertion made by the election-petitioner was duly proved and supported by evidence and the order of tribunal consequently did not suffer from any error of law.
17. Accordingly, the procedure as provided in Civil Procedure Code, 1908 in short 'C.P.C.' in regard to suit is applicable and is to be followed in hearing of election petition. Placing reliance upon Order 8 Rule 5 of C.P.C., learned counsel for the respondent submits that every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability. Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.
18. Learned counsel for the respondent further submits that the election petition has been filed with a specific plea regarding six valid votes which were in his favour being declared invalid, as a result, the petitioner has won by a narrow margin of one vote. The aforesaid plea has not been specifically denied by the petitioner in his written statement hence, the same would constitute implied admission. Thus, there is no illegality or infirmity in the order and the order of recounting of votes in such a case where the petitioner is winning only by one vote is justified. He further submits that there is no illegality in the order as the same has been passed after considering the specific allegation in the election petition supported by evidence placed by means of application dated 03.07.2023. In support of his submission, he has placed reliance upon the judgement of Apex Court passed in case of Chandrika Prasad Yadav Vs. State of Bihar And Others, (2004) 6 Supreme Court Cases 331, Smt. Harmaya Vs. State of U.P. And 5 Others, passed in Writ C No.18599 of 2017, decided on 03.05.2017 and an interim order passed by co-ordinate Bench of this Court in case of Sanju Vs. State of U.P. And 5 Others, passed in Writ C No.15569 of 2023, decided on 16.05.2023.
19. Heard learned counsel for the parties and perused the record.
20. Before coming to the rival submission of learned counsel for the parties, it would be appropriate to quote the legal position as to the grounds on which the election of Pramukh Kshetra Panchayat can be challenged and the relevant rules pertaining to the aforesaid election.
21. Accordingly, Rule 40(1) of Rules 1994 clearly provides that subject to provisions of the Act and rules, every election petition shall be tried by the Presiding Officer/Election Tribunal, as nearly as the case may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908 in regard to suits, which means the election petition has to be tried in the same manner as a civil suit is tried by civil Court, that is to say, that apart from the pleadings of the parties, issues have to be framed, documentary evidence has to be made, statements of witnesses have to be recorded, they have to be cross-examined, and only thereafter, after recording findings on all issues, either separately or jointly, the election petition can be decided.
22. In the present case, the procedure prescribed in the relevant rule has been violated, despite the fact that seven issues have been framed during the course of trial of election petition, none of the said issues has been decided, and directly, an order of recount of votes has been passed. To be more specific, the evidence laid by respondent has not been provided nor opportunity to cross-examine on the same has been provided to the petitioner as has been specifically stated in paragraph 29 of the writ petition.
23. As per Rule 36 of U.P. Kshettra Panchayat & Zila Adhiniyam, 1961, an election petition shall specify the ground or grounds on which the election of returned candidate is questioned and shall contain a summary of circumstances alleged to justify the election being questioned on such ground.
24. Accordingly, recount of votes should be ordered only in rare cases on the basis of specific allegations in the pleading in the election petition and proof thereof i.e. oral or documentary evidence to support the specific grounds on which the election is challenged. It is settled position of law that the order of recount of ballot papers cannot be passed only on the basis of vague allegations that to not supported by any documentary and oral evidence.
25. On the question of recounting of votes the position of law has been crystalized in a catena of cases by the Supreme Court starting from Bhabi Vs. Sheo Govind and others AIR 1975 SC 2117 in which, the Supreme Court held:
"(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 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."
A Full Bench of this Court in Ram Adhar Singh v. District Judge, Ghazipur and others, 1986 (2) RD 151 (FB) held that the authorities while hearing the election petition under the provision of U.P. Panchayat Raj Act can be permitted to look into or can direct the inspection of the ballot papers only upon the existence of two conditions, namely;
" 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."
The right of a defeated candidate to assail the validity of an election result and seek recounting of the votes is subject to the basic principle that the secrecy of the ballot is sacrosanct unless the defeated candidate alleges and is able to substantiate by means of evidence that a prima facie case of a high degree exists for the recounting of the votes. The solitary rule is, that the preservation of the secrecy of the ballot is a sacrosanct principle which cannot be broken unless there is a prima facie case and that a genuine case is made out. The justification for an order or re-examination of ballot papers and recounting of the votes is not to be arrived at from hindsight or by the result of the recount of the votes. The justification for recounting of the votes must be made out from the material available on the record.
In the light of the aforesaid decisions, the right of a defeated candidate to assail the validity of an election result and seeking recounting of the votes is subject to the basic principle that the secrecy of the ballot papers is sacrosanct and that a recount would can be done only when a prima facie case is made out."
26. The order of recount of votes must stand or fall on the nature of averments made and evidence adduced before the order of recount was made and not from the results emanating from recounting. The aforesaid has been held in the case of P. K. K. Shamsudeen vs. K.A.M. Mappillai Mohindeen And Others, (1989) 1 Supreme Court Cases 526. relevant paragraphs of the aforesaid judgement as 13, 14 and 15 are reproduced herein below:-:
"13. Thus the settled position of law is that the justification for an order for examination of ballot papers and recount of votes is not to be derived from high sight and by the result of the recount of 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 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 recounting 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 recount of votes being ordered by the Election Tribunal in the interests of justice, a Tribunal or court should not order the recount of votes.
14. Viewed in the light of these well enunciated principles, we find that the petitioner has neither made such averments in the petition nor adduced evidence of such a compulsive nature as could have made the Tribunal reach a prima facie satisfaction that there was adequate justification for the secrecy of ballot being breached in the petitioner's case. Factors urged before us by Mr. Padamanabhan such as that the first respondent had accepted the correctness of the recount. and that he had conceded his defeat and wanted a re-election to be held cannot constitute justifying materials in law for the initial order of recount of votes made by the Tribunal.
15. Mr. Padamanabhan also contended that the purpose and object of the election law is to ensure that only that person should represent the constituency who is chosen by the majority of the electors and that is the essence of PG NO 958 democratic process, and this position has been observed by a Bench of this Court in their order of reference of the case of N. Gopal Reddy v. Bonala Krishnamurty & Ors,. CA No.3730(NCE) of 1986 reported in JT 1987(1) SC-406 and hence it would be a travesty of justice and opposed to all democratic canons to allow the first respondent to continue to hold the post of the President of the Panchayat when the recount disclosed that he had secured 28 votes less than the petitioner. We are unable to sustain this contention because as we have stated earlier an order of recount of votes must stand or fall on the nature of the averments made and the evidence adduced before the order of recount is made and not from the results emanating from the recount of votes."
27. The order of recounting should not be made lightly or is a matter of course as the same touches upon the secrecy of the ballot papers and introduces the element of uncertainties. The same has been held in the case of Devendra Bahadur Singh vs. Jauhari Lal Trivedi and others, 1986 ALL. L.J. 1470. Relevant paragraph as 51 of the aforesaid judgement is reproduced herein below:-
51. The trend reflected by the authorities thus definitely is that since an order for a recount touches upon the secrecy of the ballot papers and introduced the element of uncertainty and also as there are abundant safeguards provided in this behalf under the Conduct of Election Rules, 1961 and the counting is entrusted to the technical hands, recount should not be made lightly or as a matter of course. The Court would not be justified to order recount or permit inspection of the ballot papers if all the material facts on which the allegations of irregularity or illegality in counting are founded are not pleaded adequately in the election petition. Where the allegations are mostly general and vague floating on suspicions or belief of the petitioner the and not precise or the inspection/recount claimed tantamounts to seeking a roving inquiry of a fishing nature under the remote expectation of being benefited thereby. There is no firm foundation laid for the Court to interfere. The relief of recounting cannot be acceded to merely on the possibility of there being an error."
28. The main ground taken by election-petitioner for challenging the election is that six valid votes cast in his favour were declared invalid but the basis of such allegation has not been disclosed.
29. In the case of Jitendra Bahadur Singh v. Krishna Behari, AIR 1970 SC 276, it was held that the material facts required to be stated are those facts which can be considered as materials supporting the allegations made. In other words, they must be such facts as to afford a basis for the allegations, made in the petition. So the petition should not only contain the allegations, but complete facts supporting them and their basis must be stated in order to direct for recounting.
30. In the facts and circumstances of the present case, there is no basis on which it can be established that six valid votes of election-petitioner were declared invalid as no objection to the same was raised at the time when such declaration was made, there being no written objection in this regard.
31. As has been already held that the election petition has to be heard as the trial of a suit, therefore, in accordance with procedure as prescribed in Civil Procedure Code. Order 7 Rules 14(3) of C.P.C. is as follows:-
(3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.
Order 12 Rule 2 of C.P.C. is as follows:
Notice to admit documents- Either party may call upon the other party [to admit, within [seven] days from the date of service of the notice any document] saving all just exceptions; and in case of refusal or neglect to admit, after such notice, the costs of proving any such document shall be paid by the party so neglecting of refusing, whatever the result of the suit may be, unless the Court otherwise directs; and no costs of proving any document shall be allowed unless such notice is given, except where the omission to give the notice is, in the opinion of the Court, a saving of expense.
Order 12 Rule 3 of CPC is as follows:
(3) Form of Notice- A notice to admit documents shall be in Form No.9 in Appendix C, with such variation as circumstances may require.
32. In the present case, on the application moved for requesting of recount, order dated 22.05.2023 was passed, vide which, the matter was posted for 03.07.2023 leaving it open to the election-petitioner to place evidence in support of the allegations made in the election petition, the evidence was produced by the election-petitioner by means of affidavit dated 03.07.2023 and the aforesaid provisions regarding notice to the petitioner/respondent in election petition was never provided.
33. On this ground itself wherein the petitioner was not given opportunity to cross-examine on the evidence in the form of affidavit as produced by the election-petitioner, the procedure as required has not been followed, therefore, the order directing the recounting cannot be justified.
34. As regards the argument placed by learned counsel for the respondent that the margin of votes by which the successful candidate was declared elected was very narrow i.e. one vote, therefore, in such case, the order of recounting was justified, this Court feels that the relief of recounting cannot be accepted merely on the possibility of there being an error. It is well settled that such allegations must not only be clearly made but also proved by cogent evidence. The fact that the margin of votes by which the successful candidate was declared elected was very narrow, though undoubtedly an important factor to be considered, would not by itself vitiate the counting of votes or justify recounting by the Court. The same has been held in case of N. Narayanan v. S. Semmalai and others, AIR 1980 Supreme Court 206. The aforesaid aspect has also been held in the case of P.H. Pujar v. Kanthi Rajashekhar Kidiyappa, (2002) 3 Supreme Court Cases 742, relevant paragraph of the aforesaid judgement as 14 is as follows:-
"14. The re-count of the votes cannot be ordered in a casual manner. It cannot be ordered because the margin of defeat is meagre. For seeking re-count, proper foundation is to be laid in the pleadings by setting out material facts and later proving it by adducing requisite evidence. The re-count cannot be ordered on the ipse dixie of the election petitioner. It can be ordered in rare cases where specific allegations are made and proved so as to do complete justice between the parties."
35. From the above discussion it is clear that ordering of recount on basis of bare allegations in election petition would not be a proper exercise of jurisdiction and a mere fact that there is narrow margin of votes between the winning an defeated candidate, would not be sufficient to direct recount of votes, the same has been held in Apex Court judgement passed in case of Udey Chand vs. Surat Singh and Another, (2009) 10 Supreme Court Cases 170.
36. The result of the analysis of the above cases would show that this Court has consistently taken the view that re-count of votes could be ordered very rarely and on specific allegation in the pleadings in the election petition that illegality or irregularity was committed while counting. The petitioner who seeks re-count should allege and prove that there was improper acceptance of invalid votes or improper rejection of valid votes. If only the Court is satisfied about the truthfulness of the above allegation, it can order re-count of votes. Secrecy of ballot has always been considered sacrosanct in a democratic process of election and it cannot be disturbed lightly by bare allegations of illegality or irregularity in counting. But if it is proved that purity of elections has been tarnished and it has materially affected the result of the election whereby the defeated candidate is seriously prejudiced, the Court can resort to re-count of votes under such circumstances to do justice between the parties. This has been held in case of Vadivelu v. Sundaram, (2000) 8 Supreme Court Cases 355.
Lordship contention
37. Thus, a narrow margin of votes between the elected candidate and election-petitioner, does not per se give rise to a presumption that there had been an irregularity and illegality in counting of votes to some other, before Court can order for recount, two basic requirements must be satisfied i.e., (i) election petition must contain adequate statement of all material facts on which the petitioner relies in support of his allegations as to irregularity or illegality in counting of votes, and (ii) on basis of evidence adduced in support of allegations, Court must be prima facie satisfied that in order to decide the dispute and to do complete and effectual justice between the parties, making of order as to recount is imperatively necessary.
38. This Court finds that the impugned order suffers from illegality as there was no justification or prima facie satisfaction recorded by the Presiding Office prior to passing the order directing for recounting, thus, the impugned order dated 05.07.2023 cannot be sustained and is quashed. The writ petition is allowed.
39. The Election Tribunal is directed to decide the election petition within four months, in accordance with provisions of relevant Act and Rules, without granting any unnecessary or long adjournments to either of the parties.
Manju Rani Chauhan, J.
Date:02.08.2023 Rahul Goswami