Allahabad High Court
Raheema vs State Of U.P. Thru. Its Addl. Chief ... on 2 June, 2022
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 5 Case :- MATTERS UNDER ARTICLE 227 No. - 2109 of 2022 Petitioner :- Raheema Respondent :- State Of U.P. Thru. Its Addl. Chief Secretary Panchayati Raj, Lko. And Others Counsel for Petitioner :- Rama Kant Dixit,Amrendra Nath Tripathi Counsel for Respondent :- C.S.C.,Achyuta Nand Verma,Atul Kumar Dubey Hon'ble Mrs. Sangeeta Chandra,J.
Heard Sri Amrendra Nath Tripathi and Sri Ramakant Dixit, learned counsel for the petitioner, Sri Rakesh Kumar Chaudhary and Sri R.B.S. Rathore appearing for opposite party no.6, Sri Atul Kumar Dubey appearing for the opposite party nos. 3, 4 and 5 and learned Standing Counsel for the State-respondent.
(1) The matter was taken up in the pre-lunch session when this Court had made the following order:-
"Heard learned counsel for the petitioner Shri Amrendra Nath Tripathi, Shri Rakesh Kumar Chaudhary appearing for the opposite party no.6 and the learned Standing Counsel appearing for the opposite party nos. 1 to 4 and Sri Atul Kumar Dubey, who appears for the opposite party nos. 3 to 5.
It is the allegation of the petitioner that the order impugned was passed on 30.05.2022. The petitioner on the basis of wrong advise filed a Revision against such order which Revision was rejected as not maintainable on 31.05.2022. The counsel for the petitioner drafted the petition on 31.05.2022 itself and took permission of this Court on 01.06.2022 for filing the matter in urgency as the recounting had been ordered by the order impugned to take place on 02.06.2022.
The Court granted permission for the matter to be taken up today as fresh. When the matter has been taken up by way of notice at 12:30 P.M., the counsel for the petitioner informs this Court that S.D.M. Mahsi was informed about the oral permission granted by the Court for taking up the matter today and prayed for postponement of the recounting. However, the Sub Divisional Magistrate, Mahsi has proceeded with the recounting of votes saying that since there is no interim order granted staying the order dated 30.05.2022, he cannot be stopped from performing his duty."
(2) The matter was posted for post lunch session and learned Standing Counsel was asked to seek instructions from the S.D.O. After lunch when the case was taken up Sri Pratyush Tripathi, Additional Chief Standing Counsel has informed on the basis of telephonic instructions that though the counting has been started and ballot boxes had been opened and officials had started inspecting and segregating ballot papers, further proceedings had been stopped on request of the office of the C.S.C. (3) For the order proposed to be passed in this case, the issuance of notice to opposite party nos. 7 to 11 are dispensed with.
(4) This petition has been filed praying for setting aside the order dated 30.05.2022 by means of which the Prescribed Authority/Sub Divisional Magistrate, Mahsi, District Bahraich has directed recounting of votes.
(5) It has been argued by learned counsel for the petitioner that election for the post of Gram Pradhan for Gram Panchayat Khaira Dhaukal, Block Shivpur, Tashil Mahsi, District Bahraich took place on 29.04.2021 and the counting was done on 02.05.2021 and the petitioner declared successful.
(6) The opposite party no.6 Smt. Krishnavati filed an Election Petition No. 03130 of 2021 under Section 12-C of U.P. Panchayat Raj Act, 1947 before the opposite party no.2. The petitioner was arrayed as defendant no.1 and opposite party nos. 7 to 11 were arrayed as opposite parties nos. 2 to 6 and the Assistant Returning Officer Development Block Shipur, Tahsil Mahsi was arrayed as opposite party no.7 and the Election Officer District Bahraich was arrayed as opposite party no.8. The petitioner on receipt of notice denied the allegations in her written statement and also stated that when the polling was done and counting of votes was being done, no one has raised any objection of any kind and only after the result was declared and petitioner was elected, the election petition was filed with several allegations. After filing of the written statement by the petitioner on 30.11.2021 in the aforesaid election petition, six issues were framed by the opposite party no.2 on 06.12.2021.
(7) The opposite party no.6 filed an application on 06.12.2021 in which all prayers except the prayer (b) made in the election petition were withdrawn and it was prayed that recounting alone should be done for which affidavits of those persons who had participated in the election were filed. It was further prayed for summoning of ballot papers and then inspection of the same to be done by the opposite party no.2 himself and thereafter for recounting to be done of the said ballot papers.
(8) The opposite party no.6 had filed affidavits of three persons who were election agents of the opposite party no.6 and two other contesting candidates. This application although dated 06.12.2021 was actually filed by opposite party no.6 on 28.12.2021 as is evident from the endorsement of the left hand margin. The petitioner on 31st December, 2021 filed an application on the basis of which two more issues were framed. On 11.01.2022, the petitioner filed her objection to the application dated 06.12.2021/28.12.2021. The defendant nos. 2, 3 and 5 had also filed their written statements supporting the election petition. The defendant no. 6 did not appear. Defendant No. 7 and 8 who are official defendants were not served as is evident from the reports dated 04.01.2022 submitted by the special messenger which has been filed as Annexure-10 to the petition. It is stated that both the officers were of some other department who had been transferred and a request was made special messenger that notice be sent as per the designation of such officers so that it could be served. The opposite party no.2 however did not make any effort to send notices to the official/defendants and passed the order dated 30.05.2022 directing recounting of votes to be done on 02.06.2022. Petitioner on wrong legal advise of Counsel filed a Revision against the order impugned before the District Judge-Bahraich which was dismissed as not maintainable on 31.05.2022.
(9) Learned counsel for the petitioner has pointed out from the U.P. Panchayat Raj (Settlement of Election Dispute) Rules 1994 (herein-after referred as "Rules 1994") that if an election petition is filed under Section 12-C of the Act, the procedure that has to be followed for deciding the same is given in Rule 4 which says that subject to the provision of the Act and Rules, every election petition shall be decided by the Sub Divisional Officer in accordance with the procedure prescribed under the Civil Procedure Code for the trial of the suits. However, the proviso says that if the Sub Divisional Officer finds on hearing the petitioner's counsel that the petition has no substance, he may reject the same without issuing any notice to any of the opposite parties. With regard to the evidence to be produced before the Sub Divisional Officer, the Proviso says that he may not record evidence in full but maintain the memorandum of evidence and he may allow any such evidence to be produced as he deemes relevant for the purpose of deciding the petition.
It has been argued by learned counsel for the petitioner that as per Civil Procedure Code after pleadings are completed, issues are framed, objections are invited to framing of such issues which are considered and issues are finally determined. After determination of issues, the plaintiff's evidence is taken which is followed by cross-examination. After such cross-examination takes place, the evidence of the respondent has to be taken followed by his cross-examination. Then alone the Authority can proceed for hearing of arguments. In case, any amendment is proposed in the pleadings, objection is invited and such objection is decided before the proceeding further in the hearing of the suit. In the case of the petitioner, however, after she filed objection to the application dated 06.12.2021/28.12.2021, her objections were not decided. She filed a petition under Article 226 namely Petition No. 957 of 2022 praying for a direction to the Prescribed Authority to follow the procedure as prescribed under the Rules and not to decide the application of the opposite party no.6 without considering the objections filed to it filed by the petitioner and also for a direction to the Prescribed Authority to provide opportunity to the petitioner to bring on record all relevant documents and witnesses. The said writ petition remained pending.
(10) In the meantime, the opposite party no.6 also filed a Writ Petition under Article 227 namely Writ Petition No. 1238 of 2022 which was disposed by this Court on 27th April, 2022 with a direction to the Prescribed Authority to consider and decide the Election Petition within a period of four months.
(11) It has been argued that taking the order dated 27.04.2022 as an excuse, a summary procedure was adopted and without considering the objections of the petitioner to the application dated 06.12.2021/28.12.2021, the same was deemed to be allowed and on the basis of a chart i.e. Prescribed Form No. 4 that is maintained by the Election Officer at the time of counting of votes, a discrepancy was shown in the addition of votes made in different polling stations for different candidates, and on the basis thereof an order for recounting has been passed.
(12) Learned counsel for the petitioner has placed reliance upon the judgement rendered by this Court in Amit Narain Rai Vs. State of U.P. and others [ (2012) 2 UPLBEC 1582] wherein this Court after considering the judgements rendered by the Supreme Court under Representation of People Acts has also considered the U.P. Panchayat Raj Act and Section 12-C thereof and Rule of 1994 Act and observed that:-
" Right to elect is simple statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. An election petition is not an action at Common law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes, applies. It is a special jurisdiction and a special jurisdiction has always to be exercised in accordance with statute creating it."
(13) This Court has made detailed observation in the aforesaid case as to how the hearing of election petition has to be proceeded with and on what grounds recounting of votes can be considered by the Prescribed Authority or even inspection of ballot papers. It has been observed in paragraph no.38 that if the Prescribed Authority has solely and mainly relied upon the difference of votes in Form 11 and Form 4 in respect of Polling Booths or on the fact that the margin of votes is too less between the winning and losing candidates it is not enough to justify counting. The Court has considered in detail the procedure for sealing of ballot boxes after polling till the stage of counting and also observed that specific pleadings have to be made in this regard by the challenger to the said election.
(14) Sri Rakesh Chaudhary, learned counsel for the opposite party no. 6 has referred to Section 12-C (5) of the Act to say that even though the Prescribed Authority has been given wide powers for deciding the election petition, the Rules may provide for summary hearing and disposal of an application under sub section (1) i.e. an election petition.
(15) In this case, this Court has considered the Rules and finds that the rules prescribe a procedure akin to the procedure for trial of suit under the Civil Procedure Code. The only exception is where the Prescribed Authority on hearing the petitioner and his counsel finds no substance in the petition and may summarily dismiss the same.
(16) Sri Rakesh Chaudhary has pointed out from the order impugned at internal page no. 4 and also from prescribed Form which was before the Prescribed Authority which apparently showed an error in the addition of votes polled at four polling stations for at least two candidates i.e. opposite party no. 7 namely Gulshan and opposite party no.11 Shimla Devi. The total numbers of votes have been shown to be 1994 on the basis of wrong addition made for these two candidates, which should have been only 1952.
(17) Sri R. B. S. Rathore has referred Sub rule 2 of Rule 3 of Rules of 1994 to say that it is not necessary for an election petitioner to implead officials responsible for holding the election as parties to the election petition and in this case the opposite party no.6 had impleaded them it was not necessary for the Prescribed Authority to ensure service upon them and to hear them in this case where prayer no.A of the petitioner which relates to recounting to be ordered as not pressed and the prayer no.3 relating to recounting of votes alone was pressed by the opposite party no.6.
This Court having considered the rival submissions is prima facie of the opinion that opposite party no.2 has proceeded with undue haste which smacks of malafide.
(18) The order impugned 30.05.2022 is set aside (19) The matter is remanded to the opposite party no.2 to give proper opportunity of hearing on the objections by the petitioner to the application dated 06th December 2021/28th December, 2021 and consider the evidence of both the parties.
(20) The District Magistrate, Bahraich shall transfer the hearing of this election petition to a different Tehsil or Sub Divisional Officer so that the allegation of mala fide that has been made repeatedly by the petitioner would not come in the way of timely disposal of the election petition. The District Magistrate shall make all endeavour to transfer the election petition within two weeks from the date of receipt of such order. The parties to the election petition shall be dully informed of the Officer to whom such election petition has been transferred.
(21) None of the parties to the dispute shall ask for unnecessary adjournment or delay the proceedings. In case, the opposite party no.2 finds that there is deliberate attempt at delaying proceedings, it may pass ex parte order but Prescribed Authority must consider all evidence and then pass appropriate order within time as prescribed by this Court in its order dated 27.04.2022 in Petition Under Article 227 No. 1238 of 2022.
(22) The District Magistrate is directed to send an officer from the Head Quarters to get ballot box sealed again and the ballot papers should be kept property so that there is no allegation of tampering with evidence by any of the parties.
(23) Sri Pratyush Tripathi, Additional Chief Standing Counsel shall inform the District Magistrate today itself about the order passed in Court.
Order Date :-2.6.2022 A.K.T.