Mohd. Kaisar vs Chhabili Devi and Another

V.K. Shukla, J.—Present writ petition has been filed by the petitioner Mohd. Kaisar, questioning the validity of decision taken by the Election Tribunal dated 15.12.2009 directing for summoning of the election papers, inspection of ballots and recounting and thereafter posting the matter for final hearing.

Brief background of the case, as mentioned in the writ petition, is that election for the post of President of Nagar Panchayat Devraniya, Tehsil Baheri, District Bareilly had been held on 03.11.2006 and the result of the said election was declared on 07.11.2006. In the election so held, in all, there were 9 contesting candidates, including the petitioner. The petitioner claims to have secured 2401 votes, whereas the election petitioner had secured 2396 votes. Questioning the validity of said election, election petition was filed, being election petition No. 34 of 2006, by Smt. Chhabili Devi. In the said proceeding an application under Order VII Rule 11 C.P.C. for quashing of the election petition had been filed. The Election Tribunal proceeded to pass order on the said application that the same was not at all liable to be allowed. The matter travelled up to this Court in the shape of writ petition No. 19136 of 2008, and this Court vide its judgment dated 02.05.2008 dismissed the said writ petition, noting therein that the petitioner had not filed written statement till that date; he should file his written statement. Thereafter, written statement was filed and replica was also filed to the said written statement. In the election petition so filed, in all, 12 issues were framed. In support of the averments made in the election petition three witnesses were examined by respondent No. 1 and two witnesses were examined from the side of the petitioner. Said election petition was posted for hearing on 26.11.2009. On said date an application 112-gha was filed by respondent No. 1 for calling of the record from the election office with regard to election in question and for a direction for recounting of ballots. Against the said application objections had been filed and this document was numbered as 114-gha; counter affidavit was also filed and the same was numbered as 116-gha. Said application had been allowed on 15.12.2009, directing for summoning of the election papers and for recounting of the ballot papers and straightaway for reserving the judgment. At this juncture present writ petition has been filed.

Notice to proforma respondents is not being issued, with the consent of adversary parties, present writ petition is being taken up for final hearing and disposal.

Sri K.N. Tripathi, Senior Advocate, assisted by Sri Chandan Kumar, Advocate, appearing in support of the writ petitioner, contended with vehemence that in the present case Election Tribunal has totally misdirected itself without undertaking requisite exercise and without recording finding that there was cogent evidence available on record on prima facie basis, which warranted summoning of record in respect of ballot papers and recounting, on totally bald and evasive statement of fact and without considering the cross examination of the incumbents, whose statements had been recorded, on mere surmises and conjectures has proceeded to pass the impugned order, and has further committed material irregularity by directing that after recounting, arguments would be closed and judgment would be reserved, as such the judgment and order passed by the Election Tribunal is liable to be set aside.

Countering the said submissions, Sri S.K. Verma, Advocate, assisted by Sri Sidharth Verma, on the other hand, contended that in the present case, in the interest of justice, as prima facie material irregularities were committed and in support of the same material was there, as such rightful opinion has been formed, and as such no interference should be made.

Before proceeding to consider the respective arguments advanced, the law with regard to recount, which has been subject matter of interpretation before Hon''ble Apex Court and this Court and parameters settled therein are being looked into.

Full Bench of this Court in the case of Ram Adhar Singh v. District Judge, Ghazipur and Ors. reported in 1985 AC.J 196 has clearly taken the view that on vague and indefinite allegation recounting cannot be ordered and in paragraph 16, applying the principle with regard to inspection of ballot papers enunciated by the Supreme court in cases arising under the Representation of the People Act qua an election petition to be dealt with under the provisions of the U.P. Panchayat Raj Act, view has been taken that there is no escape from the conclusion that before an authority hearing the election petition under the said Act can be permitted to look into or direct inspection of the ballot papers, following two conditions must co-exist; which are as follows:

(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.

It, therefore, follows that in the absence of any specification with regard to the ground on which the election of the respondent is being questioned together with summary of the circumstances alleged to justify the election being questioned on such ground, it is not open to the authority dealing with an application u/s 12-C of the U.P. Panchayat Raj Act, either to look into or direct inspection of ballot papers merely on the ground that it feels that it would be in the interest of justice to look into or permit inspection of the ballot papers. In the context, such satisfaction has necessarily to be based on specific averments made in and the materials indicated in the election petition which could, prima-facie satisfy the authority about the existence of the ground on which the election is sought to be questioned."

the case of R. Narayanan Vs. S. Semmalai and Others, Hon''ble Apex Court has taken the view that the allegations which have been made must not only be clearly made but also proved by cogent evidence and the narrow margin of votes undoubtedly is an important factor to be considered, but the same would not by itself vitiate the counting or justify recounting. Paragraph 26 of the said judgment being relevant is quoted below:

Finally, the entire case law on the subject regarding the circumstances under which recount could be ordered was fully summarised and catelogued by this Court in the Case of Bhabhi v. Sheo Govind 1975 Supp SCR 202 to which one of us (Fazal Ali, J.) was a party and which may be extracted thus:

The Court would be justified in ordering a recount of the ballot papers only where;

(1) the election petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded;

(2) On the basis of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting; and

(3) The court trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties.

Thereafter Hon''ble Apex Court in the case of P.K.K. Shamsudeen Vs. K.A.M. Mappillai Mohindeen and Others, has taken the view that recounting of votes cannot be directed as matter of course. The reason for this salutary rule is that the preservation of the secrecy of the ballot is a sacrosanct principle, unless prima-facie case is made out, it cannot be broken. Relevant extract of the said judgment is being quoted below:

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 hindsight 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 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 the 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 interest of justice, a Tribunal or Court should not order the recount of votes.

Hon''ble Apex Court in the case of Vadivelu Vs. Sundaram and Others, has reiterated the same principles in paragraph 16, which is being quoted below:

The result of the analysis of the above cases would show that this Court has consistently taken the view that recount 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 recount 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 recount 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 recount of votes under such circumstances to do justice between the parties.

Hon''ble Court in the case of M. Chinnasamy Vs. K.C. Palanisamy and Others, has taken the view that recounting cannot be ordered on mere asking or merely because margin of the votes between the returned candidate and the election petitioner is narrow. Where irregularities in counting of votes was alleged in the election petition but details of names of polling stations, counting centres, tables, round of counting of votes in relation to which alleged irregularities had taken place and basis of material facts and particulars had not been disclosed, the view taken was that the election petitioner failed to make out a prima facie case of scrutiny of ballot papers. Paragraphs 15, 16, 17, 18 and 28 of the said judgment are being quoted below:

It is not in dispute that in relation to an election petition, the provisions of the CPC apply. In terms of Order VI Rule 2 of the CPC which is in pari materia with Clause (a) of Sub-section (1) of Section 83 an election petition must contain concise statement of material facts. It is true as contended by Mr. Mani that full particulars are required to be set forth in terms of Clause (b) of Sub-section (1) of Section 83 of the Act which relates to corrupt practice. The question as to what would constitute material facts would, however, depend upon the facts and circumstances of each case. It is trite that an order of recounting of votes can be passed when the following ingredients are satisfied : (1) If there is a prima facie case; (2) material facts therefore are pleaded; (3) the Court shall not direct recounting by way of roving or fishing inquiry; and (4) such an objection had been taken recourse to.

The necessity of ''maintaining the secrecy of ballot papers'' should be kept in view before a recounting is directed to be made. A direction for recounting shall not be issued only because the margin of votes between the returned candidate and the election petitioner is narrow.

The requirement of rule of pleadings containing material facts are salutary in nature.

The parties are bound by the said rule of pleadings and verification thereof having regard to the fact that an election may not be set aside on hyper-technical grounds although no factual foundation therefore had been laid in the pleading as the elected candidate may not have any hand therein. So far as requirement of pleadings in a case where a direction of recounting of ballot papers has been prayed for, the Court must proceed cautiously and with circumspection having regard to the requirement of maintaining secrecy of ballot papers. It is not disputed that the counting was done at four centres. It is further not disputed that the material facts, as regard as to which category of irregularities as enumerated in the election petition occurred, at which centre and at what time, had not been pleaded. It has further not been disclosed the details as regards tables at which such objections were raised, nor the names of the counting agents had been disclosed. The very basis of the election petition centres round the objections of the Chief election Agent of the election petitioner dated 6-10-1999 (Ex. P/9). We have set out the said objections in extenso hereinbefore. A bare perusal thereof would clearly show that the allegations contained therein are absolutely vague and lack material particulars. Details as regard commission of alleged irregularities police stationwise, assembly segmentwise, polling counterwise or tablewise had not been disclosed. The same by itself goes to show that the Chief Election Agents of the election petitioner did not raise any objection before the returning officer and the counting staff as and when such irregularities purported to have been found out. It may be relevant to note that even if the said Agent of the election petitioner had not been examined, inter alia, on the ground that he after declaration of the election result has changed the sides.

The law operating in the field is no longer res integra. Inspection of ballot papers can be ordered when in the facts and circumstances obtaining in the case, the Tribunal finds it necessary to so direct in the interest of justice. Discovery and inspection of documents with which the Civil Court is invested with power under the CPC when trying a suit may be applied but such an order would not be granted as a matter of course having regard to the insistence upon the secrecy of the ballot papers. Such an inspection may be ordered when two conditions are fulfilled:

(i) that the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support of his case; and

(ii) the tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary...

[See Ram Sewak Yadav Vs. Hussain Kamil Kidwai and Others,

Hon''ble Apex Court, in the case of Sadhu Singh v. Darshan Singh 2006(64) ALR 905, has reiterated the relevant factors, which are necessary, before order of recount could be passed. Relevant extract is being quoted below:

Concededly the following factors are relevant for directing recounting of votes:

(i) prima facie case must be established;

(ii) material facts must be pleaded stating irregularities in counting of votes;

(iii) a roving a fishing inquiry shall not be directed by way of an order for recounting of votes;

(iv) an objection to the said effect should be raised; and

(v) secrecy of ballot papers should be maintained.

Hon''ble Apex Court recently in the case of Udey Chand Vs. Surat Singh and Another, decided on October 9, 2009 has taken the view that in respect of counting of votes such an order cannot be made as matter of course. It may not be necessary for the Court to hold regular inquiry, but the court is obliged to apply its mind to the facts disclosed in the election petition on which allegations of irregularity or illegality are founded along with some contemporaneous evidence, which would depend on the facts and circumstances of each case. An order for recount on the basis of bare allegations in the election petition would not be a proper exercise of jurisdiction. It has also been clarified therein that even recounting has taken place mater will not become infructuous and from the result emanating from the re-count of votes issues are not to be decided. Paragraphs 27 to 35 of the aforesaid judgment are being quoted below:

Having viewed the matter in the light of the principles enunciated above, we are constrained to note that the Tribunal as also the High Court lost sight of the parameters to be applied while considering the petition seeking re-counting of votes. We find that the allegations in the election petition were not only vague, even the basic material facts as could have made the Tribunal reach a prima facie satisfaction that re-count of ballots was necessary were missing in the petition. Affidavit in support of the allegations, summarised in paragraph 3 above, was neither filed nor called for, more so, in a case where serious allegations of misconduct were levelled against the Returning Officer. Having regard to the fact that concededly the result sheet had been signed by the election petitioner, perhaps, it was a fit case where the examination of the Returning Officer was necessary to elicit the correctness of the allegations in the petition.

It is manifest from the observations of the Tribunal, extracted in para 5 above, that the sole factor which had weighed with it to order re-count was the margin of only 4 votes between the appellant and the election petitioner. In our opinion, a narrow margin of 4 votes does not per se give rise to a presumption that there had been an irregularity or illegality in the counting of votes.

Apart from laying the foundation in the pleadings, the onus to prove the allegation of irregularity or illegality on the part of the Returning Officer was on the election petitioner, which he failed to discharge. The allegation against the Returning Officer of obtaining the signatures of the election petitioner on a blank result sheet and filling up the same after the election petitioner had left the polling station, was a serious allegation involving dereliction of duty. It could not be accepted at its face value and had to be proved with cogent material, which was not done.

We are convinced that in order to overcome his lapse in not availing of the statutory remedy for re-counting of votes as provided in Rule 69 as also the factum of his signing the result sheet in Form 19, the plea of incorrect recording of the result after his departure from the polling station was raised by the election petitioner. Clearly, it was an afterthought. In this regard, the following observations by a three-Judge Bench of this Court in Chandrika Prasad Yadav''s case (supra) are quite apposite: (SCC page 339):

Ordinarily, thus, it is expected that the statutory remedies provided for shall be availed of. If such an opportunity is not availed of by the election petitioner; he has to state the reasons therefor. If no sufficient explanation is furnished by the election petitioner as to why such statutory remedy was not availed of, the Election Tribunal may consider the same as one of the factors for accepting or rejecting the prayer for re-counting. An order of the prescribed authority passed in such application would render great assistance to the Election Tribunal in arriving at a decision as to whether a prima facie case for issuance of direction for re-counting has been made out.

In the light of the afore-stated factual scenario, we are of the opinion that in the present case there was no material on record on the basis whereof the Tribunal could have arrived at a positive finding as to how a prima facie case had been made out to order a re-count of the ballot papers. The order of recount was passed by the Tribunal mechanically without any application of mind and, therefore, the High Court erred in upholding it.

Before parting with the case, we may also deal with the contention urged on behalf of the election petitioner to the effect that re-counting having taken place in terms of the Tribunal''s order, this appeal is rendered infructuous. The argument is noted to be rejected. An order of re-count of votes has to stand or fall on the nature of the averments made in the election petition and the material produced in support thereof before the order of re-count is made and not from the result emanating from the re-count of votes.

A similar view was echoed by a three-Judge Bench of this Court in V.S. Achuthanandan''s case (supra). Speaking for the Bench, R.C. Lahoti, J. (as His Lordship then was) held thus:

...if the validity of an order passed by the High Court permitting inspection of ballot papers and directing a re-count is brought in issue before the Supreme Court, the facts revealed by re-count cannot be relied upon by the election petitioner to support the prayer and sustain the order for re-count if the pleadings and material available on record anterior to actual re-count did not justify grant of the prayer for inspection and re-count.

A similar contention was rejected by another three-Judge Bench of this Court in M. Chinnasamy v. K.C. Palanisamy and Ors., wherein it was held that even if on re-count it was found that the returned candidate had not secured majority of votes, the result could not have been disturbed unless prima facie case of high degree of probability existed for re-count of votes, which is not the case here. Accordingly, we reject the contention.

In view of the afore-going discussion, the appeal is allowed; the election petition, lacking material facts, is rejected and consequently, the order passed by the Election Tribunal directing re-count of the votes is set aside. The appellant shall be entitled to costs in this appeal.

Hon''ble Apex Court, recently, in the case of Kattinokula Murali Krishna v. Veeramalla Koteswara Rao and Ors. 2009 (7) ST 478, decided on 23.11.2009 has taken the view that order of recount has to be based on material available and bald plea that some irregularities and illegalities had been committed in counting, the order in question is not sustainable. Paragraphs 15, 16 and 17 of the said judgment are being extracted below:

Having viewed the matter in the light of the principles enunciated above, we are constrained to hold that the Election Tribunal as also the High court lost sight of the parameters to be applied while considering the petition seeking re-counting of votes. It is manifest from the afore-extracted paragraph 4 of the election petition, containing the grounds of challenge, the allegations regarding irregularity or illegality in the counting of votes were not only vague, even the basic material facts as could have made the Election Tribunal record a prima facie satisfaction that re-count of ballots was necessary, were missing in the petition. It is pertinent to note that upon consideration of the evidence adduced by the parties, the Election Tribunal had itself observed that the election petitioner had failed to state any material facts regarding the failure of the Election Officer to mention reasons for rejection of votes and further there was no specific allegation as to on which table the votes polled in favour of the election petitioner were mixed with the votes polled in favour of the appellant; and on which table the votes polled in his favour were rejected as invalid. Precisely for this reason, and in our view rightly, the Election Tribunal had declined to take into consideration the evidence adduced by the election petitioner on the point. It is a settled principle of law that evidence beyond the pleadings can neither be permitted to be adduced nor such evidence canbe taken into consideration. Moreover, even the two material issues, viz. as to whether the counting of votes by the Election Officer was in accordance with the rules and regulations as also whether the votes polled in favour of the election petitioner were rejected as invalid or there was improper mixing of the votes have been found in favour of the appellant. It is evident from the observations of the Election Tribunal, extracted in Para 7 above, that the sole factor which had weighed with it to order re-count was that no prejudice will be caused to the appellant if the ballot papers are re-counted. Similarly, the factor which weighed with the High Court to affirm the view of the Election Tribunal is that re-counting of votes will reinforce the transparency in the process of election, particularly when the margin of votes was very narrow. It needs to be emphasised that having regard to the consequences emanating from the direction of re-counting, which may even breach the secrecy of ballot, the doctrine of prejudice is an irrelevant factor for ordering re-count. Similarly, a narrow margin of votes between the returned candidate and the election petitioner does not per se give rise to a presumption that there had been an irregularity or illegality in the counting of votes. In the first instance, material facts in this behalf have to be stated clearly in the election petition and then proved by cogent evidence. Undoubtedly, the onus to prove the allegation of irregularity, impropriety or illegality in the election process on the part of the Election Officer is on the election petitioner and not on the Election Officer, as held by the authorities below. In the present case, both the forums below have found that material facts were lacking in the election petition. Having held so, in our view, the election petition should have been dismissed on this short ground alone. In that view of the matter, the observation of the Election Tribunal, as affirmed by the High Court, that the Election Officer had failed to say anything regarding corrections and over-writings in Form 26, are neither factually nor legally sound.

We are of the opinion that in the light of the afore-noted factual scenario and the fact that findings of the Election Tribunal on issues No. 1 and 2 were in favour of the appellant, except for a bald plea that some irregularities and illegalities had been committed in counting, there was no material on record on the basis whereof the Election Tribunal could have arrived at a positive finding that a case to order re-count of the ballot papers had been made out. For all these reasons, we are convinced that the order of re-count passed by the Election Tribunal was illegal and the High Court erred in upholding it.

In view of the afore-going discussion, the appeal is allowed; the order passed by the Election Tribunal ordering re-count of the ballot papers, and affirmed by the High Court is set aside. The appellant shall be entitled to costs, quantified at Rs. 20,000/-.

Recount 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 recount 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 recount 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 recount of votes under such circumstances to do justice between the parties.

Now facts of the present case are being tested on the touch stone of the principle which has been settled by Full Bench of the Court as well as by Hon''ble Apex Court noted above.

In the present case earlier as to whether there existed material facts in the election petition or not, the matter had travelled up to this Court. This Court on 02.05.2008 while deciding the writ petition took the view that this Court did not find any illegality in the view taken by the Election Tribunal and the facts which were there in the election petition were sufficient and constituted material facts, on which material particulars were also given. The facts regarding 76 voters allowed to participate at both places and 21 dead electors, who were shown to have cast their votes, would constitute material facts. It was also mentioned in the said judgment that these facts would constitute material and basic facts, which were to be proved at the trial. The fact of the matter is that three witnesses, namely, Chandra Sen, Abdul Hamid and Maiku had been examined from the side of the election petitioner, and two from the side of the present petitioner, namely, the petitioner himself and Sharif Ahmad. The aforesaid election petition was posted for hearing on 26.11.2009, and then an application was moved for summoning the entire records for effective adjudication of the election petition. Against the said application objections had been filed along with counter affidavit. Said application has been allowed.

The Election Tribunal in the present case proceeds to mention in paragraph 12 of the judgment that in paragraphs 6 to 12 of the election petition detail facts have been mentioned in the way and manner in which irregularities had been committed and the election petitioner was declared elected by 11 votes and even in the garb recounting ultimately election petitioner was got defeated by five votes. The Election Tribunal then has proceeded to note down the facts as mentioned in paragraphs 6 to 12 of the election petition in paragraphs 13 to 19 of the judgment and nothing beyond the same. In paragraph 20 of the impugned judgment, it has been mentioned that all these facts had been mentioned in application 112-gha, which had been moved for recounting supported by affidavit of Chandra Sen, husband of election petitioner. Thereafter, Election Tribunal has proceeded to note down the details averred in the objection and the facts mentioned in the affidavit. In paragraph 26 of the judgment, the averments mention in paragraph 12 of the election petitionj has been reiterated on oath, and in addition to it, it has been averred that returning officer was got changed and undue pressure was got exerted by Wafur Rehman and Afaur Rehman and got the result declared. In paragraph 27 arguments raised by the elected candidate has been noted, then it has been mentioned that election petitioner has filed her affidavit, her husband Chandrasen has also filed affidavit, and has also been cross examined at length. In paragraph 28 of the judgment, it has been mentioned, that arguments have been advanced that contampareous evidence is not on record. Thereafter, it has been mentioned that in the cross examination of Chandrasen, it has come that he made repeated complaint, but the same went unheeded, and it is accepted fact, that three letters were sent by fax after 06.04.2006 onwards. Election Tribunal, thereafter, has proceeded to note down the provisions of the Municipalities Act and the Full Bench judgment of this Court. In paragraphs 32 and 33 of the impugned order, Election Tribunal has proceeded to mention that in paragraphs 6 to 12 of the election petition the circumstances in detail have been set out. Smt. Chhabili Devi hasgiven her affidavit. Sri Chandrasen has submitted his affidavit and has been cross examined at length. Sri Abdul Hamid has given his contamperous evidence, by stating that election petitioner was declared elected by eleven votes, but by putting undue pressure of Bafaur Rehman, Sri J. S. Mathur declared that election petitioner, instead of 2406 votes has polled 2396 votes and petitioner instead of 2395 votes has polled 2401 votes. In paragraph 33 of the judgment, statement of petitioner and Sharif Ahmad have been dealt with. Thereafter, judgments have been referred to in paragraphs 34 to 39 and the proposition of law laid therein. In paragraph 40 of the judgment Tribunal has proceeded to mention that what would be the impact of non-production of election in witness box, is not required to be answered at this stage. Again in paragraphs 41 and 42 judgments have been referred to, and then the sum and substance of said judgment and the principle noted therein has been noted, keeping in view the judgment.

In the present case most surprising feature of the case, as is reflective from paragraphs 44, 45, 46 and 47 of the impugned order, is that the Election Tribunal has again proceeded to mention in paragraph 44 of the judgment that there is evidence on oath of election petitioner, that she was declared elected by 11 votes, at said point of time Ataur Rehman, local M.L.A. And Chairman, Minorities Financial Corporation, and his brother exerted undue pressure, in the garb of recounting , got her declared as having lost the election by five votes. In paragraph 45 of the judgment, again Election Tribunal has reiterated the facts that in support of material facts mentioned in paragraphs 7 to 12 of the election petition, there is affidavit of Chhabili Devi. Affidavit of Chandrasen is there, with cross examination. There is supporting evidence of Abdul Hamid. In paragraph 46, the Election Tribunal proceeds to mention that at this stage only prima facie satisfaction has to be recorded qua existence of credible ground, that for effective adjudication of election petition, inspection and recount is imperative. Election Tribunal proceeds to mention that in spite of all these alleged irregularities, there is difference of five votes. In paragraph 47 of the judgment, Election Tribunal proceeds to mention that the Election Tribunal is satisfied that the averments, which have been mentioned in application 112-ga, with affidavit 113-ga, counter affidavit 118-ga, and the oral evidence of Chandrsen and Abdul Hamid is there, no decision can be taken qua the facts spelled out in cross examination, but for effective adjudication, documents are imperative to be called for.

Election Tribunal at one place proceeds to mention that on the basis of cross examination, whatsoever, evidence is there, on the same he cannot give any opinion and it would be expedient to summon the record in the ends of justice. Cross examination portion has been appended before this Court and it ought to have been taken into consideration. The cross examination of the witnesses of the election petitioner clarified the factual situation as mentioned in the examination-in-chief, Election Tribunal has conveniently avoided to consider the cross examination portion and the statement of Chadnra Sen specially at page 79, 80 and 81 of the paper book. The Election Tribunal while forming the opinion as to whether from the material facts which had been pleaded, prima facie there existed cogent evidence to direct for recounting, ought to have discussed the said statements, the way and manner in which result has been materially affected, the point of time when irregularities had been committed in the counting of votes, substantiating the same by giving details of polling stations, counting centres, tables, round of counting of votes in relation to which alleged irregularities had taken place. The Election Tribunal in the present case has not at all undertaken requisite exercise, as to what was the prima facie cogent evidence which prompted him to pass the order of recounting. Reasons for forming prima facie opinion, is not at all exhibited, inasmuch as mere mention has been made of the statement, the affidavit and has proceeded to mention that he was satisfied with the discussion and evidence available on record, totally ignoring the cross examination portion. As requisite exercise is lacking and missing, the order impugned is not at all approved of.

The judgment cited by the election petitioner, namely 1999 (1) AWC 451, Shobh Nath v. State of U.P. and Ors. rendered in writ petition No. 35019 of 1998, decided on 10.11.1998, 2008 (105) RD 58, Om Prakash Upadhyaya v. State of U.P. and Ors. and 1997 (1) LBSER 21 : 1997 (1) UPLBEC 500, rendered in writ petition No. 28519 of 1996, are clearly distinguishable on facts and will not apply to the facts of present case.

There is one more irregularity committed by the Election Tribunal. It appears that before the Election Tribunal arguments were advanced at great length and he has proceeded to mention that in relation to entire election petition arguments have been heard and whatever would be fate of the election petition after recounting straightaway judgment be reserved. Such an approach cannot be subscribed as even after recounting the parties are free to press the election petition on merits, may it be repetition of arguments already advanced.

Consequently, writ petition succeeds and is allowed. The order impugned dated 15.12.2009 is hereby quashed and the Election Tribunal is directed to reconsider the application for recounting, and take appropriate decision in accordance with law.