Nirdosh Tyagi vs State Of U.P. And Others

Heard Shri Saksham Srivastava, learned counsel for the petitioner and learned Standing Counsel and Shri Sujeet Kumar holding brief for Shri Arun Kumar Rana, learned counsel appearing for respondent No.6 namely the election petitioner. With the consent of learned counsel for the parties, the matter has been heard for final disposal at the admission stage itself. The present petition is directed against the order of recount passed by the Prescribed Authority/Sub Divisional Officer, Syana, District Bulandshahar dated 17.5.2017, while allowing the election petition.

At the very outset, learned Standing Counsel informs that the order dated 17.5.2017 is a final order allowing the election petition. Only a revision would lie against the said order and the writ petition under Article 226 of the Constitution of India would not be maintainable. The order passed by the learned Single Judge dated 27.2.2017 passed in a Petition No.1158 of 2017 (Athar Hussain v. Smt. Razda Begum and 6 others) under Article 227 of the Constitution of India has been placed before this Court.

Having gone through the order of the learned Single Judge as relied upon by the learned Standing Counsel and the Full Bench in the Case of Mohd. Mustafa v. Up Ziladhikari, Phoolpur, Azamgarh & Ors. reported in (2007) 3 UPLBEC 2636, in the facts of the case, this Court finds that the order of recount has been passed after deciding all issues in the election petition regarding the illegality/irregularity, if any, committed in the counting process, however, an order after the result of recount is yet to be passed by the Prescribed Authority. The issues raised herein has been answered by the Full Bench in the case of Mohd. Mustafa (supra) with the following observations:- "(I) Whether the revision under Section 12-C(6) shall lie only against a final order passed by Prescribed Authority deciding the election petition under Section 12-C(1) or a writ petition can be filed against an order of recount, which has been passed after deciding certain issues raised in the election petition?"

The observation of the Full Bench:-

" It is evident from the order impugned that only the order of recount has been passed. However, the other issues are yet to be decided after recount of ballot papers as to whether the election had been held in accordance with law and as to whether the votes cast in favour of the contesting respondent has been mixed up with the votes of the returned candidate and on the basis of which the petitioner has been declared elected. It is further to be decided as to whether the election application is to be allowed or dismissed. Therefore, by no stretch of imagination, it can be held that the order of recount of votes has finally disposed of the election application."

(I) A revision under Section 12-C (6) of the Act shall lie only against a final order passed by the Prescribed Authority deciding the election application preferred under Section 12-C (1) and not against any interlocutory order or order of recount of votes by the Prescribed Authority.

(III) As a natural corollary to the above, we also hold that a writ petition would be maintainable against an order of recount passed by the Prescribed Authority while proceeding in an election application under Section 12-C of the U.P. Panchayat Raj Act, 1947. "

In view of the fact that the final decision after recount is yet to be passed in the election petition by the Prescribed Authority/Sub Divisional Officer Syana, this Court is of the view that the writ petition against the order of recount would be maintainable and the petitioner is not to be relegated to avail the remedy of revision.

On merits, it is argued by the learned counsel for the election petitioner that the pleadings and evidence filed in support of the irregularities pointed out by the election petitioner are different. No satisfaction whatsoever has been recorded by the Prescribed Authority on the material before it before passing of order of recount.

In rebuttal, learned counsel appearing for respondent No.6, submits that material pleadings regarding the irregularities committed during the counting process are categorical and are supported by the affidavits of agent of the election petitioner. The invalid votes counted in favour of the returned candidate have been clearly narrated in the election petition and same issue has been raised in the affidavit. The Prescribed Authority has categorically recorded that without recount clear and correct position would not come up. There was difference of only three votes and as such, the order of recount cannot be faulted.

To deal with the submissions of learned counsel for the petitioner and learned counsel appearing for respondent No.6, it would be pertinent to go through the relevant paragraphs of the election petition namely ''paragraph Nos.13, 14, 15, 16'' which read as under"- "VERNACULAR MATTER OMITTED"

From a careful perusal of the pleadings, the evidence in the shape of affidavits and the findings recorded by the Prescribed Authority, it is more than apparent that the pleadings in the election petition and the affidavits of the agent of election petitioner are different. The pleadings of irregularity allegedly committed during the counting process are not supported by the affidavit of agent of the election petitioner. The assertion in the affidavit of the agent are not found in the election petition. In the matter of recount, the law is categorical that recount cannot be ordered as a matter of course.

The Apex Court as also the Full Bench of this Court in the following cases has held as under:- "So far as the principles for ordering inspection of ballot papers, the Apex Court in the case of Bhabhi vs. Sheo Govind and others reported in 1976 (1) Supreme Court Cases 687 has held in paragraph ''15'' as under :-

"(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 allocations made against the elected candidate must be clear and specific and must be supported by adequate statements of material facts;

(3) The Court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations made for a recount;

(4) That the Court must come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties;"

The same principles have been followed in M.R. Gopalakrishnan vs. Thachady Prabhakaran and others reported in 1995 Supp (2) Supreme Court Cases 101.

In Satyanarain Dudhani vs. Uday Kumar Singh reported in 1993 Supp (2) Supreme Court Cases 82, the Apex Court again reiterated the similar view by observing that the secrecy of the ballot papers cannot be permitted to be tinkered lightly. An order of recount cannot be granted as a matter of course. It is only in a case where the Court is satisfied on the basis of material facts pleaded in the petition and supported by the contemporaneous evidence that the recount can be ordered.

In Vadivelu vs. Sundaram and others reported in 2000 (8) Supreme Court Cases 355, it is reiterated that recount of votes could be ordered very rarely and on a specific allegation of the pleadings in the election petition that illegality or irregularity was committed while counting. The petitioner who seeks recount should allege and to 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 allegations, 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 mere 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.

The abovenoted principles have been laid down by the Apex court in the context of the Representation of People Act. A question came up before the Full Bench of this court in Ram Adhar Singh vs. District Judge and others reported in 1985 AWC 246 that whether these principles can be pressed in a summery proceeding under Section 12-C of U.P. Panchayat Raj Act wherein it shall not be necessary for the Sub-Divisional Officer (the authority competent) to record evidence in full and the affidavits are only filed in evidence. While giving its answer, it has been held by this Court that hearing of the election petition under Section 12-C (1) of the Act in a summary procedure has no bearing on the question regarding circumstances in which the ballot papers can be looked into or permitted to be inspected. This Court has observed:- "Neither of the two enactments countenances the court or the authority to permit the election Petitioner to make or indulge into making of a roving enquiry with a view to fish out material for declaring an election void; and it is this weighty factor which impels the court or the authority not to look into or permit inspection of ballot papers unless the foundation for the purpose has been properly laid in the petition by specifying the ground and the material or the circumstances in support of such ground."

It has further been held that the principles with regard to inspection of ballot papers enunciated by the Apex Court in cases arising under the Representation of the People Act to an election petition would be applicable in an election petition dealt with under the provisions of U.P. Panchayat Raj Act. "

It has been held that in an election petition, the Prescribed Authority cannot initiate roving enquiry to fish out the material by passing the order of recount. In order to maintain the secrecy of the ballot papers, it is incumbent upon the Prescribed Authority to find out as to whether there was sufficient material on record in the shape of pleadings and evidence of the election petitioner to order for recount. Two pre-conditions are required to be fulfilled before passing the order of recount 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 while passing an order of recount, the election tribunal has to record its prima facie satisfaction based on the averments made in and the materials indicated in the election petition about the existence of the ground on which the election is sought to be questioned. The allegation has to be specific and vague and indefinite allegations could not be ground to direct to recount of votes. "

What logically follows is that the material and facts have to be pleaded in the election petition in order to impress upon the election tribunal that recounting of secret ballot papers is required. These pleadings are necessarily to be supported by the evidence of the election petitioner which is generally in the shape of affidavit as the proceedings before the Prescribed Authority are summary in nature.

After these two pre-conditions are fulfilled, the Prescribed Authority is under obligation to record its satisfaction on the pleadings and material evidence to hold that the irregularities pointed out during the course of counting are supported by evidence and would require an order of recount.

In the present case, before passing the order of recount no such satisfaction has been recorded by the Prescribed Authority. Moreover, the pleadings and the evidence of the election petitioner on record are not sufficient to pass an order of recount by the Prescribed Authority.

In view thereof, this Court does not find any justification to sustain the order passed by the Prescribed Authority for recounting only on the premises that there was a difference of only three votes between the returned candidate and the election petitioner.

The order dated 17.5.2017 passed by the Prescribed Authority/Sub Divisional Officer, Syana, District Bulandshahar is hereby quashed. The matter is remitted back to the Prescribed Authority to examine a fresh and pass appropriate order in accordance with law. It would be open for the party to lead through evidence so as to bring the dispute to its logical end. An expeditious decision in accordance with law shall be passed within a period of six months from the date of submission of certified copy of this order. Subject to the above observations and directions, the writ petition is allowed.