Ravindra Singh vs State of U.P. and Others

Sunil Ambwani, J.—Heard Shri R.R. Singh, learned Counsel for the petitioner. Shri B.R. Singh appears for Shri Omkar-respondent No. 3. Learned Standing Counsel appears for respondent Nos. 1 and 2. The respondent Nos. 4 and 5 are proforma respondents. With the consent of parties, the writ petition was heard and is being finally decided.

The petitioner contested the elections and was elected as Pradhan of Gaon Sabha Yurajpur, Pargana & Tehsil Zamania. Distt. Ghazipur of which the result was declared on 28.8.2005. Shri Omkar, respondent No. 3 filed an election petition u/s 12-C of the U.P. Panchayat Raj Act, 1947 on the grounds of material irregularities in the counting of votes. He alleged that at the end of the counting of the votes in the elections in which 2221 electors exercised their right to vote, the election petitioner was found to have secured 587 votes. Shri Ravindra, opposite party No. 1 secured 584 votes; opposite party No. 2 secured 540 votes and opposite party No. 3 secured 430 votes. There were 80 invalid votes. In this manner Shri Omkar, the election petitioner was declared to be winner. When he demanded the certificate, he was told that the result is to be sent to the Asstt. Election Officer and that he will get his certificate from him. The election petitioner kept on waiting. He, however, was later on surprised to learn that Shri Ravindra Singh, opposite party No. 1 was declared as elected with margin of one vote. The petitioner gave the details of the irregularities in paras 5, 6, 7 and 8 and prayed for cancelling the elections or to examine the electoral list, which was marked and the number of ballots, which were issued and if they were found to be 2221 in number, they should be recounted and he should be declared as elected. The Sub Divisional Officer/ Election Tribunal by his order dated 19.3.2008 has directed recount of votes and has summoned the entire records by 28.3.2005 and to hold recounting on 31.3.2008 giving rise to this writ petition.

Learned Counsel for the petitioner submits that the Prescribed Authority has misread the evidence on record. He has not given any reason to discard the ''Garna Parishishth'' 2GA, which is an authentic paper signed by the Election Officer and has chosen very flimsy grounds for recounting the ballot papers, which will disturb the secrecy of votes. He further submits that the prayer in the writ petition that if the election result be summoned and if 2221 ballots were found to be issued, only then the recount be made, was not considered by the Prescribed Authority.

The law with regard to recount of votes is fairly well settled. In Beliram Bhalaik Vs. Jai Beharilal Khachi and Another, the Supreme Court cautioned that since an order for a recount touches upon the secrecy of ballot, it should not be made lightly or as a matter of course. Although no cast iron rule of universal application can be or has been laid down, yet, from a bedroll of the decisions of this Court, two broad guidelines are discernible; that the court would be justified in ordering a recount or permitting inspection of the ballot papers only where (I) all the material facts on which the allegations of irregularity, or illegality in counting are founded, are pleaded adequately in the election petition, and (ii) the Court/Tribunal 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. In Suresh Prasad Yadav Vs. Jai Prakash Mishra and Others, Chanda Singh Vs. Choudhary Shiv Ram Verma and Others, Ch. Manphul Singh Vs. Ch. Surinder Singh, same principles were upheld. These principles were reiterated in Bhabhi Vs. Sheo Govind and Others, as follows:

(1) That it is important to maintain the secrecy of the ballot which is acrosant 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 supported by adequate statements of material facts;

(3) That 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;

(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 the 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.

In S. Raghbir Singh Gill Vs. S. Gurcharan Singh Tohra and Others, it was held as under:

True, re-count cannot be ordered just for the asking. A petition for re-count cannot be ordered after inspection of ballot papers must contain an adequate statement on material facts on which the petitioner relies in support of his case and secondly the Tribunal must be prima satisfied that in order to decide the dispute and to do complete justice between the parties an inspection of the ballot papers is necessary. The discretion conferred in this behalf should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fishing out materials for declaring the election void.

In M.R. Gopalakrishnan Vs. Thachady Prabhakaran and Others, it was held that the demand of defeated candidate for re-count of votes has to be considered keeping in view that secrecy of the ballot is sacrosanct in a democracy, and. therefore, unless the election petitioner is able not only to plead and disclose the material facts but also substantiate the same by means of evidence of reliable character that there existed a prima facie case for re-count, no Tribunal or Court would be justified in directing a re-count.

In Vadivelu Vs. Sundaram and Others, same principle was reiterated with emphasis in paragraph 16 quoted as below:

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 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.

In V.S. Achuthanandan v. P.J. Francics (2001) 3 SCC 81, Supreme Court went to the extent of holding that once a recount is validly ordered and the statistics revealed by the re-count are available to be used for deciding election dispute, the fats reveled 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 recount did not justify grant of the prayer for inspection and re count.

In this case the Prescribed Authority has found that there were sufficient pleading with material particulars with regard to irregularities in counting of votes affecting the elections. He has set down the pleading in which it was stated by the election petitioner that after the election petitioner was declared elected with a difference of four votes, manipulations were made in the election documents. In booth No. 167 instead of 532, 464 valid and 71 invalid votes, a total of 535 votes were reported, whereas in the counting sheet only 532 votes were recorded. As against booth Nos. 169, 170 and 171 the total number of votes were not written in the counting sheet. Two votes in booth No. 169; 4 in booth No. 170 and 2 in booth No. 171 were reduced by manipulations by overwriting and that instead of 2221 votes 2216 votes namely 5 votes were not shown, and 3 votes were increased in booth No. 167. These manipulations were made to defeat the election petitioner. When he requested for recounting, the request was denied.

The Prescribed Authority/Election Tribunal recorded statements of Omkar son of Baij Nath and permitted his cross-examination. The election petitioner testified that he was declared winner with four votes of which announcement was made on loudspeakers. Shri Devendra Nath Singh was examined as plaintiff witness and was allowed to be cross-examined. He stated that he was agent of Omkar Singh and that Omkar Singh was declared winner with 587 votes as against 584 polled by Ravindra Singh. The opposite party No. 1 examined himself and stated that total number of 2216 votes were polled out of which 91 were declared to be invalid. In the counting of valid votes, he was declared to be elected with four votes on which election petitioner had given an application for recount. The counting officer allowed recount on which on the second time also opposite party No. 1 was declared to be winner with 4 votes and an announcement was made. He stated in his cross-examination that the counting was made twice. There was no objection to the counting for the second time in which same result was declared. DW-2, Heera supported his statement.

The Election Tribunal has given following grounds in support of the order of recount; (1) the wrong statement of elected candidate, opposite party No. 1, who has admitted para 3 of the election petition that the recount was made on the application of the election petitioner; (2) opposite party No. 2 has admitted in his statement that six votes were declared invalid and taken out of the bundle of the election petitioner and 3 votes cast on election symbol ''Imli'' were taken out from bundle of the election petitioner, whereas in his statement on oath he has stated that the recount was made on the application of Omkar Singh on which the same result was found and he was declared elected with difference of 4 votes. This contradiction creates a doubt on his testimony: (3) the total number of votes on the counting sheet on Schedule 2 Ga comes to 2221, whereas total number of votes calculated on the counting sheet is 2216; (4) the contradiction in the statement of opposite party No. 1 and the difference in the number of votes on the counting sheet dated 28.8.2005 supports the doubt and if the total number of votes i.e. 2221, polled were taken into consideration, which is also admitted in the written statement. This will be sufficient reason to affect the election result.

The election petitioner has to prima facie prove by clear and specific pleading and by material brought on record including the oral evidence that there was material irregularities in counting of votes in which either there was improper acceptance or improper rejection of votes or that there was apparent mistake in the counting, which affected the election result. The averments on record, counting sheet and the statement of witnesses examined and cross-examined in this case have prima facie established that 2221 votes were polled. The counting was held for the second time on the request of the election petitioner and that cutting and overwriting in the counting sheet were made to change the election result. The Election Tribunal applied his mind on the pleading and evidence and has carefully calculated the votes on the counting sheet. He has come to prima facie conclusion that the parties admit that a total number of 2221 votes were polled and that recounting was made at the instance of the election petitioner. It was also prima facie established that there was overwriting and cuttings on the counting sheet, which raised strong suspicion of the fairness in the counting procedure. The findings met the tests laid down by the Apex Court for recount of votes, to ascertain truth and to do justice between the parties. It cannot be said that in the present case the election petitioner did not prove that there were material irregularities in counting of votes and manipulations in the counting.

The writ petition is dismissed. The interim order is discharged.