Shamim Khan vs Adil Husain and Others

Rajan Roy, J.—Challenge herein is to the decision of the Prescribed Authority/Sub Divisional Officer dated 27.07.2012 under Section 12-C(1) of the U.P. Panchayat Raj Act, 1947 (hereinafter referred to as ''the Act, 1947'') and the Revising Authority/District Judge dated 07.12.2012 under Section 12-C(6) of the Act, 1947 dismissing the election petition of the petitioner questioning the election of opposite party No. 1 as Gram Pradhan of Gaon Sabha Parewa Narainpur, Vikas Khand, Pargana and Tehsil Kunda, District Pratapgarh.

The election for the post of Gram Pradhan referred to hereinabove was held in the year 2010. The opposite party No. 1 is said to have secured 624 votes whereas the petitioner herein is said to have secured 521 votes. Apart from these two there were four other candidates who had secured 03,03,50, and 9 votes respectively. Thus, the votes secured by 5 loosing candidates including the petitioner totaled 586 votes whereas the opposite party No. 1 the winning candidate secured 624 votes and was declared as elected.

The petitioner herein filed an election petition before the Sub Divisional Officer concerned under Section12-C(1) read with U.P. Panchayat Raj (Settlement of Election Disputes) Rules, 1994 (hereinafter referred to as ''the Rules, 1994'') alleging irregularities in the counting of votes. Para 4 of the election petition alleged that the seal of ballot boxes was found broken and he protested in this regard but was silenced by coercion. In paragraph 5 it was stated that counting personnel connived with the opposite party No. 1. The valid votes of the petitioners were declared invalid and invalid votes of opposite party No. 1 were counted as valid votes. In paragraphs 6 and 7 it was alleged that the petitioner was shown as having secured zero vote at booth No. 196, though, the said booth pertained to the area where he resides, therefore, securing of zero vote was clearly unacceptable as there were other members of his family residing in that very area who cast their votes at the said booth. His votes were added in the votes of Sri Mohd. Saleem Khan i.e. another candidate. In fact the petitioner had secured 105 votes at the said booth but they were not mentioned in the counting sheet against his name. In paragraph 8 of the election petition it was alleged that one of the candidates namely; Sri Dinesh Giri had secured only 4 votes at booth No. 197 but in order to defeat the petitioner 43 votes were shown as having been polled in favour of Sri Dinesh Giri thereby materially affecting the petitioner''s election. In para 9 of the election petition it was stated that the opposite party No. 1 i.e. winning candidate Sri Adil Hussain secured 91 votes at booth No. 194 but 100 votes which had been polled in favour of the petitioner were added to the votes of opposite party No. 1 illegally. In paragraph 10 it was stated that 26 valid votes polled in favour of the petitioner had been declared as invalid. In paragraph 11 it was stated that the opposite party No. 5 had secured only 154 votes at booth No. 197 and opposite party No. 1 secured 147 votes but 150 votes secured by Sri Dinesh Giri opposite party No. 5 were illegally added in favour of votes polled in favour of opposite party No. 1. The counting sheet bore cutting and the same had been tampered with.

In paragraph 12 of the election petition it was stated that the opposite party No. 1 had secured only 145 votes at booth No. 197 but he was shown as having secured 297 votes by adding 150 votes secured by Sri Dinesh Giri opposite party No. 5 which amounted to corrupt practice in counting. In paragraphs 13 and 14 it was stated that the votes secured by the petitioner had been tampered as was evident from a bare perusal of counting sheets so as to give undue benefit to opposite party No. 1. The counting sheet revealed the votes polled in favour of petitioner and other opposite parties had been tampered so as to give undue benefit to opposite party No. 1. The counting sheet did not bear the signatures of the Prescribed/Authorized authority which was evidence of the fact that fraud and corrupt practice had taken place in the election which had materially affected the counting of votes/election. The absence of signatures on the counting sheets rendered the counting and declaration of result thereof as illegal and defective.

In paragraph 15 it was alleged that there was no candidate by the name of Sri Saleem Khan and the votes allegedly secured by him had been cut and changed. In respect of booth No. 197 against alleged 154 votes mentioned in respect to the said person the same were cut and only 04 votes were mentioned. Thus, 150 votes were counted in favour of Sri Adil Husain which rendered the entire counting of votes doubtful and irregular and thereby necessity of recount of votes arose. In paragraph 18 the petitioner prayed for cancelling the result of the election of Gram Pradhan of Gram Sabha Parewa Narainpur, Vikas Khand, Pargana and Tehsil Kunda, District Pratapgarh as also for ordering recounting. He also prayed for costs to the petitioner and such other reliefs which may be found justifiable in his favor .

The election petition was contested by the opposite party No. 1 by filing written statement. Thereafter the parties led evidence. Issues were framed by the Prescribed Authority on 16.03.2012 as under:--

"i) Whether there had been irregularity in counting?

ii) Whether order of recounting was required?

iii) Whether the election petition suffers from vague and double meaning and inconsistent pleadings, if so, its effect?

iv) Whether election petition is, prima-facie, maintainable?

v) Whether presentation of election petition is defective on account of non-deposit of requisite security."

Issues 1 and 2 were framed on the basis of pleadings of the election petitioner whereas issues 3, 4 and 5 were framed on the basis of written statement filed by the winning candidate i.e. opposite party No. 1.

The Prescribed Authority considered all the issues together instead of considering them separately and came to the conclusion that the pleadings of election petition were vague and of double meaning. The pleading in the election petition had not been supported by the petitioner and his witness by their testimony. In paragraph 2 of the election petition the petitioner had admitted to the voting having been conducted in a peaceful manner and ballot boxes having been sealed properly which according to the Prescribed Authority was ample proof that the election as well deposition of ballot boxes was absolutely proper and therefore, there was no requirement of cancelling the election.

As far as irregularities in the counting as alleged was concerned, the Prescribed Authority opined that the petitioner had not adduced any such cogent and conclusive evidence which could establish any irregularity/illegality in the process of counting of votes. According to him the petitioner had lost by a margin of 208 votes. The affidavit filed by the petitioner in support of the election petition as also examination in chief bore only one signature at the place of verification, therefore, the affidavit was defective. As regards the allegation of absence of signatures of the Prescribed Authority/competent authority on the counting sheet and the name of the candidate being wrong, were concerned, the Prescribed Authority opined that this was related to a stage after the counting and the same was a human error, which could not be made the basis for ordering recounting and the copy of counting sheet filed by him had not been got proved.

The Prescribed Authority concluded that the election petition was defective, not in accordance with law and lacking in merit, therefore, there was no justification for ordering recounting. He decided all issues accordingly and rejected the election petition vide judgment and order dated 27.07.2012.

The petitioner thereafter filed a revision under Section 12-C(6) of the Act, 1947 before the learned District Judge who dismissed the same vide his judgment and order dated 07.12.2012.

The revisional authority considered the revision as per the aforesaid provisions and in the light of various pronouncement on the issue of recounting of votes and reached to the conclusion that the petitioner had not placed the material facts clearly and particularly nor proved the material facts on the basis of cogent and reliable evidence. Only general allegations of corrupt practice had been made which were not sufficient for ordering recounting. The pleadings were vague. Thus, the revisional court affirmed the order of the Prescribed Authority.

Being aggrieved, the petitioner filed this writ petition challenging the aforesaid decisions. Notices were issued to the opposite parties. The winning candidate the State and its authorities contested the matter. The opposite parties 2 to 5 also put in appearance but none appeared on their behalf to argue the case at the time of final hearing nor any affidavit has been filed by them.

A preliminary objection was raised by Sri A.M. Tripathi, learned counsel appearing for opposite party No. 1 as regards the maintainability of the writ petition under Article 226 of the Constitution of India seeking a writ of certiorari quashing the decision of the revising authority. According to him, the learned District Judge functioned as a Civil Court while deciding the revision under Section 12-C(6) of the Act, 1947, therefore, its decision was a judicial order of a Civil Court and in view of recent judgment of the Supreme Court in the case of Radhey Shyam and Others Vs. Chhabi Nath and Others , this writ petition seeking a writ of certiorari was not maintainable.

This aspect of the matter has already been considered by this Court in a recent judgment dated 06.11.2015 wherein after considering the provision of the Act, 1947 and the decision relied upon by the opposite parties therein it has been held that the learned District Judge does not function as a Civil Court while deciding the revision under Section 12-C(6) of the Act, 1947, therefore, this issue is no longer res-integra. Accordingly, for the reasons already mentioned in the judgment and order dated 06.11.2015 rendered in Writ Petition No. 6795 (MS) of 2014, wherein, the contentions similar to those raised by Sri A.M. Tripathi have already been considered and decided, this preliminary objection is also rejected and the writ petition under Article 226 of the Constitution of India seeking a writ of certiorari for quashing the decision of revising authority under Section 12-C(6) of the Act, 1947 as also of the Prescribed Authority is held to be maintainable. It is not in dispute that the Prescribed Authority while deciding the election petition under Section 12-C(1) of the Act, 1947 does not function as a Civil Court. Under Rule 4 of the Rules, 1994 it is the Sub Divisional Officer who functions as the authority, prescribed under Section 12-C(1).

On merits of the case the contention of Sri Chandra Bhushan Pandey learned counsel for the petitioner was that the Prescribed Authority as also the revisional authority had erred in opining that the election petition lacks in particulars of facts and was vague. According to him the pleadings were very specific and categorical as regards the illegalities committed during counting of votes and also with regard to absence of signatures on counting sheets which was mandatory and in absence of such signatures the very declaration of result was not in accordance with the Act, 1947 and Rules framed thereunder. The reason given for rejecting the objection regarding absence of signatures of Nirvachan Adhikari on counting sheet by the Prescribed Authority is not sustainable in law.

He invited the attention of the Court to the provisions of Rule 104 to 113 of U.P. Panchayat Raj (Election of Members Pradhans and Up-Pradhans) Rules, 1994 to submit that the petitioner had submitted a copy of counting sheet Form-7 issued by the competent authority as per law, therefore, the said documentary evidence was sufficient for establishing the facts alleged and based thereon an order of recounting of votes should have been passed. The certified copy of requisite extract of the said form was required to be issued as per provisions contained in the said Rules, therefore, such certificate had evidenciary value which had wrongly been rejected by the competent authority while deciding the validity of the election petition. He also referred to Rule 109 in this regard. He relied upon Rule 107 to submit that Nirvachan Adhikari was under an obligation to prepare and certify, the election return in the specified form setting forth the details mentioned in Rules, which according to him he did not do. As the said form i.e. Form No. 7 did not bear the signatures of Nirvachan Adhikari and as it is that form which forms the basis for declaration of result, in the absence of any signatures thereon, the result could not have been declared in favour of opposite party No. 1.

Sri A.M. Tripathi learned counsel for opposite party No. 1-the winning candidate submitted that the relief claimed in the election petition was not in terms of Section 12-C(4) of the Act, 1947. The election petition had been filed on grounds which could not form the basis for filing an election petition as per Section 12-C(1) . Relying upon Rule 4(3) of the Rules, 1994 he submitted that no such relief had been claimed as is mentioned therein. Relying upon Rule 4 Sri Tripathi submitted that not only the pleadings were vague but the allegations were also not proved. The petitioners votes were not counted in favour of opposite party No. 1. No objection was raised under Rule 104 (b) and (f) of the Rules, 1994 by the petitioner during the counting nor there was any pleading based thereon. He relied upon the decisions in the case of Ram Adhar Singh Vs. The District Judge and Others, , Kattinokkula Murali Krishna Vs. Veeramalla Koteswara Rao and Others, , P.K.K. Shamsudeen Vs. K.A.M. Mappillai Mohindeen and Others, , Kattinokkula Murali Krishna Vs. Veeramalla Koteswara Rao and Others, , Smt. Sudama Devi and another v. State of U.P. And others reported in [ 2011(29) LCD 1038 ] and Kattinokkula Murali Krishna Vs. Veeramalla Koteswara Rao and Others, to submit that the pre-requisites for an order of recounting did not exist in the present case, therefore, the election petition had rightly been rejected; secondly the evidence which was not produced before the lower Court could not be produced before the High Court. He stated that a bare perusal of the oral evidence led by the petitioner did not substantiate the allegations made by him in the election petition. Finding on facts are not required to be interfered with under Article 226 of the Constitution. Even if, all the votes secured by all the loosing candidate are counted in favour of petitioner, even then, the opposite party No. 1 has secured higher votes.

Sri Rahul Shukla, learned counsel appearing for the State and its authorities submitted that the error was of totaling and not of counting. He produced before the Court the original record to show that the votes were rightly mentioned in forms 4 and 6 which were duly signed. The original of Form 7 which was not traceable earlier was traced out during the course of hearing and was placed before the Court. As regards cutting in the counting sheet, it was a totaling error but there was no error in the process of counting. He relied upon the judgment in the case of Smt. Shahbaz Bano Gram Pradhan and Smt. Sahiba Bano and others reported in [ , 2002 (49) ALR 732] . He submitted that the petitioner did not adduce any evidence before the Prescribed Authority to substantiate his allegations. Subsequent allegations and evidence before this Court at this stage cannot be accepted.

Before considering the facts and the issues involved as also the validity of the impugned decisions, it is necessary to consider the relevant provisions of the Act and the Rules as also the law laid down by the Courts on the subject.

Gram Pradhan of a Gram Panchayat is an office of election which is regulated by the provisions contained in Part IX of the Constitution of India and U.P. Panchayat Raj Act, 1947 as well as the Rules framed thereunder.

The Election to the office of Gram Pradhan cannot be questioned before any Civil Court in view of the provisions contained in Section 12 (I). The same can only be questioned before the authority prescribed i.e. Sub Divisional Officer, under Section 12-C(1) of the Act, 1947. Such an election can be questioned only on the grounds mentioned in Section 12 i.e. (a) the election has not been a free election by reason that the corrupt practice of bribery or undue influence has extensively prevailed at the election, or (b) that the result of the election has been materially affected (i) by the improper acceptance or rejection of any nomination; or (ii) by gross failure to comply with the provisions of this Act or the rules framed thereunder. Sub section (2) explains corrupt practice of bribery and undue influence, Sub section 4 refers to the power and procedure to be followed by the Prescribed Authority. Sub section 5 provides for summary hearing and disposal of an application under sub-section(1). Sub sections 6 to 8 relate to the revisional authority, who is the District Judge.

In exercise of power under Section 110 of the Act, 1947 the Governor has been pleased to make the Rules known as U.P. Panchayat Raj (Election of Members, Pradhans and Up-Pradhans) Rules, 1994. The relevant provisions of the said Rules relating to the election of the office of Gram Pradhan contained in Chapter III thereof are Rule 63 to 119.

The Rules which are relevant are contained in the Rules 104 to 113 of the Rules 1994. Rule 104 lays down the procedure to be followed at the time of counting. As per the said Rule on the date and time and place appointed under Rule 101, the Nirvachan Adhikari shall satisfy himself that; (a) Ballot boxes used at the poll have been received and counted; (b) He shall allow the candidates and their Nirvachan Abhikartas/Counting agent to accept the ballot boxes and their seals for satisfying themselves that they are in order; (c) After satisfying themselves that none of the boxes have been tampered with. If any ballot box is found by him to have been tampered with or destroyed or lost, he shall not proceed with the counting of votes and the provisions of Rule 100 shall apply; (d) If he is satisfied that all such ballot boxes which are to be counted at such place have been received and are in order, he shall take up the counting of ballot papers contained in the ballot boxes. All the ballot boxes used at a polling place shall be opened, and the counting of the ballot papers found in those boxes proceeded with the instructions of the State Election Commission at the same time; (e) An account of the ballot papers shall be recorded in a statement in the form specified by the State Election Commission; (f) He shall allow the candidates, their election Abhikartas/counting agents by reasonable opportunity to inspect all ballot papers which in the opinion of Nirvachan Adhikari are liable to be rejected. He shall on every ballot paper, which is rejected endorse rejection thereon in Hindi. If any candidate or his election agents questions the correctness of the rejection of any ballot paper, he shall record briefly on such ballot paper the grounds for rejection.

Rule 105 mentions the grounds for rejection of ballot papers. As per sub Rule 3 of Rules 105 the decision of the Nirvachan Adhikari as to the validity of the ballot papers or of a vote given or any such ballot paper shall be final, subject however, to any decision to the contrary given on the trial of an election petition calling in question the election.

Rule 107 refers to Election return by the Nirvachan Adhikari/Election Officer who is under an obligation to prepare and certify the election return in a specified form (form 7) setting forth the names of the candidates for whom valid votes have been given; the number of valid votes given for each candidate; the total number of valid ballot papers; the number of rejected ballot papers; the number of tendered ballot papers; and the name of the candidate elected. The Election Officer shall permit any contesting candidate or his Nirvachan Abhikarta or counting agent to take a copy of or an extract from such return.

Rule 109 provides that when counting of votes recorded on the ballot papers contained in the ballot boxes had been competed, the Election Officer shall declare the candidate securing the highest number of votes.

Rule 110 provides that as soon as may be after declaration of the result under Rule 109, the Election Officer shall report the result to the district Magistrate and shall also inform the District Panchayat Raj Officer and the secretary of the Gram Panchayat. The District Magistrate shall report the result to the State Election Commission.

Under Rule 111 the Election Officer shall, after reporting the result of the election under Rule 110 forward the election return i.e. the return referred in Rules 107 to the Assistant District Election Officer (Panchayat and Local Bodies) for safe custody.

Under Rule 112 while in the custody of Assistant District Election Officer (Panchayat and Local Bodies) the packets of ballot papers whether valid, rejected or tendered, and of the marked copy of the electoral roll shall not be inspected by or produced before any person or authority except under the order of a competent Court or of an authority hearing an election petition. Thus, the secrecy of the ballot has been ensured by these Rules.

In exercise of power under Section 110 the State Government has framed another set of Rules known as U.P. Panchayat Raj (Settlement of Election Disputes), Rules 1994. Rule 3 relates to filing of an election petition under Section 12-C before the Sub Divisional Officers within whose jurisdiction the concerned Gram Panchayat lies. Thus, the authority prescribed for hearing the election petition under the aforesaid provisions of the Rules, 1994 is the Sub Divisional Officer. Sub Rules 2 and 3 refer to the parties who are to be arrayed in the election petition and the right of other respondents to lead evidence to prove that the claimant be not declared elected on same ground or grounds on which his election could have been questioned, if he had been elected. Rule 4 contains provisions relating to hearing of the election petition. It provides that subject to the provisions of the Act and these rules, every election petition shall be tried by the Sub Divisional Officer "as nearly as may be", in accordance with the procedure applicable under the Code of Civil Procedure, 1908, for the trial of suits. Proviso (ii) to Rule 4 mentions that it shall not be necessary for the Sub Divisional Officer to record evidence in full and he may maintain only a memorandum of evidence produced by the parties before him; proviso (iv) thereof mentions that the Sub Divisional Officer may allow only such evidence to be produced as he deems relevant for the purpose of deciding the petition. Sub rule 3 of Rule 4 of the Rules, 1994 provides if the Sub Divisional Officer finds that the election of any person was invalid he shall either (a) declare a casual vacancy to have been created; or (b) declare another candidate to have been duly elected, whichever course appears, in the particular circumstances of the case, to be appropriate, and in either case may award costs at his discretion, provided that no such declaration shall be made unless a claim for it has been made in the application.

The provisions of Code of Civil Procedure as applicable for the trial of suits would be applicable to the proceedings before the Prescribed Authority relating to election petition under Section 12-C (1) of the Act, 1947, as nearly as may be subject to the provisions of the Act and the Rules, 1994.

Similar provisions regarding applicability of the Code of Civil Procedure are there in Section 87 of the Representation of Peoples Act, 1951 and the purport of the words ''as nearly as may be'' has been considered by the Supreme Court in the case of Sammer Singh v. Kedar Nath reported in 1987 Supp SCC 660 and they where understood to mean that the provisions of Code of Civil Procedure do not apply in their entirety to the trial of the election petition. The same was also considered in the case of K.V Rao v. Branch Manager reported in 1969 SC 872 wherein it was held that Section 87 of the Act, 1951 did not equate an election petition with a suit but merely shows that subject to the provisions of the Act and the rules made thereunder the trial is to confirm as nearly as may be to the trial of a suit under the Code of Civil Procedure, though the said Code is not applicable in its entirety.

The same provisions again came up for consideration before the Supreme Court in the case of Kailash Vs. Nanhku and Others, wherein it was held that the procedure prescribed by the Court in the trial of suit is not just adopted, and as if incorporated in the Act, so as to govern the trial of election petition. The procedure has been made applicable to the trial of election petition "as nearly as may be". The Supreme Court referred to the earlier decision in the case of Tarlok Singh Vs. Municipal Corporation of Amritsar and Another, , wherein, the words "as far as it can be made applicable," occurring in section 384 of the Punjab Municipal Corporation Act, 1976, came up for consideration and the Court held that the relevant provisions of Code of Civil Procedure were made applicable for the purposes of guidance of procedure and it is not expected that the procedure of a suit was to be followed technically and strictly in accordance with the provisions contained in the Code. It also considered the expression ''as far as applicable'' in its earlier decision in the case of The Direct Recruit Class-II Engineering Officers'' Association and others Vs. State of Maharashtra and others, , wherein it was held that such expression had the effect of making the rules or provisions contained elsewhere applicable with realism and flexibility, true to life rather than with abstract absolutism.

The term "may be" means "possibly". Thus "as nearly as may be" will mean not completely or absolutely or in entirety but as nearly as possible.

In view of aforesaid pronouncement though the provisions of Code of Civil Procedure are not applicable absolutely and strictly in its entirety but the same are to be applied "as nearly as possible" i.e. as for as it can be made applicable in conformity with the Act, 1947 and Rules made thereunder.

As far as the applicability of provisions of the Indian Evidence Act, 1872 to the proceedings before the Prescribed Authority under Section 12-C(1) is concerned, as against a specific provision contained in Section 87(2) of the Act 1951, the Act of 1947 does not contain any such specific provision applying the Evidence Act, 1872 to the proceedings under the said Act. The Prescribed Authority is not a Court, therefore, stricto-sensu the provisions of Evidence Act 1872 are not applicable, yet, considering the fact that the provisions of Code of Civil Procedure are applicable "as nearly as may be" and the pleadings have to be made, issues framed, evidence has to be led in respect thereof and based thereon findings of fact have to be recorded, on the basis of evidence it is no gain saying that the principles contained in the provisions of the Act, 1872 shall be applicable as a guide, even though the provisions may not apply stricto sensu..

The grounds on which an election of Pradhan can be challenged are confined to the grounds mentioned in Section 12-C (1) of the Act, 1947. In the present case the grounds of challenge were illegality in the process of counting of votes and corrupt practice. In this context it was alleged by the election petitioner that the counting officials connived with the winning candidate for extraneous reasons. The case of the election petitioner was that recounting should be ordered after declaring the result as invalid.

Now to order a recounting of votes, certain pre-requisites have been laid down by the courts in a catena of decisions and the legal position in this regard is now very well settled. Pre-requisites for ordering recounting as considered by the Supreme Court in the context of Representation of Peoples Act, 1951 have been followed and made applicable to such recounting in elections under the Act, 1947 also as is evident from the Full Bench decision in the case of Ram Adhar (supra). It is, therefore, necessary to scrutinize the law on the subject for a better appreciation of the validity of the action impugned before this Court.

Reference needs to be made in this regard to the judgment of the Supreme Court in the case of Kattinokkula Murali Krishna Vs. Veeramalla Koteswara Rao and Others, which held as under:--

"16. It would be trite to state that before an Election Tribunal can permit scrutiny of ballot papers and order recount, two basic requirement viz, (i) the election petition seeking recount of the ballot papers must contain an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded, and (ii) on the basis of evidence adduced in support of the allegations, the Tribunal must be, prima-facie, satisfied that in order to decide the dispute and to do complete and effectual justice between the parties, making of such an order is imperatively necessary, are satisfied. Broadly stated, material facts are primary or basic facts which have to be pleaded by the election petitioner to prove his cause of action and by the defendant to prove his defence. But, as to what could be said to be material facts would be depend upon the facts of each case and no rule of universal application can be laid down."

"17. In Suresh Prasad Yadav v. Jai Prakash Mishra summarizing the principles laid down by this Court from time to time in granting prayer for inspection of ballot papers and/or re-counting, a three-Judge Bench of this Court indicated the circumstances in which such a prayer could be considered. Speaking for the Bench, Sarkaria, J. observed as follows: (SCC pp. 824-25, paras 5-6)

"5....this Court has repeatedly said, that an order for inspection and re-count of the ballot papers cannot be made as a matter of the course. The reason is twofold. Firstly, such an order affects the secrecy of the ballot which under the law is not to be lightly disturbed. Secondly, the Rules provide an elaborate procedure for counting of ballot papers. This procedure contains so many statutory checks and effective safeguards against mistakes and fraud in counting, that in can be called almost trickery foolproof. Although no hard-and-fast rule can be laid down, yet the broad guidelines, as discernible from the decisions of this Court, may be indicated thus.

"6. The court would be justified in ordering a re-count 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."

"20. Upholding the view taken by the High Court, it was held as under:--

"13. Thus, the settled position of law is that the justification for an order for examination of ballot papers and re-count of votes is not to be derived from hindsight and by the result of the re-count of votes. On the contrary, the justification for an order of re-count of votes should be provided by the material placed by an election petitioner on the threshold before an order for re-count 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 re-counting 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 re-count of votes being ordered by the Election Tribunal in the interests of justice, a Tribunal or court should not order the re-count of votes."

"22. Affirming the decision of the High Court, a three-Judge Bench speaking through K.G. Balakrishnan, J.(as High Lordship then was exposited thus:

"16.....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."

The onus to prove the allegation of irregularity, impropriety or illegality in the election process is on the election petitioner and not on the Election Officer. The material facts have to be clearly stated in the election petition and they have to be proved by cogent evidence. The order of recounting cannot be justified by the result of the recounting. The justification for such an order should be proved by the material placed by the election petitioner at the threshold before an order of recounting is made. The preservation of the secrecy of the ballot is sacrosanct which cannot be disturbed lightly by bare allegations of illegality or irregularity in counting unless there is prima-facie genuine need for it. Unless the affected candidate is able to make out a prima-facie case of a high degree of probability for recounting of votes in the interest of justice, such an order or recounting of votes should not be passed. Bald and unsubstantiated allegations cannot form the basis for passing such an order. However, if it is proved that the purity of election has been tainted and it has materially affected the result of the election whereby the defeated candidate is seriously prejudiced resort can be had to recount of votes to do justice between the parties. The degree of proof for issuing a direction of recounting of votes is of a very high standard and is required to be discharged by the election petitioner as has also been held in M. Chinnasamy Vs. K.C. Palanisamy and Others, , Mahender Pratap Vs. Krishan Pal and Others, and M. Chinnasamy Vs. K.C. Palanisamy and Others, .

There is another aspect of the matter which needs consideration i.e. if no objection as to the wrongful rejection of valid votes or acceptance of invalid votes was made by the petitioner at the time of counting whether it would be open for him to raise such objection especially when there is no pleading in the election petition of having done so or if the pleading is there but the same has not been proved. If no application was filed by him seeking recounting of votes before declaration of result, whether it was permissible for him to seek this relief in the election petition.

In this regard reference may be made to the decision of the Supreme Court in the case of Smt. Ram Rati Vs. Saroj Devi and others, wherein the provisions of Rule 79 of the Bihar Panchayat Election Rules, 1995 as applicable in the State of Bihar were considered. The said Rule provided an opportunity to a candidate to seek recounting of votes either before declaration of result or even thereafter. The litigant before the Court did not take recourse to such statutory remedy available under rule 79, when the matter came up before the Supreme Court in the case of Ram Rati (supra) the Court held that the language of the rule was mandatory, therefore, if the candidate had not made an application in writing giving reasons in support thereof while seeking recounting under the aforesaid rules then the Tribunal or the Court was not empowered to direct recounting even after evidence having been adduced and consideration of the alleged irregularities in the counting.

However, a three judges Bench of Supreme court in the Case of Sohan Lal Vs. Babu Gandhi and Others, , while considering the provisions of Madhya Pradesh Panchayat Raj Act Evam Gram Swaraj Adhiniyam, 1993 and the Rule 80 of the Rules framed thereunder held that it was incorrect to hold that in an election petition, after declaration of result, the court or Tribunal cannot direct recounting of votes unless the party had first applied in writing for recounting of votes. There was no prohibition in the Act or under the Rules prohibiting the Tribunal or Court from directing a re-counting of votes. The three judges Bench held the ratio in the case of Ram Rati (supra) to be incorrect.

Another three judgment Bench in Chandrika Prasad Yadav Vs. State of Bihar and Others, case held that it may be true that only because such an application had not been filed before the Returning Officer this itself may not preclude the Election Tribunal or Court from going into the question of recounting of votes but there cannot be any doubt whatsoever that Rule 79 serves a salutary purpose. It also held that ordinarily it is accepted that 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 reason 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 recounting.

The dictum in the case of Chandrika Prasad Yadav (supra) came up for consideration in the case of Hoshila Tewari v. State of Bihar reported in (2005) 12 SCC 342 and it was held that making of an application under Rule 79 of Bihar Rules was a mandatory requirement, however, the Court agreed with the proposition laid down in the case of Chandrika Prasad Yadav(supra) to the effect that if aggrieved party produces sufficient material to show that he was prevented by certain prevailing material situation from making that application then the prayer for recounting can be entertained by the Election Tribunal on it being satisfied by the same.

Considered in the light of the aforesaid at first blush there appears to be no such specific provision for moving an application for recounting of votes by a candidate before declaration of result immediately thereafter in terms of Section 79 of the Bihar Act, however, rule 104(d) of the Rules 1994 provide for conducting the counting of ballot papers found in the boxes "in accordance with the instructions of the State election Commission". Sri Rahul Shukla learned standing counsel placed before the Court, during the course of hearing, the instruction booklet issued by the State Election Commission, U.P. 2010 relating to the period when the election in question were held and paragraph 30 of the said instructions contains the following provision:--

Thus, by reference to the instructions of the State Election Commission under Rule 104(d) of the Rules, 1994 and application of the said instructions based thereon to the counting process and conduct of election, such an opportunity for seeking recounting was available to the candidate during the election process under the Act, 1947 prior to the stage of preparation of Forms 5,6,8 and 10 but not thereafter. It being so, it is to be seen as to whether the petitioner moved any petition for recounting before the Election Officer at the appropriate stage or not and its effect on the Election petition.

It is also not out of place to mention that under Rule 104 (f) the candidate has also been given an opportunity to inspect all ballot papers which are liable to be rejected and also to question the correctness of rejection of any ballot papers by the Election Officer who is to record briefly on such ballot papers the grounds for rejection, therefore, it is also to be considered as to whether the petitioner recorded any such objection in this regard or not.

Now considered against the aforesaid back ground the record reveals that there is no pleading in the election petition that any request for recounting of votes was made by the petitioner before the Election Officer prior to preparation of Form No. 5, nor any such written application has been filed. There is also no explanation for not doing so. As discussed hereinabove a provision permitting such recounting before preparation of Form No. 5 existed in paragraph 30 of the instruction booklet issued by the State Election Commission which is referable to Rule 104(d) of the Rules, 1994, therefore, considering the pronouncements referred hereinabove, this is a factor which weighs heavily against the petitioner on the question recounting of votes.

The allegations made in paragraphs 4,5 and 10 regarding the seal having been found to be broken, valid votes having been illegally rejected invalid and invalid votes of opposite party No. 1 having been counted as valid were quite vague and of a general nature. They lacked the requisite details of particulars and the circumstances as required by law. Furthermore the record reveals that no evidence was adduced to prove the said allegations.

The oral evidence in favour of the petitioner comprises of his testimony and that of one Furkhan. For the reasons mentioned by the revisional authority in its judgment dated 07.12.2012 the authority below cannot be faulted for rejection of the oral testimony as it did not prove the tampering of votes and wrongful rejection of valid votes. The reasoning given by the revisional authority in this regard is based on proper consideration of evidence and does not suffer from any error. The affidavits filed were also deficient.

Moreover there is no specific pleading with necessary particulars and circumstances of facts that the petitioner raised any objection under Rule 104(f) regarding wrongful rejection of valid votes. There is no averment in the election petition that he filed any written objection under Rule 104 (f) or that it was filed but not entertained nor any explanation has been offered for not doing so. Further, he did not prove his allegations by adducing satisfactory evidence, therefore, the allegations, which in any case were vague, remained unsubstantiated. The pleading that he was silenced by coercion as contained in paragraph 4 had not been proved by adducing cogent and reliable evidence.

As far as the allegations contained in paragraphs 6, 7, 8, 9, 11, 12, 13, 14 and 15 are concerned, the revisional authority has held that the petitioner had not mentioned any such fact that how he came to know that he secured 105 votes at booth No. 196 in paragraphs 6 and 7 of the election petition. Similarly it held that in paragraphs 8, 9 and 10 there are allegations regarding corrupt practice and use of unfair means but no material or particular fact is mentioned in any of these paragraphs in support of these allegations. It held that the evidence adduced is not sufficient to prove the requirement of corrupt practice. The petitioner had produced only two witnesses including himself. The affidavit of both these witnesses revealed that they had not put their signatures on all pages and their signatures were present only on the last page of the affidavit.

The oral testimony of the examination of chief of Pw-2 was disbelieved on the ground of his admission during cross-examination that his counsel had prepared his affidavit which was filed as examination in chief and he had only put his signatures on it. He neither knew nor had ever seen what was written in the affidavit by the counsel. The revisional authority thus, came to the conclusion that the evidence of Pw.2 was irrelevant. Thus, the only witnesses in support of the contention of the petitioner was his own. Though, he had stated that he got 105 votes at booth No. 196 but there is no iota of evidence on record as to how he came to know the exact number of votes cast in his favour. The revisional court also considered the averments made in paragraph 11 of the affidavit of Pw-1 (though this page was not signed) wherein he had stated that Sri Dinesh Giri opposite party No. 5 polled 154 votes out of which 150 votes were cast in favour of the opposite party No. 1, but, the opposite party No. 5 Sri Dinesh Giri had filed an affidavit (paper No. 67) wherein he stated that he was personally present at the place of counting and no corrupt practices was involved in the counting, his votes were never counted in the votes of opposite party No. 1 thereby belying the petitioner''s case.

The revisional court also considered the fact that the election petitioner had filed a copy of the counting sheet (paper No. 39) but he had not moved any application before the Prescribed Authority to summon the concerned officer or official who had prepared this sheet or Sahayak Nirvachan Adhikari who had certified its photo copy so as to get the said paper proved. Based on the aforesaid and the law considered by it, the revisional authority held that a case for ordering recounting had not been made out. The counting sheet showed that even after adding the votes secured by all the remaining candidates, the total votes came to 586, votes which was 38 number less than the total votes secured by opposite party No. 1 i.e. the winning candidate, this was also a material factor against the prayer for recounting.

Now as far as the allegations that the petitioner had secured 105 votes at booth No. 196 is concerned, the original record reveals that in fact he secured the said votes on that booth and this fact is mentioned in Form No. 4 and Form No. 6 which bear the signatures of concerned officials including the Election Officer but some how in Form No. 7, certified copy of which was filed by the petitioner before the Prescribed Authority ''0'' (zero) votes have been mentioned, but this is only an error in filling Form No. 7. It does not prove either corrupt practice or any illegality in counting of votes but an error in filling Form No. 7. This error by itself cannot sustain the claim for recounting of votes. Even after adding 105 votes the result does not get materially effected. As regards the allegation of absence of signatures on Form No. 7, the election petitioner should have got the Election Officer summoned and should have examined him on the question of omission of signatures as aforesaid only then the clear picture would have emerged but he did not do so. Form No. 7 is prepared on the basis of entries contained in Form No. 6 which in turn is prepared on the basis of entries contained in Form No. 4. The Form No. 4 and Form No. 6 bear the signatures of concerned official including the Election Officer, therefore, merely because Form No. 7 does not contain his signatures, thought it should have, no interference can be made at this stage in writ proceedings nor can the authority below be faulted for treating the same as inadvertent omission, in the absence of any efforts by the petitioner to get the original record summoned as also the Election Officer summoned and prove his allegations regarding corrupt practice or that the result of the election had been materially effected by the aforesaid act of omission and commission.

Even after counting of the votes polled by all the candidates the petitioner does not surpass the total number of votes polled by the winning candidate i.e. opposite party No. 1, therefore, the authorities below have rightly repelled the prayer for recounting the votes also set aside the election.

The election petition is in the nature of an adversarial litigation between the parties. The parties have to make specific pleadings and to prove the same. If they have not done so before the Prescribed Authority, as in this case, then it is not open for them to do so now before this court nor is it open for this Court to conduct a roving and fishing enquiry in the matter based on original records which have been produced before it. The validity of the action impugned has to be tested on the basis of the pleadings and evidence before the Prescribed Authority. The records were summoned by the Court only to see as to what was the material before the Prescribed Authority and the Revisional Authority. No fresh pleadings nor fresh evidence can be allowed in these writ proceedings in matters of election. The rights and remedies in matters of election are statutory. Common law rights and remedies have no role to play.

The pre-requisites for ordering recounting of votes are not satisfied in the present case and an order of recounting cannot be passed lightly on mere asking of the petitioner. The proof required in this regard has to be of a very high degree. The petitioner failed to prove the existence of the pre-requisites for making an order of recounting of votes. In fact the prayer itself was not maintainable in the absence of any such application having been made before the Election Officer at the appropriate stage of counting as already mentioned in the earlier part of the judgment considering the pronouncements on the subject. The secrecy of the ballot is sacrosanct and cannot be tinkered lightly.

For the reasons aforesaid this Court does not find any error in the revisional order nor the order of the Prescribed Authority. There is no reason to interfere with the same in exercise of power under Article 226 of the Constitution.

The original record which was retained by the Court is returned back to Sri Rahul Shukla, learned Additional Chief Standing Counsel for being sent to the concerned department.

The writ petition is accordingly dismissed.