Smt. Samsaira Begum vs State of U.P. and Others

Rajes Kumar, J.—By means of the present writ petition, petitioner is challenging the validity of the order dated 4th January, 2009 passed by Up Zilaadhikari, Bareilly by which it has directed for recounting of votes.

Brief facts of the case giving rise to the present writ petition are that in an election held for Gram Panchayat, village Jokhanpur, Block Damkhoda, Tehsil Baheri, District Bareilly, the petitioner was declared elected. Respondent No. 3 has filed Election Petition being Election Petition No. 5/4 of 2005. In the said election petition, nine issues were framed.

On 3rd August, 2008, respondent No. 3 moved an application for summoning of record and for recounting on which the objection was filed by the petitioner. Thereafter, on 26th December, 2008, order was passed that the application would be disposed of at the time of hearing of the election petition itself. On the hearing of the election petition by the impugned order dated 4th January, 2009 issue Nos. 2 to 9 were decided. While deciding the issue Nos. 2, 3 and 4, it was held that the counting was doubtful and in the interest of justice, recounting is necessary. It has been further held that the issue No. 1 will be decided after recounting and accordingly, direction was issued for recounting. Being aggrieved by the impugned order, the said writ petition has been filed.

Counter and rejoinder-affidavits have been exchanged.

With the consent of learned Counsel for the parties, present writ petition is being disposed of finally.

Learned Counsel for the petitioner submitted that the applications for recounting was made after three years from the date of filing of the election petition and, therefore, the authority below has erred in allowing the application directing for recounting. He submitted that no request has been made for recounting in the election petition, therefore, the direction for recounting is wholly unjustified. He further submitted that there was absolutely no justification for recounting. In support of his contention, he relied upon the Full Bench decision of this Court in the case of Ram Adhar Singh v. District Judge, Ghazipur and Ors. 1985 UPLBEC 317 and learned single Judge decision of this Court in the case of Ram Gopal Vs. Up-Ziladhikari and Others, and Dharmendra Kumar Vs. State of U.P. and Others,

Sri Manish Goyal, advocate assisted by Sri Punit Kumar Gupta, learned Counsel appearing for respondent No. 3 submitted that the issue No. 1 could not be decided without recounting. He submitted that the issue Nos. 2, 3 and 4 were relating to irregularities being found in the voting and counting. While deciding the issue Nos. 2, 3 and 4, it has been held by the court below that the counting was doubtful and in the interest of justice, recounting is necessary. Therefore, even in the absence of application, the order of recounting could be made and has been made, therefore, the plea of the petitioner that the order for recounting on the application moved after three years from the date of filing of the election petition is unjustified, has no substance. He further submitted that on the facts and circumstances of the present case, the order of recounting was wholly justified and such direction cannot be interfered by this Court in writ jurisdiction, which is based on the material on record. In support of his contention, he relied upon the decisions in the case of R. Narayanan Vs. S. Semmalai and Others, Ram Adhar Singh v. District Judge, Ghazipur and Ors. 1985 UPLBEC 317 ; Smt. Vibha Sharma v. Smt. Saroj and Ors. 1997 (88) RD 43 : 1997 (1) AWC 2.38 (NOC) ; Shoobh Nath Vs. State of U.P. and others, Smt. Bhoori Vs. Additional Sub-Divisional Officer, Election Tribunal and Others, Bhagauti Vs. State of U.P. and Others, Sadhu Singh v. Darshan Singh and Anr. 2006 (64) ALR 905 : 2006 (4) AWC 3253 (SC) and Shanker Lal v. Additional District Judge, Court No. 1, Jaunpur and Anr. 2008 (72) ALR 682 : 2008 (3) AWC 3033.

Having heard the learned Counsel for the parties, I have perused the impugned order and other materials available on record and have considered the rival submissions.

It is useful to refer the issues framed in the election petition and the decision of the court below on the issue Nos. 2, 3 and 4.

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In the case of N. Narayanan v. S. Semmalai and Ors. (supra), the Apex Court held as follows:

The relief of recounting cannot be accepted merely on the possibility of there being an error. It is well settled that such allegations must not only be clearly made but also proved by cogent evidence. The fact that the margin of votes by which the successful candidate was declared elected was very narrow, though undoubtedly an important factor to be considered, would not by itself vitiate the counting of votes or justify recounting by the Court.

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. Bhabhi Vs. Sheo Govind and Others,

In the case of Ram Adhar Singh v. District Judge, Ghazipur Ors. (supra), the Full Bench of this Court held as follows:

In an election petition under the U. P. Panchayat Raj Act, 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 to direct inspection of the ballot papers, following two conditions must co-exist:

(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 grounds 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 12C 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.

In the case of Smt. Vibha Sharma v. Smt. Saroj and Ors. (supra), learned single Judge of this Court held as follows:

No doubt as held by the Supreme Court in AIR 1980 SC 206, narrow margin votes would not by itself justify recount but the same decision also states that this is a fact which can be taken into consideration while deciding whether to order a recount. In the present case not only is there a narrow margin of votes but this is also coupled with the fact that earlier the respondent No. 1 was declared elected. Hence both these facts together, in my opinion, justify the order of recount.

In the case of Shobh Nath v. State of U.P. and Ors. (supra), learned single Judge of this Court held as follows:

In the conspectus of the facts that the present petitioner Shobhnath had secured 168 votes to be declared as winner and the election petitioner-respondent No. 3 Lalji had secured 167 votes, which resulted in his failure in the election, coupled with the fact that there is glaring discrepancy in the number of votes actually polled and the number of votes found at the time of counting, an order for recount is the only way out to resolve the controversy raised in the election petition and, therefore, the Prescribed Authority-respondent No. 2 has rightly passed a well reasoned and elaborate order for recounting of the votes on a particular date in the presence of the concerned parties. In conclusion I find that the election petition cannot be decided unless the recounting takes place. It was eminently suited case in which an order of recounting was warranted. The impugned order passed by the Prescribed Authority-respondent No. 2 does not suffer from any illegality or irregularity. It is, on the other hand, well merited.

In the case of Smt. Bhoori v. Additional Sub-Divisional Magistrate, Amroha and Ors. (supra), this Court has held that on the allegations of gross irregularities in counting of votes and strong doubt, the order of recounting by the court below has been upheld.

In the case of Bhagauti v. State of U.P. and Ors. (supra), this Court has upheld the order of recounting in a case where both the parties initially secured equal number of votes and one party was declared elected as a result of recounting in an election. There was a pleading of irregularity in counting of the ballot papers.

In the case of Ram Gopal v. Up Ziladhikari, Mathura and Ors. (supra) the order of recounting of votes was quashed on the ground the only allegation was that some of the ballot papers have been illegally rejected or illegally counted in favour of elected Pradhan. The said averments were not corroborated either in his statement on oath or in the statement of witness and the said allegation was not found proved.

In the case of Dharmendra Kumar v. State of U.P. and Ors. (supra), this Court held that the order of recounting was quashed on the ground that the difference of votes was only four. In the opinion of recounting was simply based on the fact that without there being any conclusion drawn by officer on the basis of the evidence led. It has been held that the recounting cannot be passed on the basis of mere doubts.

In the present case, initially, respondent No. 3 was declared elected by seven votes and thereafter, was declared elected by two votes and when the recounting was made, the present petitioner was initially declared elected by nine votes and thereafter by eleven votes. On these facts, issue No. 1 was specifically framed referred hereinabove. The fact of the present case made out a strong case of possibility of irregularities made in the counting. Therefore, to decide the issue No. 1, recounting was necessary. While deciding the issue Nos. 2, 3 and 4 which related to the irregularities in counting, the court below recorded the specific finding that the counting was doubtful and in the interest of justice, recounting was necessary. Therefore, on the facts and circumstances of the present case, recounting cannot be said to be unjustified. It may be mentioned here that moving of application after three years from the date of filing of the election petition has no relevance. The entire pleadings of respondent No. 3 in the election petition was based on the irregularities committed in the counting, which appears to be apparent from the fact that on two occasions, the respondent No. 3 was declared elected by different number of votes and thereafter on recounting, the petitioner was declared elected by two different number of votes. Therefore, order to decide issue No. 1 even in the absence of the application, recounting was necessary. Therefore, I uphold the order of the court below directing for recounting of votes.

In the result, writ petition fails and is, accordingly, dismissed. However, court below is directed to proceed in accordance to the direction given in its order dated 24th January, 2009 and decide the election petition expeditiously.