Smt. Sursatiya vs State of U.P. and Others

Sunil Ambwani, J.—Heard Shri Hart Om Yadav, learned Counsel for the petitioner. Shri A. K. Singh assisted by Shri Sunil Kumar Singh appears for the respondent.

By an order dated 19.11.2007, the Sub-Divisional Magistrate/Prescribed Authority/Election Tribunal, Jakhaniya, Ghazipur has in an election petition filed by Smt. Usha Devi against Smt. Sursatiya as Gram Pradhan of Village Ukraon, Pargana Bahariyabad, Tehsil Zamaniya, Distt. Ghazipur directed recount of votes giving rise to this writ petition.

The petitioner Smt. Sursatiya was declared elected as Village Pradhan. Smt. Usha Devi the election-petitioner was second with a margin of 27 votes. It is contended in para 3 of the election petition that there were four polling booths. In polling both No. 104 as against 407 votes polled 407 were found in the ballot box ; in polling booth No. 105 as against 740 votes polled, 612 were found in the ballot box ; in polling booth No. 106 as against 636 votes polled 636 were found in ballot box and on polling booth No. 107 a number of 275 votes were polled and 275 were found in the ballot box. In all as against 2058 votes polled 1930 votes were taken out of the ballot box. In para 4 it is stated, giving the number of the votes, with their house number, ward number, name and age, and the place, where they live at present that 73 persons were in fact living outside the village and were not present on the date of polling. Smt. Razia wife of Rajmangan at Sl. No. 1822 is mentally challenged and Cheddi son of Bal Chandra at Sl. No. 1994 is blind. A total number of 129 votes were found invalid out of which 43 were in booth No. 104 ; 50 in booth No. 105; 11 in booth No. 106 and 25 in booth No. 107. The election petitioner polled 387, whereas the returned candidate polled 407 votes. It was then alleged in paras 6, 7 and 8 that there was difference in 10 invalid votes as against the invalid votes declared in the counting and that as against 2058 votes polled 1973 were recovered from the box. A total of 128 votes were missing and that there was no explanation of these missing votes.

The petitioner filed a written statement denying these allegations. After making general denials of paras 1 to 12 it was stated in para 8 in the additional statement that the allegations are imaginary. In para 9 it is stated that there was no objections filed at the time of elections or counting. The person alleged to be mentally challenged and other person alleged to be blind are healthy persons. Cheddi is not a blind person and that 73 persons named in para 4 had actually voted on the day of election.

By an order dated 9.7.2007 the Election Tribunal summoned the records. This order was not challenged by the petitioner and thus constituted a valid material for proceeding further to hear the application for recount of votes. The petitioner objected to the recount. Rejecting the objections the Tribunal found from the election records that in the memo prepared from the electoral list on 24.9.2007, 1931 candidates were marked. In the memo of the counterfoils made on 25.9.2007 the envelope containing counterfoils of booth No. 106 was not traceable. The 407 counterfoils of booth No. 104; 380 of booth No. 105 and 275 of booth No. 107 were available. The 233 counterfoils were found without any envelope and thus a total number of 1295 counterfoils were available. In case 636 votes of booth No. 106 are also added, a total number of 1931 counterfoils could be available and that same number is found to be marked in the electoral list. The Election Tribunal found that in this manner the election record does not tally with the number of votes polled and number of votes actually marked on the electoral list and the votes of which the counterfoils were available, raising a serious doubt on the validity of counting making a prima facie case for recount.

Learned Counsel for the petitioner contends that the election petition did not contain sufficient pleading and that there was no material or evidence for recount and to breach the sanctity and the secrecy of the ballots. He has relied upon the judgments in Ram Adhar Singh v. District Judge, Ghazipur and Ors. 1985 UPLBEC 317 ; Smt. Hazzee Vs. Prescribed Authority under Panchayat Raj Act/Up-Zila Adhikari and Others, Ram Gopal Vs. Up-Ziladhikari and Others, and Basanagouda Vs. Dr. S.B. Amarkhed and Others,

The counsel for the respondent on the other hand would submit that there was sufficient pleading with details with regard to number of persons with their names and addresses and the places, where they are actually residing and that discrepancy in the number of votes polled and actually found from the ballot box and invalid votes has made out a clear case of recount of votes.

The conditions imperative for recount of votes in an election petition, have been settled in a number of decisions, 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, and 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 sacrosanct 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, recount cannot be ordered just for the asking. A petition for recount 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 facie 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 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 Ram Adhar Singh v. District Judge, Ghazipur and Ors. 1985 UPLBEC 317 , a Full Bench of this Court after considering the judgments in Ram Sewak Yadav Vs. Hussain Kamil Kidwai and Others, Bhabhi Vs. Sheo Govind and Others, and R. Narayanan Vs. S. Semmalai and Others, and other cases held that the two conditions must coexist for directing recount of votes:

(1) that the petition for setting aside an election contains the grounds on which the election on the respondent is being questioned as also 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 for doing complete justice between the parties.

In M.R. Gopalakrishnan Vs. Thachady Prabhakaran and Others, it was held that the demand of defeated candidate for recount 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 recount, no Tribunal or Court would be justified in directing a recount.

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 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 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 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. Francis 2001 (4) AWC 29 : (2001) 3 SCC 81, Supreme Court went to the extent of holding that even if a recount is validly ordered, and the statistics revealed by the recount are available to be used for deciding election dispute, the facts revealed by recount cannot be relied upon by the election petitioner to support the prayer and sustain the order of recount, if the Supreme Court found that pleadings and material available on record anterior to actual recount did not justify grant of the prayer for inspection and recount.

Applying these settled principles to the present case, I find that there are sufficient pleading in paragraphs 3 to 7 of the election petition and that election record summoned by order dated 9.7.2007, was sufficient material on which prima facie satisfaction has been recorded by the Tribunal to make it imperative to recount the votes. There was sufficient material to prove that there was serious error in recount, which needs to be rectified in the public interest as well as to do complete justice between the parties. The writ petition is dismissed.