01. This writ petition under Article 226 of the Constitution of India is directed against the order dated 14.10.2011 passed by the Deputy Collector/Prescribed Authority, Bansgaon, District Gorakhpur in an Election Petition filed under Section 12-C of U.P. Panchayat Raj Act, 1947 (hereinafter referred to as "the Act, 1947") directing for recounting of votes polled in election held in 2010 of Gram Pradhan of Gram Panchayat Bishunpur, Keshtra Panchayat Bansgaon, District Gorakhpur.
02. The petitioner and respondent no.7 were candidate along with five others contesting election to the office of Gram Pradhan, Village Panchayt Bishunpur. Polling took place on 22.10.2010. It is said that 3,000/- votes in total were cast out of which 213 were declared invalid. The petitioner secured 1403 votes while respondent No. 7 was polled 1384 votes as a result whereof, the petitioner was declared successful.
03. Respondent no.7 preferred an election petition under Section 12-C of Act 1947 vide his petition dated 9.11.2010, a copy whereof has been filed as Annexure No.1 to the writ petition. It was registered as election petition No. 01 of 2010. The case set up by respondent no.7 was that there were six Polling Booths numbered as 152, 153, 154, 155, 156 and 157. Polling took place on 22.10.2010 and as per tally of used votes supplied to the candidates by the Polling Officers, the number of votes polled booth-wise was as under:-
SN.
Booth No. Number of votes polled
1. 152 506
2. 153 505
3. 154 409
4. 155 470
5. 156 448
6. 157 624 Total 2962
04. Counting took place on 28.10.2010 and concluded on 29.10.2010. The number of votes found for counting were 3000. Booth-wise figure supplied by the Returning Officer in respect of the votes, counted and entries given in Form-4, is as under:
SN.
Booth No. Number of votes polled
1. 152 506
2. 153 505
3. 154 409
4. 155 470
5. 156 455
6. 157 655 Total 3,000 Note :- 38 votes in excess of polling.
05. It is thus evident that in respect of booth no. 156, earlier information was for polling of 448 votes, but in counting, number of votes increased to 455, showing an increase of 7 votes. Similarly, in Polling Booth No. 157, votes used were 624 while those counted were 655 showing an increase of 31 votes, as a result whereof, there was increase of 38 votes leading to total number of votes counted as 3000 against number of votes polled 2962.
06. Besides it, the number of invalid votes booth-wise, as informed to the candidates by the Returning Officer was as under:-
SN.
Booth No. Invalid ballot papers/votes
1. 152 20
2. 153 53
3. 154 17
4. 155 12
5. 156 40
6. 157 71 Total 213
07. The petitioner was polled 1403 votes while Election Petitioner was polled 1384 votes, as per information of the Returning Officer, as detailed hereunder:
SN.
Booth No. Votes polled to Election Petitioner Votes polled to Writ Petitioner
1. 152 138 348
2. 153 110 342
3. 154 222 170
4. 155 265 193
5. 156 253 162
6. 157 396 188 Total 1384 1403
08. Demonstrating the difference between number of votes as per the list of used votes and counted ones, having a difference of more than 38, based thereon the Election Petition was filed, alleging that there were serious irregularities at the time of counting. It was also stated that Election Petitioner also objected to the counting but it remained unheard and result was declared.
09. Petitioner contested the Election Petition and submitted his reply dated 17.2.2011. It is said that the votes found at the time of counting have been counted and there was no irregularity in counting and declaration of result.
10. The Election Tribunal after hearing parties, by means of the impugned order, has directed for recounting of votes and fixed 11.11.2011 for the said purpose.
11. The petitioner preferred a revision against the order dated 14.10.2011 but the same has been dismissed as not maintainable.
12. Sri K. N. Tripathi, learned Senior Advocate and Salil Kumar Rai, appearing for petitioner contended that the order for recounting of votes could not have been passed lightly as it affects the very concept of secrecy of votes and it is only in a very restricted and narrow sense where such an order could be passed. Reliance was placed on a series of decisions of the Apex Court and this Court which I shall be discussing a bit later. It is contended that the Election Petition lacks particulars of allegations, pleadings were vague and general, hence they do not justify the impugned order of recounting.
13. On behalf of respondent no.7, a counter affidavit has been filed alleging that the petitioner throughout had been adopting dilly dallying tactics to prolong disposal of election petition. Specific allegations were made in election petition to demonstrate that there was some manipulation in election inasmuch as, the number of used ballot papers during polling was less than actual number of votes found at the time of counting and, therefore, the Election Tribunal has rightly directed for recounting. It is also said that after counting but before declaration of result, respondent no.7 made an application raising objection regarding counting of votes but no action was taken thereon.
14. The points up for consideration in this case are, whether pleadings in the election petition are vague, lacks particulars of allegations etc.; vague or justified the impugned order; whether there was any evidence on record justifying impugned order for recounting of votes; what are the circumstances, when an order for recounting can be passed by the Election Tribunal; and, whether the impugned order is justified in view of the exposition of law on the above issues as also the facts, pleadings and evidence in the present case.
15. I have heard Sri K.N. Tripathi Senior Advocate, and Sri Salil Kumar Rai for the petitioner, Sri C.S. Singh learned Standing Counsel for respondents no.1 to 6 states that he has not filed any counter affidavit separately but support the impugned order for the reasons contained therein and also adopt the arguments advanced by Sri Ravi Kant, learned Sr. Advocate, appearing on behalf of respondent no.7. The arguments on behalf of respondent no.7 have been advanced by Sri Ravi Kant, Sr. Advocate, Sri A.P. Tiwari and Sri Shashi Kant Rai, Advocates.
Whether Revision is maintainable.
16. Before coming to the issues on merits, in respect to the impugned order passed by revisional Court an issue has been raised whether it has rightly rejected the revision being not maintainable inasmuch as, it is contended on behalf of the petitioner that once an order of recounting is passed, result would thereafter be governed by the result of recounting and, therefore, for all purposes, such an order is a final order and hence, revision was maintainable.
17. On the contrary, it is submitted on behalf of the respondents that the order of the Election Tribunal for recounting is an interlocutory order and hence, under Section 12-C(6) of the Act 1947 no revision would lie. Reliance is placed on Rahmat Khan Vs. District Judge, Bareilly and others 2001(3)AWC 1982; Dulhey Khan vs. District Judge, Budaun and others 1997(88) RD 17 and Mohd. Mustafa Vs. Up Ziladhikari, Phoolpur, Azamgarh and others 2008(1) JCLR 52 (All).
18. Sri K.N. Tripathi, learned counsel for the petitioner could not dispute this fact in view of binding decision of Division Bench in Mohd. Mustafa (Supra) that order of re-counting being not a final order, revision was not maintainable but proceeded to submit that since revision was not maintainable, the order for re-counting can be challenged in a writ petition as held in Bhagwat Prasad Misra Vs. Sub-Divisional Officer, Slon, District Rai Bareli and others 1985 UPLBEC 115 and Ram Pher Vs. State Election Commission, U.P., Lucknow and others (1999) 3 UPLBEC 2089. In the circumstances, this Court has no hesitation in upholding the revisional order in so far as it has held revision not maintainable against the order of re-counting of votes and proceed to consider the matter on merits in this writ petition.
Other Issues.
19. The challenge to an election, the grounds as also the procedure for such dispute with respect to election of Gram Pradhan or a Member of Gram Panchayat has been provided vide Section 12-C of the Act 1947. The grounds on which an election of Gram Pradhan or its Member can be challenged are:
(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.
20. What would constitute "corrupt practices of bribery" or "undue influence" has been codified in Sub Section (2) of Section 12-C which reads as under:
"(2) The following shall be deemed to be corrupt practices of bribery or undue influence for the purposes of this Act.
(A) Bribery, that is to say, any gift, offer or promise by a candidate or by any other person with the connivance of a candidate of any gratification of any person whomsoever, with the object, directly, or indirectly of inducing
(a) a person to stand or not to stand as, or withdraw from being, a candidate at any election; or
(b) an elector to vote or refrain from voting at an election; or as a reward to
(i) a person for having so stood or not stood or having withdrawn his candidature; or
(ii) an elector for having voted or refrained from voting.
(B) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of a candidate or of any other person with the connivance of the candidate with the free exercise of any electoral right:
Provided that without prejudice to the generality of the provisions of this clause any such person as is referred to therein who
(i) threatens any candidate, or any elector, or any person in whom a candidate or any elector is interested, with injury of any kind including social ostracism and ex-communication or expulsion from any caste or community; or
(ii) induces or attempts to induce a candidate or an elector to believe that he or any person in whom he is interested will become or will be rendered an object of divine displeasure or spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause."
21. Sub-Section (3) provides procedure for filing an application under sub-section (1) which I shall refer hereinafter as "Election Petition". The statute says that election petition shall contain such particulars as may be prescribed. In respect to further procedure the Statute contemplates its prescription by Rules. U.P. Panchayat Raj (Settlement of Election Disputes) Rules, 1994 (hereinafter referred to as "Settlement of Election Disputes Rules, 1994) prescribes procedure for filing election petition vide Rule 3 which reads as under:
"3. Election Petition.- (1) An application under sub-section (1) of Section 12-C of the Act shall be presented before the Sub-Division Officer, within whose jurisdiction the concerned Gram Panchayat lies, within ninety days after the day on which the result of the election questioned is announced and shall specify the ground or grounds on which the election of the respondent is questioned and contain a summary of the circumstances alleged to justify the election being questioned on such ground:
Provided that no such application shall be entertained unless it is accompanied by a treasury challan to show that the amount of rupees fifty has been deposited in the Personal Ledger Account of the Gram Panchayat concerned as security.
(2) The person whose election is questioned and where the petition claims that the petitioner or any other candidates shall be declared elected in place of such person, every unsuccessful candidate shall be made a respondent to the application.
(3) Every respondent may give evidence to prove that any person in respect of whom a claim is made that such person be declared elected, should not be declared so elected on the same ground or ground on which his election could have been questioned if he had been elected.
22. The procedure for holding election has been prescribed vide U.P. Panchayat Raj (Election of Members, Pradhans and Up-Pradhans) Rules,1994 (hereinafter referred to as Rules 1994). Rule 83 prescribes for preparation of ballot box for the poll and after polling procedure for sealing of ballot boxes etc is prescribed in Rule 95. These two Rules read as under:
"83. Preparation of ballot box for the poll.- (1) Matdan Adhyaksh shall immediately before the commencement of the poll, allow the contesting candidates and their Abhikartas who may present at such place to inspect each ballot box to be used at the poll and demonstrate to them it is empty.
(2) Each ballot box, or any of its component parts or attachments, shall also be marked with such other distinguishing mark of marks as the State Election Commission may direct.
(3) Where it is necessary to use paper seals for securing the ballot boxes, the Matdan Adhyaksh shall affix his own signature on a paper seal for each ballot box and obtain thereon the signatures or seals of such candidates or their Abhikartas as may be present and may desire affix the same.
(4) The Matdan Adhyaksh shall thereafter affix the paper seal so signed or sealed in the space meant therefor in the ballot box and shall then secure and seal each ballot box in their presence in such manner that the slit for the insertion of ballot paper therein remains open.
(5) Where it is not necessary to use paper seals for securing the ballot boxes the Matdan Adhyaksh shall secure and seal each ballot box in such manner that the slit for the insertion of ballot papers remain open and shall allow the candidates or their Abhikartas who may be present to affix, if they so desire, their own seals as well.
(6) The seals used for securing a ballot box shall be affixed in such manner that it shall not be possible to open the box without breaking them."
"95. Sealing of ballot boxes, etc., after poll.- (1) As soon as practicable after the close of the poll, the Matdan Adhyadsh shall close the slit of each ballot box and where the box does not contain any mechanical device for closing the slit, he shall seal up the slit and also allow any contesting candidate or his Abhikarta who may be present to seal the same.
(2) All the ballot boxes shall thereafter be sealed and secured in the manner specified.
(3) the Matdan Adhyaksh shall then make-up into separate packets;
(a) The cover containing the tendered ballot papers,
(b) the cancelled ballot papers,
(c) the marked copy of the electoral roll,
(d) unused ballot papers; and
(e) any other paper directed by the Nirvachan Adhikari to be kept in a sealed packet.
(4) Each such packet shall be sealed with the seals of the Matdan Adhyaksh and also of such of the contesting candidates or their Abhikartas as may desire to affix their seal thereon.
23. Rule 96 talks of preparation of account of ballot papers in specified form and Rule 97 relates to transmission of ballot boxes, ballot papers etc. by the Presiding Officer of Polling Booth to the Election Officer. The procedure for counting is provided in Rules 101 to 108. Rule 109 talks of declaration of result which Rules I shall discuss at the appropriate stage a bit later.
24. The dispute pertaining to an election is subject matter of judicial review in a narrow compass. It is well settled that a right to elect fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are and therefore, subject to statutory limitation. An election petition is not an action at Common Law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes, applies. It is a special jurisdiction and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to Common Law and Equity remain strangers to Election Law unless statutorily embodied. A Court has no right to resort to them on considerations of alleged policy because policy in such matters, as those relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, Court is put in a straight jacket. I need not burden this judgment with catena of decisions making these observations but suffice it to simply refer to Harcharan Singh Vs. S. Mohinder Singh and others, AIR 1968 SC 1500, Jyoti Basu & others VS. Debi Ghosal & others AIR 1982 SC 983; Kailash Vs. Nankhu and others , AIR 2005 SC 2441.
25. In F.A. Sapa Etc., Etc., v. Singora and others JT 1991(2) SC 503, para 15, the Court said:
"It is fairly well settled that our election law being statutory in character must be strictly complied with since an election petition is not guided by ever changing common law principles of justice and notions of equity. Being statutory in character it is essential that it must conform to the requirements of our election law. But at the same time the purity of election process must be maintained at all costs and those who violate the statutory norms must suffer for such violation."
26. In Mr. V. Narayanaswamy v. Mr. C.P. Thirunavukkarasu 2000(2) SCC 294 (Para 23) the Court observed:
"an election petition is based on the rights, which are purely the creature of statute, and if the statute renders any particular requirement mandatory, the Court cannot exercise dispensing powers to waive non-compliance."
27. This has been followed consistently and referred to in recent decisions in Dr. Krishna Murthy and others Vs. Union of India and another, JT 2010 (5) SC 601 = 2010(5) SCALE 448 = (2010) 7 SCC 202 and Kalyan Singh Chouhan Vs. C.P. Joshi 2011(1) SCALE 718.
28. As early as in Ram Sewak Yadav Vs. Hussain Kamil Kidwai & Others AIR 1964 SC 1249, the Court considering the situation as to when recounting of ballot papers should be ordered in the context of a matter arising out of Representation of People Act and observed that two conditions must co-exist, namely, (i) that the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support of his case and (ii) the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary. It further says that an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The election petitioner must set out his case with averments of material facts to establish a case so pleaded. An order for inspection may undoubtedly, if the interests of justice require, be granted but a mere allegation that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection. Similar views were expressed in Dr. Jagit Singh Vs. Giani Kartar Singh, AIR 1966 SC 773; Jitendra Bahadur Singh Vs. Krishna Behari, AIR 1970 SC 276; Shashi Bhushan Vs. Prof. Balraj Madhok, AIR 1972 SC 1251; Sumitra Devi Vs. Shri Sheo Shankar Prasad Yadav AIR 1973 SC 215; Beliram Bhalaik Vs. Jai Behari Lal Kachi AIR SC 283; Baldeo Singh Vs. Teja Singh, AIR 1975 SC 693 and Suresh Prasad Yadav Vs. Jai Prakash Mishra, AIR 1975 SC 376.
29. In Bhabhi Vs. Sheo Govind and others AIR 1975 SC 2117 the Court elucidates the following factors/principles for ordering inspection of ballot papers:
"Thus on a close and careful consideration of the various authorities of this Court from time to time it is manifest that the following conditions are imperative before a court can grant inspection, or for that matter sample inspection, of the ballot papers;
(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 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;
(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 out materials for declaring the election to be void; and (6) That on the special facts of a 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."
30. The principles as above have been vigorously followed and applied in various subsequent decisions of the apex Court as well as this Court. In N. Narayanan Vs. Semhalai and others, AIR 1980 SC 206 the apex Court while following and approving earlier decisions said:
"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."
31. The above decisions of Apex Court were in the context of Representation of People Act. An attempt was made to distinguish the principles laid down therein in the cases arising out of elections held under Act 1947 but this attempt was negatived by a Full Bench of this Court in Ramadhar Singh Vs. District Judge, Ghazipur and others 1985 UPLBEC 317 and in paras 18 and 19 are of judgment the Court said:
"18. We are unable to accept the submission made by the learned counsel. As already explained the Supreme Court has, in cases arising under the Representation of the People Act, spelt out the condition that all the courts dealing with an election petition should not exercise its discretion to permit inspection of ballot papers unless the petition contains an adequate statement of material facts on which the petitioner relies in support of his case (viz., that the petition meets the requirements of Section 83 (1) of the Representation of the People Act regarding contents of an election petition) for the reason that under the Act, it is a matter of utmost importance to maintain the secrecy of ballot which is sacrosanct and which should not be lightly allowed to be violated on vague and indefinite allegations. This reason applies equally to an election held under the U.P. Panchayat Raj Act which too cherishes secrecy of ballot to the same extent. Viewed from this angle, it becomes evident that the amplitude and purpose of the requirement of Section 83(1)(a) of the Representation of the People Act that the election petition must contain a concise statement of material facts on which the petitioner relies and that of Rule 24 of the Rules framed under the U.P. Panchayat Raj Act to the effect that an application under Section 12-C(1) of the Act must specify the grounds on which the election of the respondent is being questioned as also a summary of circumstances alleged to justify the election being questioned on such grounds, is the same, viz., that the Court or the authority dealing with an election petition under the respective enactments, should not countenance or proceed to investigate into any ground taken in the election petition unless the ground as well as the material in support of such ground have been adequately disclosed in the petition. 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. Viewed in this light, the provisions contained in the U.P. Panchayat Rules permitting the summary hearing of an application under Section 12-C(1) of the Act and authorising the Sub-Divisional Officer to, instead of recording evidence in full, merely maintain a memorandum thereof, has no bearing on the question regarding circumstances in which the ballot papers can either be looked into or permitted to be inspected in proceedings under Section 12-C of the U.P. Panchayat Raj Act.
19. Applying the principle with regard to inspection of ballot paper enunciated by the Supreme Court in cases arising under Representation of People Act to an election petition dealt with under the provisions of the U.P. Panchayat Raj Act, there is no escape from the conclusion that before an authority hearing the election under the said Act can be permitted to look into or to direct inspection of the ballot papers, following two condition must co-exist:
(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."
32. In M R Gopalkrishnan Vs. Thachady Prabhakaran 1995 supp (2) SCC 101 the court observed that re-count of votes should be ordered very rarely and on specific allegations 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. Secrecy of ballot has always been considered sacrosanct in a democratic process of election and cannot be disturbed lightly by bare allegations of illegality or irregularity in counting. Where it is proved that purity of election has been tarnished and it has materially affected the result of the election, causing serious prejudice to defeated candidate, the Court can resort to re-count of votes under such circumstances. The above principles were followed in a Panchayat election matter of State of Tamilnadu in Vadivelu Vs. Sundaram and others (2008) 8 SCC 355. In all subsequent decisions the above principles were reiterated and suffice it to just give reference of some of those to show that there is not the least deviation in the above principles in the subsequent authorities of Apex Court (See Mahendra Pal Vs. Sh. Ram Dass Malanger AIR 2002 SC 1291; Chandrika Prasad Yadav vs. State of Bihar and others (2004) 6 SCC 331; M. Chinnasamy Vs. K.C. Palanisamy and others AIR (2004) 6 SCC 341; Sadhu Singh Vs. Darshan Singh and another 2006(4) AWC 3253; Baldev Singh Vs. Shinder Pal Singh & another (2007)1 SCC 341; Gursewak Singh Vs. Avtar Singh and others 2006 (4)SCC 542; Hoshila Tiwari Vs. State of Bihar (2005) 12 SCC 342; Tanaji Ramchandra Nimhan Vs. Swati Vinayak Nimhan AIR 2006 SC 1218=(2006) 2 SCC 300; Udey Chand Vs. Surat Singh and another (2009) 10 SCC 170; Kattinokkula Murali Krishna Vs. Veeramalla Koteswara Rao and others (2010) 1 SCC 466; Kalyan Singh Chouhan Vs. C.P. Joshi 2011(11)SCC 786).
33. Besides above, there are some judgments of this Court which have also been relied and referred by the parties and therein also this Court has followed and reiterated the above principles. Suffice it to give reference thereof as having been cited at the Bar i.e. Bhagwat Prasad Misra Vs. Sub-Divisional Officer, Slon, District Rai Bareli and others 1985 UPLBEC 115, Satyendra Pal Singh Vs. State of U.P. and others 2010(4) ADJ 256; Om Prakash Upadhyay Vs. State of U.P. and others 2008(3) AWC 2665; Narendra Vs. Prescribed Authority and others 2009(4) UPLBEC 3762; Narendra Sharma Vs. Pawan Sharma and others 2010(5)ADJ 336; Ravindra Singh VS. State of U.P. and others 2008(105 RD 88; Radha Krishan Vs. Pargnna Adhikari, Tahsil Kol, Aligarh and others (1996) 2 UPLBEC 1016
34. In the context of above exposition of law let the matter be examined as to whether pleadings and material on record justify impugned order of re-counting.
35. In the entire election petition there is no pleading with respect to any irregularity or discrepancy during polling. Election petitioner- respondent no.7 states in para 2 of election petition that polling took place on 22.10.2010 at six Polling Booths. After the end of polling, the Presiding Officers gave number of votes used in six Polling Booths, total whereof comes to 2962 votes. Out of six Polling Booths, in respect of booths no. 152 to 155 there is no dispute, hence for the purposes of present matter, I am skipping it. Dispute is in respect of booths no. 156 and 157. Respondent no.7 pleaded that the number of votes used at booths no. 156 and 157 were 448 and 624 respectively. Total number of votes used was 2962. Thereafter, in para 4 he states about the counting of votes on 28th and 29th October, 2010 at Pandit Jawahar Lal Nehru Inter College, Bansgaon, District- Gorakhpur (hereinafter referred to as the "counting place"). Paras 4 to 7 of election petition relate to the number of votes counted and it is pleaded by respondent no.7 that total counted votes were 3000. At booths no.156 and 157, 455 and 655 votes respectively were available for counting and actually counted. In all, therefore, 38 votes were found more at the time of counting than what was mentioned in the list submitted on the date of polling giving total number of votes used. In para 5 number of votes declared invalid is given. There is no averment that this declaration of invalid votes was incorrect in any manner. 213 votes thus were found invalid leaving total number of valid votes as 2787. Respondent no.7 was polled 1384 votes while the petitioner secured 1403 votes. The petitioner having secured 17 votes more was declared successful. At booth no. 156 respondent no.7 secured 253 votes while the petitioner secured 162 votes and at booth no.157 respondent no.7 secured 396 votes while petitioner secured 188 votes. The total number of votes secured by respondent no.7 at booths no.156 and 157 was 649 while the petitioner secured 350 votes. In para 8 respondent no.7 pleaded that difference between votes and number of votes used itself shows serious irregularity at the time of counting and the officials deployed in the work of counting have shown 38 votes in excess colluding with the petitioner to make him victorious in the election. In para 9 of election petition respondent no.7 has pleaded that when he came to know about erroneous counting of votes, he submitted a written application to the Returning Officer requesting him not to declare the result and for recounting but it was not heeded by the Returning Officer, hence, petitioner had no option but to return to his house. Then in an interesting way in para 12 he has pleaded that if 38 votes found in excess during counting vis a vis number of votes used are deducted from total number of votes polled and counted in favour of petitioner, respondent no.7 would stand victorious. No document or material has been referred to about the stage of alleged wrongful counting of votes or that who and when made wrong counting and in what manner. In support of the averments in the election petition the petitioner placed on record Form 11 issued by the Polling Officers of Polling Booths giving number of votes used on the date of polling i.e., 22.10.2010. He has also filed copy of Form no.4 counting slip issued by the signatures of Returning Officer. Form no.4 mentioned the number of total votes found and counted at Booths no. 156 and 157 as 455 and 655 respectively.
36. In the written statement filed by the petitioner he disputed correctness of the information regarding votes used stating that there is some cutting and overwriting, meaning thereby that there appears to be some mistake due to hurriedness in preparation of Form 11. He further submits that at the time of counting neither respondent no.7 made any complaint in any manner, nor raised any dispute. If there was any wrongful counting, respondent no.7 ought to have raised a dispute then and there. The Returning Officer was bound to count the votes as found when ballet boxes were opened and could not have denied counting of votes found in the ballet box merely on the basis of information otherwise, contained in Form 11.
37. Respondent no.7 in support of his claim produced his election agent Atul Narain Rai, S/o Ravi Narain Rai, who admitted that after polling of votes no objection was made by any of the candidates. He admits being agent of respondent no.7 at booth no. 157 but was not aware as to how many votes were polled/cast. He also admitted that he was not agent at the time of counting.
38. The Prescribed Authority has solely and mainly relied upon the difference of votes in Form 11 and Form 4 in respect of Polling Booths no. 156 and 157 and the fact that margin of victory is only 17 votes to justify recounting. Whether mere discrepancy in Forms 11and 4 would be sufficient for recounting is a moot question to be considered. At this stage, it would be appropriate to have procedure for holding election from the stage of sealing of ballot boxes after polling till counting. Rule 95 of 1995 Rules provides that at the close of polling the Polling Officer shall close the slit of each ballot box and shall seal up the slit. He shall also allow any contesting candidate or his agent who may be present to seal the same. There is no averment and pleading that there was any discrepancy and violation of the above procedure. Having done so, sub rule (3) of Rule 1995 require the Polling Officer to keep in separate packets:- (a) the cover containing the tendered ballot papers, (b) the cancelled ballot papers, (c) the marked copy of the electoral roll, (d) unused ballot papers: and (e) any other paper directed by the Nirvachan Adhikari to be kept in a sealed packet.
39. Rule 96 talks of preparation of ballot paper account in the specified form at the close of polling. It is this provision pursuant whereto the entries were made in Form 11 showing number of votes used during polling. Sealed ballot boxes as also the packets are to be delivered to the Election Officer as provided by rules 97 and 98. Responsibility of safety and security of the above items will be that of Election Officer. For the purpose of counting, the procedure is prescribed in Rules 101 to 107. Rule 102 and 103 provides that contesting candidate or his agent may be present at the time of counting of votes. If the agent has to remain present, he has to be appointed by the contesting candidate in writing. Rule 104 thereafter, is very relevant and reads as under:-
"104. Procedure at the counting.- On the date and at the time and place appointed under rule 101, the Nirvachan Adhikari shall proceed as follows:
(a) The Nirvachan Adhikari shall satisfy himself that all the ballot boxes used at the poll and which are to be counted at that place have been received and accounted for;
(b) the Nirvachan Adhikari shall then allow the candidate and their Nirvachan Abhikartas and Ganana Abhikartas present at the counting an opportunity to inspect the ballot boxes and their seals for satisfying themselves that they are in order;
(c) the Nirvachan Adhikari shall also satisfy himself that none of the boxes has in fact been tampered with. If any ballot box is found by him to have tampered with or destroyed or lost the Nirvachan Adhikari shall not proceed with the counting of votes and the provisions of Rule 100 shall apply.
(d) if the Nirvachan Adhikari 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, in accordance with the instructions of the State Election Commission, at the same time;
(e) An account of the ballot papers found in the boxes of the polling place shall be recorded in a statement in the form specified by the State Election Commission.
(f) The Nirvachan Adhikari shall allow the candidates, their Nirvachan Abhikartas and Ganana Abhikartas, who may be present, reasonable opportunity to inspect all ballot papers which in the opinion of the Nirvachan Adhikari are liable to be rejected, but shall not allow them to handle those or any other ballot papers. The Nirvachan Adhikari shall on every ballot paper which is rejected endorse rejection thereon in Hindi. If any candidate of his Nirvachan Abhikarta questions the correctness of the rejection of any ballot paper, the Nirvachan Adhikari shall also record briefly on such ballot paper the ground for his rejection;
(g) After the counting of all ballot papers contained in the ballot boxes of the polling place has been completed the Nirvachan Adhikari shall cause all such ballot papers to be kept in a separate packet on which shall be indicated such particulars as will identify the name of the Gram Panchayat to which the ballot papers relate."
40. It is not pleaded at all in the election petition that at any stage during counting of votes there was any contravention or violation of procedure prescribed in Rule 104. In fact, there is no averment in the election petition at all as to who was the person present at the time of counting, whether respondent no.7 himself or his agent. Para 9 of the election petition states that after receiving information about wrongful counting the petitioner submitted a letter meaning thereby that petitioner himself did not come across any stage when any vote was wrongly counted but he received alleged information of wrong counting. Who gave the wrong information, when and at which stage is not clear and nothing has been said about it.
41. Rule 106 provides that Election Officer shall verify the accounts submitted by Polling Officer under Rule 96 by comparing it with by number of counted votes and rejected ballot papers with the unused or spoilt ballot papers in his possession and the tendered votes list. If he finds any discrepancy, thereafter what would be the consequence is not provided therein. Grounds of rejection of ballot papers are given in Rule 105 which do not include if the number of votes obtained from the ballot boxes for counting is different than those mentioned in statement submitted by Polling Officer under Rules 96. Meaning thereby the votes polled and found at the time of counting unless rejected on any ground envisaged in Rule 105, would have to be counted. It is not the case of respondent no.7 that any ballot box was found tampered nor anything has been said and shown that any ballot paper was introduced surreptitiously etc. The pleadings in the circumstances proceed only on the basis that there was a difference in the number of votes mentioned in the statement of Polling officers under Rules 96 and number of votes found actually for counting and on that basis only the election has been challenged and recounting ordered. When there is no discrepancy found at the time of counting of votes obtained by the Election Officer and there is no allegation that there was any discrepancy in the ballot boxes etc., or any contravention of Rules 104, there was no occasion to treat anything wrong in the election for mere discrepancy in the number of votes mentioned in the record at two different stages.
42. The petitioner has tried to add flavour of illegality/irregularity on the part of officials deployed for counting but these pleadings are very vague and lack substance. The onus lie upon the person who challenges the election of a returned candidate. One of the ground for challenge of an election seeking re-counting is irregularity in counting of votes which can justify re-counting. To demonstrate any irregularity at the time of counting, pleadings in this case are virtually silent and in any case extremely vague and cryptic. It is well settled that the pleadings play significant role in a case of challenge to an election. In the oral evidence adduced by respondent no.7, the witness admitted that he was not present at the time of counting. None was examined who was present on behalf of respondent no.7 at the time of counting. No finding has been recorded to demonstrate or even refer to any irregularity committed by the Election Officer at the time of counting. It is true that there appears to be some discrepancy in the record maintained by the Election Officers but that by itself cannot be a ground to issue a direction for recounting in the absence of any pleading of material facts showing any irregularity in counting of votes which is held to be one of the essential condition by the Apex Court in para 21 of the judgment in Gursewak Singh (supra) where it said:
"21- Although we need not go into the law of re-counting, as the said question does not arise before us, we may notice a decision of this Court in Chandrika Prasad Yadav v. State of Bihar wherein it is stated: (SCC p. 337, para 20) "20. It is well settled that an order of re-counting of votes can be passed when the following conditions are fulfilled:
(i) a prima facie case;
(ii) pleading of material facts stating irregularities in counting of votes;
(iii) a roving and fishing inquiry shall not be made while directing re-counting of votes; and
(iv) an objection to the said effect has been taken recourse to."
43. To permit or not to permit (emphasis added) recounting involve jurisdiction of the Court. In the present case, in order to acquire such jurisdiction neither the election petition contain specific pleadings nor is there shown any evidence adduced by respondent no.7 to support his case. Hence, the order of recount passed by the Prescribed Authority in my view cannot sustain.
44. In the result, the writ petition is allowed. The impugned order dated 14.10.2011 (Annexure 14 to the writ petition) is hereby quashed.
Dated: 09.04.2012 Akn.