JUDGMENT Ashok Bhushan, J.
1. Heard learned Counsel for the parties.
2. Pleadings arc complete in Writ Petition No. 7133 of 2003, which is sufficient to decide Writ Petition No. 423 of 2004 also. With consent of the parties, the writ petitions are being finally decided.
3. Writ Petition No. 423 of 2004 (hereinafter referred to as first writ petition) has been filed challenging the order dated 27th December, 2003 passed by Prescribed Authority directing for recount of votes in Election Petition No. 10 field by Smt. Fahmida, Respondent No. 2 in first writ petition. Writ Petition No. 7133 of 2004 (hereinafter referred to second writ petition) has been filed by Smt. Fahmida, the election petitioner, challenging the order dated 31.1.2004 passed by 1st Additional District Judge, Ghazipur in Panchayat Revision No. 23 of 2004 (Smt. Arshadi v. Smt. Fahmida) allowing the revision and setting aside the order of Prescribed Authority by which the election petition filed by Smt. Fahmida was allowed.
4. Brief facts necessary for deciding both the writ petitions arc; election of Gaon Sabha Village Masoodpur was held on 23.6,2000 in which Smt. Arshadi, Smt. Fahmida and Smt. Anjum were the candidates. The result of election was declared in which Smt. Arshadi was declared elected by margin of six votes. Smt. Arshadi, elected candidate, was shown to have secured 564 votes whereas Smt. Fahmida was shown to have secured only 558 votes and Smt. Anjum, the third candidate, was shown to have secured only 4 votes. An election petition was filed by Smt. Fahmida (hereinafter referred to as the election petitioner) Under Section 12-C of U.P. Panchayat Raj Act, 1947 praying for declaration in her favour after recount of the votes and in alternative prayer was made for declaring the election void and directing for fresh poll. Election petitioner filed an application praying that papers of the election including the ballot papers be summoned and prayer was also made for recounting of the votes. The Prescribed Authority passed an order on 2.11.2001 directing for summoning of election pppers (excluding ballot papers). The order dated 2.11.2001 was challenged by elected candidate before the District Judge which was dismissed on 27.11.2001. A writ petition, being Writ Petition No. 18618 of 2002, was filed by the election petitioner which was disposed of on 6.5.2002 directing the Prescribed Authority to expeditiously decide the election petition. The election papers, as directed by the Prescribed Authority, were produced before the Court and memo was prepared on 10.12.2003 regarding the votes in Polling Booth Nos. 164. 165 and 166. After hearing both the parties, on prayer of the election petitioner for recounting, the application for recounting was allowed by the Prescribed Authority vide its. order dated 27.12.2003. The Prescribed Authority fixed 5.1.2004 for recounting of the votes. The elected candidate, Smt. Arshadi, filed a revision before the District Judge against the order dated 27.12.2003 on 2.1.2004. A prayer for setting aside the order dated 27.12.2003 was also made by the elected candidate. The District Judge on 2.1.2004 heard both the parties and admitted the revision. The District Judge granted time to the Counsel for election petitioner and fixed 5th January, 2004 for hearing of the stay application. Writ Petition No. 423 of 2004 has been filed by the elected candidate challenging the order dated 27.12.2003 passed by Prescribed Authority. In the writ petition, however, the elected candidate did not disclose that revision challenging the same order dated 27.12.2003 has already been filed before the District Judge which has been admitted on 2.1.2004 and the hearing on the stay application has been fixed for 5.1.2004. In Writ Petition No. 423 of 2004 an interim order was passed by this Court on 9.1.2004. Following interim order was passed by this Court on 9.1.2004 :-
"Issue notice returnable at an early date.
For a period of three months from today, no recounting in pursuance to the impugned order shall take place."
On 5.1.2004 recounting of votes took place. The ballot papers were brought before the Court in sealed cover, which was opened in presence of both the parties and recounting memo was also prepared. On recount of votes, election petitioner, Smt. Fahmida, was found to have secured 557 votes whereas Smt Arshadi, the elected candidate, was found to have secured only 553 votes. The revision filed by elected candidate against the order dated 27.12.2003 was dismissed on 6,1.2004 holding that revision has become infructuous due to recount has already taken place and also the revision is not maintainable. The Prescribed Authority decided the election petition finally vide its order dated 16.1.2004 by which the election petitioner, Smt. Fahmida, was declared to be elected as Pradhan. Against the order dated 16.1.2004 passed by Prescribed Authority allowing the election petition, Panchayat Revision No. 23 of 2004 was filed by Smt. Arshadi, the elected candidate, which has been allowed by the impugned judgment dated 31st January, 2004 passed by 1st Additional District Judge, Ghazipur. Second writ petition (Writ Petition No. 7133 of 2004) has been filed by Smt. Fahmida, the election petitioner, challenging the order of 1st Additional District Judge, Ghazipur allowing the revision.
5. Sri S.A. Gilani, learned Counsel appearing for elected candidate, in support of first writ 'petition, challenging the order of recount dated 27.12.2003, contended that order of recount wholly illegal and against the provisions of U.P. Panchayat Raj Act, 1947. Sri Gilani, submitted that there was no sufficient pleading or evidence on record to direct for recounting of votes, he submitted that order for recount being illegal, the order allowing the election petition automatically falls on ground. Sri Gilani placed reliance on Full Bench judgment of this Court in 1985 All, LJ 615, Ram Adhar Singh v. District Judge, Ghazipur and Ors. and Anr. judgment of this Court reported in 1991 ACJ 39; Grahi Shanker Singh v. VIlthAddl. District Judge' Varanasi and Ors..
6. Sri K.C. Sinha, learned Counsel, appearing for election petitioner, refilling the submissions of Sri Gilani, contended that there was sufficient pleading and materials on record for directing recount and the order of recount was based on sufficient materials which cannot be faulted with. He further contended that petitioner (in first writ petition) having already challenged, the order of recount dated 27.12.2003 in revision before the District Judge which revision was dismissed on 6.1.2004 and the said order has not been challenged by him, the petitioner should not be heard against the order dated 27.12.2003.
7. Sri K.C. Sinha, who is Counsel of the petitioner in second writ petition, challenging the order of District Judge dated 31.1.2004, contended that District Judge committed error in allowing the revision. He submitted that recount having taken place on 5.1.2004 in which recount election petitioner was declared elected, the order of recount was required to be given effect to. He placed reliance on judgment of Apex Court reported in (2003) 5 SCC 650, T.A. Ahammed Kabeer v. A.A. Azeez and Ors., Sri Sinha further contended that District Judge has made out a third case in finding fault with the recount order, He submitted that recount was made in presence of both the parties and recount memo was also prepared and no objection of any kind was raised during process of recount and it was only the recount when election petitioner was declared elected, some applications were filed by the elected candidate raising frivolous objections. Sri Sinha further contended that District Judge in allowing the revision has travelled beyond the jurisdiction as conferred Under Section 12-C and has reappraised the evidence. It is contended that there being no illegality in the recount, no error was committed by the Prescribed Authority in exercise of jurisdiction in allowing the election petition which order was not required to be interfered with in revisional jurisdiction. Reliance has also been place by Sri Sinha on a judgment of this Court reported in 1998 (3) AWC 1924, Kauslesh Vikram v. IIIrd Additional District Judge, Allahabad and Ors..
8. Refuting the submissions of Sri Sinha in support of the second writ petition, Sri Gilani contended that order of District Judge is perfectly justified. He contended that order of recount itself being void, all subsequent proceedings have rightly been set-aside. He further contended that written application was given by elected candidate raising objection that ballot papers were found tied only by ropes and seal in which ballot papers were brought have not been tagged. He further contended that there was tampering in the invalid votes which were found more in recount.
9. Sri Gilani also raised a preliminary objection regarding maintainability of the writ petition. He contended that in the writ petition Smt. Anjum, who was party to the election petition, has not been impleaded, hence the writ petition is liable to be dismissed on account of non-joinder of necessary, party. Before proceeding further to consider the submissions of both the parties, the preliminary objection raised by Sri Gilani is required to be considered.
10. Election petition was filed by Smt. Fahmida, the petitioner in second writ petition. Admittedly Smt. Anjum was arrayed as Respondent No. 2 in the election petition, hence there was no defect in the election petition. The Prescribed" Authority has allowed the* election petition by the order dated 16.1.2004 and set- aside the election of Smt. Arshadi. A revision was filed against the said order only by Smt. Arshadi. Smt. Anjum, who was also one of the candidate in the election, did not challenge the order of the Prescribed Authority setting aside the election. Smt. Anjum, thus, acquiesced to the order of Prescribed Authority. The revision was filed against the order of Prescribed Authority only by Smt. Arshadi, which has been allowed by the impugned judgment of the District Judge dated 31.1.2004. The second writ petition has been filed challenging the order of District Judge in which only contesting party is Smt. Arshadi who is represented by Sri Gilani. Smt, Anjum being not necessary party, her non-joinder shall have effect of getting the writ petition dismissed. Thus, the preliminary objection raised by Sri Gilani has no substance.
11. I have considered the submissions raised by Counsel for both the parties and have perused the pleadings in both the writ petitions.
12. In first writ petition challenge is to the order of recount dated 27.12.2003 passed by Prescribed Authority. The Full Bench of this Court in Ram Adhar Singh's case (supra) considered the scope of order of recount in election petition Under Section 12-C of U.P." Panchayat Raj Act, 1947. The Full Bench after considering various decisions of the Apex Court laid down parameters for ordering recount in election petition under U.P. Panchayat Raj Act, 1947 in paragraph 18 of the said judgment which is extracted below ;-
"Applying the principles with regard to inspection of ballot papers enunciated by the Supreme Court in cases arising under the Representation of the 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 petition under the said Act can be permitted to look into or to direct inspection of the ballot papers, following two conditions must coexist:
(i) 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 grounds; and
(ii) 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 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 Under Section 12-C 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."
13. The pleadings and materials in the writ petition has now to be tested on the basis of grounds as laid down in the above Full Bench judgment. Copy of the election petition has been filed as Annexurc-1 to the first writ petition. All allegation claiming recount has been made in paragraphs 4, 5, 6 and 7 of the election petition. In paragraph 4 of election petition, it has been pleaded that on the date of poll 1161 voters have cast their votes hut in the election return the number of ballot were shown as 1159. In Booth No. 164, 392 votes were polled but in the ballot box only 387 votes were found. In Booth No. 165, 324 votes were polled but in the ballot box only 317 votes were found and in Booth No. 166, 445 votes were polled whereas 455 votcs were found. Thus, in ballot box of Booth No. 164, five less votes were found, in Booth No. 165, seven less votes were found and in Booth No. 166, ten more votes were found. In paragraph 5 of election petition, details of polls boothwise including the details of votes polled, found and difference of votes have been given. In paragraph 6 of election petition, it was stated that at the time of counting election petitioner secured 14 more votes than Smt. Arshadi, the elected candidate, but after two hours Smt. Arshadi was declared elected by six votes. It was further stated in paragraph 7 that in Booth No. 166 in place of 40 invalid votes only 20 invalid votes were shown and other 20 votes were added in Smt. Arshadi. After filing of the application for recount, the Prescribed Authority directed for summoning of the papers vide order dated 2.11.2001. The election papers excluding the ballot papers were called for. A memo of the election papers was prepared on 10,12.2003 which memo stated that in Booth No. 164, 383 votes were found, in Booth No. 165, 318 votes were found and in Booth No. 166, 418 votes were found and by adding 40 invalid votes total votes comes to 1159. The memo prepared itself shows variance with the number of votes as shown in election return. Total valid votes secured by the candidates according to memo was 1119 which shows discrepancies in the election return as prepared at the time of counting. After preparation of the memo dated 10.12.2003 by order dated 27.12.2003 recounting has been directed. It is also relevant to note that before ordering recount, the Prescribed Authority gave opportunity to both the parties to lead evidence and the oral evidence was also lead by the parties. The statement of Nand Lai Kanaujia was recorded as DW-1 and the statement of Afzal Ahmad, was recorded on behalf of election petitioner. Material facts were given in the election petition in support of the prayer for recount which found support from the memo prepared after summoning election papers excluding the ballot papers. After summoning the election papers except ballot papers, the memo itself made it clear that the figures at the time of counting were not correct and number of invalid votes were more as shown in the election return. The margin of victory only being six votes and the invalid votes itself were found at the time of preparation of memo 7 more than shown in the election papers, oral evidence of both the parties were also before the Prescribed Authority, hence the Prescribed Authority did not commit any error in directing for recount in view of the pleading and materials which were before the Court. The conditions as laid down by the Full Bench in Ram Adhar Singh's case (supra) were fully satisfied for directing recount and order of recount was fully in accordance with law laid down by Full Bench in the aforesaid case.
14. Sri Gilani contended that' no reasons have been given by Prescribed Authority in order dated 27.12.2003 for directing recount. A perusal of the order shows that the Prescribed Authority has taken into consideration the pleadings in the election petition, details of the memo prepared on 10.12.2003 and submissions raised by both the parties. The Prescribed Authority relying on the memo prepared on 10.12.2003 held that recount is necessary. The order shows that Prescribed Authority has relied on valid materials for directing recount that was memo prepared after summoning the election papers except the ballot papers. The memo dated 10.12.2003 clearly demonstrated that figures as shown in the election return at the time of counting were not correct and there was difference of 7 invalid votes whereas margin being 6. Thus, the submission of the petitioner that Prescribed Authority did not apply its mind while directing recount cannot be accepted.
15. In so far as the submission of Sri Sinha that revision filed by elected candidate challenging the order dated 27.12.2003 having been dismissed by District Judge on 6.1.2004 which order have not been challenged, the order dated 27.12.2003 has become final, it is relevant to note that District Judge has dismissed the revision holding that the revision has become infructuous and it is not maintainable. In view of the order of District Judge dismissing the revision as not maintainable, there was no impediment in challenging the order of recount in this Court. Thus, the elected candidate could have challenged the order of recount by means of writ petition and no exception can be taken to the said challenge. However, it is relevant to note that although the elected candidate had filed revision before the District Judge on 2.1.2004 and the District Judge did not grant any interim order and invited objection on stay application and fixed 5.1.2004 for hearing of the stay application, the first writ petition which was sworn on 5.1.2004 docs not contain any averment of filing revision or first hearing of revision on 2.1.2004 rather in paragraph-1 of the writ petition wrong statement has been made that no application has been filed before any other Court of Law. The petitioner concealed the fact of filing revision against the order dated 27.12.2003 before the District Judge from this Court. In view of the above fact also, the petitioner is not entitled for any indulgence by this Court in writ jurisdiction. In view of above discussions, no infirmity is found in the order of recount dated 27.12.2003. The first writ petition is liable to be dismissed.
16. Now coming to the second writ petition in which order of 1st Additional District Judge dated 31.1.2004 allowing the revision, has been challenged. The learned District Judge has based its decision on allegations of elected candidate that ballot papers brought in the Court were not proper seal which creates doubts in recounting and manner of recounting. The Rcvisional Court has also observed that invalid votes at the time of count were only 33 and it has not been shown how the said figure has raised to 47. The learned District Judge has also held that order of recount dated 27.12.2003 is not supported by trustworthy materials and is unsustainable. While considering the first writ petition, it has already been observed that there was sufficient materials for directing recount, thus, the view of District Judge that the recounting was unsustainable is erroneous. The recount having been ordered on the basis of well settled parameters of exercising jurisdiction, the result of the recount was required to be given effect to. The Apex Court in T.A Ahammed Kabeer'a case (supra) made following observations in paragraph 28:-
"28. It is true that a re-count is hot to be ordered merely for the asking or merely because the Court is inclined to hold a re-count. In order to protect the secrecy of ballots the Court would permit a re-count only upon a clear case in that regarding having been made out. To permit or not to permit a re-count is a question involving jurisdiction of the Court. Once a re-count has been allowed the Court cannot shut its eyes on the result of re-count on the ground that the result of re-count as found is at variance with the pleadings. Once the Court has permitted re-count within the well-settled parameters of exercising jurisdiction in this regard, it is the result of the re-count which has to be given effect to."
17. From the result of recount, it is clear that it was the election petitioner who secured the maximum votes and, was entitled for declaration. The Prescribed Authority having allowed the election petition on the basis of result of recount, there was no infirmity in the order warranting interference by this Court
18. The Revisional Court in its judgment has raised doubt with regard to recount and manner of recount. In the application filed by elected candidate after the recount, it was stated that ballot papers were found tied up by rope. The Revisional Court also observed that after counting and prior to recounting the ballot papers were manipulated and some of ballot papers were tampered with the difference of invalid votes, The said observations of the Revisional Court were not based on correct facts. The counting memo has been filed as Annexurc-6 to the writ petition. A perusal of the counting memo clearly proves that ballot papers were brought before the Court by an official of the Panchayat in sealed bag. The counting memo further reads that seal was broken after showing both the parties and from the scaled bag the ballot papers were taken out and recounted. The ballots were taken out from scaled bag, hence there was no basis to observe that they were not properly sealed. The fact that ballot papers were tied in a rope inside the bag was immaterial. The ballots having been taken out from sealed bag which was brought by the official of Panchayat, there was no occasion to observe that ballot papers were not properly sealed. Further at the time of recounting when the seal was open in presence of both the parties, no objections have been raised by any of the parties, in the counting memo no such objection is even referred. After the recounting. When the election petitioner was declared elected, applications were filed by elected candidate raising various . frivolous objections. The Prescribed Authority has also said in its order that elected candidate is always making efforts to delay the disposal of the election petition and has even filed transfer application to delay the disposal. The District Judge in its order has observed that Prescribed Authority should have set-up an enquiry regarding seal of ballot papers. The observation of the Revisional Court is uncalled for. When the ballots were open from scaled cover which ballot papers were brought by official of the Panchayat, there was no occasion to raise any doubt regarding ballot papers. Further no such objection being noted in the counting memo at the time of opening of the seal, the picas raised by elected candidate after the recount were all after thought and with a view to linger on the matter. There was no error in exercise of jurisdiction by the Prescribed Authority and the Revisional Court committed error in interfering with the order of Prescribed Authority in exercise of its revisional jurisdiction. The doubts raised by the Revisional Court in its order regarding manner of recount was1 without any basis. The Revisional Court also erroneously observed that it has not been explained as to how recounting slip wholly goes against the election return and how invalid votes have increased from 33 to 47. When the votes were recounted in presence of the parties before the Court, the said recount has to be accepted as correct count of ballot and there is no question of challenging the recount on the basis of initial election returned. The recount has been prayed for on the ground that election return prepared at the time of counting is not correct. The observation of the Revisional Court that votes polled in favour of revisionist were made double stamp before recounting was also without any basis and uncalled for. The Revisional Court committed error in interfering with the order of Prescribed Authority which was based on recounting of the votes.
19. In view of the aforesaid discussions, the order of Revisional Court is erroneous and unsustainable. The second writ petition deserves to be allowed.
20. In the result, Writ petition No. 423 of 2004 is dismissed and Writ petition No. 7133 of 2004 is allowed. The order of first Additional District Judge, Ghazipur dated 31.1.2004 is quashed.
21. Parties shall bear their own costs.