Heard.
Considering the order proposed to be passed issuance of notice to the private opposite party is dispensed with.
The election petition has not been decided finally as yet, though, by an earlier order dated 03.05.2019 issues no. 1 to 5 were decided and with regard to issue no. 6 pertaining to recounting certain orders were passed which were put to challenge before this Court by means of Writ Petition No. 13757(M/S) of 2019 which was allowed on 17.05.2019 ordering recounting in the following terms:-
"Heard Shri G.C. Sinha learned counsel for the petitioner and Shri Dinesh Kumar Ojha, learned counsel for the opposite party no. 1.
Let the learned counsel for the petitioner implead Shri Umakant Pandey as an opposite party in writ petition, as, he is a party in the election petition before the Prescribed Authority, even if, he has not filed written statement, during the course of day.
The issuance of notice to the newly impleaded opposite party no. 5 is dispensed with, as, he has not filed any written statement before the Prescribed Authority nor is he the main contesting party, who in fact is opposite party no. 1 who is the runner up in the elections to the office of Gram Pradhan, wherein the petitioner was elected.
The petitioner has filed this writ petition under Article 226 of the Constitution of India challenging the order dated 03.05.2019 passed by the Prescribed Authority in the election petition filed by the opposite party no. 1, being aggrieved by the fact that the order of recounting has been passed in an utmost illegal and casual manner oblivious of the law on the subject.
The contention of Shri G.C. Sinha, learned counsel for the petitioner is that the law on the subject of recounting is very clear that there has to be a specific and categorical pleading making out a very strong prima facie case for recounting and there should be evidence to support such pleadings and in addition to it the Prescribed Authority should be satisfied about the necessity for ordering recounting. This is on account of the fact that secrecy of the ballot paper is paramount. He invited the attention of the Court to the election petition, a copy of which is on record, to submit that the basis of the election petition was an assertion that the petitioner was not on the electoral roll of the village in respect of which the election was held and only a casual assertion had been made in Paragraph 9 and 10 about incorrect validation of votes allegedly cast in favour of the election petitioner. Moreover, he says that there was no prayer in the election petition for recounting. It is very well settled that in absence of a prayer no such order could have been passed.
On being confronted the learned counsel for the opposite party no. 1 submitted that merely the evidence had been summoned by the Prescribed Authority in respect of issue no. 6 and order was not for recounting.
This Court has carefully perused the impugned order. Issues no. 1 to 5 has been decided against the election petitioner, however, as regards issue no. 6 relating to the alleged irregularities in recounting, an order of recounting has been found to be necessary. The Prescribed Authority has opined that the in the facts of the case recounting is required. While doing so he has allowed/accepted the election petition in part as far as the findings on issue no. 6 is concerned and thereafter has ordered recounting for which he has summoned the ballot paper and fixed 20.05.2019 as the date of recounting, therefore, the contention of the learned counsel for the opposite party no. 1 to the contrary is incorrect. Moreover, this Court finds on a bare reading of the impugned order, so far as it relates to issue no. 6 and the order of recounting contained therein, that the same has been passed in a rather, casual and in a routine manner, wholly oblivious of the law and the legal prerequisites which are required to be satisfied before passing such an order as has been explained by the Full Bench of this Court in the case of Ram Adhar Singh Vs. District Judge, Ghazipur and Ors. reported in 1985 ALJ 615 as also a catena of the decisions of the Supreme Court in the case of Kattinokkula Murali Krishna Vs. Veeramalla Kotewara Rao and others reported in (2010) 1 SCC 466; M. Chinnasamy Vs. K.C. Palanisamy & others reported in (2004) 6 SCC 341 and Mahendra Pratap Vs. Krishn Pal and others reported in (2003) 1 SCC 390.
The prerequisites for an order of recounting are specific and categorical pleadings making out a strong prima facie case for recounting, secondly strong evidence to support the assertions, thirdly the degree of proof is of very high standard, fourthly secrecy of ballots is paramount, therefore, only after satisfaction of the aforesaid prerequisites if the Prescribed Authority is satisfied about the necessity of a recount based on the aforesaid parameters and law on the subject, can such an order be passed. In no circumstance can order of recount be passed on pleading so casual as are contained in the election petition. Moreover, it can never be ordered without a prayer for recounting. The law on this aspect is very well settled. The Prescribed Authority it seems is not aware of the law on the subject and has been persuaded by vague concepts of justice, natural justice, transparency etc. In fact the order of recounting so far as issue no. 6 is concerned has been passed on mere asking of the election petitioner. This is not how this order should have been passed.
The Court also finds that the observation of the Prescribed Authority that the election petition is accepted in part is also not justified. An order of recount has to be passed while the petition is pending. It can not be passed by disposing of a petition. An order of recount as held by the Division Bench of this Court in the case of Mohd. Mustafa Vs. Up Ziladhikari, Phoolpur, Azamgar and others reported in 2007(103) RD 282, is an interlocutory order to be passed during the pendency of the proceedings as the election petition can be accepted or disposed of only after the result of the recount, if a sustainable order in this regard is passed, therefore, on all these counts so far as the findings of the Prescribed Authority on issue no. 6 and conclusions drawn by him in the order dated 03.05.2019 are concerned are not sustainable.
As the finding on issues no. 1 to 5 have not been challenged by the petitioner herein, as, they are in his favour, therefore, no observation is being made with regard to said issues.
In view of the above discussion, the findings of the Prescribed Authority on the issue no. 6 and the consequential orders passed by him are hereby quashed. The election petition shall now be proceeded with in accordance with law and disposed of accordingly but with expedition, say, within a period of three months from the date a certified copy of this order is submitted.
Issue no. 6 will have to be decided afresh by the Prescribed Authority keeping in mind the observations made hereinabove and the authorities on the subject which shall be placed by the learned counsel for the parties before him.
The writ petition is allowed in the aforesaid terms."
Therefore, now the recounting matter is pending consideration before the Election Tribunal which was required to be decided within three months but according to the petitioner's counsel has not been decided as yet.
Let it be decided within the next one month if need be by proceeding on day-to-day basis unless there is some legal impediment in this regard. Subject to this no other direction is required as after the election petition is finally decided the petitioner would have a remedy to challenge the said order including the findings in respect of Issues no. 1 to 5 before the Revisional Authority under Section 12-C(6) of the U.P. Panchayat Raj Act, 1947.
With the aforesaid observations/ directions, the writ petition is disposed of.
Order Date :- 20.12.2019 R.K.P.