Court No. - 40
Case :- MATTERS UNDER ARTICLE 227 No. - 7897 of 2018 Petitioner :- Chandrama Prasad Maurya Respondent :- Sub Divisional Magistrate, Sadar, Varanasi And 6 Others Counsel for Petitioner :- Rohit Kumar Mishra,Rakesh Pande Counsel for Respondent :- C.S.C.,Aishwarya Kumar Singh,Anil Kumar Aditya,Rajesh Kumar Singh
Hon'ble Manoj Kumar Gupta,J.
The instant petition is directed against the order dated 03.10.2018 passed by XIth Additional District Judge, Varanasi in Revision No. 133 of 2017 (Vikas vs. Chandrama & Others) whereby the revision filed by respondent no. 2 (herein after referred to as 'election- petitioner') had been allowed and the order of the Election Tribunal dated 07.11.2018 dismissing the Election Petition has been set-aside. The Election Tribunal has been directed to carry out recounting of votes in presence of the parties in a transparent manner within 30 days. Aggrieved thereby the instant petition has been filed.
The election-petitioner filed Election Petition No. 08 of 2015 under Section 12-C of the U.P. Panchayat Raj Act, 1947 (herein after referred to as the 'Act') challenging the result dated 13.12.2015 where-under the petitioner (herein after referred to as the 'returned candidate') was declared elected as Pradhan of Gram Panchayat-92, Surahi, Vikas Khand-Kashi Vidyapeeth, Tehsil Sadar, District Varanasi in the elections held on 09.12.2015. The main ground of challenge to the election of the returned candidate was that out of 18 votes declared invalid, 10 votes were in fact valid and were cast in favour of election- petitioner against his symbol 'Car'. The returned candidate was declared elected by a margin of only one vote inasmuch as he was shown to have received 264 votes while the election-
petitioner 263 votes. Various other grounds have also been taken in the election petition to challenge the outcome of the election. It was also the specific case of the election-petitioner that after the counting was over he was declared elected but subsequently by interpolating the documents, the returned candidate was declared elected. In support of his plea, the election-petitioner has placed reliance on Form-6 in which according to him, initially his name was mentioned against the column of "Pradhan Declared Elected", but subsequently his name was scored out and substituted by the name of the returned candidate. The returned candidate contested the election petition by filing his written-statement traversing the allegations made in the election petition.
The other candidates, i.e. respondents no. 3, 4 and 5 also filed their written statements, but they supported the case of the election-petitioner.
The Election Tribunal dismissed the election petition by order dated 07.11.2017. It was challenged by respondent no. 2 by filing revision. The revision was allowed by order dated 16.07.2018 and the Prescribed Authority was directed to carry out recounting of the votes and decide the election petition afresh. Aggrieved thereby the returned candidate approached this Court in Matter Under Article 227 of the Constitution bearing no. 4988 of 2018. The Court found that the order passed by the Revisional Court directing recounting of votes is a non- speaking one and accordingly the same was set-aside and the Revisional Court was directed to pass a fresh order. Pursuant thereto the Revisional Court has now passed the impugned order. The Revisional Court has recorded several reasons for directing recounting of ballots.
Shri Rakesh Pande, learned Senior Advocate assisted by Shri Rohit Kumar Mishra, submitted that the order of the Revisional Court directing recounting of ballots is manifestly illegal inasmuch as the necessary pleadings and material facts for making out a case for recounting are completely lacking. It is urged that the Court cannot direct recounting by way of roving inquiry. In support of his contention he has placed reliance upon judgment of the Supreme Court in M. Chinnasamy vs. K.C.Palanisamy & Others, (2004) 6 SCC 341.
Shri R.K.Ojha, learned Senior Advocate assisted by Shri Anil Kumar Aditya appearing on behalf respondent no. 2-the election-petitioner submitted that there was sufficient material before the Revisional Court to warrant issuing a direction for recounting. He further submitted that in any event there was specific pleadings in the election petition that ten votes of the second-respondent were wrongly declared invalid and, therefore, even if the invalid votes are taken into consideration by the Election Tribunal, the election-petitioner would ultimately be declared elected.
Since the other candidates who contested the election namely respondents no. 3, 4 and 5 had supported the case of the election-petitioner in their written statement filed before the Election Tribunal and did not seek any relief in their favour nor set up recriminatory plea, therefore, notices were not issued to them, being formal parties.
After some arguments, counsel for the parties i.e. the returned candidate (petitioner) and the second respondent (election- petitioner) agreed for disposal of the instant petition in following terms :-
(a) The order passed by the Revisional Court directing recounting of votes would stand set-aside.
(b) The Election Tribunal shall call for the bundle of invalid ballots; shall re-examine the same and take appropriate decision in regard thereto.
(c) Based on the same, the Election Tribunal shall proceed to decide the election petition.
(d) The aforesaid exercise shall be completed by the Election Tribunal within six weeks from the date of production of certified copy of this order.
The petition stands disposed of accordingly.
The original record is returned to Shri Niraj Upadhyay, learned Additional Chief Standing Counsel for being transmitted to the District Magistrate, Varanasi so as to enable him to make necessary documents available to the Election Tribunal, as and when required.
Order Date :- 31.7.2019 VR (Manoj Kumar Gupta, J.)