Court No. - 42
Case :- WRIT - C No. - 23729 of 2021 Petitioner :- Jamila Bano Respondent :- Chief Election Commission And 4 Others Counsel for Petitioner :- Dharmendra Kumar Mishra,Arvind Singh Counsel for Respondent :- C.S.C.,M.P. Srivastava,Rakesh Kumar Srivastava,Satish Chandra Sinha,Ten Singh
Hon'ble Vivek Kumar Birla,J.
Heard Sri Dharmendra Kumar Mishra and Sri Arvind Singh, learned counsel for the petitioner, Sri H.N. Singh, learned Senior Advocate assisted by Sri Anil Kumar for Caveator / Respondent no.5, Sri Hem Singh, learned counsel appearing for Election Tribunal /Respondent no.3 and the learned Standing Counsel appearing for the State.
Present petition has been filed for quashing the impugned order dated 1.9.2021 passed by Respondent no. 4 in Case No. 05188 of 2021 (Computer Case No. T20211418 0405188), Afreen Bano Vs. Jameela Bano and others under Section 12-C of U.P. Panchayat Raj Act 1947 (contained in Annexure-5 to this writ petition).
By the impugned order, Respondent no.4 has directed for recounting of votes.
Aafreen Bano, Respondent no.5, filed election petition under Section 12-C of U.P. Panchayat Raj Act, 1947 on various grounds. In crux, collusion of official in counting of votes was specifically pleaded and recounting was specifically prayed for. The petitioner, who is the elected Pradhan, filed an application for rejection of plaint / election petition on the ground of unsoundness of Aafreen Bano, Respondent no.5. The said application was rejected. The order impugned herein further reflects that the petitioner has not filed any written statement / objection to the election petition. Specific finding was recorded that there was difference of only one vote casted in favour of the winning candidate (the petitioner herein) and the Respondent no.5. Hence, recounting has been directed.
Submission of learned counsel for the petitioner is that Respondent no.5 is the resident of different village and was not eligible to contest the election against the petitioner. In other words, it is submitted that recounting has been directed illegally as Respondent no.5 was not eligible to participate in the election process. Submission, therefore, is that the order issued at the instance of Respondent no.5 is liable to be quashed.
Per contra, Sri H.N. Singh, learned Senior Advocate, submitted that no defect was in the nomination form of Respondent no.5 was found and his nomination was accepted and she was permitted to contest the election. He further submitted that the application filed under Order VII Rule 11 CPC was rightly rejected, as the election petition did not reflect any defect. He further submitted that no written statement/ objection has been filed in reference to Order VIII CPC, and after finding that there is a difference of only one vote, recounting has been directed and as such, no interference in the impugned order is warranted by this Court.
Sri Singh has placed reliance on the judgments of the Apex Court in Jayanta Samal Vs. Kulamani Behera and another, (2004) 13 SCC 552 and T.A. Ahammed Kabeer Vs. A.A. Azeez and others, (2003) 5 SCC 650, as well as of this Court in Tejbali Vs. State of U.P. and others, 2017(134) RD 287. He further submits that where specific allegation is that the votes casted in favour of the election petitioner have wrongly been counted in favour of the winning candidate and there has been a margin of only one vote, which may be an arithmetical mistake, therefore, no interference is warranted.
I have considered the rival submissions and perused the judgments relied on by Sri Singh. It is clear from perusal of the impugned order that there is a difference of only one vote and no specific ground has been taken in the present petition to challenge the said finding.
In view of the judgments placed before this Court and the observations made by the Hon'ble Apex Court in T.A. Ahammed Kabeer and Jayanta Samal (supra) as well as by this Court in Tejbali (supra), I do not find any legal infirmity in the order impugned directing recounting for the reason of there being margin of one vote only.
The writ petition is devoid of merit and is, accordingly,
dismissed.
Order Date :- 21.9.2021 N.S.Rathour