Reserved
Court No. - 6
Case :- MATTERS UNDER ARTICLE 227 No. - 1257 of 2018
Petitioner :- Krishna Kant
Respondent :- A.D.J. Varanasi And 7 Others Counsel for Petitioner :- Gyanedra Pratap Singh Counsel for Respondent :- C.S.C.,Anil Kumar Aditya
Hon'ble B. Amit Sthalekar,J.
Heard Shri Krishna Ji Khare, learned counsel for the petitioner, Shri Anil Kumar Aditya, learned counsel for the respondent no.4 and the learned Standing Counsel for the respondents no.1 to 3.
The petitioner in the writ petition is seeking quashing of the order dated 15.02.2018 passed by the Additional District Judge, Varanasi in Revision No.130 of 2017, Manoj Vs. State of U.P. and Others.
The facts of the case as stated in the writ petition are that the Gram Panchayat Elections were notified in the year 2015 and election for the post of Gram Pradhan in village Bantari, Block Cholapur, District Varanasi was held on 05.12.2015. The counting of votes took place on 13.12.2015 and the result was also declared on the same date. It is stated that the petitioner secured 462 votes whereas the respondent no.4 secured 461 votes and therefore the petitioner won the election by one vote and was declared elected. The respondent no.4, however, not being satisfied with the election filed an election petition on 22.12.2015 before the Sub Divisional Magistrate, Sadar, District Varanasi/Prescribed Authority. The petitioner opposed the election petition. The Prescribed Authority by his order dated 25.11.2017 dismissed the election petition. Aggrieved, the respondent no.4 filed revision which was allowed by the Additional District Judge/Special Judge (E.C. Act), Varanasi by the impugned order dated 15.02.2018 and the order of the Prescribed Authority has been set aside and a direction has been issued to the respondents to hold recounting under videography and submit the same before the Prescribed Authority.
The submission of the learned counsel for the petitioner is that 1425 votes were polled but when the ballot boxes were opened only 1422 ballot papers were found. His submission, therefore, is that counting was held with regard to only 1422 ballots and merely because 3 ballots were unaccounted for, the recounting could not have been ordered. His submission is that in Booth No.250, 569 votes were cast, in Booth No.251, 456 votes were cast and in Booth No.252, 400 votes were cast, total 1425 votes. After the election the ballot boxes were duly and properly sealed but when it was opened on the date of counting and counting took place it was found that there were only 1422 ballots.
According to the respondent no.4 (election petitioner) on his election symbol 'Car' in Booth No.250, 233 votes were cast, in Booth No.251, 105 votes were cast and in Booth No.252, 123 votes were cast, total 461 votes were cast and so far as the petitioner herein is concerned, on his election symbol 'Imli' on the same Booths 139 + 196 + 127 i.e. total 462 votes were cast. The contestant Kishori did not get any vote whereas contestant Gyan Chandra received 04+139+52, total 195 votes and the contestant Shri Saeed received 02+07+86 total 95 votes, contestant Swatantra Kumar received 149=06=07, total 162 votes, 47 votes were declared invalid, total 1422 votes. It is further stated that the result showed only 1416 votes instead of 1422 votes which means that there was some illegality or irregularity in the counting.
The respondent no.4 further alleged that on the date of voting 1425 votes were cast but at the time of counting only 1422 votes were found in the ballot boxes. It is also alleged that earlier the respondent no.4 was declared elected by 2 votes but 5 minutes later he was shown to have been defeated by 1 vote and there was a difference of 3 votes between the votes cast and votes found in the ballot boxes which were in favour of the respondent no.4 as a result of which he was declared to be defeated and the petitioner was declared to be the elected candidate. In paragraph 10 of her election petition the respondent no.4 has also alleged that the Returning Officer was acting arbitrarily and he had made a complaint in this regard under due receiving of his complaint.
The Prescribed Authority considered the election petition and the objection filed thereto and recorded a finding that in Booth No.250, 559 votes in Booth No.251, 456 votes and in Booth No.252, 400 votes were shown to have been cast, total 1425 votes were cast but in the result sheet which was prepared, the total votes were mentioned as only 1416 and therefore there was a difference of 9 votes. The Prescribed Authority has also recorded a finding that at the time of counting only 1422 votes were found in the ballot boxes and the counting was done only of these 1422 ballots, therefore, there is a discrepancy in the claims of the parties and the figures of the votes cast as shown by the Election Officer. The Prescribed Authority has also recorded a finding that the election petitioner (respondent no.4) has himself admitted in paragraph 9 (Gha) of his election petition that in the result appendix (6) it was shown that there were 1375 valid votes, 47 invalid votes, i.e. total 1422 votes though in the certificate appendix -6 total number of votes were shown to be only 1416. This shows that there was only a clerical error in making entries in appendix-6. He has also recorded a finding that all the parties admitted that total number of votes cast were 1425 and at the time of counting there were only 1422 votes in the ballot boxes and that the result was declared only after counting these 1422 votes. On these findings the Prescribed Authority dismissed the election petition.
Aggrieved by the findings recorded by the Prescribed Authority the respondent no.4 filed revision. The Revisional Authority, however, after perusing all the documents on record has recorded a finding that 1425 votes were cast whereas only 1422 ballots were found in the ballot boxes which shows that 3 ballots were missing which would have made a difference between the loosing and winning candidates and therefore, he has set aside the order of the Prescribed Authority and ordered recounting under video recording.
Rule 95 of the Uttar Pradesh Panchayat Raj (Election of Members, Pradhans and Up-Pradhans), Rules, 1994 (hereinafter referred to as the 'Rules, 1994') lays down that as soon as practicable after the close of the polls, the Matdan Adhyaksh 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 slit and also allow any contesting candidate or his Abhikarta who may be present to seal the same. Sub-rule 2 of Rule 95 provides that all the ballot boxes shall thereafter be sealed and secured in the manner specified. Rule 95 of the 'Rules, 1994' reads as under:
“95. Sealing of ballot boxes, etc., after poll.- (1) As soon as practicable after the close of the polls, the Matdan Adhyaksh 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 sealts of the Matdan Adhyaksh and also of such of the contesting candidates or their Abhikartas as may desire to fix their seal thereon.”
Rule 104 of the 'Rules, 1994' lays down the Procedure for counting which reads as under:
"104. Procedure at the counting.- On the date and at the time and place appointed under Rule 101, 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 candidates 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 been 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 or his Nirvachan Abhikarta questions the correctness of the rejection of any ballot paper, the Nirvachan Adhikari shall also record briefly on such ballot paper grounds 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 ballot papers relate."
Sub Rule (d) of Rule 104 of the 'Rules, 1994' clearly stipulates that 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. Thus, the mandate of sub-rule (d) of Rule 104 is clear that counting shall take place only of those ballot papers which are found in the ballot boxes.
Therefore, what emerges from the conjoint reading of the procedure laid down in the Rule 95 and Rule 104 of the 'Rules, 1994' is that after the close of the poll all the ballot boxes shall be duly sealed and secured and the counting of ballots papers shall take place thereafter only from among the ballot papers found in those ballot boxes. In the present case, it is not disputed between the parties rather it is admitted by the respondent no.4 in paragraph 9 (gha) of his election petition that in the ballot boxes only 1422 ballots were found, out of which 1375 votes were found to be valid and 47 votes were found to be invalid. There is no allegation in the petition that there was any tampering by anyone at the time of sealing of the ballot boxes therefore in the face of the facts admitted between the parties and the mandatory provisions of Rule 95 and Rule 104 of the 'Rules, 1994', in my opinion, the Additional District Judge, Varanasi fell into an error in taking cognizance of 3 ballots which were unaccounted for out of the 1425 ballots that were cast and that could not have been a reason for passing an order of recounting of the ballots as it was nobody's case that there were 1425 ballots found in the ballot boxes when the ballot boxes were opened. Besides mentioning 1416 ballots in the Schedule instead of 1425 as the total votes cast was at the most a clerical error and no recounting could have been ordered on that account.
In (2002) 3 SCC 457 (Mahendra Pal Vs. Ram Dass Malanger and Others) the Supreme Court in paragraph 14 has held as under:
“14. In view of the aforesaid discussion, as the appellant has not led any evidence or laid foundation stating that there was improper reception of votes in favour of the respondent or improper rejection of any votes which were in his favour, and that he has not raised any objection at the time of counting of votes on the basis of the so-called excess of 8 ballot papers, the High Court rightly refused re- counting of votes. The discrepancy of 8 ballot papers could be attributed to accidental slip or clerical or arithmetical mistakes which might have been committed at the time of preparation of the statements in Forms 16 and 20.
For reasons aforesaid, the impugned order dated 15.02.2018 passed by the Additional District Judge, Varanasi is absolutely illegal, without jurisdiction and contrary to the provisions of Rule 104 of the 'Rules, 1994' and is accordingly set aside.
The writ petition stands allowed.
Order Date :- 27th April, 2018
N Tiwari