Through this petition the petitioner has challenged the order dated 3.9.2009 passed by the Deputy District Magistrate with respect to recounting, contained in Annexure No.9 to the writ petition.
The facts in brief are that petitioner was declared elected as Pradhan of Village Panchayat Machhari, Block Bhojpur, Ghaziabad as she has secured the highest number of votes. Opposite party no.1 challenged the election of the petitioner, inter alia, on the ground that bungling was done in the counting and she has secured the highest number of votes, but illegally and arbitrarily the votes secured by her were mingled with the votes of the petitioner and counted towards the votes of the petitioner and thus a gross bungling was done and thereby the petitioner was declared elected. Written statement was filed by the petitioner to the election petition of opposite party no.1. Thereafter evidence was led by the parties and in the meantime a transfer application was moved before the District Judge, but no order was passed in the aforesaid transfer application. The Sub-Divisional Officer after considering the evidence led by the parties came to the conclusion that there was specific plea in the election petition as well as in the evidence of the opposite party no.1, from which the case for recounting was made out and thereafter proceeded to order for recounting by means of the impugned order. Hence this petition.
Submission of learned counsel for the petitioner is that the order of recounting could not have been passed by the Deputy District Magistrate on account of the fact that there was no evidence before him to come to a definite conclusion that recounting was necessary in the present case. The order in question was passed maliciously on account of the fact that a transfer application has been moved against the order of Deputy District Magistrate, who was hearing the election petition, which persuaded him to pass an adverse order. In fact no application was moved for recounting and as such the order of recounting cannot be sustained on the basis of vague pleading and evidence. In support of his contention he has placed reliance upon the following decisions :
Ram Adhar Singh vs. District Judge, Ghazipur and others, 1985 UPLBEC 317, Tanaji Ramchandra Nimhan vs. Swati Vinayak Nimhan, 2006 -2- All.C.J. 707, N. Narayanan vs. S. Semmalai and others, AIR 1980 SC 206 Ram Gopal vs. Up Ziladhikari, Mathura and others, AIR 2004 All. 421, Juggilal vs. District judge, Bahraich and others, 1998 (3) AWC 1714 (LB) Counsel for the opposite party no.1 on the other hand has submitted that specific case of bungling was set up in the election petition as well as in the evidence led by the opposite aprty no.1. The husband of opposite party no.1 was the election agent and he appeared in the witness box and made a specific statement to the effect that bungling was done and the votes of opposite party no.1 were mingled with the votes of petitioner and she was declared elected. He has also placed on record the statement of Shamsher, husband of opposite aprty no.1, in which he has made a very categorical statement as to in what manner bungling was done and in what manner the votes of opposite party no.1 were mingled with the votes of the petitioner and counted in favour of the petitioner.
Having heard counsel for the parties, it is evident from the record that the evidence of Shamsher was filed in the form of affidavit and he was put to cross- examination. A categorical statement has been made in paras 8, 9 and 10 and in para 11 it has also been stated that opposite party no.1 immediately made an application to the State Election Commissioner and to the District Magistrate, Ghaziabad for recounting through FAX message, but no recounting was made. So from the pleadings of the parties, it is not that a clear case for recounting has not been set up and could not be made out. Cross-examination of Shamsher also goes to indicate very clearly that nine bundles were found in respect of votes secured by the petitioner, whereas 10 bundles were found in respect of votes secured by the opposite party no.1 and in the tenth bundle there were 35 and 36 votes, which were shown as 16 only and rest of the votes were counted in favour of the petitioner. It has also come in the affidavit that 10 votes were illegally rejected although the stamp was in the same column against the name of opposite party no.1. The other evidence of Mehboob is of not much assistance as he has made a statement on the basis of hearsay and he was not present on the counting table. It is also submitted that a complaint was made to the Returning Officer and on the same day a complaint was also made to the District Magistrate as well as to the State Election Commissioner by FAX message in regard to recounting. The complaint, which was given to the Returning Officer has also been placed on record. Thus, from the evidence on record, it cannot be said that a case of recounting was not set up -3- through election petition, but in fact it was set up from the very inception before the counting officer as well as to the District Magistrate and to the State Election Commissioner. Hence, the reliance placed by the counsel for the petitioner on the cases mentioned above do not come to the rescue of the petitioner, but they lay down a proposition that the Court has to see as to whether there was sufficient evidence on record to make out a case for recounting. From the evidence on record, I am convinced that opposite party no.1 has made out a case for recounting on the basis of pleadings and evidence as discussed above. Therefore, I do not find any illegality in the order of recounting dated 3.9.2009 passed by the Deputy District Magistrate.
Petition is devoid of merit. It is accordingly dismissed.
January 22nd , 2010 Rao/-