Notice on behalf of opposite party no.1 has been accepted by the learned Chief Standing Counsel, whereas Shri Ashish Kumar Mishra, learned counsel has filed his Vakalatnama on behalf of opposite party no.2.
Issue notices to the opposite parties no.3 to 11, returnable at an early date.
Steps for service on opposite parties no.3 to 11 be taken within a week.
By means of present writ petition, the petitioner has challenged the order dated 10.9.2012, passed by Sub Divisional Officer, Kaisarganj, district Bahraich (Opposite Party No. 1) by which he has directed for re-counting of votes polled in the election for the post of Pradhan of Gram Panchayat Birahimpur Belhaura, block Jarwal, district Bahraich, during the year 2010 in which petitioner was declared elected as Pradhan.
Submission of learned counsel for the petitioner is that in the year 2010, election was held for the post of Pradhan of Gram Panchayat Birahimpur Belhaura, block Jarwal, district Bahraich in which petitioner contested and was declared elected as Pradhan. On 27.11.2010, the opposite party no. 2 (Riyasat Ali) who was a rival candidate in the said election, filed Election Petition under section 12-C of U.P. Panchayat Raj Act, 1947, challenging the validity of the election of the petitioner before the opposite party no. 1, acting as an Election Tribunal. The petitioner filed Written Statement before the opposite party no. 1 on 6.1.2012. After framing of issues, the opposite party no. 1 passed the impugned order dated 10.9.2012.
Further submission of learned counsel for the petitioner is that in para 5 of the Election Petition, the opposite party no. 2 in a very casual and vague manner has stated that the valid votes casted in his favour, were declared as invalid and the invalid votes casted in favour of the petitioner were declared as valid. In the election petition, it has further been stated that the votes polled in favour of the petitioner and opposite party no. 2 were equal, then instead of re-counting of votes, one ballot paper of opposite party no. 2 was rendered as invalid on the ground that against the column of election symbol of 'Camera' thumb impression of the voter was made and, consequently, petitioner was declared elected by only one vote.
Learned counsel for the petitioner also submitted that in the election petition filed under section 12-C of U. P. Panchayat Raj Act, 1947, the provisions of Code of Civil Procedure are applicable. He has also placed reliance on the judgment of Hon'ble Apex Court reported in AIR 1975 SC 2117, Bhabhi vs. Shiv Govind and others in which it has been held that it is important to maintain the secrecy of ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations and the Court must be prima facie satisfied on the material produced before it regarding the truth of allegations made for a re-count.
It is also submitted that there is no prayer in the election petition for re-counting of votes and even then the opposite party no. 1 directed for re-counting of the votes.
Learned Counsel for opposite party no. 2, while opposing the writ petition submitted that there is specific pleading in the election petition with regard to the irregularities committed by the staff deputed for counting of votes and protest was also made at the time of counting of votes also. The opposite party no. 1 after examining the issue, came to the conclusion that there is ground for re-counting of votes and there is no illegality in the order passed by opposite party no. 1.
I have considered the submissions of learned counsel for parties and perused the record.
On due consideration, I find that there are specific pleadings in the election petition with respect to irregularities committed by the staff deputed for counting of votes and the opposite party no. 2 appears to have protested at the time of counting of votes also.
Taking into consideration the difference into margin of votes, this Court feels that let re-counting of votes be done in compliance of the order passed by opposite party no. 1, but result of the same be not be implemented.
Accordingly, it is hereby provided that re-counting of votes be done on the date fixed in pursuance to the order dated 10.9.2012, passed by the Sub Divisional Officer, Kaisarganj, district Bahraich but result of the same shall be not implemented and the same shall be brought on record before this Court by means of an affidavit.
Shri Ashish Kumar Mishra, learned counsel for opposite party no. 2 prays for and is granted ten days time to file counter affidavit. Rejoinder affidavit, if any, may be filed within a week thereafter.
List immediately after expiry of the aforesaid period.
Learned Standing Counsel will communicate this order to the Authority concerned.
Order Date :- 19.9.2012 ashok