1. Heard Sri M.N. Singh, learned counsel for the petitioner, learned Standing Counsel for respondent Nos. 1 to 5 and Smt. Manju R. Chauhan for respondent No. 6.
2. By means of the present writ petition, the petitioner has challenged the impugned order dated 11.1.2013 passed by the Prescribed Authority/Sub Divisional Magistrate, Sadar, District Mirzapur in Election Petition No. 4 of 2010-11 (Reeta Vs. Champa Devi and others).
3. Brief facts giving rise to the present writ petition are as follows:-
4. The Election Commission had issued the notification on 16.09.2010 for election on the post of Gram Pradhan of village/gram panchayat Dhaurahara, Post Office Vijaypur, Block 96, Nyay Panchayat Vijaypur, District Mirzapur. In pursuance to the said notification, the election was held on 14.10.2010, and ballots were counted on 30.10.2010. The petitioner, on account of having secured 193 votes being the first polled candidate, was declared elected as Village Pradhan and respondent No. 6 polled second place as she secured only 191 votes. Thereafter, necessary certificate had also been issued in her favour. An election petition was filed by the respondent No. 6 (Smt. Reeta), challenging the election of the petitioner, wherein the order dated 30.08.2012 was passed directing for recounting of votes. Aggrieved with the said direction, the petitioner challenged the order dated 30.08.2012 by means of Writ Petition No. 44593 of 2012, wherein respondent No. 6 had been arrayed as respondent No. 5 and she was duly represented by her counsel. The Writ Petition No. 44593 of 2012 was finally disposed of vide order dated 04.09.2012, the order is reproduced herein below:-
"This petition seeks the quashing of the order dated 30th August, 2012 passed by the Prescribed Authority by which an order for recount of the votes has been passed in an Election Petition filed under Section 12-C of the U.P. Panchayat Raj Act, 1947 (hereinafter referred to as the 'Act').
It transpires from the records of the writ petition that respondent no.5-Rita filed Election Petition No.4/2010-11 under Section 12-C of the Act for setting aside the election of the petitioner who was arrayed as opposite party no.1 in the Election Petition. The Prescribed Authority by the order dated 30th August, 2012 has directed for recount of the votes.
Learned counsel for the petitioner made number of submissions for setting aside the order and after the matter had been argued for some time by Sri Hari Shankar Mishra, learned counsel appearing for respondent no.5, a statement was made by Sri Mishra that he would be satisfied if a direction for expeditious disposal of the Election Petition is passed after setting aside the order dated 30th August, 2012 passed by the Prescribed Authority.
Learned counsel for the petitioner and the learned Standing Counsel appearing for the State respondents have stated that they would have no objection if such an order is passed by the Court.
The impugned order dated 30th August, 2012 is, accordingly, set aside with a direction to the Prescribed Authority to make all endeavours to decide the Election Petition in accordance with law expeditiously, preferably within a period of three months from the date a certified copy of the order is filed by either of the parties before the Prescribed Authority. Needless to state that none of the parties shall seek unnecessary adjournment before the Prescribed Authority.
The writ petition is allowed to the extent indicated above. "
5. It is apparent from the record that at the time, when the writ petition was heard on 04.09.2012, Sri Hari Shanker Mishra, learned counsel for the respondent No. 6 had made a submission to the effect that he would be satisfied, if a direction for expeditious disposal of the election petition is passed after setting aside the order dated 30.08.2012 passed by the Prescribed Authority.
6. In view of the aforesaid statement made by the counsel of Smt. Reeta, the Court had set aside the order dated 30.08.2012 and directed the Prescribed Authority to make all endeavours to decide the election petition in accordance with law, preferably within three months from the date of production of a certified copy of the order.
7. It also appears from the record that the respondent No. 6 thereafter filed an application dated 01.11.2012 (annexure-9 to the writ petition) before the Prescribed Authority, for summoning all the election records and after verification of the ballot papers, to decide the election petition in accordance with direction issued by the writ court.
8. Sri M.N. Singh, learned counsel for the petitioner submits that the Prescribed Authority in response to the application moved by Smt. Reeta, summoned the record and had passed the impugned order dated 11.1.2013 and again directed for recounting to be held in the matter. He makes a submission that when the counsel for the respondent No. 6 had made statement in the earlier round of litigation before this Court for expeditious disposal of the election petition and the earlier impugned order dated 30.08.2012 passed by the Prescribed Authority was set aside and once he had conceded to such an extent, then there was no occasion to pass the order dated 11.1.2013 by which again the prescribed authority had directed for recounting. He further makes submission that the respondent No. 6 herself had moved the application before the prescribed authority on 1.11.2012 for summoning the election record but at the same time had no right for asking for recounting in the matter. Therefore, he submits that the application dated 01.11.2012 moved by respondent No. 6 was in violation of the undertaking given by her counsel in the earlier writ petition No. 44593 of 2012.
9. Sri M.N. Singh, learned counsel for the petitioner submits that on the vague and indefinite allegations, the prescribed authority could not direct for recounting and has placed reliance to the judgment passed by the Full Bench of this Court in the case of Ram Adhar Singh Vs. District Judge, Ghazipur and others reported in 1985 All. C.J. 196. The Hon'ble Court in Ram Adhar Singh (supra) has clearly taken the view that on vague and indefinite allegation, recounting cannot be ordered and in paragraph 16, applying the principle with regard to inspection of ballot papers enunciated by the Supreme court in cases arising under the Representation of the Peoples Act qua an election petition to be dealt with under the provisions of the U.P. Panchayat Raj Act. The view has been taken that there is no escape from the conclusion that before an authority hearing the election petition under the said Act can be permitted to look into or direct inspection of the ballot papers, unless following two conditions must co-exist; which are as follows:
"(1) that the petition for setting aside an election contains the grounds on which the election of the respondent is being questioned as also the summary of the circumstances alleged to justify the election being questioned on such ground; and (2) the authority is, prima-facie, satisfied on the basis of the materials produced before it that there is ground for believing the existence of such ground and that making of such an inspection is imperatively necessary for deciding the dispute and for doing complete justice between the parties.
It, therefore, follows that in the absence of any specification with regard to the ground on which the election of the respondent is being questioned together with summary of the circumstances alleged to justify the election being questioned on such ground, it is not open to the authority dealing with an application under section 12-C of the U.P. Panchayat Raj Act, either to look into or direct inspection of ballot papers merely on the ground that it feels that it would be in the interest of justice to look into or permit inspection of the ballot papers. In the context, such satisfaction has necessarily to be based on specific averments made in and the materials indicated in the election petition which could, prima-facie satisfy the authority about the existence of the ground on which the election is sought to be questioned."
10. The Hon'ble Apex Court in most of the cases has taken view that recounting of votes cannot be directed as a matter of course and further held that recounting cannot be ordered on mere asking or merely because margin of the votes between the returned candidate and the election petitioner is narrow.
11. Hon'ble Apex Court, recently, in the case of Kattinokula Murali Krishna v. Veeramalla Koteswara Rao and others, 2009 (7) Supreme To-Day 478, decided on 23.11.2009, has taken the view that order of recount has to be based on material available and bald plea that some irregularities and illegalities had been committed in counting, the order in question is not sustainable. Paragraphs 15, 16 and 17 of the said judgment are being extracted below:
"15. Having viewed the matter in the light of the principles enunciated above, we are constrained to hold that the Election Tribunal as also the High court lost sight of the parameters to be applied while considering the petition seeking re-counting of votes. It is manifest from the afore-extracted paragraph 4 of the election petition, containing the grounds of challenge, the allegations regarding irregularity or illegality in the counting of votes were not only vague, even the basic material facts as could have made the Election Tribunal record a prima facie satisfaction that re-count of ballots was necessary, were missing in the petition. It is pertinent to note that upon consideration of the evidence adduced by the parties, the Election Tribunal had itself observed that the election petitioner had failed to state any material facts regarding the failure of the Election Officer to mention reasons for rejection of votes and further there was no specific allegation as to on which table the votes polled in favour of the election petitioner were mixed with the votes polled in favour of the appellant; and on which table the votes polled in his favour were rejected as invalid. Precisely for this reason, and in our view rightly, the Election Tribunal had declined to take into consideration the evidence adduced by the election petitioner on the point. It is a settled principle of law that evidence beyond the pleadings can neither be permitted to be adduced nor such evidence can be taken into consideration. Moreover, even the two material issues, viz. as to whether the counting of votes by the Election Officer was in accordance with the rules and regulations as also whether the votes polled in favour of the election petitioner were rejected as invalid or there was improper mixing of the votes have been found in favour of the appellant. It is evident from the observations of the Election Tribunal, extracted in Para 7 above, that the sole factor which had weighed with it to order re-count was that no prejudice will be caused to the appellant if the ballot papers are re-counted. Similarly, the factor which weighed with the High Court to affirm the view of the Election Tribunal is that re-counting of votes will reinforce the transparency in the process of election, particularly when the margin of votes was very narrow. It needs to be emphasised that having regard to the consequences emanating from the direction of re-counting, which may even breach the secrecy of ballot, the doctrine of prejudice is an irrelevant factor for ordering re-count. Similarly, a narrow margin of votes between the returned candidate and the election petitioner does not per se give rise to a presumption that there had been an irregularity or illegality in the counting of votes. In the first instance, material facts in this behalf have to be stated clearly in the election petition and then proved by cogent evidence. Undoubtedly, the onus to prove the allegation of irregularity, impropriety or illegality in the election process on the part of the Election Officer is on the election petitioner and not on the Election Officer, as held by the authorities below. In the present case, both the forums below have found that material facts were lacking in the election petition. Having held so, in our view, the election petition should have been dismissed on this short ground alone. In that view of the matter, the observation of the Election Tribunal, as affirmed by the High Court, that the Election Officer had failed to say anything regarding corrections and over-writings in Form 26, are neither factually nor legally sound.
16. We are of the opinion that in the light of the afore-noted factual scenario and the fact that findings of the Election Tribunal on issues No.1 and 2 were in favour of the appellant, except for a bald plea that some irregularities and illegalities had been committed in counting, there was no material on record on the basis whereof the Election Tribunal could have arrived at a positive finding that a case to order re-count of the ballot papers had been made out. For all these reasons, we are convinced that the order of re-count passed by the Election Tribunal was illegal and the High Court erred in upholding it.
17. In view of the afore-going discussion, the appeal is allowed; the order passed by the Election Tribunal ordering re-count of the ballot papers, and affirmed by the High Court is set aside. The appellant shall be entitled to costs, quantified at Rs.20,000/-."
Recount of votes could be ordered very rarely and on specific allegation in the pleadings in the Election Petition that illegality or irregularity was committed while counting. The petitioner who seeks recount should allege and prove that there was improper acceptance of invalid votes or improper rejection of valid votes. If only the Court is satisfied about the truthfulness of the above allegation, it can order recount of votes. Secrecy of ballot has always been considered sacrosanct in a democratic process of election and it cannot be disturbed lightly by bare allegations of illegality or irregularity in counting. But if it is proved that purity of elections has been tarnished and it has materially affected the result of the election whereby the defeated candidate is seriously prejudiced, the Court can resort to recount of votes under such circumstances to do justice between the parties.
12. Learned counsel for the petitioner has also placed his reliance on the judgment in the case of N. Narayanan v. S. Semmalai and others, AIR 1980 SC 206, in which Hon'ble Apex Court has taken the view that the allegations, which have been made, must not only be clearly made but also proved by cogent evidence and the narrow margin of votes undoubtedly is an important factor to be considered, but the same would not by itself vitiate the counting or justify recounting. Paragraph 26 of the said judgment being relevant is quoted below:
"26. Finally, the entire case law on the subject regarding the circumstances under which recount could be ordered was fully summarised and catelogued by this Court in the Case of Bhabhi v. Sheo Govind 1975 Supp SCR 202 to which one of us (Fazal Ali, J.) was a party and which may be extracted thus :-
"26. The Court would be justified in ordering a recount of the ballot papers only where;
(1) the election petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded;
(2) On the basis of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting; and (3) The court trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties."
13. The Hon'ble Apex Court has reiterated the same view in the cases of P.K.K. Shamsudeen Vs. K.A.M. Mappillai Mohindeen and others reported in (1989)1 SCC 526, Vadivelu v. Sundaram, 2000 (8) SCC 355, M. Chinnasamy v. K.C. Palanisamy and others, 2004 (6) SCC 341.
14. However, in the similar facts and circumstances, the Hon'ble Apex Court, while deciding the case of Sadhu Singh Vs. Darshan Singh (2006(64) ALR 905, has reiterated the relevant factors, which are necessary, before order of recount could be passed. Relevant extract is being quoted below:-
"Concededly the following factors are relevant for directing recounting of votes:
(i)prima facie case must be established;
(ii) material facts must be pleaded stating irregularities in counting of votes;
(iii) a roving a fishing inquiry shall not be directed by way of an order for recounting of votes;
(iv) an objection to the said effect should be raised; and
(v) secrecy of ballot papers should be maintained."
15. However, Smt. Manju R. Chauhan, learned counsel for the respondent No. 6 submits that from bare perusal of the impugned order dated 11.1.2013, it clearly reveals to this Court that there were massive illegality in the election process and the order impugned is fully justified and sustainable. She further submits that competent authority had no other option except to direct for recounting and the prescribed authority had made all endeavours to decide the election petition in accordance with law and had rightly proceeded in the matter.
16. She further makes submission that on the basis of prima facie pleadings and evidence produced by the respective parties, the Prescribed Authority was satisfied that only recounting of votes could resolve the controversy and she had also placed reliance to the judgment of Full Bench of this Court passed in Ram Adhar Singh (supra). It has also been stated that the provisions of Uttar Pradesh Panchayat Raj Act, 1947 relating to election of Pradhan are analogous or para materia to provisions of Representation of the Peoples Act, 1951, specially relating to recounting of ballot papers. She submits that the Competent Authority should have prima facie satisfaction that in the interest of justice, order of recounting was necessary and she has also placed her reliance to the orders passed by the Prescribed Authority dated 3.8.12 and 11.1.13. She has vehemently submitted that as per the Rule 107 of the Uttar Pradesh Panchayat Raj (Elections of Members, Pradhan and Up Pradhans) Rules, 1994, the signatures of returning officer is mandatory whereas in the present matter, the same had not been found and she had placed her reliance to the following judgments:-
a. 1987 ALJ 137; Amrish Vs. Mahabir Singh Rana b. 1988 ALJ 458; Chhotey Singh Yadav Vs. Santosh and others.
c. AIR 1988 (Alld.) 102; Naresh Kumar Vs. Prakash Narayan Awasthi and others.
d. 2010 (6) ADJ 774; Mohd. Kaisar Vs. Chhabili Devi e. 2003 (6) SCC 452; paras 15, 16, 17 and 18; Jibontar Ghatowar Vs. S. Sarbnanda Sonowal;
f. AIR 1975 (SC) 693; paras 18 and 20; S. Baldev Singh Vs. Teja Singh Swatantra g. AIR 1970 (SC) 276; Jitendra Bahadur Singh Vs. Krishina Behari;
h. AIR 1964 (Alld.) 86, Kidwai Husain Kamil Vs. Yadav Ram Sevak.
17. It has also been contended that if the candidate succeeds with narrow margin, sometime may would not vitiate for recounting and reliance has also been placed to the Judgment passed in:-
a. AIR 1980 (SC) 206; N. Narayan Vs. S.S. Semmalai b. 2010 (1) SCC 466 Kattinokkula Murali Krishana Vs. Veeramalla Koteswara Rao and others.
18. Lastly, she submits that if her counsel in bonafide interest of his client made any concession before the Court, the same cannot operate against law and also placed her reliance to the judgment of Hon'ble Apex Court in State of Rajasthan Vs. Surendra Mohnot reported in AIR 2014 (SC) 2925.
19. Heard the rival submissions of learned counsels for the parties and perused the record.
20. Now the facts of the present case are to be seen on the basis of principle laid down by the Full Bench of this Court as well as by the Hon'ble Apex Court as noted above. It is apparent from the record that the present matter had also travelled upto this Court in the earlier round of litigation, whereas the petitioner had challenged the order dated 30.08.2012 passed by the prescribed authority for recounting of votes by means of the writ petition No. 44593 of 2012, and the counsel for the respondent No. 6 had appeared in the matter when the said writ petition was heard on 04.09.2012, counsel for the respondent No. 6 had made a submission to the effect that he would be satisfied if a direction for expeditious disposal of the election petition is passed after setting aside the order dated 30.08.2012 passed by the prescribed authority by which the direction for recounting of votes has been issued.
21. The aforementioned facts would also reveal that once counsel for the respondent No. 6 had persuaded the Court in the earlier round of litigation for early disposal of the election petition by giving concession that the earlier impugned order dated 30.08.2012 may be set aside and once on such ground, the Court has acted upon and acceded the demand of the petitioner and under bona fide impression had disposed of the writ petition with direction to the Prescribed Authority to decide the election petition within stipulated time, thereafter, the respondent No. 6 is precluded from moving application before the prescribed authority for recounting of ballot papers. The aforementioned judgments cited by the learned counsel for the respondents are distinguishable under the present facts and circumstances of the case. Whereas in the present matter in the earlier round of litigation, the counsel for respondent No. 6 consciously conceded before the Court so that the favourable order may be passed for the early disposal of the election petition, which was pending consideration before the prescribed authority.
22. Therefore, at this stage, the arguments advanced by the learned counsel for the respondents cannot be sustained on the ground that once in the earlier round of litigation, a favourable order regarding the early disposal of the election petition had been obtained after setting aside the recounting order, again, on the same facts, the application moved by the respondent No. 6 for recounting cannot be sustained.
23. The Court has perused the earlier order dated 30.08.2012 passed by the prescribed authority and the present impugned order. Bare perusal of both the orders, it is apparent that moreover the same charges were levelled and once this Court had set aside the recounting order, then on the similar facts and circumstances, again the application moved by respondent No. 6 before the Prescribed Authority for recounting cannot be sustained.
24. Therefore, in view of above, the impugned order dated 11.1.2013 cannot be sustained and is, accordingly set aside to the extent for a direction for recounting but at the same time, it is clarified that the Prescribed Authority may proceed into the matter and decide the Election Petition No. 4 of 2010-11 strictly in accordance with law expeditiously and preferably within a period of two months from the date of production of certified copy of this order. Needless to state that none of the parties shall seek unnecessary adjournment before the Prescribed Authority.
25. The writ petition is allowed to the extent indicated above. No order as to costs.
Order Date :- 3.12.2014 Jaswant