The instant writ petition has been filed against the judgement and order dated 2.5.2017 by which the Prescribed Authority/Sub Divisional Officer, Khair, District - Aligarh, has directed for the recount of the votes cast.
After an election was held and the petitioner was declared elected on 13.12.2015, an Election Petition under Section 12 - C of the U.P. Panchayat Raj Act was filed. After the exchange of pleadings issues were framed. On 13.4.2017 an application was filed by the respondent no. 2 by which he prayed for the recount of votes. The petitioner filed her objection on 19.4.2017. The matter was heard and orders were to be passed thereafter. On 27.4.2017, another affidavit was filed by the respondent no. 2 bringing on record certain photocopies of the list of Parishist - 6 and allegations were made which were based on the Parishist - 6. It had stated that out of the 5020 votes which were counted, 4888 were valid votes while the others were cancelled ones. By the affidavit and the Parishist - 6 the respondent no. 2 had filed, it was further contended that while the valid votes were 4885 and the cancelled votes were 132 the total figure should have been given out as 5017. Therefore, it had been stated that there was sufficient ground for recounting of votes.
In the affidavit filed on 27.4.2017 it had also been stated that in Parishist - 6 even though the candidate Dharamwati, who had been arrayed as respondent no. 4 was shown as having got three votes, Parishist - 6 actually was indicating that she had got no vote whatsoever.
Further the affidavit disclosed that Sangeeta w/o Rakesh who has been arrayed as respondent no. 10 in the writ petition was shown to have got 1139 votes but Parishist - 6 indicated that she had got only 4 votes. Still further, Parishist - 4 was also filed alongwith the affidavit and it had been shown that even though only 685 valid votes were cast in favour of the contesting candidate, in fact, 688 votes were counted in her favour.
The petitioner in his objection which he filed to the affidavit which the respondent no. 2 had filed on 27.4.2017 had stated that if the affidavit was being filed after the conclusion of the hearing on the application for recounting then the matter should be heard again else the affidavit which the respondent no. 2 (to the writ petition) had filed should be considered as a void document and should not be admitted in evidence at all.
In the objection the petitioner had also stated that the affidavit which had been filed by the respondent no. 2 of the writ petition had not disclosed the date and place of preparation.
Learned counsel for the petitioner has further stated that the objection of the petitioner had clearly stated before the Prescribed Authority that the affidavit could not be taken into account unless the petitioner was granted an opportunity to rebut the evidence as was being placed by the respondent no. 2 Shakuntala, though the affidavit. In the objection, the petitioner had also stated that the documents which were filed alongwith the affidavit were only photocopies and that they could not be considered as evidence unless they were proved in accordance with law. Therefore, the petitioner in his objection dated 29.4.2017 had stated that the affidavit and all the photocopies of the documents and the evidence which were sought to be filed on 27.4.2017 had to be rejected.
However, the Prescribed Authority decided the matter on 2.5.2017 and ordered for the recounting of the votes. Aggrieved thereof the petitioner has approached this court by means of the instant writ petition.
Learned counsel for the petitioner has made the following submissions:-
I. The Prescribed Authority could have ordered for a recount of the ballot papers only where:
1. the election petition contained an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting were made;
2. on the basis of evidence adduced such allegations were prima facie established and afforded a good ground for believing that there had been a mistake in counting; and
3. the court trying the petition was prima facie satisfied that the making of such an order was imperatively necessary to decide the dispute and to do complete and effective justice between the parties.
II. In the Full Bench decision reported in 1985 ACJ 196 (Ram Adhar Singh vs. District Judge and Others, it had been laid down that on vague and indefinite allegations recounting could not be ordered and that recounting could not be made as a matter of course. 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 election 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 was satisfied about the truthfulness of the allegations, could it order the 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. And 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 to do justice between the parties.
III. The learned counsel for the petitioner has, therefore, submitted that when an Election Tribunal was deciding an election petition then it was the requirement of law that justice had not only to be done by it but actually ought to appear that it was in fact done. In the instant case, after the hearing vis-a-vis the recounting application was concluded there was no occasion for the Election Tribunal to have accepted the affidavit which was accompanied by only photocopies of Parishists no. 4 and 6. Admittedly, as per the law of evidence, photocopies of the documents are inadmissible and they had been put under the category of secondary evidence. They, therefore, had to be first proved as per the provisions of the Evidence Act. Learned counsel submitted that though the petitioner had brought this fact to the knowledge of the Election Tribunal, it had in hot haste without considering the submissions of the petitioner passed the order impugned. This not only deprived the petitioner the right to rebut the evidence brought forth by the affidavit but also rendered the order bad.
Learned counsel for the petitioner has submitted that the Tribunal had, in fact, stated in the impugned order that because of a direction passed by the High Court it was hurrying with the decision. Learned counsel submitted that it would have been in the fitness of things that the petitioner should have been allowed to rebut the avermnets made in the affidavit which was filed on 27.4.2017 and the petitioner should have also been allowed to lead her evidence.
IV. Confronted by the argument that now recount had been done and that the petitioner had been found to have got fewer votes than the respondent no. 2, the counsel for the petitioner submitted that secrecy of the ballot box was supreme and under no circumstance could it have been infringed without following the due process of law.
In this connection, learned counsel took recourse to a decision reported in 2009 (10) SCC 170 (Udey Chand vs. Surat Singh and Another) and read out paragraphs no. 32, 33 and 34 and submitted that even if on recount it was found that the returned candidates had not secured a majority of votes, the result could not be disturbed unless, prima facie, the case of high degree of probability existed for the recount of votes. Since the learned counsel for the petitioner read out paragraphs 32, 33, and 34, the same are being reproduced here as under:-
"32. Before parting with the case, we may also deal with the contention urged on behalf of the election petitioner to the effect that re-counting having taken place in terms of the Tribunal's order, this appeal is rendered infructuous. The argument is noted to be rejected. An order of re-count of votes has to stand or fall on the nature of the averments made in the election petition and the material produced in support thereof before the order of re-count is made and not from the result emanating from the re-count of votes.
33. A similar view was echoed by a three-Judge Bench of this Court in V.S. Achuthanandan's case. Speaking for the Bench, R.C. Lahoti, J. (as His Lordship then was) held thus:
"14...if the validity of an order passed by the High Court permitting inspection of ballot papers and directing a re-count is brought in issue before the Supreme Court, the facts revealed by re-count cannot be relied upon by the election petitioner to support the prayer and sustain the order for re-count if the pleadings and material available on record anterior to actual re-count did not justify grant of the prayer for inspection and re-count."
34. A similar contention was rejected by another three-Judge Bench of this Court in M. Chinnasamy Vs. K.C. Palanisamy & Ors., wherein it was held that even if on re-count it was found that the returned candidate had not secured majority of votes, the result could not have been disturbed unless prima facie case of high degree of probability existed for re-count of votes, which is not the case here. Accordingly, we reject the contention."
V. Learned counsel for the petitioner submitted that just as purity of election was sacrosanct the purity of procedure adopted by a Court of law had to be observed and preserved.
In reply, the learned counsel for the respondent no. 2 very vehemently submitted that once now when the ballot box had been opened and recount had been done and it had been found that the votes cast in favour of the returning candidate i.e. the petitioner were lesser in number than the votes cast in favour of the respondent no. 2 then this Court should keep its hands away and should not interfere with the order of the Court below. He has further submitted that purity of election had always to be given precedence. The predominant feature of a democracy is that only such incumbent should represent a constituency who had in fact been chosen by the majority of electors. In this regard, he has drawn the attention of the Court to a decision reported in 1994 Supp (2) SCC 619 (A. Neelalohithadasan Nadar vs. George Mascrene and Others) and has submitted that the principle of secrecy of ballot box must yield to the principle of purity of election in larger public interest. Paragraphs no. 10, 11, 12, 13 and 14 of the judgement are relevant and are being quoted here in below:-
"10. The existence of the principle of "secrecy of ballot" cannot be denied. It undoubtedly is an indispensable adjunct of free and fair elections. The Act statutorily assures a voter that he would not be compelled by any authority to disclose as to for whom he has voted, so that he may vote without fear or favour and free from any apprehension of its disclosure against his will from his own lips. See in this connection Raghbir Singh Gill v. Gurcharan Singh Tohral. But this right of the voter is not absolute. It must yield to the principle of "purity of election" in larger public interest. The exercise of extrication of void votes under Section 62(4) of the Act would not in any manner impinge on the secrecy of ballot especially when void votes are those which have to be treated as no votes at all. "Secrecy of ballot" principle presupposes a validly cast vote, the sanctity and sacrosanctity of which must in all events be preserved. When it is talked of ensuring free and fair elections it is meant elections held on the fundamental foundation of purity and the "secrecy of ballot" as an allied vital principle. It was observed by this Court in Raghbir Singh case' as follows (SCR p. 1320: SCC p. 68, para 23) "Secrecy of ballot though undoubtedly a vital principle for ensuring free and fair elections, it was enshrined in law to subserve the larger public interest, namely, purity of election for ensuring free and fair election. The principle of secrecy of ballot cannot stand aloof or in isolation and in confrontation to the foundation of free and fair elections, viz., purity of election. They can coexist but as stated earlier, where one is used to destroy the other, the first one must yield to principle of purity of election in larger public interest. In fact secrecy of ballot, a privilege of the voter, is not inviolable and may be waived by him as a responsible citizen of this country to ensure free and fair election and to unravel foul play."
11. In view of the above it is the settled position that out of the two competing principles, the purity of election principle must have its way. Section 94 of the Act cannot be pressed into service to suppress a wrong coming to light and to protect a fraud on the election process.
12. That both the election petition and recrimination petition were dealt with on the principle of "purity of election" is not in dispute. The approach of the High Court on the subject on the commonality of the attack also cannot be questioned. But what was questioned by Mr Prashant Bhushan, as reiterated in his written submissions of 14-9- 1993, was that the High Court was not correct in allowing examination of marked copies of electoral rolls and counterfoils without any evidence or material in support of the plea for inspection and that the High Court allowed the inspection casually without inviting a written application or even by a written order. It was submitted that except for pleadings in the election petition regarding void voting, there was no cause pleaded to permit the election papers to be thrown open for inspection and this exercise was termed by learned counsel as 'fishing or roving'. Rule 93 of the Conduct of Election Rules, 1961, provides for documents which shall not be 1 1980 Supp SCC 53 :(1980) 3 SCR 1302 opened and their Contents inspected by, or produced before, any person or authority except under the orders of a competent court. On the basis thereof it was maintained that by a string of judgments of this Court it has been ruled that inspection could only be allowed when two conditions are satisfied:
1. The material facts on the basis of which inspection of documents is sought, must be clearly and specifically pleaded; and
2. The Court must be satisfied on evidence, even if in the form of Support for these principles was sought from Ram Sewak Yadav v. Hussain Kamil Kidwai1, Hariram v. Hira Singh2, R. Narayanan v. S. Semmalai3, Jagjit Singh v. Giani Kartar Singh4, Jitendra Bahadur Singh v. Krishna Behari5 and other decisions of the like.
13. But by and large these are cases where there was a claim for recount. In contrast the instant case is of double voting which has specifically been pleaded in the election petition filed on 29-7-1991 supported by affidavit and the names of the voters have been supplied in the lists annexed thereto. The appellant had filed recrimination petition pleading that there were several other cases of double voting and reception of invalid votes in favour of the election petitioner. This written statement-cum- recrimination petition was filed on 10-9-1991. Issues were framed on 20-9-1991. The election petitioner on 26-9-1991 was allowed to amend the Election Petition so as to include 10 more cases of double voting. The corresponding amendment application filed by the appellant for taking into account details of double voting having taken place in another neighbouring constituency was rejected by the High Court for it was based on a new charge. The second amendment application of the election petitioner was allowed on 7-10- 1991 so as to include 23 more cases of alleged double voting. It is at that stage that is on 7-10-1991 that the Court permitted inspection of the counterfoils since several double voters had been summoned for the following day to appear on 8-10-1991 and subsequent days, on the oral prayer/application of both the election petitioner and the appellant. The court apparently took into account that since witnesses were to be examined on the question of their double voting and were expected to take a positive stand, it would become necessary to corroborate or confront them with the counterfoils of the ballot papers issued to them which purported to have been signed or not by them, in order to save time lest examination of the witnesses be time consuming. The Court allowed inspection of the roll and counterfoils in order to facilitate evidence of the witnesses on the date of their appearance, which was the following day. The suggestion no doubt was oral but the Court seemed to agree with the suggestion and inspection was permitted to both parties in the presence of the Registrar. The commonality of the approach of the parties on the question of double voting must have clearly goaded the Court to adopt such measure to facilitate quick trial. It is the case of the election petitioner that the counsel for both the parties inspected the counterfoils on 7-10-1991 in the Registrar's room as also on subsequent days, even though there was no written application made and there was no formal written order of the Court. Yet the inspection was open to both the parties without any objection having ever been raised by the appellant. In the facts and circumstances, we fail to see how the principle of secrecy of ballot can be imported to question the power of the Court to orally allow inspection in its endeavour to eliminate the impurity in elections, the opportunity provided having been availed of without demur by both parties. In this situation, it is difficult for us to digest the argument that here the High Court proceeded to allow inspection without being satisfied on evidence, even in the form of affidavit, that it was necessary to allow inspection in the interest of justice. Since the names of the voters who were alleged to have double voted, had specifically been pleaded in the election petition (as amended from time to time) and the recrimination petition, it was necessary to correlate their names with the electoral rolls and the counterfoils of the ballot papers so that in case of double voting or impersonated voting, the impure element in the election process could be identified and retrieved from the election package. The primary purpose thus was to purify the electoral process and not to hunt or hound the voter's choice, when exercised validly and freely. It is for that purpose that the Court, in the interest of justice, to facilitate a quick trial permitted the parties to inspect beforehand the records but after the framing of the requisite issues arising from the pleadings of the parties and not earlier. This approach could not be termed as permitting a 'roving or fishing' enquiry, as it is sometimes described in cases of a claim for re-count. We are thus of the view that the High Court committed no error in permitting such inspection in the facts and circumstances. We must, however, hasten to clarify that we should not be understood to approve of the High Court giving oral directions in such serious matters without insisting on a formal application setting out how a prima facie foundation was laid for the grant of such relief.
14. Another argument put forth by Mr Prashant Bhushan was that the pleadings in the election petition were insufficient to justify inspection inasmuch as except for mentioning that there had been double voting by 19 persons nothing else was stated about the basis on which the election petitioner came to the conclusion that these names, which apparently had appeared twice in the electoral roll, belonged to one and the same person and that those persons had in fact voted twice. It was also commented that no material facts, in the form of affidavits by single persons or polling agents alleging that they had seen and heard about those persons having voted twice. was filed in support of the petition. It is maintained that in the absence of evidence of these particulars being pleaded as to the source of knowledge of double voting it was dangerous to allow enquiring into such an allegation on the bare allegation of double registration of votes and possible double voting. We have pondered over this matter but regretfully do not accept the argument of the learned counsel. If a name has been registered twice enabling a person to take the advantage of voting in two different polling stations, Section 62 mandates that if he polls both these votes then both votes are void. A void vote cast is a vote void ab initio. In the nature of things the void taint in the election would have to be traced to the election papers for without that bare oral evidence would be of no use, and at best would be word against word, making application of Section 62(4) welling impossible. If the election petitioner on some information, material or otherwise is able to entertain the belief that a particular voter, double registered, is known to have voted twice, he can certainly plead to that fact on his own entertained belief and need not ordinarily resort to giving details of the sources of his information or knowledge or the entertainment of his belief because registration of double vote is by itself the starting point; the exercise of both votes being the second. The election petitioner had specifically mentioned and in clear-cut terms that 19 persons had double voted. The question was not resoluble merely on oral evidence, whether they had or had not, except to put those persons into the witness box, hear their version and confront them with the election papers. The sphere of enquiry at that stage is to the voting and not for discovering the name of the person to whom the vote was cast. That inevitably has to be found out after double voting or impersonated voting has been found out leading to the new step to trace them and nullify them. On the pleading of the parties as such, on both sides, a case for inspection at the stage when it was done had been made out. We thus find no error committed in the approach of the High Court. "
He has further referred to the case of T.A. Ahammed Kabeer vs. A.A. Azeez and Others reported in 2003 (6) AIC 601(S.C.) and since he specially referred to the paragraphs no. 26, 27, 28 and 29 of the judgement and, therefore, they are being reproduced here as under:-
"26. The task before an Election Judge is ticklish. It is often urged and also held that the success of a winning candidate should not be lightly set aside and the secrecy of ballot must be zealously guarded. On account of a rigid following of these principles the election courts are inclined to lean in favour of the returned candidates and place the onus of proof on the person challenging the result of election, insisting on strict compliance with the rules of pleadings and excluding such evidence from consideration as is in divergence with the pleadings. However, what has so developed as a rule of practice should not be unduly stretched; for the purity of the election process needs to be preserved unpolluted so as to achieve the predominant goal of democracy that only be should represent the constituency who has been chosen by the majority of the electors. This is the purpose and object of the election law.
27. Though the inspection of ballot papers is to be allowed sparingly and the Court may refuse the prayer of the defeated candidate for inspection if, in the garb of seeking inspection, he was indulging into a roving enquiry in order to fish out materials to set aside the election, or the allegations made in support of such prayer were vague or too generalized to deserve any cognizance. Nevertheless, the power to direct inspection of ballot papers is there and ought to be exercised if, based on precise allegations of material facts, also substantiated, a case for permitting inspection is made out as is necessary to determine the issue arising for decision in the case and in the interest of justice. As held by the Constitution Bench in Ram Sewak Yadav v. Hussain Kamil Kidwai and Ors., , an Election Tribunal has undoubtedly the power to direct discovery and inspection of documents within the narrow limits of Order XI of Code of Civil Procedure. Inspection of documents under Rule 15 of Order XI of Code of Civil Procedure may be ordered of documents which are referred to in the pleadings or particulars as disclosed in the affidavit of documents of the other party, and under Rule 18(2) of other documents in the possession or power of the other party. The returning officer is not a party to an election petition and an order for production of the ballot papers cannot be made under Order XI of Code of Civil Procedure. But the Election Tribunal is not on that account without authority in respect of the ballot papers. In a proper case where the interests of justice demand it, the Tribunal may call upon the returning officer to produce the ballot papers and may permit inspection by the parties before it of the ballot papers which power is clearly implicit in Sections 100(1)(d)(iii), 101, 102 and Rule 93 of the Conduct of Election Rules 1961. This power to order inspection of the ballot papers which is apart from Order XI Code of Civil Procedure may be exercised, subject to the statutory restrictions about the secrecy of the ballot paper prescribed by Sections 94 and 128(1). However, the Constitution Bench has cautioned, by the mere production of the sealed boxes of ballot papers before the Election Tribunal pursuant to its order the ballot papers do not become part of the record and they are not liable to be inspected unless the Tribunal is satisfied that such inspection is in the circumstances of the case necessary in the interests of justice.
28. It is true that a recount is not be ordered merely for the asking or merely because the Court is inclined to hold a recount. In order to protect the secrecy of ballots the Court would permit a recount only upon a clear case in that regard having been made out. To permit or not to permit a recount is a question involving jurisdiction of the Court. Once a recount has been allowed the Court cannot shut its eyes on the result of recount on the ground that the result of recount as found is at variance with the pleadings. Once the Court has permitted recount within the well-settled parameters of exercising jurisdiction in this regard, it is the result of the recount which has to be given effect to.
29. So also, once the Court exercise its jurisdiction to enter into the question of improper reception, refusal or rejection of any vote, or the reception of any vote which is void by reference to the election result of the returned candidate under Section 100(1)(d)(iii), as also as to the result of the election of any other candidate by reference to Section 97 of the Act and enters into scrutiny of the votes polled, followed by recount, consistently with its findings on the validity or invalidity of the votes, it cannot refuse to give effect to the result of its findings as to the validity or invalidity of the votes for the purpose of finding out true result of recount though the actual finding as to validity or otherwise of the votes by reference to number may be at variance with the pleadings. In short, the pleadings and proof in the matter of recount have relevant for the purpose of determining the question of jurisdiction to permit or not to permit recount. Once the jurisdiction to order recount is found to have been rightly exercised, thereafter it is the truth as revealed by the result of recounting that has to be given effect to."
He has stated that the principle of secrecy of ballot could not stand in isolation and in confrontation to the principles of purity of free and fair election. He has submitted that these two have to co-exist. One cannot be used to destroy the other and that secrecy of ballot must yield to the principle of purity of election in larger public interest. He further submitted that even though the photocopies of parishists - 4 and 6 were relied upon by the Courts, it mattered little when it came to the maintenance of purity of elections. Technicalities can always be given a go by when it comes to the unearthing of truth.
Having heard the learned counsel for the parties, and after having gone through the record and various citations placed by them, I am of the view that the order impugned cannot be sustained. In the instant case, apart from the maintenance of secrecy of ballot and purity of election, the question of propriety of procedure adopted by the Court had also to be seen.
In the instant case, the Court below has after reserving the judgement on the application for recount taken cognizance of the affidavit which was filed by the respondent no. 2 which contained photocopies of parishists- 4 and 6. The photocopies and parishists - 4 and 6, were never proved as per the provisions of the Evidence Act. In this manner, the Tribunal has not only infringed the secrecy of ballot but has also thrown to the winds the propriety of sticking to procedure. Procedural law, if is given a go-bye will create a mayhem in law Courts. If procedure was not adhered to then ballot boxes would be open on the basis of a mere suspicion or a doubt. A simple allegation that counterfeit ballot papers were in the ballot box would not allow a Tribunal to go into an investigative mode and give it a handle to open the ballot boxes. In the instant case, the parishist - 4 and parishist - 6 might have allowed the Tribunal to suspect that there was something hanky-panky with the counting but it should not have held that it was a ground enough to get the ballot boxes opened. Suspicion is not proof. Unless a Court by the procedure established under law proceeds to cross check the averments which have been made, it cannot function properly. It is the duty of every Court to adhere to the principles enshrined in the law of evidence. The averments had to be corroborated by documentary and oral evidence. Every affidavit should be open to rebuttal and all evidence should be subject to cross examination. In the instant case, even though the ballot boxes had been opened and had been found that the petitioner had lost, I find that since the ballot boxes were ordered to be reopened in the most arbitrary manner, the order deserves to be quashed. The matter is now remitted back to the Election Tribunal. It shall allow the parties to lead evidence with regard to the affidavits filed by the respondent no. 2 on 27.4.2017 and shall allow the parties to first lead evidence with regard the photocopies which had been filed alongwith the affidavit. Thereafter the Tribunal shall come to a conclusion as to whether there was ground enough for the reopening of the ballot boxes.
The order dated 2.5.2017 is quashed. The writ petition is allowed.
The Tribunal shall now pass orders on the application for recounting of the ballot papers in accordance with law. This exercise shall be completed within two months from the date of presentation of a certified copy of this order.
Order Date :- 28.5.2018 praveen.