1. Heard Sri Neeraj Tripathi, learned counsel for the petitioner, Sri Arvind Kumar Singh, learned counsel for the respondent no.2 and perused the record.
2. The election of Gram Pradhan of Gram Panchayat Jajalpur, Pargana- Azamnagar, Tehsil Aliganj, Distirct- Etah along with general election for the said post across the State was held in the year 2010. As per the election schedule, polling took place on 9.11.2010 and counting was held on 14.11.2010. For the post of Gram Pradhan at Gram Panchayat Jajalpur, there were 10 candidates in the field including petitioner and respondents no.2 to 10. The petitioner, returned elected, secured 224 votes while respondent no.2 secured second largest votes, i.e. 171. Other candidates secured much lessor votes. The respondent no.2 filed Election Petition No.11 of 2011 challenging election of petitioner on the post of Gram Pradhan on various grounds, in brief, which are:
i.Electoral rolls contain seven names of dead persons.
ii.Votes in the name of dead persons were cast.
iii.There was booth capturing also at around 4.30 p.m. and unauthorized persons cast their votes.
iv.20 votes were rejected during counting illegally i.e. 8 at booth no.113 and 12 at booth no.114, which has influenced result of election.
v.The Counting Officers prepared bundles of 50 votes in booth no.114 but one bundle alongwith other, in its entirety, was included amoung the votes counted in favour of Returned Candidate and that is how election result has been influenced.
vi.Seals of certain ballot boxes were found broken in respect of booth nos.113 and 114.
3. The Election Petition was contested by petitioner by filing written statement dated 27.6.2011. The election petitioner supported her case by getting four witnesses examined. Three of those witnesses were also cross-examined by petitioner but one Sanjay Mishra did not appear for cross-examination. In defence, petitioner, besides herself, got five witnesses deposed their statement before Election Tribunal, who were also cross-examined. The petitioner then filed application dated 7.8.2012 requesting Prescribed Authority/Election Tribunal to summon Returning Officer along with his diary to prove as to what has actually happened before it. This application was rejected by Election Tribunal/Prescribed Authority vide order dated 19.9.2012.
4. Thereafter, Prescribed Authority/Election Tribunal passed an order dated 30.10.2012 under Section 12-C(1) deciding election petition. It formulated 18 issues.
5. Issues no.1 to 12 were decided in favour of election petitioner (respondent no.2) while issues no.13 to 18 were decided against petitioner (defendant no.1 in the Election Petition) and that is how it accepted and allowed Election Petition. In the ultimate direction Election Tribunal has directed for recounting of votes since that was necessary for declaring result of validly elected candidate. He fixed 1.11.2012 for recounting.
6. The aforesaid order was not challenged by petitioner and recounting took place on 1.11.2012. In the recounting, number of votes of election petitioner i.e. respondent no.2, Smt. Neeru, remained constant i.e. 171 but number of votes secured by petitioner got reduced to 133, as a result whereof, election petitioner i.e. respondent no.2 Smt. Neeru was declared elected vide order dated 01.11.2012 passed by Prescribed Authority.
7. Only thereafter petitioner filed revision challenging order of recounting dated 30.10.2012 as also result of recounting dated 1.11.2012 whereby respondent no.2 was declared elected in Panchayat Revision No.4 of 2012 before District Judge, Etah but the same has also been dismissed by District Judge, Etah vide order dated 11.4.2013.
8. Sri Neeraj Tripathi, learned counsel for the petitioner contended that there was no specific pleading to challenge election. Material facts were not stated, hence Election Tribunal completely erred in law in allowing Election Petition. He further contended that even order of recounting of votes is patently illegal, inasmuch as, after counting, record was not kept in sealed. Even otherwise, secrecy of ballot cannot be disturbed hence the order of recounting is patently illegal.
9. I find no force in any of the above submissions. While deciding Election Petition, Election Tribunal has found that certain votes were included in counted votes of petitioner and that is how issue no.9 was decided against petitioner. That being so, it is not a case where recounting of votes has been directed by Election Tribunal in a slipshod manner but after recording finding that number of votes counted in favour of petitioner were added/increased illegally, on account of wholesale counting of one bundle in her favour, hence it became necessary to find out actual number of votes cast in favour of various candidates. That is how recounting has been ordered for the purpose of finding out, who should be declared elected. In recounting, it has been found that a large number of invalid votes were included in the votes of petitioner and that is how number of votes, cast in her favour were artificially increased. On all the issues 1 to 12, Election Tribunal has recorded findings of facts, after considering evidence and during the course of argument, learned counsel for petitioner could not point out any otherwise illegality or perversity therein.
10. In these circumstances, scope of judicial review under Article 226/227, in my view, does not justify interference with the said findings, which have also been found in accordance with law by Revisional Court since it has dismissed revision preferred by petitioner. Counsel for the petitioner could not show any illegality in recounting in which number of votes of petitioner have reduced substantially.
11. Now I propose to discuss the authorities cited by Sri Tripathi in support of his case. He has relied on Apex Court's judgment in Bhabhi Vs. Sheo Govind & Ors., AIR 1975 SC 2117; Vadivelu Vs. Sundaram & Ors., AIR 2000 SC 3230; V.S. Achuthanandan Vs P.J. Francis &Anr., (2001) 3 SCC 81 and this Court's judgment in Smt. Munesh Devi Vs. State of U.P. & Ors., 2013(9) ADJ 764; Smt. Mudi Vs. State Election Commission and others, 2000(4) AWC 3374, Ram Adhar Singh Vs. Distt. Judge, Ghazipur & Ors., 1985 All.C.J. 196; Amrish Vs. Up-Ziladhikari, Meerut & Ors., 2006(9) ADJ 543 (All); Shiv Shanker Chauhan Vs. Kaushal Chauhan & Ors., 2008(10) ADJ 305; Pratap Singh Vs. State of U.P. & Ors., 2008(6) ADJ 345 and Sudha Devi Vs. State of U.P. & Ors., 2012(6) ADJ 99.
12. In Bhabhi Vs. Sheo Govind & Ors. (supra), an application was filed before the Court when Election Petition was in the process of hearing, that sample inspection of ballot paper may be allowed. The said application was allowed by Court observing that it was necessary in the ends of justice. It is this order, which was considered by Apex Court and it said that the Court would be justified in ordering recounting of ballot papers only if certain conditions are satisfied in this regard. It would be appropriate to reproduce para 15 of the judgment relevant for the purpose:
"15. Thus on a close and careful consideration of the various authorities of this Court from time to time it is manifest that the following conditions are imperative before a Court can grant inspection, or for that matter sample inspection, of the ballot papers :
(1) That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations;
(2) That before inspection is allowed, the allegations made against the elected candidate must be clear and specific and must be supported by adequate statements of material facts;
(3) The Court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations made for a recount;
(4) That the Court must come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties;
(5) That the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fish materials for declaring the election to be void; and (6) That on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a recount, and not for the purpose of fishing out materials."
13. In Vadivelu Vs. Sundaram & Ors. (supra), again correctness of an order of recounting passed by Tribunal came to be considered and the Court, after referring to its earlier decisions dealing with the subject i.e. Satyanaraian Dudhani Vs. Uday Kumar Singh, 1993 Supp (2) SCC 82; Jitendra Bahadur Singh Vs. Krishna Behari, AIR 1970 SC 276; D.P.Sharma Vs. Commissioner and Returning Officer, 1984 Supp SCC 157; P.K.K. Shamsudeen Vs. K.A.M. Mappillai Mohindeen, (1989) 1 SCC 526; Ram Sewak Yadav Vs. Hussain Kamil Kidwai, AIR 1964 SC 1249; S.Raghbir Singh Gill Vs. S.Gurcharan Singh Tohra, 1980 Supp SCC 53 : AIR 1980 SC 1362 and R. Narayanan Vs. S. Semmalai, (1980) 2 SCC 537, said that the Court would be justified in ordering recount of ballot papers 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 making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties. Having said so, in para 16, the Court said:
"The result of the analysis of the above cases would show that this Court has consistently taken the view that re-count 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 re-count should allege and prove that there was improper acceptance of valid votes or improper rejection of valid votes. If only the Court is satisfied about the truthfulness of the above allegation, it can order re-count 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 re-count of votes under such circumstances to do justice between the parties."
14. In V.S.Achuthanandan Vs. P.J.Francis & Anr. (supra), the Court crystallized the principles, which are culled out as authoritative exposition, settled in a series of judgments, with respect to question as to when recounting of ballot papers should be ordered, noted the same in para 13 of the judgment, as under:
"1. The secrecy of the ballot is sacrosanct and shall not be permitted to be violated lightly and merely for asking or on vague and indefinite allegations or averments of general nature. At the same time purity of election process has to be preserved and therefore inspection and re-count shall be permitted but only on a case being properly made out in that regard.
2. A petition seeking inspection and re-count of ballot-papers must contain averments adequate, clear and specific making out a case of improper acceptance or rejection of votes or non-compliance with statutory provisions in counting. Vague or general allegations that valid votes were improperly rejected, or invalid votes were improperly accepted would not serve the purpose.
3. The scheme of the rules prescribed in Part V of the Conduct of Election Rules, 1961 emphasises the point that the election petitioner who is a defeated candidate, has ample opportunity to examine the voting papers before they are counted, and in case the objections raised by him or his election agent have been improperly over ruled, he knows precisely the nature of the objections raised by him and the voting papers to which those objections related. It is in the light of this background that S.83 (1) of the Act has to be applied to the petitions made for inspection of ballot boxes. Such an application must contain a concise statement of the material facts.
4. The election-petitioner must produce trustworthy material in support of the allegations made for a re-count enabling the Court to record a satisfaction of a prima-facie case having been made out for grant of the prayer. The Court must come to the conclusion that it was necessary and imperative to grant the prayer for inspection to do full justice between the parties so as to completely and effectually adjudicate upon the dispute.
5. The power to direct inspection and re-count shall not be exercised by the Court to show indulgence to a petitioner who was indulging in a roving enquiry with a view to fish out material for declaring the election to be void.
6. By mere production of the sealed boxes of ballot-papers or the documents forming part of record of the election proceedings before the Court the ballot papers do not become a part of the court record and they are not liable to be inspected unless the court is satisfied in accordance with the principles stated hereinabove to direct the inspection and re-count.
7. In the peculiar facts of a given case the court may exercise its power to permit a sample inspection to lend further assurance to the prima-facie satisfaction of the court regarding the truth of the allegations made in support of a prayer for re-count and not for the purpose of fishing our materials."
15. It further said that once re-count is validly ordered the statistics revealed by re-count shall be available to be used for deciding the election dispute.
16. The decisions of this Court cited at the Bar also reiterate the same principles.
17. The prepositions of law, settled herein above, is unexceptionable but in the present case, I do not find that the same are applicable. The specific pleadings are there which have been discussed by Election Tribunal in the light of evidence and it has decided various issues in favour of election petitioner. It thereafter had directed for recounting of votes. Therefore, all the judgments, cited at the Bar do not help petitioner in any manner.
18. In view thereof, I find no merit in the writ petition.
19. Dismissed.
Order Date :- 7.7.2014 KA