JUDGMENT Sunil Ambwani, J.
1. The elections to the post of Pradhan of village Medara, Post Karchhana, District Allahabad, were notified in the year 2005 and held on 20.8.2005. In the counting of votes among the three contestants on 29.5.2005, that both Smt. Shanti Devi-the petitioner and Smt. Uma Devi-respondent No. 1, secured 237 votes each and that Smt. Rajwanti Devi-respondent No. 2 polled 235 votes. 35 votes were found to be invalid. In a lottery held in accordance with the Rules between the petitioner and respondent No. 1 securing equal number of votes. Smt. Uma Devi-respondent No. 1 was the draw and was declared elected.
2. The petitioner preferred an election petition under Section 12C(b) of UP Panchayat Raj Act 1947 (in short the Act). The written statement was filed on 7.2.2006. The proceedings were delayed on which the petitioner filed a writ petition in which a direction was issued by this Court to decide the election petition within a period of one year.
3. The Sub Divisional Magistrate, Karchhana, exercising delegated powers of the Election Tribunal under the Act, summoned the entire election records. By his order dated 12.2.2007, after taking evidence the tribunal held on issue Nos. 1 and 2, that the draw was held in accordance with the procedure prescribed under the Rules, with the consent of both the parties. On issue No. 3, the tribunal held on the statement of Indrawati Nishad, son of Shambhu Nath, examined as DW-1, that Smt. Uma Devi-the petitioner had polled 239 votes but the agents of Smt. Shanti Devi exercised undue pressure on the officers and got the ballots counted again in which two votes counted in favour of Smt. Uma Devi was declared as invalid. The Tribunal found that prima facie there was sufficient evidence to show improper rejection of the two votes in favour of Smt. Uma Devi and directed recount of votes.
4. The Sub Divisional Magistrate, Karchhana, Allahabad proceeded to recount the ballots on 17.2.2007. He opened the sealed bundles of ballots of Smt. Uma Devi-the elected candidates and found that out of 237 ballots, three ballots namely 4AA6456113; 4AA6456122 and 4AA6456216 were stamped on both the election symbols of the election petitioner and the elected candidate. He found that all these three invalid ballots should have been placed in the bundle of invalid ballots and not in the bundles of the elected candidate.
5. In the meantime, a transfer petition was filed by the elected candidate before the then Revenue Officer, who restrained the Sub Divisional Magistrate to pass any final order in the election petition. Aggrieved a revision was filed under Section 192 of the Land Revenue Act before the Commissioner, Allahabad Division, Allahabad.
6. The interim order could not be extended and thus the Sub Divisional Magistrate proceeded to hear the matter. The elected candidate requested for recounting the entire ballots. The Sub Divisional Magistrate in his order dated 7.3.2007, did not accept the request and relying upon recount of votes of elected candidate on 17.2.2007, in which he had found three invalid votes in the bundle of the elected candidate, declared that since she had polled only 234 votes and Smt. Shanti Devi had polled 237 votes she is declared as elected. The election petition was decided accordingly on 8.3.2007.
7. The Sub Divisional Magistrate did not accept the request to recount the entire ballot papers on the ground that the elected candidate did not make any such request before the recount of the ballot papers and that her request for recount of the entire votes is only an opportunistic attitude adopted by her to take advantage of the situation. She could have made such a request before the order of recount on 17.2.2007.
8. Smt. Uma Devi-respondent No. 1 filed a revision under Section 12C(6) of the Act. The revision was heard and allowed by the Additional District Judge, Court No. 1, Allahabad on 25.1.2008.
9. The revisional court allowed the revision on the ground that in absence of sufficient and foolproof evidence of any irregularity in the counting the petition itself was defective. In paragraph-8 of the election petition, Smt. Shanti Devi the elected Pradhan had alleged that on two ballot papers votes were cast for her but the same was placed among the votes polled by Smt. Uma Devi. The Tribunal should not have recounted of votes of Smt. Uma Devi alone. It should have got the votes of all the candidates recounted. The court below recorded a finding that all three ballots were cast in a way that created a doubt as to whether the same were casted for Smt. Uma Devi or Smt. Shanti Devi. The revisional court then observed: "the manner in which the Ld. Court below decided the case has already been discussed above where it has been held that whenever any Judgment is to be given it should be given on all issues together unless there is any legal issue which requires findings earlier. In this case the learned Court below gave findings on issue Nos. 1, 2 and 3 on 12.2.2007, thereafter framed additional issue on its own and gave his verdict on the same on 7.3.2007. The entire process appears to be mockery of the legal, system. As such the revision deserves to be allowed and impugned Judgment ought to be set aside."
10. I have heard Shri Satish Mandhyan, learned Counsel for the petitioner and Shri Ramesh Chandra Tiwari learned Counsel for the contesting respondent.
11. The affidavits have been exchanged. With the consent of parties, the matter was heard at the admission stage and is finally decided.
12. The short question that arises for consideration in this writ petition is whether Sub Divisional Magistrate/Election Tribunal adopted a correct procedure in firstly deciding all the issues for the order of recount, and thereafter declared the result only on the basis of re-counting of the votes in the bundles of the elected candidate.
13. Shri Satish Mandhyan, learned Counsel for the petitioner would submit that the impugned order is ex-facie illegal, arbitrary, whimsical and against the settled position of law. Various irregularities were found in the counting. The returning officer did not accept any of the objection made by the petitioner. The election officer himself made a parchi for lottery and picked up himself. His conduct was against the principle laid down in Section 12-C of the Act. The evidence was led by both the parties. The trial court however framed a fresh issue No. 4 and directed recount of votes. It was categorically found that three votes were added to tally of opposite party No. 1, and as a natural consequence of three invalid votes found in the bundle of the elected candidate, the election petition was allowed. The revisional court was biased and did not go behind the order of the trial court. His findings are perverse and are liable to be set aside.
14. Shri Ramesh Chandra Tiwari has supported the reasons given by the revisional court. He submits that the order of recount of ballots could not be confined to recounting of the votes of the elected candidate alone. If three ballots created doubt the entire ballots should have been counted to declare the result. The petitioner had agreed to draw a lottery and had signed on the proceedings. She cannot thereafter turn around and challenge a procedure of draw of lottery. He would further submit that though the order of the Sub Divisional Magistrate was implemented but then after the revisional court order, Smt. Uma Devi elected as pradhan in the year 2005 was given charge and that the District Magistrate has implemented the order on 5.2.2008 implementing the order of the revisional court and that Smt. Uma Devi is functioning as Pradhan.
15. Shri Satish Mandhyan has relied upon judgements in Om Prakash v. Ist Additional District Judge, Ballia and Ors. ; Smt. Bhoori v. Additional Sub Divisional Magistrate Amroha, and Ors. 2003 ACT 840; and Bhasauti v. State of UP and Ors. 2004 ACT 1762 in support of his submissions to justify the recount of votes on the evidence led by the election petitioner and declaration of result in her favour. He has also cited Judgment in case of Modi Spinning & Weaving Mills Co. and Anr. v. Ladha Ram & Co. AIR 1978 Alld. 260 in which it was held that the power to frame additional issue is a discretionary power. If the court thinks necessary for determining the matter in controversy, it may frame additional issue, which is a matter only of procedure. The framing of such issue does not decide right of any parties and thus it has to be treated as interlocutory order against which a revision under Section 115 is not maintainable.
16. Shri Ramesh Chandra Tiwari has relied upon judgements in Smt. Hazzee v. Prescribed Authority and Ors. 2003 (94) RD 108; Sabir v. Additional District Judge, Bulandshahar and Ors. 2003 (50) ALR 642; M. Chinnasami v. K.C. Palanisamv and Ors. AIR 2004 SC 541; Ram Adhar Singh v. District Judge Ghazipur and Ors. 1985 ALJ 615 (Full Bench); Hamraj v. Sub Divisional Officer 1992 RD 460; Dhanai Prasad v. Sub Divisional Magistrate Chunar, District Mirzapur 1974 ALJ 371; Tanaii Ramchandra Nimhan v. Swati Vinavak Nimhan ; Smt. Susma Devi v. State of UP and Ors. 2008 (104) RD 57 and Raifaqat Hussain v. Rama Shanker Kaushik 1986 ALJ 1446 and Anwar Ali v. Prescribed Authority 2002 (2) AWC 954. He has also relied upon Gujarat State Financial Corporation v. Lotus Hotels Private Ltd. on promissory estoppel.
17. The substance of all these decisions is set out in Bhabhi v. Sheo Govind as follows:
(1) That it is important to maintain the secrecy of the ballot which is acrosant 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 supported by adequate statements of material facts;
(3) That 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 the 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.
18. In S. Raghubir Singh Gill v. S. Gurucharan Singh Tohra 1980 Supp. SCC 53 it was held as under.
True, re-count cannot be ordered just for the asking. A petition for re-count cannot be ordered after inspection of ballot papers must contain an adequate statement on material facts on which the petitioner relies in support of his case and secondly the Tribunal must be prima satisfied that in order to decide the dispute and to do complete justice between the parties an inspection of the ballot papers is necessary. The discretion conferred in this behalf should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fishing out materials for declaring the election void.
19. In Tanaji Ramchandra Nimhan (supra) it was held inpara-9:
9. This Court after referring to a number of prior decisions, has held in Mahendra Pal v. Ram Dass Malanger and Ors. , that an order for recounting cannot be made as a matter of course. Unless the election petition had laid the foundation and there was clinching evidence to support the case set up by the election petitioner, a recount normally could not be ordered. In Chandrika Prasad Yadav v. State of Bihar and Ors. , relying on an earlier decision in M. Chinnasamy v. K.C. Palanisamy and Ors. , a bench of three Judges (to which one of us S.B. Sinha, J. was a party) held that an election petition seeking a recount must contain a concise statement of material facts and clear evidence in support of the facts pleaded. It was held that a small margin of victory by itself was not a ground for ordering recount. A roving and fishing inquiry was not permissible while directing recount of votes. The requirement of maintaining secrecy of ballot papers had also to be kept in mind before directing a recount.
20. The order of the Sub Divisional Magistrate, Karchhana dated 12.2.2007 summoning of the election records for recount of votes was not challenged. A perusal of the order would show that the Prescribed Authority did not consider the pleadings and the evidence led on the ground of improper acceptance and improper rejection of the ballots. It did not even discuss the evidence to record a prima facie finding that there was any irregularity in counting of votes and that the recount is necessary, after holding, that the procedure of lottery was correctly followed and for which both the parties had agreed in writing. The Prescribed Authority proceeded to order recount for the reasons that irregularity in counting was accepted by the opposite party No. 2 and that Indrawali Nishad son of Shambhu Nath examined by the elected candidate (opposite party No. 1) as DW1, had admitted that Uma Devi had secured 239 votes, but that after the agents of Shanti Devi created pressure, the votes were recounted and two votes of Uma Devi were illegally declared as invalid. These two reasons alone were given as the reasoning for a finding that there was irregularity in counting of votes. The Sub Divisional Magistrate thereafter observed that the irregularity in counting of votes was accepted by all the parties and then directed to summon the election records to recount the votes on 17.2.2007.
21. The Sub Divisional Magistrate did not consider the pleadings and discuss the evidence before recording prima facie findings of irregularity in the elections. The pleadings to the effect that two valid votes of the election petitioner were counted in favour of elected candidate by playing fraud was neither proved nor any finding was recorded on this aspect. The Prescribed Authority did not discuss the evidence led in support of the allegations of improper addition of two valid votes of the election petitioner as the valid votes of the elected candidate. The Supreme Court, in its decision, beginning from 1975 and followed by High Court, has reminded the election tribunals again and again that the secrecy of the ballot papers should not be lightly disturbed. The order of recount of votes must be supported by adequate statement of material facts and evidence on which the court must be prima facie satisfied regarding the truth of the allegations for the recount. The court must come to conclusion that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties. In the present case this mandate was ignored and that the Prescribed Authority without discussing the sufficiency of the statement of material facts and evidence recorded findings on the basis of admissions made by a third candidate arrayed as opposite party No. 2 and on a vague statement given by one of the defendant witnesses.
22. It is apparent from the record that the Prescribed Authority was swayed upon the fact that both the election petitioner and the elected candidate had polled equal number of votes. It did not record a finding regarding sufficiency of evidence supporting the allegations made in the election petition and proceeded to direct recount only on suspicions. The order of recount as such was not sustained and was set aside by the revisional court.
23. Further the court finds that the Prescribed' Authority did not pass any order for recount of votes only in favour of election petitioner. An order of recount is passed to ascertain the truth of the allegations made to challenge the elections. If it is found that the votes were either improperly accepted or improperly rejected or there was any material irregularity in elections, the election tribunal was required to recount the entire votes, to arrive at a positive and just conclusion of the result of the elections. The order of recount cannot be carried out partially in counting the votes of the elected candidate or the person/s who were defeated in the elections. The order of recount also cannot be ordered only to count the rejected ballots. If such an order is passed, the election tribunal would never come to a just conclusion of the outcome of the elections. The recount must ascertain the truth and should not be confined to half truth. Once the Tribunal is satisfied that there is sufficient evidence to support the material facts with regard to irregularity in counting, the recount must be made of the entire number of votes as if a fresh recounting is being made. The recount of few votes would not bring out the correct result. The object of the election tribunal in such case would be to find out and to declare the true result and not to support the pleadings of only one of the parties.
24. The revisional court has correctly appreciated the law relating to recount of votes in recording the findings. The entire process adopted by the Prescribed Authority was indeed a mockery on the legal system.
25. Before parting with the case the Court observes that India is a mature democracy and that courts have to play a very important roll in developing election laws. The Supreme Court and the High Courts have interpreted and developed the election law almost to perfection. There is hardly any area left in election disputes to be clarified by the courts. The election tribunals presided by Officers with judicial background are by and large have advantage of the decisions of the courts in delivering justice in election matters. The executing officers are however found to be severely lacking in application of mind to these laws. A Sub Divisional Magistrate is not trained to understand or appreciate niceties of election laws. Very often the cases are coming to the court where election tribunals manned by executive officers are not in a position to understand or appreciate the evidence and laws. It gives rise to law of uncertainty and provides an opportunity to the defeated candidate to engage the winning candidate in a battle for several years. The lack of appreciation of law and inconsistent decisions rendered by the Prescribed Authorities under the UP Panchayat Raj Act, leave the electorate divided and leads to acrimony. The legislature should consider to entrust these powers to persons trained in law who properly understand the election laws. The persons training in law preferably be a judicial officer will be better equipped to discharge these functions.
The writ petition is dismissed.