1. The election for the post of Pradhan of Gram Panchayat Birohi for year 2015 was conducted, during which votes were cast, counted and result was declared by which petitioner Tejbali was declared elected. In this election, it was declared that petitioner had got 2039 votes and next highest count of votes was that of Arvind (respondent no.-4) who had obtained 2038 votes. Thus by margin of only one vote, petitioner was declared elected. This election was challenged before respondent no.-3 Prescribed Authority/SDM, Sadar, Mirzapur through Election Petition no. D-20151653001686 of 2015 (Arvind Vs. Tejbali and 17 others). The main ground of challenge by respondent no.-4 in his election petition was that he had obtained more votes than declared, but ballots cast in his favour were wrongly counted and there was mistake of calculation in counting of votes also. In said election petition only present petitioner had filed written-statement, on the basis of which the Prescribed Authority had framed seven issues. Then after affording opportunity of hearing to both the sides, the Prescribed Authority had passed impugned order dated 29.9.2016 (Annexure-14 to the writ petition), by which, it was held that there appears irregularity in counting of ballots. Therefore, Prescribed Authority directed for recounting of ballots for said election of Gram Panchayat Birohi. This impugned order dated 29.09.2016 has been challenged through present writ petition.
2. Learned counsel for the petitioner contended that impugned order of allowing the election petition of respondent no.-4 was based on three grounds. The first main ground was that Proforma-4 relating to said election was not available. His contention is that said document relating to Form-4 was not available because it was present with sealed ballot papers and was not called for perusal. His submission was that second ground of passing impugned order was the alleged arithmetical error in counting of voters in this regard. He has submitted that although there appears arithmetical error of one count in counting of votes, but this will not affect the result because in Form-4 and Form-6 relating to said elections, the total number of valid and invalid votes were specifically mentioned. Since Form-4 is prepared on the basis of Form-6 and Form-7, therefore this arithmetical error can be rectified by calculation; and in fact no error was committed when result of said election was declared. His further submission is that in spite of filing of written-statement, the Prescribed Authority had found it technically erroneous and had not accepted its pleadings, although there was no error in said written-statement, which is in accordance with law and procedure and such pleading should not be discarded at the time of judgment. On the basis of these contentions, learned counsel for the petitioner prayed for quashing of the impugned order of recounting of ballot papers.
3. These submission were refuted by Sri H.N. Singh, Senior Counsel for respondent no.-4 who submitted that written statement of the petitioner was not discarded by the Prescribed Authority, on the other hand it was considered. He further submitted that impugned order is passed after appreciating the facts and evidences and after application of judicial mind in which all relevant points including arithmetical error was also considered. His submission was that in this particular matter admittedly there was arithmetically error of one vote and the difference of votes of petitioner andof respondent no.-4 was also only "1" vote, therefore, in interest of justice recounting should be done and accordingly correct order was passed by Prescribed Authority. His further submission is that there has been specific report of returning officer that Form -4 relating to ballot counting was not filed in office, and in absence of such important document, declaration of result of election was erroneous. In this regard, he cited Rule 104,105(3), 112 of the U.P. Panchayat Raj (Election of Members, Pradhans and Up-Pradhan) Enquiry Rules, 1994. His submissions were relied by certain judgments of this Court.
4. So far as point relating to alleged discarding of written-statement is concerned, it is unacceptable from perusal of the impugned order. In this case issues are framed in any case on the basis of written statement. In the impugned order, the details of contents of written-statement were mentioned by Prescribed Authority and it is also mentioned that on the basis of petition and written-statement of respondent no.-4 seven issues were framed. Thereafter, learned Prescribed Authority had discussed the evidences available before it and decided all the issues framed before passing the impugned order. Thus, it is found that written-statement of petitioner was not discarded by Prescribed Authority who had admitted it, considered its pleadings framed issues and accordingly passed its judgment.
5. So far as the point of arithmetical error in counting is concerned, it is admitted fact that in calculating total ballot papers difference of one vote was noted. The correct number of votes in all the polling booths is noted, after compilation of ballot papers in Form Schedule-4. Although, there has been submission of the petitioner that said Scheduled Form-4 was sealed with original ballot papers but at the time of hearing this point was not brought before the Prescribed Authority and there was specific evidence in form of question-answer from District Supply Officer was placed, in which it was mentioned that returning officer had not deposited the Schedule Form-4 relating to counting of ballots. Thus considering the difference of one vote in result, finding the non availability of Schedule Form-4 and in such circumstances of the case, and finding the matter is doubtful, the Prescribed Authority had passed detailed reasoned order for recounting of ballot papers, in spite of considering that such direction of recounting should not be granted as a matter of rule. From perusal of the impugned order, it is found that it has been passed after considering the facts and circumstances and after application of judicial mind.
6. Learned counsel for the respondent no. 4 has cited a case of Krishna Murari Vs. Prescribed Authority/SDM, Mirzapur and others, reported in 2014 (123) RD 558, in which this Court had considered the applicability and importance of Rule 104 of U.P. Panchayat Raj (Election of Members, Pradhans and Up Pradhans) Enquiry Rules, 1994 and held as under:
"19. As per Clause(d) of Rule 104 of the Rules of 1994, the State Election Commission has issued the instructions, which is contained in the booklet published in the year 2010. Under Clause-19 of the instructions, the invalid votes would be recorded in form no.4 and 5. Under Clause 21, separate bundles of valid votes would be made for each candidate and doubtful ballot papers would also be kept in a separate bundle, which would be recorded in form no.4. Under Clause 22, the number of votes would be recorded in form no.5 to 7. Under Clause 23, the Election Officer upon receipt of various bundles of valid votes and doubtful votes, the same would be cross-checked by the Election Officer and any discrepancy found would be recorded by making necessary correction in form no.4 and would also record a brief note in form no.4. Under Clause 29, the Election Officer will record the number of votes of each candidate in form no.5, 6, 8 or 10 as the case may be including valid and invalid votes and will also give the total number of the votes polled for each candidate. While recording the entries in form no.5, 6, 8 or 10, the Election Officer will compare the polled votes with the other forms. Clause 31 indicates that the total number of votes for each candidate would be recorded in form no.7 and that after the declaration of the results form no.5 to 12 would be stamped and shall be handed over to the Assistant District Election Officer.
20. The Election Commission has also prescribed various forms. For the purpose of this case, form no.4, 6 and 7 are relevant. Form no.4 records the number and name of the polling booth, total number of bundles and total number of ballot papers. Form no.4 also indicates the name of the candidates and number of valid bundles of votes and number of valid votes against their names. Form no.4 also indicates that the number of doubtful ballot papers and invalid ballot papers has to be recorded.
23. In the light of Rule 104 of the Rules of 1994 read with the instructions issued by the State Election Commission and the forms prescribed therein, it is apparently clear that valid votes of each polling booth and the total number of votes polled in that booth as well as doubtful and invalid votes are to be recorded in form no.4. Similarly, in form no. 6 valid votes as well as symbol of the candidate has to be recorded and total number of valid votes and invalid votes. Form no.7 records all the facts which are recorded in form no.4 and 6. It is clear that without form no.4 and 6, the details of the candidates, the number of votes polled, the number of valid votes polled in favour of the candidate, the total number of invalid votes etc. cannot be recorded in form no.7.
24. The procedure envisaged under Rule 104 read with the instructions issued by the State Election Commission are mandatory in nature. Clause (e) of Rule 104 of the Rules of 1994 clearly states that account of the ballot papers found in the boxes of the polling place shall be recorded in a statement in the form specified by the State Election Commission. The word "shall" indicates the mandatory nature of the details to be recorded in various forms prescribed by the State Election Commission.
27. The petitioner in paragraph 23 of the writ petition has categorically contended that necessary accounts of the ballot papers was recorded in form no.6. In the light of the aforesaid admission, the Court finds that the break up of the total number of votes polled to each candidate in each polling booth was recorded in form no.7. This can only be done on the basis of the details shown in form no.4 without which such details cannot be recorded in form no.7. Similarly, other details in form no.7 can only be recorded on the basis of the statement recorded in form no.6. In the absence of form no.4 and 6, there is no way to find out as to whether the votes polled against each candidate is correct or not. Comparison of the total number of valid votes as recorded in form no.7 could only be compared and cross checked from form no.4 and 6. Further, the Court finds that there is some overwriting in the valid votes of one candidate Raj Kumar and overwriting in the column relating to total number of valid votes and invalid votes. There are no signatures of the Election Officer at the places where there is overwriting nor any note has been recorded by the Election Officer with regard to these overwritings."
7. Thus the procedure mentioned in Rule 104 of the U.P. Panchayat Raj (Election of Members, Pradhans and Up-Pradhan) Enquiry Rules, 1994 envisages the importance of Form-4 and makes it mandatory for a proper election process.
8. The learned counsel for the petitioner has relied on Lakhan Singh v. Sub-Divisional Magistrate, District Jhansi & Others 2003(94) RD 230 in which this Court had held that: "re-counting of votes could be ordered very rarely, and on specific allegations in 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 invalid votes or improper rejection of valid votes. If only the court is satisfied about the truthfulness of the allegation, it can order re-count votes. Secrecy of ballot has always been considered sacrosanct in a democratic process of election and it cannot be disturbed lightly by allegations of illegality or irregularity in counting."
9. The submissions of learned counsel for the petitioner in this regard, based on Lakhan Singh's case are legally correct. But in present case it has already been found that there was specific evidence that schedule Foorm-4 was not available at the time of hearing before the Prescribed Authority, that was reportedly not submitted by Returning Officer, and there was admittedly arithmetical error of one count in calculation of ballot papers, and importantly the difference of votes between petitioner and respondent no. 4 was also that of one vote, so the strong suspicion of arithmetical error in counting of ballot papers and the possibility of rectification of probable error by re-count cannot be ruled out.
10. In present case the respondent no. 4 had made allegations of error in counting, and had proved the same. The difference of error in count of votes and difference of margin of declared elected candidate (petitioner) and next highest vote getter person (respondent no. 4) is identical. Considering these facts and above mentioned circumstances, the impugned order of re-counting of ballot papers does not appear infirm or erroneous even in light of observations of Lakhan Singh's case (supra). In this special case, there appears every probability that recounting of ballot papers, if properly done with proper carefulness, may eliminate the apprehension of probability of error in the election process. In these special circumstances of this case this Court finds no satisfactory reason to exercise writ jurisdiction to interfere in impugned order.
11. In view of above, this writ petition is dismissed.
Order Date :- 25.11.2016 Sanjeev