Krishna Murari vs Prescribed Authority/Sub ...
2013 Latest Caselaw 5080 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No.2
 
Civil Misc. Writ Petition No. 42517 of  2013
 

 
Krishna Murari				 ........	         Petitioner	
 
Vs.
 
State of U.P. and others                 ........	         Respondents
 
 
 

 
******************
 

 
Hon'ble Tarun Agarwala,J.

The petitioner has challenged the order dated 30th July, 2013 passed by the Prescribed Authority directing recounting of the ballot papers.

The facts leading to the filing of the writ petition is, that the election for the post of Pradhan of Gram Panchayat Ahmalpur, City, District Mirzapur was held on 11th October, 2010. Out of 1628 votes, 1106 persons cast their votes. There were two polling booths no.218 and 219. The petitioner secured 268 votes and respondent no.4 obtained 266 votes. 40 votes were invalid. The petitioner was accordingly, declared elected as the Pradhan. The respondent no.4, being aggrieved by the declaration of the result, filed an election petition before the Prescribed Authority/Sub-Divisional Magistrate, Sadar, District Mirzapur contending that after the counting of the votes he was declared elected as he had obtained 269 votes and that the petitioner had obtained 265 votes.

The respondent contended that he was elected pursuant to the declaration of the result. He came out of the counting hall but after a short while, he came to know that the bundles of the ballot papers were reopened and fresh counting was conducted. The petitioner made a protest, which went unheard and, on the other hand, the authorities pushed him outside the counting hall with the help of the police. The said respondent contended that the votes recorded in form no.4, 6 and 7 were manipulated by making cuttings and overwriting and that the authorities by this manipulation illegally declared the petitioner as the elected Pradhan.

It was contended that in booth no.218 a total number of 471 votes were cast, in which the respondent got 67 votes and the petitioner got 59 votes and in booth no.219, 635 votes were cast, in which the respondent obtained 202 votes and the petitioner obtained 206 votes. The respondent contended that in this manner he obtained 269 votes and the petitioner got 265 votes and, therefore, the said respondent had won the election but the authorities by manipulating the records in form no.4, 6 and 7 wrongly declared the petitioner as having won by two votes, whereas he had actually lost by four votes.

The petitioner denied the allegation disputing the allegations made by the respondent contending that no such over writing or cuttings or manipulation in form no.4, 6 or 7 was done by the authorities. The petitioner contended that the counting was done in a peaceful manner and that after the declaration of the result, the respondent never protested nor filed any application for recounting. The petitioner contended that the entire election petition did not contain any specific allegation with regard to any illegality or irregularity committed during the polling process or during the counting of the votes.

The Prescribed Authority after recording the evidence of various witnesses and after hearing the parties held that the respondent had made out a case for recounting of the ballot papers. The Prescribed Authority held that form no.4 and 6 was not deposited before Assistant District Election Officer except form no.7, which was in violation of the instructions issued by the Election Commission. The Prescribed Authority further held that there was a large number of invalid votes, which amounted to more than 12% of the polled votes and, consequently, directed recounting of the ballot papers. The elected candidate, being aggrieved, by the order of the Prescribed Authority for recounting of the votes has filed the present writ petition.

Heard Sri K.N. Mishra and Sri R.B. Mishra, the learned counsels for the petitioner and Sri Rajiv Mishra, the learned counsel for the respondent no.4. The learned counsel for the parties submitted that the writ petition may be decided at the admission stage itself without calling for any counter affidavit, since no factual controversy is involved.

The learned counsel for the petitioner submitted that during the counting of the votes and immediately after the declaration of the result, respondent no.4 had never raised any plea with regard to recounting of the votes. In the absence of any such plea being raised, it was not open to the said respondent to question the veracity of the election by filing an election petition. The learned counsel for the petitioner further submitted that the election petition was filed on vague grounds without supporting the allegations made in the election petition and, consequently, on the mere ipsit dixit, the Prescribed Authority could not order the recounting of the votes.

The learned counsel for the petitioner further submitted that the finding of the Prescribed Authority that more than 12% votes had been declared invalid is patently erroneous, inasmuch as the percentage of invalid votes was only 3.6%. Further, the respondent no.4 did not call the Election Officer or the Returning Officer for cross-examination to prove as to whether there were manipulation in form nos.4, 6 or 7 and, consequently, in the absence of non-production of these officers, the allegation that the records were manipulated remained only an allegation and was never proved. The Prescribed Authority committed a mainifest error in holding that form no.4 and 6 was not filed.

The learned counsel for the petitioner further submitted that in view of the instructions given by the Election Commissioner, form no.4, 6 and 7, was kept in a sealed cover, which cannot be opened unless directed by a Court of law. In support of his submission the learned counsel for the petitioner has placed certain decisions, which will be considered at the appropriate place.

On the other hand, the learned counsel for the respondent submitted that sufficient material in the form of statements had been made in the election petition, which has been duly proved by various witnesses. The learned counsel further submitted that initially the results were declared in favour of the respondents but subsequently, the results were manipulated and the votes recorded in form no.4, 6 and 7 were manipulated to ensure that the petitioner got elected. The learned counsel contented that the forms as prescribed by the State Election Commission was deliberately not filed before the Assistant District Election Officer as it would have revealed the over cutting and the fraud conducted by the authorities. The learned counsel submitted that the account of the ballot papers was required to be recorded in the statement in various forms prescribed by the State Election Commission and that these forms were required to be filed and preserved, which was not done. Under the Rules, it was mandatory for the authorities to preserve the forms safely, which had not been done and, therefore, the Prescribed Authority was justified in directing the recounting of the votes.

Having heard the learned counsel for the parties on the question of recounting of the votes, the position of law has now been crystallized by the Supreme Court in a large number of decisions. In the case of Bhabhi v. Sheo Govind and Ors., AIR 1975 SC 2117, the Supreme Court held as under:

(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 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."

In Vadivelu v. Sundaram and Ors. AIR 2000 SC 3230, the Supreme Court after analyzing various judgments, held that a recount of votes could be ordered only on rare occasions and on specific allegation raised in the election petition to the effect that an illegality or irregularity was committed while counting and that the election petitioner who seeks recounting of the votes, should allege and prove that there was improper acceptance of the valid votes or improper rejection of the valid votes and if the Court was satisfied about these allegations only then the Court could order recounting of the votes. The Supreme Court observed that the secrecy of the ballot was sacrosanct in a democratic process of the election and that it cannot be disturbed on mere allegation of illegality or irregularity in the counting of votes. The Supreme Court further observed that the election petitioner must prove that the purity of elections was tarnished and that the result of the election was materially affected which could only be cured by the recounting of the votes.

Similarly, the Supreme Court in Tanaji Ramchandra Nimhan v. Swati Vinayak Nimhan, (2006) 2 SCC 300, held that an order for recounting should not be made as a matter of course, unless there was clinching evidence to support the case set up by the election petitioner.

In P.K.K. Shamsudeen v. K.A.M. Mappillai Mohindeen and others, (1989) 1 SCC 526, the Supreme Court held as under:

"13. Thus the settled position of law is that the justification for an order for examination of ballot papers and recount of votes is not to be derived from hindsight and by the result of the recount of votes. On the contrary, the justification for an order of recount of votes should be provided by the material placed by an election petitioner on the threshold before an order of recount of votes is actually made. The reason for this salutary rule is that the preservation of the secrecy of the ballot is a sacrosanct principle which cannot be lightly or hastily broken unless there is prima facie genuine need for it. The right of a defeated candidate to assail the validity of an election result and seek recounting of votes has to be subject to the basic principle that the secrecy of the ballot is sacrosanct in a democracy and hence unless the affected candidate is able to allege and substantiate in acceptable measure by means of evidence that a prima facie case of a high degree of probability existed for the recount of votes being ordered by the Election Tribunal in the interests of justice, a Tribunal or court should not order the recount of votes."

In Kattinokkula Murali Krishna v. Veeramalla Koteswara Rao and others, (2010) 1 SCC 466, the Supreme Court held as under:

"15. Before examining the merits of the issues raised on behalf of the parties, it would be appropriate to bear in mind the salutary principle laid down in the election law that since an order for inspection and re-count of ballot papers affects the secrecy of ballot, such an order cannot be made as a matter of course. Undoubtedly, in the entire election process, the secrecy of ballot is sacrosanct and inviolable except where strong prima facie circumstances to suspect the purity, propriety and legality in the counting of votes are made out. The importance of maintenance of secrecy of ballots and the circumstances under which that secrecy can be breached, has been considered by this Court in several cases.

16. It would be trite to state that before an Election Tribunal can permit scrutiny of ballot papers and order re-count, two basic requirements viz. (i) the election petition seeking re-count of the ballot papers must contain an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded, and (ii) on the basis of evidence adduced in support of the allegations, the Tribunal must be, prima facie, satisfied that in order to decide the dispute and to do complete and effectual justice between the parties, making of such an order is imperatively necessary, are satisfied. Broadly stated, material facts are primary or basis facts which have to be pleaded by the election petitioner to prove his cause of action and by the defendant to prove his defence. But, as to what could be said to be material facts would depend upon the facts of each case and no rule of universal application can be laid down."

A Full Bench of this Court in Ram Adhar Singh Vs. District Judge, Ghazipur and others, 1985 ACJ 196 held :-

"16.Applying the principle with regard to inspection of ballot papers enunciated by the Supreme Court in cases arising under the Representation of the People Act to an election petition dealt with under the provisions of the U.P. Panchayat Raj Act, there is no escape from the conclusion that before an authority hearing the election petition under the said can be permitted to look into or to direct inspection of the ballot papers, following two conditions must Co-exist:

(1) that the petitioner 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) that 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 specifications 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 indicates in the election petition which could, parima facie, satisfy the authority about the existence of the ground on which the election is sought to be questioned."

Rule 104 of the U.P. Panchayat Raj (Election of Members, Pradhans and Up-Pradhans) Rules, 1994 (hereinafter referred to as the Rules of 1994) provide the procedure for counting of the votes. For facility, the said provision is extracted hereunder:

"104. Procedure at the counting.- On the date and at the time and place appointed under Rule 101, Nirvachan Adhikari shall proceed as follows:

(a) The Nirvachan Adhikari shall satisfy himself that all the ballot boxes used at the poll and which are to be counted at that place have been received and accounted for;

(b) The Nirvachan Adhikari shall then allow the candidates and their Nirvachan Abhikartas and Ganana Abhikartas present at the counting an opportunity to inspect the ballot boxes and their seals for satisfying themselves that they are in order;

(c) The Nirvachan Adhikari shall also satisfy himself that none of the boxes has in fact been tampered with. If any ballot box is found by him to have been tampered with or destroyed or lost, the Nirvachan Adhikari shall not proceed with the counting of votes and the provisions of Rule 100 shall apply.

(d) If the Nirvachan Adhikari is satisfied that all such ballot boxes which are to be counted at such place have been received and are in order, he shall take up the counting of ballot papers contained in the ballot boxes. All the ballot boxes used at a polling place shall be opened, and the counting of the ballot papers found in those boxes proceeded with, in accordance with the instructions of the State Election Commission, at the same time;

(e) An 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;

(f) The Nirvachan Adhikari shall allow the candidates, their Nirvachan Abhikartas and Ganana Abhikartas, who may be present, reasonable opportunity to inspect all ballot papers which in the opinion of the Nirvachan Adhikari are liable to be rejected, but shall not allow them to handle those or any other ballot papers. The Nirvachan Adhikari shall on every ballot paper, which is rejected, endorse rejection thereon in Hindi. If any candidate or his Nirvachan Abhikarta questions the correctness of the rejection of any ballot paper, the Nirvachan Adhikari shall also record briefly on such ballot paper grounds for his rejection;

(g) After the counting of all ballot papers contained in the ballot boxes of the polling place has been completed the Nirvachan Adhikari shall cause all such ballot papers to be kept in a separate packet on which shall be indicates such particulars as will indentify the name of the Gram Panchayat to which ballot papers relate."

Clause (d) of Rule 104 of the Rules of 1994 provides that the counting of the ballot papers shall be proceeded with in accordance with the instructions of the State Election Commission. Clause (e) of Rule 104 of the Rules of 1994 provides that the account of the ballot papers shall be recorded in a statement in the form specified by the State Election Commission.

Rule 107 provides that the Election Officer will prepare and certify an election return in the specified form. Rule 109 provides declaration of the result. Rule 111 provides that after the results are declared will forward the election return to the Assistant District Election Officer for safe custody as well as safe custody of the packets of ballot papers and all other papers relating to the election. Rule 112 provides that the ballot papers whether valid, rejected or tendered and marked copy of the electoral roll shall not be inspected by any person or authority except under the order of a competent court and all other papers relating to election shall be opened to public inspection upon payment of prescribed fees.

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.

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.

Form no.6 indicates the names of the candidates, their election symbol and the total number of valid votes against their names. Form no.6 also records the total number of valid votes, total number of invalid votes and total number of votes polled.

Form no.7 records the name of the candidates, their election symbol, valid votes against their names boothwise and total number of valid votes. Form no.7 also records total number of valid votes, total number of invalid votes, total number of votes polled.

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.

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.

In the instant case, the respondent categorically contended that in form no.4, 67 votes were polled in booth no.218 in his favour and 202 votes in his favour in booth no.219 and, therefore, total number of valid votes, which were recorded in form no.4 was 269. On the other hand, the petitioner's votes recorded was 265. These facts have been proved by various witnesses of the respondent. Certified copies of their statements were filed by the learned counsel for the respondent, which the Court has perused.

Certified copy of Form 7 has been filed by the respondent. The same shows overwriting and cutting at certain places. From the information received by the respondent under Right to Information Act, form 4 and 6 was not deposited before the Assistant District Election Officer.

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.

In the light of the aforesaid discrepancies, which are fatal and in the absence of form no.4 and 6, there is no way to ascertain the number of valid or invalid votes polled at each polling booth against a particular candidate. The respondent had made out a case indicating that he had polled 269 votes, against the petitioner polling 265 votes. Necessary break up of each booth has been specified by him, which have been proved by various witnesses. Since form no.4 and 6 have not been preserved by the Assistant District Election Officer and are not on the record, a doubt is created with regard to the figures mentioned in form no.7, coupled with the fact that there are overwritings in the figures.

In the light of the aforesaid, the Court finds that a prima facie case was made out by the respondent for recounting of the votes. The Prescribed Authority rightly issued an order for recounting of the votes. Consequently, no interference is required in the impugned order.

The writ petition fails and is dismissed. In the circumstances of the case, parties will bear their own cost.

Date:14.8.2013

Bhaskar

(Tarun Agarwala, J.)