Allahabad High Court
Mohammad Ikhlas vs Sub Divisional Magistrate And ... on 13 November, 2013
Bench: Tarun Agarwala
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. - 2
Civil Misc. Writ Petition No. 58881 of 2012
Mohammad Ikhlas...................................................Petitioner
Vs.
Sub Divisional Magistrate and others.................Respondents.
******
Hon'ble Tarun Agarwala,J.
The petitioner received 1097 votes and respondent No.2 received 1082 votes and, accordingly, the petitioner was declared elected as the Gram Pradhan. The respondent No.2, being aggrieved by the result, filed an election petition under Section 12-C of the U.P.Panchayat Raj Act.
In paragraph 11 of the election petition, the petitioner contended that the total number of votes received by all the candidates as depicted in Form No.7 was 1512 votes, but, was wrongly recorded as 1312 votes and, therefore, there is a difference of 200 votes which will have a bearing with the ultimate result. In paragraph 12 of the election petition it was further contended that Form No.11 depicted the total number of votes polled as 351 whereas for that booth only 350 votes were found and that there is a difference of one vote. On this basis, the election petition was filed and a prayer was made for recounting of the votes.
The petitioner contested the matter and denied the allegation contending that there is no error in the reception of votes depicted against each of the candidates in form No.7, and that there is only a clerical error in the adding of the votes, which will make no difference and does not cast any shadow of doubt. Instead of leading evidence on the material allegation, the election petitioner, i.e., respondent No.2 filed certified copies of Form Nos.7 and 11 and moved an application contending that the issues framed pursuant to the averments made in paragraph Nos.11 and 12 be decided.
The Tribunal considered the matter and found that there was an error in the totaling of the votes in Form-7 and also found error of one vote in Form 11 and, consequently, directed recounting of the votes. The petitioner, being aggrieved by the said order, has filed the present writ petition.
Having heard Sri Ashok Khare, the learned senior counsel and Sri Vivek Prakash Misra, the learned counsel for respondent No.2, the Court finds that there is nothing to indicate any irregularity in the reception of votes or any illegality in the election process. The error in Form No.7 is only a clerical error while totaling the number of votes polled against each candidates, which will not have any effect in the votes received by petitioner or by respondent No.2 or by any other candidate and consequently, it will not make any difference to the end result.
The Court finds that there is no glaring omission other than a totaling error, which will not make any difference to the ultimate result of the votes polled either by the petitioner or by respondent No.2.
The Court is of the opinion, that there is no clinching evidence to show any illegality in the reception of the votes or in the election process and consequently, finds that the order of the Tribunal for recounting of the votes is based on surmises and conjectures, which cannot be sustained.
In so far as Form No.11 is concerned admittedly 351 ballot papers were issued, but only 350 ballot papers were found. This does not create any suspicion, which would lead the Tribunal in directing recounting of the votes. There is a possibility that a voter, who has taken the ballot paper, may not have polled that ballot paper in the ballot box and had taken it away, which led to receiving only 350 votes in the ballot box.
In any case, the difference of one vote will not make any difference in the ultimate result, inasmuch, as the respondent No.2 had lost the election by 15 votes.
On the question of recounting of votes the position of law has been crystalized in a catena of cases by the Supreme Court starting from Bhabi Vs. Sheo Govind and others AIR 1975 SC 2117 in which, the Supreme Court held:
"(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 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."
A Full Bench of this Court in Ram Adhar Singh v. District Judge, Ghazipur and others, 1986 (2) RD 151 (FB) held that the authorities while hearing the election petition under the provision of U.P. Panchayat Raj Act can be permitted to look into or can direct the inspection of the ballot papers only upon the existence of two conditions, namely;
"1. that the petition 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. the 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."
The right of a defeated candidate to assail the validity of an election result and seek recounting of the votes is subject to the basic principle that the secrecy of the ballot is sacrosanct unless the defeated candidate alleges and is able to substantiate by means of evidence that a prima facie case of a high degree exists for the recounting of the votes. The salutary rule is, that the preservation of the secrecy of the ballot is a sacrosanct principle which cannot be broken unless there is a prima facie case and that a genuine case is made out. The justification for an order or re-examination of ballot papers and recounting of the votes is not to be arrived at from hindsight or by the result of the recount of the votes. The justification for recounting of the votes must be made out from the material available on the record.
For the reasons stated aforesaid, the Court finds that the impugned order directing recounting of the votes is patently erroneous and cannot be sustained and is quashed.
The writ petition is allowed.
Order Date :- 13.11.2013
AKJ
(Tarun Agarwala,J.)
