Smt. Shakuntla Devi vs State Of U.P. Thru Secy. And Others
2013 Latest Caselaw 6200 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 2
 

 
Case :- WRIT - C No. - 3026 of 2013
 

 
Petitioner :- Smt. Shakuntla Devi
 
Respondent :- State Of U.P. Thru Secy. And Others
 
Counsel for Petitioner :- Shiv Nath Singh,Satyam Singh
 
Counsel for Respondent :- C.S.C.,Arvind Kumar Singh Ii,Subodh Kumar
 

 
Hon'ble Tarun Agarwala,J.

An election petition was filed by the defeated candidate against the elected candidate. During its pendency, the petitioner (elected candidate) moved an application before the District Magistrate for transfer of the election petition to  another authority. This application was rejected, against which, the present writ petition was filed alleging bias against the Presiding Officer. It was contended that the Prescribed Authority has close association with the ruling party and that he was posted at this place earlier when the present Government was functioning at an earlier point of time and immediately after the present Government came into power, the Presiding Officer was given this plump posting in the district from where, the present Chief Minister hails.

The petitioner in the present writ petition has given a detailed list of instances where the Pradhans elected during the previous regime were systematically removed under the garb of allowing the recounting of the votes in the election petition. The petitioner contended by disclosing before the Court that the Presiding Officer had adopted a systematic approach by allowing an application for recounting on frivolous grounds and without permitting the petitioner sufficient time to challenge that order in a writ petition, the order of recounting took place, and consequently, it becomes a "fait accompli". The petitioner alleged that orders are passed and copies are not supplied and within 24 hours, a date is fixed for recounting and by the time, the petitioner gets the certified copy of the order it becomes too late to challenge the said order before the appropriate forum.

In the instant case, the petitioner came before this Court for transfer of the petition alleging these grounds of malafides and bias against the Presiding Officer. The Writ Court entertained the petition staying further proceedings by passing an interim order dated 17th January, 2013, but prior to the passing of the said order, the Presiding Officer had already passed an order on 16th January, 2013 for recounting of the ballot papers. The petitioner, through an amendment application has challenged the order of recounting, which was allowed and necessary amendments have been incorporated in the writ petition.

The Court has heard Sri S.N. Singh, the learned counsel for the petitioner, the learned Standing counsel and Sri Subodh Kumar, the learned counsel for the defeated candidate, respondent no. 6 and Sri Amit Saxena for the respondents.

The learned counsel for the petitioner contended that the Presiding Officer being biased had only conducted a roving and fishing enquiry and, in the absence of any prima facie case being made out, an order of recounting was passed. The learned counsel contended that 14 issues were framed and issue no. 14 was with regard to the recounting of the votes. The Presiding Officer has given a categorical finding that no case of recounting was made out, inspite of which, the Presiding Officer in the operative portion of the order has directed recounting of the votes. The learned counsel submitted that in the absence of a prima facie case being made out, the Prescribed Authority was not justified in directing recounting of the votes.

On the other hand, the learned counsel for the defeated candidate contended that all the assertions made by the defeated candidate in his election petition stood proved and was supported by evidence, which was correctly appreciated and a finding was given by the Prescribed Authority justifying recounting of the votes. The learned counsel further submitted that the Presiding Officer was justified, and that, in any case, it was a fit case for ordering the recounting of the votes.

It is settled principle of law that the secrecy of the ballot papers is sacrosanct and is required to be maintained and that the recounting of the votes should not be allowed to be violated on frivolous, fake and indefinite allegations.

On the question of recounting of votes the position of law has been crystallized 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.

In the light of the aforesaid, the right of a defeated candidate to assail the validity of the election result is subject to the basic principle that the petition must contain a specific ground, on which, the election of the elected candidate is being questioned. Further, the authority must be satisfied that a prima facie case is made out from the materials produced before the Court regarding the allegations made for recounting and that the Court must come to a conclusion that in order to grant the prayer for recounting, it was necessary and imperative to do full justice between the parties.

In the light of the aforesaid, the Court finds that even after the amendment made by the petitioner questioning the order of recounting, the assertions made in the writ petition are totally lacking and nothing can be deciphered. The ground to attack is contained in paragraphs 22-A to 22-D and the only ground that can be deciphered from these paragraphs is, that the order of recounting was passed without any foundation and without sufficient evidence and without any finding on any point. The Court finds that a copy of election petition has not been annexed, and therefore, the Court does not know the exact contents of the election petition and the ground taken therein.

However, from a perusal of the impugned order, the Court finds that necessary material facts, which has been alleged is stated in paragraph 12 of the election petition, on the basis of which, issue nos. 5,6,7 and 9 have been framed. Issue no. 14 is with regard to the fact as to whether a recounting should be done in the facts and circumstances of the given case.

The Court finds that the elected candidate obtained 523 votes and the defeated candidate received 519 votes and that the difference of margin of victory was four votes. The allegations made in the election petition can be culled out from the impugned order, which is, that there were no signatures of the Polling Officer on certain votes, which were held to be valid in favour of the elected candidate and that certain votes were cast in favour of the defeated candidate have gone missing. Specific ballot numbers has been alleged by the defeated candidate, which have been proved on the basis of the documentary evidence and statement of the witnesses. The Presiding Officer has given a specific finding holding that issues nos. 5 and 6 stands proved. Further, a finding has been given that the elected candidate in his written statement has not seriously disputed the contention of the defeated candidate. In the light of these specific findings, which are neither perverse and which is based on appreciation of evidence, the Court does not find any illegality in the order directing recounting of the votes.

The contention of the learned counsel for the petitioner that the Tribunal has clearly held that there was no need to hold a recount while deciding issue no. 14 is patently erroneous. The learned counsel has placed reliance of a certain paragraph of the impugned order which in fact is the submission of the petitioner before the Tribunal. The Tribunal, in fact, has given a clear finding of a recount while deciding issue no. 14.

The writ petition challenging the order of recounting subsequently fails and is dismissed.

The allegations made against the Presiding Officer in conducting the disposal of various election petitions filed before it indicates a predetermined bent of mind. Such conduct is unbecoming of an officer, especially when the officer is required to exercise quasi judicial power. Without commenting further in the matter, since the Presiding Officer has not filed his personal affidavits, though an affidavit on his behalf has also been filed and since other election petitioners are not before the Court, the Court directs that the present case be transferred to the Sub Divisional Magistrate, Etah who shall proceed from where the case has been left off. The Sub Divisional Magistrate, Etah will conclude the proceedings within four weeks from the date of production of a certified copy of the order.

Order Date :- 1.10.2013

Sanjeev

(Tarun Agarwala,J.)