Udaibhan Singh vs Anil And 15 Others
2013 Latest Caselaw 5636 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No.2
 
Civil Misc. Writ Petition No.47989 of  2013
 

 
Udaibhan					 ........	         Petitioner	
 
Vs.
 
Anil and others 		                   ........	         Respondents
 
 
 

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

 
Hon'ble Tarun Agarwala,J.

Heard Sri Shashi Nandan, the learned Senior Counsel assisted by Sri Alok Kumar Yadav, the learned counsel for the petitioner and Sri Neeraj Tripathi, the learned counsel holding the brief of Sri Ratnesh Kumar Singh, the learned counsel for respondent no.1.

Since the controversy relates between the petitioner and respondent no.1 and other respondents are proforma respondents, coupled with the fact that no factual controversy is involved in the present writ petition and considering the urgency in the matter, the writ petition is being decided at the admission stage itself without calling for a counter affidavit.

The elections for the post of a member of Zila Panchayat was held, in which the petitioner secured 4948 votes whereas respondent no.1 secured 4263 votes. The petitioner was elected by 685 votes. Respondent no.1 filed an election petition contending that in fact he should have been declared elected as a member of the Zila Panchayat as he had won the election by 123 votes and that he had secured 4993 votes and that the petitioner had secured 4870 votes but the authorities and the agents of the petitioner by manipulation, wrongly recorded the figures in Form no.11, as a result of which, the final declaration shown was that the petitioner was declared elected and the respondent no.1 was shown to have lost the election.

In paragraph 3(ga), respondent no.1 contended that for booth no.271 respondent no.1 had secured 291 votes which was recorded in Form no.10 but in Form no.11 the respondent no.1 was shown as having secured 21 votes. For booth no.273 respondent no.1 contended that he had secured 295 votes which was recorded in Form no.10 but was recorded as 1 vote in Form no.11. Similarly, for booth no.271 another candidate Ajay was shown to have secured 201 votes in Form no.11, whereas he should have obtained only 1 vote. Similarly, for booth no.273 the candidate Ajay was shown to have secured 1 vote, where as he was shown to have secured 295 votes in Form no.11.

In the same paragraph, respondent no.1 further contended that for booth no.76 respondent no.1 had secured 97 votes as per Form no.10, whereas it was shown as 7 votes in Form no.11 and that the petitioner secured 14 votes but was shown as 18 votes in Form no.11. Similar manipulation was also indicated for booth nos.77, 78, 67 and 277, the details of which has been specifically stated in paragraph 3(ga) of the election petition. In paragraph 6 and 10 of the election petition, respondent no.1 specifically contended that the forms were not properly filled up by the authorities for vested reasons, which has resulted in the wrong votes being given to different persons.

The petitioner denied the allegations contending that the allegations made are vague and are not supported by any documentary proof. Both the sides examined their witnesses. The prescribed authority after considering the material evidence on record passed the impugned order holding that a prima facie case had been made out by respondent no.1 for recounting of the votes. The elected candidate, being aggrieved by the said order, has filed the present writ petition.

During the course of the hearing, the Court was informed that 11th September, 2013 has been fixed for recounting of the votes and, consequently, considering the urgency the matter is being decided.

The prescribed authority held that recounting of the votes is required to be done for booth nos.271, 273, 76, 67 and 277 and that no case was made out by respondent no.1 for recounting of booth nos.272, 77 and 78. The prescribed authority held that the figures in Form no.11 does not match with the figures shown in Form no.10 and that if the figures of Form no.10 are added, respondent no.1 would secure 4917 votes, whereas the petitioner would secure 4882 votes. On account of this discrepancy, which was glaring and apparent on the face of the record, the prescribed authority directed recounting of the votes.

Sri Shashi Nandan, the learned Senior Counsel submitted that there was no clinching evidence before the prescribed authority to come to a conclusion that the secrecy of the ballots, which is sacrosanct, requires recounting. It was contended that the impugned order was based on roving and fishing inquiry, inasmuch as there was no averment in the election petition that Form no.10 or Form no.11 or both the forms were incorrect and did not depict the correct picture with regard to the votes indicated against each candidate. It was further contended that there was no discrepancy in booth nos.67 and 277 and that the prescribed authority committed a manifest error in directing recounting of the votes for these two booths.

On the other hand, Sri Neeraj Tripathi, the learned counsel for the respondent no.1 submitted that specific averments with regard to the defect in the counting and distribution of the votes was specifically given in paragraph 3(ga) of the election petition and that respondent no.1 had further contended that Form nos.10 and 11 were not prepared properly.

In light of the stand taken by the rival parties, it would be essential if we perused certain provisions of the U.P. Kshettra Panchyats and Zila Panchayats (Election of Members) Rules, 1994 (hereinafter referred to as the Rules of 1994).

Rule 50 prescribes the procedure for counting of the votes. Rule 50 (d) and (e) of the Rules of 1994 is relevant, which is extracted hereunder:-

"50.Procedure at the counting.

(d) If the Nirvachan Adhikari is satisfied that all such ballot boxes as are to be counted at such place have been received and are in order, he shall take up the counting of the ballot papers contained in the ballot boxes. All the ballot boxes used at 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."

The said Rule provided that the counting of the ballot papers shall be proceeded in accordance with the instructions of the State Election Commission. Clause (e) provides that the account of the ballot papers found in the boxes shall be recorded in a statement in the forms specified by the State Election Commission.

Rule 52 provides that the Election Officer will verify the accounts submitted by the Assistant Election Officer. Under Rule 53, the Election Officer would prepare and certify an election return in the specified form. For facility, Rule 53 is extracted hereunder:-

"53. Election return by the Nirvachan Adhikari.-- The Nirvachan Adhikari shall then prepare and certify an election return in the specified form setting forth--

(a) the names of candidates for whom valid votes have been given;

(b) the number of valid votes given for each candidate;

(c) the total number of valid ballot papers;

(d) the number of rejected ballot papers;

(e) the number of tendered ballot papers; and

(f) the name of the candidate elected.

Under Rule 54 on the basis of the votes indicated in the form specified under Rule 53, the Election Officer would declare the candidate securing the highest number of votes to be duly elected.

The Election Commission has prescribed various forms and, for the purpose of this case, Form Nos.10 and 11 are relevant. Form no.10 is the form which is required to be filled up under Rule 50(e) of the Rules of 1994. From a perusal of Form no.10, it indicates the booth number, the names of the candidates and their election symbol and the votes polled in favour of the candidate. The said form also indicates the total number of valid votes, the total number of invalid votes, the total number of ballot papers polled in that booth. The said form is required to be signed by the Election Officer. On the basis of Form no.10, which is prepared for all the booths separately, a consolidated chart is prepared in Form no.11 as prescribed under Rule 53 of the Rules of 1994. This Form no.11 prescribes the names of candidates for whom valid votes have been given, the number of valid votes given to each candidate booth wise, the total number of valid ballot papers, the number of rejected ballot papers, the number of tendered ballot papers and the name of the candidate elected.

In the light of Rules 50 and 53 of the Rules of 1994 and such instructions as issued by the State Election Commission and the forms prescribed therein, it is apparently clear that valid votes on each polling booths and the total number of votes polled are to be recorded in Form no.10. A consolidated chart of all the polling booths recorded in Form no.10 is required to be recorded in Form no.11 through which a candidate is declared elected, who has secured the highest votes.

The procedure envisaged under Rules 50 an 53 of the Rules of 1994 are mandatory in nature. The word "shall" indicated in Rules 50(e) and 53 of the Rules of 1994 indicates the mandatory nature of the details to be recorded in various forms prescribed by the State Election Commission.

In the light of the aforesaid, the Court finds from a perusal of the photostat copies of Form nos.10 and 11 that in Form no.10, for booth no.271 the petitioner secured two votes and respondent no.1 secured 291 votes, whereas in Form no.11 the petitioner was shown to have secured 3 votes and respondent no.1 was shown to have secured 21 votes. Similarly, for booth no.273 petitioner was shown to have secured 1 vote in Form no.10 and respondent no.1 was shown to have secured 295 votes, whereas in Form no.11 the petitioner was shown to have secured 1 vote and respondent no.1 was also shown to have secured 1 vote. For booth no.76, the petitioner was shown in Form no.10 to have secured 18 votes and respondent no.1 was shown to have secured 97 votes, whereas in Form no.11 petitioner was shown to have secured 18 votes and respondent no.1 shown to have secured 7 votes. With regard to booth no.67 the petitioner was shown to have secured 68 votes and similarly, for booth no.277 the petitioner was shown to have secured 16 votes, which was also the same in Form no.11.

The Court finds that in Form no.10 for booth no.67 there is a lot of cuttings without initials in column no.2 wherein the name of a candidate Tapesara was scored out and the name of the petitioner was recorded and at serial no.9 the name of a candidate Manoj was scored out and the name of Bhola Nath was recorded with the symbol Kulhadi (Axe), which was the symbol of the petitioner.

In paragraph 4 of the writ petition the petitioner has contended that election symbol of a candidate Suresh Patel was Chhata (Umbrella), whereas in Form no.10 against the name of petitioner at serial no.5 his election symbol has been shown as Chhata (Umbrella), whereas the election symbol of the petitioner is Kulhadi (Axe).

In the light of the aforesaid glaring mistakes committed by the agents of the Election Officer where in votes secured by respondent no.1, which is depicted in Form no.10 is not reflected in Form no.11, the Election Tribunal has calculated the total number of votes secured by respondent no.1 as depicted in Form no.10 which shows that respondent no.1 secured 4917 votes much more than what the petitioner had secured, which was 4882 votes. Such calculation made by the prescribed authority has not been questioned in the writ petition.

The Court further finds that Form no.10 for booth no.277, and Form no.10 for booth no.276 indicates a lot of cuttings and overwritings, which does not bear the initial or signature of the Election Officer. This cast a doubt on the veracity of the figures mentioned against the names of the candidates in Form no.10. The Court finds that the figures mentioned in Form no.11 are patently erroneous, which has resulted in the wrong declaration of the result in favour of the petitioner. The Court is of the view that a prima facie case was made out in favour of respondent no.1 for recounting of the votes, which requires no interference.

The decision cited by the learned counsel for the petitioner in case of Virendra Vs. State of U.P. and others, 2008 (105) RD 480 and in the case of Amit Narain Rai Vs. State of U.P. and others, 2012 (116) RD 711 does not help the petitioner, inasmuch as the said decisions revolves on the facts of its own case. Needless to state here the position of law has been crystallized by the Supreme Court in a catena 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."

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."

In the light of the aforesaid, the Court finds that the election petition contains the grounds on which the election of the petitioner was questioned. The Court finds that on the basis of the material produced before the authority, a prima facie case was made out for recounting of the votes.

In the light of the aforesaid, the Court does not find any error in the impugned order. The writ petition fails and is dismissed.

Date:10.9.2013

Bhaskar

(Tarun Agarwala, J.)