Smt. Sadhna vs Nirmala Devi And 5 Others
2018 Latest Caselaw 90 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
Court No. - 6								AFR
 
Case :- WRIT - C No. - 32569 of 2017
 
Petitioner :- Smt. Sadhna
 
Respondent :- Nirmala Devi And 5 Others
 
Counsel for Petitioner :- Sanjay Kumar Om,Pradeep Kumar Mishra
 
Counsel for Respondent :- C.S.C.,Deepak Kumar Jaiswal,Krishna Chandra Pandey,Manish Kumar Pandey,Vijay Kumar Dubey,Vijay Kumar Singh
 

 
Hon'ble B. Amit Sthalekar,J.

The petitioner in the writ petition is seeking quashing of the order dated 19.07.2017 whereby the Sub Divisional Magistrate/Prescribed Authority-Election Tribunal has directed recounting of votes.

Briefly stated the facts of the case are that election for the post of Gram Pradhan of Gram Panchayat Ramwapur Mishra, Block Saatha, District Sant Kabir Nagar was held on 28.11.2015. In the election the petitioner was elected as Gram Pradhan. The Gram Panchayat Ramwapur Mishra comprises four villages, i.e. Ramwapur Mishra, Khajuria, Parsohiya and Sekhui/Kotia of which Ramwapur Mishra is a constituency reserved for woman candidate. Five women candidates filed their nomination papers, out of which 2 withdrew, therefore the contest was only between three candidates, namely, Smt. Sadhna (petitioner herein), Smt. Nirmala Devi (respondent no.1 herein) and Smt. Laxmi (respondent no.6 herein). It is stated that there were a total of 1336 voters and election was held at Booth No.139 and 140 in Primary School Sekhui/Kotia and 943 votes were cast. The counting of votes took place on 13.12.2015 in the Ajiullah Higher Secondary School, Saatha, District Sant Kabir Nagar. The petitioner received 443 votes, respondent no.1-Smt. Nirmala Devi received 425 votes and the respondent no.6-Smt. Laxmi received 70 votes and 5 votes were declared invalid and the petitioner was declared elected as Gram Pradhan and a certificate to that effect was issued on 13.12.2015 and she took charge of the said post on 20.12.2015. On 13.01.2016 the respondent no.1-Smt. Nirmala Devi is stated to have filed election petition under Section 12-C of the Uttar Pradesh Panchayat Raj Act, 1947 and the same was registered as Election Petition No.T201617650313 (Nirmala Devi Vs. Sadhna and Others). The petitioner contested the election petition and thereafter the Prescribed Authority passed the impugned order dated 19.07.2017 ordering for recounting of votes.

I have heard Shri Sanjay Kumar Om, learned counsel for the petitioner, Shri V.K. Dubey and Shri Manish Kumar Pandey, learned counsel for the respondent no.1, learned Standing Counsel for the respondents no.2 and 3 and perused the documents on record.

Learned counsel for the petitioner has referred to the averments in the election petition, copy of which has been filed as Annexure-2 to the writ petition and submitted that the election petition was filed initially impleading Pradeep Kumar Gupta, Assistant Returning Officer as defendant no.4 but subsequently through an amendment application which was allowed on 15.07.2016 and carried out on 19.07.2016 the name of Rajesh Kumar Srivastava was impleaded in place of Pradeep Kumar Gupta as defendant no.4.

The submission of the learned counsel for the petitioner, therefore is that the allegations were made against Pradeep Kumar Gupta when the election petition was filed and more than 6 months after the petition was admitted a correction was made in the title of defendant no.4 by adding Rajesh Kumar Srivastava in place of Pradeep Kumar Gupta and therefore he submits that this itself goes to show the falsity of the allegations made by the respondent no.1 (election petitioner) against the conduct of the Assistant Returning Officer inasmuch as if the allegations against Rajesh Kumar Srivastava interfering or manipulating the election process were genuine the respondent no.1 would have impleaded him in the first instance instead of impleading Pradeep Kumar Srivastava as an afterthought.

Learned counsel for the petitioner next submitted that the allegations in the election petition are absolutely vague and did not call for any interference by the Tribunal.

The respondent no.1 has alleged that she and her husband were implicated in a false criminal case in which her husband was arrested and she herself was on the run to avoid arrest and during this period the election was held and thus she could not be present on the date of the counting of the votes and some 3rd person managed her election as election agent with the collusion and connivance of the petitioner. It was alleged that in the election result which was declared on 13.12.2015 the petitioner herein was shown to have received 443 votes, the respondent no.1 (election petitioner) was shown to have received 425 votes and Smt. Laxmi (respondent no.6) was shown to have received 70 votes and the respondent no.1 was shown to have lost the election by 18 votes. It was alleged that her ballots were more than that of the petitioner herein but they were added to the ballots cast in favour of the petitioner showing a difference of 18 votes by which she has been declared to have lost the election. ,

Learned counsel for the petitioner referred to the allegations made in paragraph 15 sub para d, £, x, Ä and ³ of the election petition stating therein that there is a vague allegation that if the Election Officer on duty has conducted the election fairly then she, i.e. the respondent no.1 herein would have received more votes than the petitioner.

Two counter affidavits have been filed by the respondents. One has filed on behalf of the respondent no.1-Smt. Nirmala Devi and the other has been filed by the respondent no.6-Smt. Laxmi.

In the counter affidavit filed by the respondent no.1-Smt. Nirmala Devi it has been alleged that at the time of counting of votes one Rajesh Kumar Srivastava acted as Assistant Returning Officer in place of Pradeep Kumar Gupta, who was initially appointed as Assistant Returning Officer without obtaining sanction of the Returning Officer. It is further stated that Pradeep Kumar Gupta, Assistant Returning Officer was transferred to some other place and in his place Rajesh Kumar Srivastava was appointed as Assistant Returning Officer due to the collusion and connivance of the respondents with the petitioner but this fact was not within the knowledge of the respondent no.1 or her husband nor her Election Agent and therefore she had no knowledge of the last minute shifting of Pradeep Kumar Gupta as Assistant Returning Officer and his replacement by Rajesh Kumar Srivastava as Assistant Returning Officer.

A counter affidavit has also been filed on behalf of the respondent no.6 wherein it is stated that at the time of counting of votes one Rajesh Kumar Srivastava had acted as Assistant Returning Officer in place of Pradeep Kumar Gupta, who was initially appointed as Assistant Returning Officer without obtaining sanction of the Returning Officer and that there was a conspiracy between the petitioner and the local administration in manipulating the result in order to ensure that the petitioner is elected.

Two rejoinder affidavits have been filed by the petitioner, one in reply to the counter affidavit of the respondent no.1 and the other in reply to the counter affidavit of the respondents no.2 and 3. In the rejoinder affidavit filed in reply to the counter affidavit of the respondent no.1 it is stated that in terms of the order dated 06.11.2015 passed by the District Election Officer and on the instructions of the Election Observer/ Incharge Officer vide his order dated 11.12.2015, reshuffling of posts of Assistant Returning Officers was carried out for purposes of counting on 13.12.2015 and Pradeep Kumar Gupta, the previous Assistant Returning Officer was replaced by Rajesh Kumar Srivastava. It is stated that the finding of the Sub Divisional Magistrate in the impugned order that there was no justification for changing the Assistant Returning Officer at the last minute is a wrong finding since it was done on the instructions given by the Election Observer. A reference has been made to the order passed by the Chief Development Officer dated 11.12.2015 in which it is stated that randomization was carried out under the directions of the District Magistrate/District Election Officer dated 06.11.2015. This order of 11.12.2015 filed as Annexure-1 to the rejoinder affidavit shows that Rajesh Kumar Srivastava has been posted in Village Saatha and Pradeep Kumar Gupta has been posted in Village Borbyas. Similar order has also been filed as Annexure-1 to the rejoinder affidavit filed in reply to the counter affidavit of the respondent no.2 and 3.

One supplementary affidavit has also been filed by the petitioner containing similar averments as in the rejoinder affidavit and in that also the order dated 11.12.2015 of the Chief Development Officer has been filed as Annexure-SA-1 to the supplementary affidavit.

The Court then directed the affidavit of the Chief Development Officer filed as well as of the District Magistrate stating clearly as to whether any such direction dated 06.11.2015 was given by the District Magistrate/District Election Officer to the Chief Development Officer as stated in the order dated 11.12.2015.

A personal affidavit has been filed by one Shri Hakim Singh posted as Chief Development Officer, Sant Kabir Nagar wherein it has been stated that the order dated 11.12.2015 has been passed by his predecessor one Shri Lalji Yadav, the then Chief Development Officer/Officer Incharge, Karmik (Panchayat) Sant Kabir Nagar at the relevant point of time and was passed in compliance of the direction of the District Magistrate/District Election Officer, Sant Kabir Nagar but there is no written order of the District Magistrate/District Election Officer, Sant Kabir Nagar on record. In addition to filing the order dated 11.12.2015 which shows that Rajesh Kumar Srivastava was posted at Saatha under the directions of the District Magistrate/District Election Officer (P) dated 06.11.2015, the Chief Development Officer has also filed an order dated 06.11.2015 which is addressed by the Additional Election Commissioner to all the District Magistrates/District Election Officers (P) and Nagariya Nikay (except District Gautam Budh Nagar) containing the General Instructions which have been filed as Annexure-3 to the affidavit and in paragraph 6 thereof it is mentioned that under randomization the Assistant Returning Officers posted at a Centre from the date of nomination till the date of voting, their Nyay Panchayats shall be changed meaning thereby that those Assistant Returning Officers, who are posted in a particular Nyay Panchayat from the date of nomination till the date of voting their Nyay Panchayats shall be changed and their duty shall be fixed in some other Nyay Panchayat. The process of randomization shall be carried out in the presence of the Observer and the District Magistrate one day previous to the date of counting and its information shall be given one hour before the commencement of counting to the Assistant Returning Officer.

A personal affidavit has also been filed by one Markandey Shahi presently posted as District Magistrate, Sant Kabir Nagar. In this affidavit his only stand is that he has taken charge of District Magistrate, Sant Kabir Nagar on 19.04.2017 and that there are no records regarding randomization in his office. In paragraph 6 of this affidavit it is stated that there is no record available in the office of the District Magistrate, Sant Kabir Nagar to show that any instruction was issued to the Chief Development Officer to do randomization on 11.12.2015 one day before the scheduled date of randomization. In this view of the matter since the Chief Development Officer, Hakim Singh and District Magistrate-Markandey Shashi had joined their respective posts subsequent to 11.12.2015 this Court called for the personal affidavit of the person working as Chief Development Officer on 11.12.2015 in Sant Kabir Nagar as well as the District Magistrate posted in Sant Kabir Nagar on 11.12.2015. In pursuance of the order of this Court, a personal affidavit has been filed by one Shri Lalji Yadav posted as Joint Development Commissioner, Jhansi Division, Jhansi (the then Chief Development Officer, Sant Kabir Nagar) and in paragraph 4 of this affidavit he has stated that in pursuance of the direction issued by the State Election Commission on 11.12.2015 the presence of District Magistrate/Observer a discussion was held with regard to randomization of Assistant Returning Officers, who are posted in the process of counting. Due to heavy work load in election works, in the evening of 11.12.2015, a file was prepared and on 13.12.2015 one hour prior to starting of counting of votes an order to that effect was made available to the concerned Assistant Returning Officer. Paragraph 4 of the affidavit reads as under:

"4. That in pursuance of the aforementioned direction issued by the State Election Commission, on 11.12.2015 in presence of District Magistrate, observer and deponent, the discussion has made with regard to randomization of Assistant Returning Officers, who are posted in process of counting. Due to heavy work load in election works, in the evening of 11.12.2015, file has been prepared and process of randomization has preserved in the office. On 13.12.2015 prior an hour from starting the counting of votes, the copy of aforementioned order made available to concerned Assistant Returning Officer."

In the personal affidavit of Dr. Saroj Kumar, the then District Magistrate also similar averments have been made. Paragraph 4 of that affidavit reads as under:

"4. That in pursuance of the aforementioned direction issued by the State Election Commission and in presence of District Magistrate observer and C D O (Officer In-charge, Personnel), in the evening of 11.12.2015 the discussion has made with regard to randomization of A R O who are posted in process of counting and at the same time a direction was issued for Chief Development Officer, that he prepare an order with respect to Assistant Returning Officers on the file, next day. That order was to be given one hour prior from counting of votes to Assistant Returning Officers. Due to heavy work load no separate direction was issued in pursuance of the same. On 13.12.2015 prior an hour from starting counting of votes, the copy of aforementioned order made available to concerned Assistant Returning Officer."

In the counter affidavit filed on behalf of the respondents no.2 and 3 it has been stated that Pradeep Kumar Gupta was appointed as Assistant Returning Officer to conduct the counting of votes in Gram Panchayat Ramwapur Mishra, Saatha, District Sant Kabir Nagar by the District Magistrate/District Election Officer vide letter dated 09.11.2015 but at the time of counting Rajesh Kumar Srivastava was appointed as Assistant Returning Officer for Nyay Panchayat-Saatha in place of Pradeep Kumar Gupta without there being any order of the Competent Authority in this regard. In this regard it also stated that Assistant District Election Officer, Panchayat Nirvachan, Sant Kabir Nagar has clarified through his letter dated 22.08.2017 that Rajesh Kumar, Assistant Returning Officer was never appointed for conducting the counting of Nyay Panchayat Saatha, therefore, the appointment of Rajesh Kumar Srivastava as Assistant Returning Officer, Saatha was not in accordance with rules and regulations. Copy of the order of the District Magistrate/District Election Officer, Sant Kabir Nagar dated 09.11.2015 has been filed as Annexure-2 to this counter affidavit which shows that Pradeep Kumar Gupta has been appointed as Assistant Returning Officer, Saatha whereas Rajesh Kumar Srivastava was appointed as Assistant Returning Officer, Motipur.

What this Court is required to examine is as to whether the allegations requiring interference by the Tribunal are serious enough to warrant a recounting of the votes. The law is well settled that recounting of votes should not be ordered by the Prescribed Authority for the mere asking or in a routine manner. The moment an election petition is filed it is the duty of the Prescribed Authority to cull out from the averments of the election petition whether the allegations in the election petition make out a substantial ground requiring the court to order a recount. The law in this regard has been settled by the Supreme Court in (2000) 8 SCC 355, Vadivelu Vs. Sundaram and Others. Paragraphs 16 and 18 of the said judgment reads as under:

"16. The result of the analysis of the above cases would show that this Court has consistently taken the view that re-count of votes could be ordered very rarely and on specific allegation in the 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 above allegation, it can order re-count of votes. Secrecy of ballot has always been considered sacrosanct in a democratic process of election and it cannot be disturbed lightly by bare allegations of illegality or irregularity in counting. But if it is proved that purity of elections has been tarnished and it has materially affected the result of the election whereby the defeated candidate is seriously prejudiced, the Court can resort to re-count of votes under such circumstances to do justice between the parties.

17.................

18. From the above pleadings, it is evident that the appellant has not set forth material facts or particulars required for re-count of votes. To justify his contention that there was irregularity or illegality in the counting, except making some general and bald allegations, no other details are given. Though an allegation is made that electoral roll contained the names of dead persons, that the 1st respondent took advantage of the same, and that some persons had impersonated and cast votes in his favour, no details are given as to who committed such irregularity. The appellant has also not mentioned as to how many such votes had been cast in favour of the 1st respondent. So also, the appellant has not alleged the nature of the illegality or irregularity said to have been committed by the counting officers. How and in what manner there was improper acceptance of invalid votes and improper rejection of valid votes also is not explained by the appellant. In short, the Election Petition is bereft of all details and the appellant, while examined as PW 1, could not supplement anything by way of evidence."

The Supreme Court in Bhabhi Vs. Sheo Govind and Others, (1976) 1 SCC 687 while dealing with the question of direction for inspection and recount, on a close and careful consideration of various authorities of this court laid down certain guidelines and conditions which are imperative before a court can grant inspection of the ballot papers. The said conditions and guidelines are set out below:-

(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 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."

In a recent decision in Satyanarain Dudhani Vs. Uday Kumar Singh (1993 suppl. 2 SCC 82) this Court again reiterated the similar view by observing that the secrecy of the ballot papers cannot be permitted to be tinkered with lightly and an order of recount cannot be granted as a matter of course. It is only when the High Court is satisfied on the basis of material facts pleaded in the petition and supported by the contemporaneous evidence that recount can be ordered. When there is no contemporaneous evidence to show any irregularity or illegality in the counting, ordinarily it would not be proper to order recount on the basis of bare allegations in the election petition."

In (2003) 5 SCC 650, T.A. Ahammed Kabeer Vs. A.A. Azeez and Others the Supreme Court in paragraph 28 has held as under:

"28. It is true that a recount is not be ordered merely for the asking or merely because the Court is inclined to hold a recount. In order to protect the secrecy of ballots the Court would permit a recount only upon a clear case in that regard having been made out. To permit or not to permit a recount is a question involving jurisdiction of the Court. Once a recount has been allowed the Court cannot shut its eyes on the result of recount on the ground that the result of recount as found is at variance with the pleadings. Once the Court has permitted recount within the well-settled parameters of exercising jurisdiction in this regard, it is the result of the recount which has to be given effect to."

It is in the light of the law laid down by the Supreme Court that this case has to be examined.

The election petition in question was filed impleading Pradeep Kumar Gupta, Assistant Returning Officer as the opposite party no.4 and the allegation made was that the husband of the election petitioner (respondent no.1 herein) had been placed under arrest in a criminal case and the election petitioner was herself being pursued by the Police as a result of which she could not be present at the time of counting of the votes on 13.12.2015 and that some 3rd person acted as her election agent. Her case was that 443 votes were cast in favour of the present petitioner-Smt. Sadhna and 70 votes in favour of respondent no.6-Smt. Laxmi and 425 votes were cast in favour of respondent no.1-Smt. Nirmala Devi and therefore, she lost the election by 18 votes. Her case was that the votes which had actually been granted in her favour were added in favour of Smt. Sadhna. In the election petition an allegation was made that the Assistant Returning Officer, Pradeep Kumar Gupta was responsible for this fraudulent act and he was impleaded as opposite party no.4. Subsequently an amendment application was filed which was allowed and in place of Pradeep Kumar Gupta the name of Rajesh Kumar Srivastava was added.

The contention of the learned counsel for the petitioner is that the respondent no.1 herself was not sure or certain about the identity of the person against whom she was making allegations and that Pradeep Kumar Gupta was not the Assistant Returning Officer on 13.12.2015 in Village Saatha but Rajesh Kumar Srivastava was the Assistant Returning Officer and that the said Rajesh Kumar Srivastava was posted there as Assistant Returning Officer under the scheme of randomization under the order of the Chief Development Officer.

Before the Election Tribunal a question come up as to how Rajesh Kumar Srivastava came to be appointed as Assistant Returning Officer whereas initially it was Pradeep Kumar Gupta who had been appointed as Assistant Returning Officer.

The submission of the learned counsel for the petitioner is that the Government itself provided for a Scheme of Randomization whereby the duty of the Assistant Returning Officer was to be replaced one hour before the start of counting in terms of the instructions of the Additional Election Commissioner/State Election Commission dated 06.11.2015 which was circulated to all the District Magistrates/District Election Officers (P) and Nagariya Nikay (except Gautam Budh Nagar) and therefore, there was absolutely no illegality in the appointment of Rajesh Kumar Srivastava as Assistant Returning Officer, Saatha.

A perusal of the instructions of the State Election Commission dated 06.11.2015 and the General Instructions attached thereto provide that the randomization has to be carried out in the presence of the Observer and the District Magistrate one hour before the commencement of the counting.

In the personal affidavit filed by Shri Hakim Singh, Chief Development Officer it has clearly been stated that though the order of the Chief Development Officer dated 11.12.2015 mentions that randomization has to be carried out under the directions of the District Magistrate/District Election Officer, Sant Kabir Nagar but there is no such order of the District Magistrate/District Election Officer or Observer of the Panchayat Election, 2015 available in the official records. A similar affidavit has been filed by the District Magistrate-Markandey Shahi in which also there is no such order of the District Magistrate/District Election Officer.

Two personal affidavits have been filed, one by Dr. Saroj Kumar, the then District Magistrate-Sant Kabir Nagar, who has stated that in terms of the direction issued by the State Election Commission discussion for randomization of Assistant Returning Officer was done in the presence of the District Magistrate/Observer and Chief Development Officer (Officer In-charge, Personnel) and thereafter orders were issued by the Chief Development Officer one hour prior to the counting of votes on 13.12.2015. Exactly similar averments have been made in the affidavit of Lalji Yadav, the then Chief Development Officer posted in Sant Kabir Nagar on 11.12.2015.

The language of the General Instructions attached to the letter of the State Election Commission dated 06.11.2015 clearly states that the task of randomization shall be carried out in the presence of the Observer /District Magistrate one day previous to the start of counting and its information shall be given one hour before to the concerned Assistant Returning Officers. In matters of election it of utmost necessity that fairness in the election should be maintained at all cost and no party should have any grievance or even a hint of suspicion that something was done in a clandestine fashion or by sleight of hand. In the election petition there is no mention of randomization, may be for the reason that the contestants were not aware that there was any direction for randomization had been issued by the State Election Commission or that any randomization had been carried out. The General Instructions itself required that such randomization information be given to Assistant Returning Officer one hour before the counting begins.

In (1989) 1 SCC 526, P.K.K. Shamsudeen Vs. K.A.M. Mappillai Mohindeen and Others the Supreme Court in paragraph 13 has 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 high sight 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 for 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 (2002) 3 SCC 457, Mahendra Pal Vs. Ram Dass Malanger and Others the Supreme Court in paragraph 13 has held as under:

"13.The aforesaid law is well settled and it does not require further elaboration. In D.P. Sharma v. Commissioner and Returning Officer and others [1984 (Supp.) SCC 157] the Court dealt with the discrepancy as regards finding of less ballot papers from the ballot boxes than what had been issued and used by the voters as well as the discrepancy which pertains to finding of excess ballot papers from the ballot boxes over and above those which had been issued and used by the voters and on the facts of that case observed that these discrepancies are insignificant in character and could be safely attributed to accidental slip or clerical or arithmetical mistakes that must have been committed at the time of counting and preparation of the statements in Forms 16 and 20. The Court pertinently further observed that these discrepancies by themselves do not make out a case for directing a recount of votes and that it is well established that in order to obtain re-count of votes a proper foundation is required to be laid by the election petitioner indicating the precise material on the basis of which it could be urged by him with some substance that there has been either improper reception of invalid votes in favour of the elected candidate or improper rejection of valid votes in favour of the defeated candidate or wrong counting of votes in favour of the elected candidate which had in reality been cast in favour of the defeated candidate. In P.K.K. Shamsudeen v. K.A.M. Mappillai Mohindeen and others [AIR 1989 SC 640] this Court in para 15 held that an order of recount of votes must stand or fall on the nature of the averments made and the evidence adduced before the order of recount is made and not from the results emanating from the recount of votes. In Satyanarain Dudhani v. Uday Kumar Singh and others [1993 Supp. (2) SCC 82] this Court observed that an order of recount cannot be granted as a matter of course and unless the High Court is satisfied on the basis of material facts pleaded in the petition and supported by contemporaneous evidence, recount cannot be ordered. Similarly, in Vadivelu v. Sundaram and others [(2000) 8 SCC 355], this Court (in para 16) held that re-count of votes could be ordered very rarely and 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 of votes. But if it is proved that purity of elections has been tarnished and it has materially affected the result of the election whereby the defeated candidate is seriously prejudiced, the court can resort to re-count of votes under such circumstances to do justice between the parties. In V.S. Achuthanandan v. P.J. Francis and another [(2001) 3 SCC 81], the Court held that the election petitioner cannot be permitted to make out a case for re-count of ballot papers on a ground for which there is no foundation laid by him, not even a whisper, in the pleadings and which does not appear to have a ring of truth, even prima facie."

In (2003) 1 SCC 390, Mahender Pratap Vs. Krishan Pal and Others the Supreme Court in paragraphs 20 and 21 has held as under:

"20. As seen from the decided cases mentioned above, in election petitions which are filed with prayer for recount of votes, the court has always insisted upon a high standard of proof of grounds as would impel the court to direct recount of votes and recheck the election results. It is only after the election petitioner is able to demonstrate before the court by leading satisfactory evidence that there was serious flaw in the counting procedure which had materially affected the result of election that the prayer for recount is generally allowed.

21.In such a state of election law, the court legitimately expects the parties to approach it with genuine grievances on truthful facts. Where false facts are pleaded and false evidence is produced to mislead the court into interfering with the people's verdict of election, the misconduct of the parties to the election has to be viewed seriously. The court allows an election petition only on strict proof of one of the grounds prescribed in Section 100 of the Act. If the parties to the election petitions are allowed to take court lightly even though attempts are skillfully made by them by false pleas and evidence to mislead the Court, the whole judicial process would be misused by clever parties to their advantage and to the detriment of the interest of the electorate who are vitally interested in the result of election."

Learned counsel for the petitioner has placed reliance upon the judgment of the Supreme Court in (2004) 6 SCC 331, Chandrika Prasad yadav Vs. State of Bihar and Others) paragraph 20 whereof reads as under:

"20.It is well-settled that an order of recounting of votes can be passed when the following conditions are fulfilled:

(i) A prima facie case;

(ii) Pleading of material facts stating irregularities in counting of votes;

(iii) A roving and fishing inquiry shall not be made while directing recounting of votes; and

(iv) An objection to the said effect has been taken recourse to.

Learned counsel for the petitioner has also placed reliance upon the judgment of a learned Single Judge of this Court in (2012) 5 ADJ 716, Amit Narain Rai Vs. State of U.P. And Others. Paragraph 40 of the judgment reads as under:

"40. It is not pleaded at all in the election petition that at any stage during counting of votes there was any contravention or violation of procedure prescribed in Rule 104. In fact, there is no averment in the election petition at all as to who was the person present at the time of counting, whether respondent no.7 himself or his agent. Para 9 of the election petition states that after receiving information about wrongful counting the petitioner submitted a letter meaning thereby that petitioner himself did not come across any stage when any vote was wrongly counted but he received alleged information of wrong counting. Who gave the wrong information, when and at which stage is not clear and nothing has been said about it."

So far as the judgment of the Supreme Court in Chandrika Prasad (supra) is concerned, the law is very clearly settled that the Court will not conduct a roving and fishing inquiry while directing recounting of votes and that an order of recounting of votes can be passed if there are material facts pointing out in clear and unambiguous terms the irregularities and a prima facie case is made out.

The replacement of Pradeep Kumar Gupta, Assistant Returning Officer by Rajesh Kumar Srivastava, Assistant Returning Officer was done under a process of randomization as contemplated in the scheme framed for that purpose under the order of State Election Commissioner dated 06.11.2015. The General Instructions appended thereto very clearly state that the information of randomization is to be given to the Assistant Returning Officer one hour before the commencement of counting in order to maintain clarity and fairness in the election and the process of counting. The posting of Rajesh Kumar Srivastava in Village Saatha under the Scheme of Randomization therefore does not by itself render the election invalid or call for any recounting unless it is established by the petitioner that there were irregularities committed in the process of counting which were attributable to some conduct on the part of Rajesh Kumar Srivastava. There is no such allegation in the election petition itself to show that Rajesh Kumar Srivastava was responsible for any particular act which might cast a cloud over the election itself requiring recounting. Even if it is assumed that the petitioner was not present on the date of the counting because she was under threat of arrest in a criminal case it was always open for her to have nominated/appointed an election agent on her behalf. The allegation that somebody else without any information to her acted as an election agent is a wholly vague allegation without any foundation. The respondent no.1, election petitioner impleaded Pradeep Kumar Gupta by name as the Assistant Returning Officer, opposite party no.4. The election petition was filed on 06.01.2016 and it is only six months later by an amendment that the name of Rajesh Kumar Srivastava was added as opposite party no.4 after deleting the name of Pradeep Kumar Gupta on 19.07.2016 under the order of the Prescribed Authority dated 15.07.2016. This shows that for a period of six months the respondent no.1 was not even aware as to who was the Assistant Returning Officer posted in Saatha on the date of counting. On these facts it can hardly be presumed that the petitioner was not aware even on the date of counting or had not been informed by anyone on the date of counting that Pradeep Kumar Gupta has been replaced by Assistant Returning Officer Rajesh Kumar Srivastava. This shows that there was absolutely no genuine allegation of any irregularity committed by Rajesh Kumar Srivastava in the counting held on 13.12.2015.

Even in her election petition the respondent no.1 has not been able to state accurately as to what was the nature of irregularity committed. There is only a bald allegation that bundle of votes were take out from her bundle and added to the votes of the petitioner herein. A mere abstract allegation has been made by the petitioner simply because she has lost election, that certain bundle of votes were taken out from the bundle in her favour and added to the votes cast in favour of the petitioner to make her win. The allegation is wholly vague and without any foundation allegation and on this allegation no order of recounting could have been ordered.

The Prescribed Authority in the impugned order also has not referred to any particular irregularity committed in the process of counting. The only assumed irregularity which has persuaded by him in passing the impugned order is that the Assistant Returning Officer, Pradeep Kumar Gupta was replaced on the date of counting by Rajesh Kumar Srivastava without there being any order of the Election Officer. However, as already discussed above the Assistant Returning Officer Pradeep Kumar Gupta was replaced by Rajesh Kumar Srivastava as Assistant Returning Officer under the Scheme of Randomization under the orders of the State Election Commissioner and information to that effect was given to the Assistant Returning Officers one hour before the commencement of counting and there is a clear order of Chief Development Officer to that effect on 11.12.2015 and none of the respondents have denied that the order of 11.12.2015 passed by the Chief Development Officer posting Rajesh Kumar Srivastava in village Saatha was not on record. All that has been stated in the affidavits of Markandey Shahi, the current District Magistrate and Hakim Singh, the current Chief Development Officer are that Instructions dated 06.11.2015 of the then District Magistrate is not on record. Both these Authorities admitted that the order dated 06.11.2015 has been passed in compliance of the directions of the District Magistrate/District Election Officer, Sant Kabir Nagar. Paragraph 3 of the affidavit of Hakim Singh, the present Chief Development Officer is quoted below:

"3. That the order dated 11.12.2015 has been passed in compliance of the direction of the District Magistrate/District Election Officer, Sant Kabir Nagar and no written order of District Magistrate/District Election Officer, Sant Kabir Nagar or observer of Panchayat Election, 2015 in this regard is available in the office of Chief Development Officer, Sant Kabir Nagar. Copy of the order dated 11.12.2015 is being filed herewith and marked as ANNEXURE NO.1 to this affidavit."

Paragraph 6 of the affidavit of Markandey Shahi, the present District Magistrate is quoted below:

"6. That further it is stated that there is no record available in the office of District Magistrate, Sant Kabir Nagar which shows that any instruction was issued to Chief Development Officer/O.C. Personnel to do Randomization on 11.12.2015 a day before the scheduled date of Randomization."

One more notable fact is that the list of Assistant Returning Officer was prepared on 9.11.2015 but after 11.12.2015, Annexure C.A.1 to the personal affidavit of Hakim Singh, the persons shown in the list of 9.11.2015, Annexure-2 to the counter affidavit filed by the respondent no 2 and 3, have been allotted different Nyay Panchayats which shows that randomization had been applied to all the persons and to all the Nyay Panchayats by reshuffling and not only in the Nyay Panchayat Saatha. By way of illustration it may be noted that Rajesh Kumar ARO Baurvyas in the list of 9.11.20125 has been posted at Mehdupar whereas Ajay Kumar Yadav, who was earlier in the Mehdupar has now been given Nandaur. Similarly, Tej Pratap who was earlier posted at Dharamsinghva has now been posted at Motipur and one Shri S.K. Rai has been posted at Dharamsinghva. Similarly, Shesh Nath Rai, who was earlier posted at Chavrahi has now been posted at Kulwariya. This goes to show that the process of randomization was not confined only to Nyay Panchayat Saatha but was applied uniformly to all the Nyay Panchayats under the orders of the then District Magistrate and therefore merely because Rajesh Kumar Srivastava was posted in Saatha in place of Pradeep Kumar Gupta it cannot be alleged that there was any illegality much less irregularity in the counting held on 13.12.2015.

There is another aspect of the matter that no objection or application in writing was ever submitted by the respondent no.1 to the Electoral Officer at the close of the counting and it is only after the result was declared and when she was declared unsuccessful that the election petition was filed by her.

Therefore on a conspectus of facts of the case and the judgment of the Supreme Court the impugned order of the Sub Divisional Magistrate/Prescribed Authority dated 19.07.2017 is wholly illegal, arbitrary and without jurisdiction and is accordingly set aside.

The writ petition stands allowed.

Parties shall bear their own cost.

Order Date :- 20th April, 2018

N Tiwari