Prem Sheela vs Prescribed Authority/Sub ...
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HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED
 
A.F.R.
 
Court No. 30
 

 
Case :- WRIT - C No. - 40986 of 2018
 

 
Petitioner :- Prem Sheela
 
Respondent :- Prescribed Authority/Sub Divisional Magistrate And 8 Others
 
Counsel for Petitioner :- Alok Kumar Yadav
 
Counsel for Respondent :- C.S.C.,Arvind Kumar Upadhyay,Manu Khare
 

 

 
Hon'ble Vivek Kumar Birla,J.

1. Heard Sri Alok Kumar Yadav, learned counsel for the petitioner and Sri M.D. Singh Shekhar, learned Senior Counsel assisted by Sri Manu Khare, learned counsel appearing for the respondent no. 2 and perused the record.

2. Pleadings between the parties have been exchanged and with their consent, present petition is being disposed of finally at this stage itself.

3. The present writ petition has been challenging the impugned order dated 3.12.2018 passed by the respondent no. 1-Prescribed Authority/Sub Divisional Magistrate, Ghosi, District Mau.

4. Necessary facts have already been noticed by this Court in Writ-C No. 53054 of 2017 (Prem Sheela (Smt.) vs. Prescribed Authority/Sub Divisional Magistrate and 8 others) in its order dated 14.8.2018 and the same are being taken note of for the purpose of disposal of the present petition. The said order dated 14.8.2018 is quoted as under:

"1. Heard Sri Alok Kumar Yadav, counsel for the petitioner and Sri Manu Khare, representing respondent No.2.

2. The petitioner is the elected Gram Pradhan of Gram Panchayat Kalyanpur, District Mau and was declared elected by one vote against respondent No.2. Respondent No. 2 filed Election Petition No. 4 of 2015 challenging the election of the petitioner. It appears from the records that in his election petition, respondent No. 2 had pleaded that 19 persons were enrolled as voters in two constituencies i.e. Kalyanpur and Ghoghwal Rampur and had voted in both the constituencies and therefore, their votes were void and could not be counted. On the basis of the aforesaid averment, respondent No. 2 had pleaded that votes polled in Gram Panchayat Kalyanpur be recounted after excluding the votes of the aforesaid 19 persons. On an application dated 25.04.2016 filed by respondent No.2, marked copies of the electoral roll were inspected by the Prescribed Authority and an inspection memo was prepared which revealed that out of 19 voters enrolled at both the constituencies, 10 voters had actually taken ballot papers in both the constituencies namely, Ghoghwal Rampur and Kalyanpur Gram Panchayat. Respondent No. 2 i.e. the election petitioner filed an application dated 12.06.2017 praying that the ballot boxes be inspected so as to ascertain with certainty as to whether the 10 voters who had been found to have taken the ballot papers had actually voted at the two polling booths. The Election Tribunal i.e., the Prescribed Authority, however, presumed that the 10 voters who had been shown to have been issued ballot papers in both the constituencies must have actually voted in both the constituencies and therefore, vide his order dated 30.10.2017 directed for a recount on the ground that the votes of said 10 voters would be void. The order dated 30.10.2017 passed by the Prescribed Authority in Election Petition No. 04 of 2015 has been challenged in the present writ petition.

3. It appears from the record that when the case was heard on 10.05.2018, the counsel for the petitioner had argued that the Election Tribunal/Prescribed Authority could not have presumed that the 10 voters who had been issued ballot papers in both the constituencies had actually voted in both the constituencies and, therefore, the order dated 30.10.2017 passed by the Prescribed Authority was liable to be set aside. This Court vide its order dated 10.05.2018, finding force in the submissions of the counsel for the petitioner, directed that the ballot papers of the 10 voters be inspected to ascertain as to whether any of the said 10 voters had actually cast their votes in both the constituencies. It also appears from the record that after inspection of the ballot papers by the Election Tribunal, it was found that votes had actually been cast on the 10 ballot papers in both the constituencies. By its order dated 29.05.2018 passed by this Court, the petitioner and the respondents were permitted to lead their evidence before the Prescribed Authority to ascertain as to whether the 10 votes cast in both the constituencies were actually cast by the same voters or the ballot papers had been issued to imposters. The Prescribed Authority was directed to submit his finding on the basis of evidence led by the parties in pursuance to the order dated 29.05.2018 passed by this Court. The Prescribed Authority, vide his order/report dated 20.07.2018, has reported that, on the basis of evidence led by the parties, it was difficult for him to draw any conclusion as to whether the 10 voters, who were issued ballot papers in the two constituencies, had actually voted in both the constituencies or the votes were cast by imposters.

4. The counsel for the petitioner has argued that on the basis of the report/order dated 20.07.2018 passed by the Prescribed Authority, the writ petition is liable to be allowed and the order dated 30.10.2017 passed by the Prescribed Authority directing recount of votes is liable to be set aside inasmuch as any of the 10 votes cast in Gram Panchayat Kalyanpur and Ghoghwal Rampur cannot be declared void without a finding that any of the 10 voters had actually cast their votes both in Kalyanpur and Ghoghwal and the said votes were not cast by imposters.

5. On the other hand, Sri Manu Khare, counsel for respondent No. 2 has challenged the findings of the Prescribed Authority as recorded in his order/report dated 20.07.2018 and has argued that from the evidence available on record, it was evident that there were duplicate voters and there were 10 persons who had cast their votes both in Kalyanpur and Ghoghwal Rampur. It has been argued by the counsel for respondent No.2 that for the said reason, the writ petition is liable to be dismissed.

6. It is evident from orders dated 10.05.2018 and 29.05.2018 passed by this Court that no order for recount of votes could have been passed on the plea of respondent No.2 without a finding that any of the 19/10 voters who were enrolled in both the constituencies namely Kalyanpur and Ghoghwal Rampur had actually voted in both the constituencies and votes were not cast by any imposter. A finding on the aforesaid issue had to be recorded by the Prescribed Authority after considering the evidence available before him. Evidently, the order dated 30.10.2017 passed by the Prescribed Authority cannot be sustained on the reasons given in the said order dated 30.10.2017 and a fresh order has to be passed by the Prescribed Authority considering all the evidence available on record including the evidence produced by the parties after the order dated 29.05.2018 passed by this Court. It would serve no useful purpose to direct the Prescribed Authority to record a fresh finding and submit it to this Court to enable this Court to adjudge the legality of the order dated 30.10.2017 passed by him.

7. In view of the aforesaid reasons, the order dated 30.10.2017 passed by the Prescribed Authority i.e. the Sub-Divisional Magistrate, Ghosi District Mau in Election Petition No. 04 of 2015 is hereby, set aside. The matter is remanded back to the Prescribed Authority to pass fresh orders in Election Petition No. 04 of 2015 after considering all the material available on record within a period of two months from the date a certified copy of this order is produced before him.

8. With the aforesaid observations, the writ petition is disposed of."

(Emphasis supplied)

5. Submission of Sri Alok Kumar Yadav, learned counsel for the petitioner is that the the petitioner won the election for Gram Panchayat, Kalaynpur by one vote by securing 544 votes while the respondent no. 2 secured 543 votes. After highlighting the facts as marked in the above quoted order he submitted that this Court directed the tribunal vide order dated 29.5.2018 to allow the parties to lead evidence and establish whether 10 persons voted at Gram Sabha Ghoghwal Rampur as well or it was by imposter. It is submitted that both the parties thereafter led evidence and respondent no. 2 examined Kamlesh Yadav s/o Sri Sarvan Yadav and Babban Yadav s/o Sri Triveni who categorically stated that they have not seen the persons who have voted at Gram Sabha Ghoghwal Rampur. Other witnesses, namely, Santosh Kumar and Ram Pravesh although stated in their examination in chief that they saw the said persons voting at Ghoghwal Rampur but in cross-examination they denied and admitted that what they have stated earlier was incorrect. Thereafter the tribunal, on the basis of aforesaid statements, returned a finding on 20.7.2018 that election petitioner (respondent no. 2) failed to establish whether 10 persons voted at two constituencies. Writ petition filed by the petitioner being Writ Petition No. 53054 of 2017 was allowed by this Court vide order dated 14.8.2018 and this Court, while quashing the order dated 30.10.2017 whereby recounting was directed, directed the tribunal to determine that 10 voters, who were found by inspection memo to have voted at two constituencies, had, in fact, voted or voting at one place was by imposter and thereafter without there being any evidence to aforesaid effect the election tribunal by impugned order dated 3.12.2018 held that 10 votes were void and therefore, it directed for recounting votes, and pass fresh order after considering the material on record.

6. The crux of the argument of learned counsel for the petitioner is that burden was on the election petitioner to prove that ten persons have voted at two constituencies; there was no material before the Court below to record any such finding as no evidence was given by the election petitioner to prove the same; in fact no finding of fact has been recorded in this respect and, therefore, adverse inference has wrongly been drawn by the Tribunal; the impugned order has not been passed as per mandate of the remand order of this Court dated 14.8.2018; the Tribunal has wrongly shifted the burden of proof by ten persons who have been alleged to vote in two constituencies and has wrongly drawn adverse inference because they have failed to appear; action of the tribunal is in violation of the order 16 Rule 10(2) CPC; hand-writing expert was inconclusive; the tribunal committed a mistake in comparing the signature himself; small margin of one vote by itself is not sufficient to order to recounting; and lastly it was submitted that merely because the name of voters appears at two places and they were not residents of Gram Sabha Kalyanpur, therefore, they were not entitled to cast their votes itself is not a ground to challenge the election petition. Submission, therefore, is that the impugned order is liable to be quashed.

7. In support of his submissions, learned counsel for the petitioner has placed reliance on the judgement of Hon'ble Apex Court rendered in the cases of Ponnala Lakshmaiah vs. Kommuri Pratap Reddy and others, (2012) 7 SCC 788, P.K.K. Shamsudeen vs. Kam Mappillai Mohindeen and others, 1989 AIR (SC) 640, Kattinokkula Murali Krishna vs. Veeramalla Koteswara Rao and others, (2010) 1 SCC 466, Ayyappally Mohd. Haji and others vs. M.M. Abdulsalam and others, (2001) 2 SCC 428, Hari Prasad Mool Shanker Trivedi vs. B. Raju and others, 1973 AIR (SC) 2602, I. Vikheshe Sema vs. Hokishe Sema, (1996) 4 SCC 53, Shyam Deo Prasad Singh vs. Nawal Kishore Yadav, (2000) 8 SCC 46, Mudi vs. State Election Commission, UP Lucknow and others, 2000 (41) A.L.R., Smt. Kamlesh Devi and others vs. State of U.P. and others, 2016 (1) ADJ, Union of India vs. Ibrahim Uddin and others, (2012) 8 SCC and Arikala Narasa Reddy vs. Venkata Ram Reddy Reddygari and others, (2014) 5 SCC 312.

8. Per contra, Sri M.D. Singh Shekhar, learned Senior Counsel assisted by Sri Manu Khare, learned counsel for the respondent no. 2 submits that four witnesses, namely, Kamlesh Yadav and Babban Yadav from Gram Panchayat Kalyanpur and Santosh Kumar Singh and Ram Parvesh Singh from Gram Panchayat Ghoghwal Rampur, were produced as witnesses who have also proved that ten persons did cast their votes in two constituencies; the petitioner did not file any evidence whatsoever in support of his case; the prescribed authority issued summons to ten persons who have cast their votes at both the places, which were duly served, however, only three persons namely, Indrasan, Parashuram, Suryabhan appeared before the Court; there was sufficient material in the election petition to order recounting as reflected from paragraph specifically 8 (b) of the election petition; the election petitioner has discharged his burden to prove that ten persons cast their votes at two constituencies simultaneously and that the election petitioner has to prove the charge not by bringing an impossible evidence but is to collectively demonstrate that the election was materially affected; there was smallest margin of one vote and therefore, in the facts and circumstances there was sufficient material to order recounting; the provisions of Order 16 Rule 10 (2) CPC regarding issuing a proclamation upon service is discretionary and not mandatory and such non-issuance of proclamation as referred to above does not adversely affect the order under challenge; it is the settled law that principle of "purity of election" is supreme and the doctrine of "secrecy of ballot" cannot stand in the way of the principle of "purity of election"; there was merely bald denial in written statement filed by the petitioner which has to be treated as admission in terms of Order 8 CPC; there was no pleadings with regard to voting by imposter at Gram Panchayat Ghoghwal Rampur and therefore, the petitioner cannot be permitted to argue beyond hid pleadings; and it was further submitted that the tribunal is fully entitled to compare the signatures of ten persons from the documents before him and such finding cannot be challenged. Submissions, therefore, is that the presnt petition is devoid of merits and liable to be dismissed.

9. Learned counsel for the respondents have placed reliance on the judgements rendered in the cases of Rekha Rana vs. Jai Pal Sharma and others, (2009) 17 SCC 115, Vikheshe Sema vs. Hokishe Sema, (1996) 4 SCC 53, S. Harcharan Singh vs. S. Sajjan Singh and others, (1985) 1 SCC 370, Charan Singh vs. Choudhary Shiv Ram Verma and others, (1975) 4 SCC 393, Mange Ram vs. Mohan and others, (1983) 4 SCC 36, Vinod Kumar Arora vs. Surjit Kaur, (1987) 4 SCC 711, Ram Chandra Sharma Educational Trust vs. A.K. Misra, AIR 2003 Alld 96 and Kamala Devi vs. State of UP and others, (2009) 4 AWC 4125.

10. I have considered the rival submissions and have perused the record.

11. Before proceeding further, it would be relevant to note the contents of paragraph 8 (c) of the election petition and paragraph 9 of the written statement, which are quoted as under:-

Paragraph 8 (c) of the election petition:

"c D;ksafd xzke dY;kuiqj dh ernkrk lwph esa 19 ,sls ernkrkvksa ds uke tksM+ fn;k x;k tks okLro esa xzke iapk;r dY;kuiqj ds fuoklh gh ugha gSA okLro esa mDr 19 ernkrk xzke iapk;r ?kks?koy &jkeiqj fodkl [k.M o rglhy ?kkslh ftyk eÅ ds fuoklh gS rFkk xzke iapk;r ?kks?koy jkeiqj fodkl [k.M o rglhy ?kkslh ftyk eÅ ds ernkrk lwph esa ernkrk Hkh gSSA

blls Hkh vk'p;Z dk fo"k; ;g gS fd mDr lHkh ernkrkvksa ds erksa dk ernku Hkh nksuksa xzke iapk;rksa esa gqvk gSA mDr 19 QthZ ernkrk foi{kh la0 1 }kjk o lEcfU/kr vgydkjkau dh nqjHk lfU/k ls xzke iapk;r dY;kuiqj dh ernkrk lwph esa lfEefyr fd;s x;sA tks xzke iapk;r dh ernkrk lwph esa lfEefyr gksus ds lkFk gh foi{kh laa0 1 dks ernku fnol dks mifLFkr gksdj ernku Hkh fd;sA tks voS/k ernku gSA mDr 19 QthZ ernkrkvkas dh lwph uEcj lfgr layXu dh tk jgh gS tks orZeku pquko dk layXud 5 gSA"

Paragraph 9 of the written statement:

"tokc nsoh izfrokn i= izfrokfnuh izFke i{k fuEu gS

1- ...........

2- ..........

9- nQk 8 dk iSjk v] c] l] ;] j] y ftl rjg ls rgjhj gS bUdkj gSA

10- .............."

12. It is also relevant to note that in the report of the Sub Divisional Magistrate dated 20.12.2016 prepared after inspection of the marked copies of the ballot paper, which was prepared in presence of both sides, it was found that at serial no. 2, 3, 5, 6, 11, 12, 13, 14, 15 and 17, total 10 voters have cast their vote in both the constituencies i.e. Ghoghwal Rampur and Baniyapar. In the subsequent report, in the second inspection report dated 24.5.2018 prepared in the light of the order passed by this Court dated 10.5.2018 quoted in the impugned order itself, clearly states that at serial no. 02, 03, 05, 06, 11, 12, 13, 14, 15 and 17, total 10 voters have cast their vote at booth no. 41 Ghoghwal Rampur and booth no. 6 Baniyapar. The order dated 2.12.2016, by which Sub Divisional Officer has directed for preparation of inspection memo passed by the election tribunal, was challenged before this Court by filing Writ-C No. 58308 of 2016, which was dismissed by this Court vide order dated 25.4.2017. Subsequently, the written statement was filed by the petitioner. On 12.9.2017 nine issued were framed by the tribunal. Issue no. 3 was whether 10 voters have cast their votes in two gram panchayats, namely Kalyanpur and Ghoghwal Rampur and therefore, their votes are illegal and void on both the places. Subsequently, vide order dated 30.10.2017 recounting was directed. The aforesaid order was challenged by the petitioner before this Court by filing Writ-C No. 53054 of 2017 (Prem Sheela (Smt.) vs. Prescribed Authority/Sub Divisional Magistrate and 8 others). Vide order dated 10.5.2018 passed in the aforesaid petition it was directed that the inspection of ballot boxes be done in the presence of the candidates or their various agents. This order was challenged in Special Leave Petition No. 14118 of 2018 which was dismissed vide order dated 24.5.2018 with the observation that all questions of law may remain open at the time of final hearing of the writ petition. Thereafter an order dated 29.5.2018 was passed, which is quoted as under:-

"The inspection memo reveals that ten voters had been issued ballot papers at two polling booths and that duplicate voting had been done by them at two different booths.

The petitioner and the respondents may lead their evidence to ascerain as to whether the ten voters were actually the voters who had voted at the two booths or the ballot papers had been issued to imposters.

This exercise shall be completed within two weeks.

Put up on 2.7.2018 in the additional cause list.

The interim order dated 10.11.2017 is being modified. The election petition now may proceed. However, the recounting of the ballot papers will not be done."

13. The aforesaid order clearly reveals that it was found that ten voters had been issued ballot papers at two polling booths and that duplicate voting had been done by them at two different booths. The interim order was accordingly modified that the election petition may now proceed but the recounting of ballot papers will not be done. Ultimately, the aforesaid petition was finally decided by this Court vide judgement and order dated 14.8.2018 quashing the order dated 30.10.2017 passed by the prescribed authority and the matter was remanded back to pass fresh orders after considering all the materials available on record within two months. In pursuance of the aforesaid order, the impugned order was passed.

14. It may also be noticed that the tribunal has noticed the fact that the hand-writing expert report is inconclusive in nature and therefore, he proceeded to pass fresh orders in the light of order of this Court.

15. Before proceeding further, it would also be relevant to take note of the relevant judgements cited by the learned counsel for the parties.

16. Reference may be made to the following judgements relied on by learned counsel for the petitioner:

In Ponnala Lakshmaiah (supra), Hon'ble Apex Court has laid down that burden lies on the election petitioner to prove the allegations made by him in the election petition, whether the same relate to commission of any corrupt practice or proof of any other ground urged in support of the petition has to be discharged by him at the trial.

In P.K.K. Shamsudeen (supra) (paragraph 13), it was laid down that before ordering recounting of votes a prima facie case of high degree of probability existed for the recount of votes being ordered by the Election Tribunal in the interests of justice must be seen.

In I. Vikheshe Sema (supra), it was laid down that mere inclusion of names of voters at more than one place would not ipso facto render all those votes as void and he has a right to choose as to where he may vote but this right can be exercised by him only once.

In Ibrahim Uddin (supra), it has been observed when adverse inference can be drawn.

17. Now reference may be made to the following judgements relied on by learned counsel for the respondents:

In Rekha Rana (supra) (in paragraphs 13, 20 and 21), Hon'ble Apex Court lays down that the "purity of election" principle must have its way and that the "rule of secrecy" as contemplated in Section 94 of the Act, cannot be pressed into service to suppress a wrong coming to light and to protect a fraud on the election process.

A reliance was placed on paragraph 9 in Vikheshe Sema (supra), which is already noticed above.

S. Harcharan Singh (supra) ( paragraph 64) has been referred to regarding standard/degree of proof.

Charan Singh (supra) (paragraph 6) was referred for the purpose that where the difference is microscopic, the stage is set for recount given some plus point of clear suspicion or legal lacuna militating against the regularity, accuracy, impartiality or objectivity bearing on the original counting.

In Mange Ram (supra) ( paragraph 9) it has been held that the Order 16 Rule 10 uses the word "may" and it is not mandatory for the Court to issue proclamation in every case.

In Vinod Kumar Arora (supra) (paragraph 11 ), Hon'ble Apex Court held that in absence of pleadings no different case can be made out by a party.

In Ram Chandra Sharma Educational Trust (supra) (paragraph 9), it was laid down that under Section 73 of Indian Evidnece Act the Court can compare the signature.

In Kamla Devi (supra) (paragraph 11), it was laid down by Hon'ble Apex Court that election tribunal should be satisfied that there is strong prima facie case where recounting should be directed.

18. Before proceeding further, it is observed that there is no quarrel with the law as referred by both the learned counsel for the parties. It is, however, to be seen as to whether the impugned order is sustainable in the eye of law as per the law referred to above.

19. At the cost of repetition, before proceeding further, it would be appropriate to summarize the law in few lines. It is settled that there has to be averment and material in the election petition itself for the purpose of recording prima facie satisfaction before passing an order of recount about the existence of the ground on which election petition is being sought to be challenged; there should be strong prima facie case raising suspicion about the election; principle of "purity of election" must have its way over the 'rule of secrecy' of ballot papers; if the difference is microscopic, there is all the more reason directing recount when point of clear suspicion or legal lacuna is reflected regarding regularity, accuracy, impartiality or objectivity of the original counting; election tribunal should be satisfied that there is strong prima facie case where recounting is to be done; mere existence of names of certain voters in two constituencies itself is not sufficient to order recounting as a voter has right to exercise his franchise at one place, however, if he cast his vote in both the constituencies, his vote would be void in both the constituencies; and before ordering recounting of votes a prima facie case of high degree of probability should exist.

20. Similarly, undisputed facts emerging from perusal of record are that specific allegation was made in paragraph 11 (b) (ground of challenge) of the election petition to which there was only a bald denial in paragraph 9 of the written statement. Specific allegation was that the names of 19 voters have been included in the voter list of Gram Panchayat Kalyanpur who are not residents of Gram Panchayat Kalyanpur and are, in fact, the resident of Gram Panchayat Ghoghwal Rampur andt that they have voted in favour of the elected Pradhan in Kalyanpur; the two inspection reports dated 20.12.2016 and subsequent report dated 25.5.2018 clearly established that 10 voters at serial no. 2, 3, 5, 6, 11, 12, 13, 14, 15 have cast their vote at booth no. 41 Ghoghwal Rampur as well as booth no. 06 Baniyapar; the plaintiff has produced three witnesses and they were cross-examined but the petitioner herein did not produce any witness; when the matter was remanded back to the tribunal by this Court vide order dated 14.8.2018 after quashing the order dated 30.10.2017 passed by the tribunal, 10 persons who have cast their vote at two constituencies, were issued notices, out of which only three had appeared and seven persons failed to appear before the tribunal; vide order dated 6.7.2018 these 10 voters were given notice to the effect that they should come forward with evidence and clarify why they have voted in both Gram Panchayats, namely, Ghoghwal Rampur and Kalyanpur; in cross-examination it was found that all the ten voters belong to one family and despite of the specific notice none of them produced any evidence that they have not voted in both the Gram Panchayats on the same day simultaneously.

21. It may be true that mere inclusion of names of 19 voters in Gram Panchayat Kalyanpur and existence of their names in two constituencies may not be material generally, however, if they have cast in both the constituencies, as per settled law, the same becomes material and the franchise so used becomes void. It is also not in dispute that hand-writing expert report was called for, however, the same was inconclusive as the impressions could not have been compared. It cannot be disputed that the power of the Court to compare the signatures itself is provided under Section 73 of the Indian Evidence Act and in the facts and circumstances of the present case, such exercise cannot be faulted with in view of the law settled by the Hon'ble Apex Court as noted above.

22. Learned counsel for the petitioner has asserted that in cross-examination the plaintiff witnesses have not supported the case of the petitioner and have denied the knowledge of voting by such voters at Ghoghwal Rampur. Suffice to say that plaintiff witness Kamlesh Yadav is resident of Kalyanpur and has categorically stated that the persons included in the list of 10 such voters have cast their vote at Kalyanpur and since he is resident of Kalyanpur and was at polling booth Kalyanpur there was no reason for him to certify that he has seen such voters casting their vote at Ghoghwal Rampur. Similar is the case with the plaintiff witness Babban Yadav who is also resident of Baniyapar. Similarly, witness Santosh Kumar, who is resident of Ghoghwal Rampur, has certified to the effect that certain voters included in the list of 10 persons have cast their vote at Ghoghwal Rampur and obviously for the same reason as he was at Ghoghwal Rampur, could not certify their voting at Kalyanpur.

23. In such view of the matter, I find that there was sufficient allegation and material in the election petition and after the inspection report certified that 10 voters have cast their vote, out of which 7 persons have not turned up despite of the notice issued by the Court, the tribunal was justified in recording prima facie case of high degree for ordering recount, more so, when the margin was microscopic in nature. A reference in this regard may also be made to judgement of Hon'ble Apex Court in the case of M. Chinnasamy vs. K.C. Palanisamy and others, (2004) 6 SCC 341; judgement of this Court dated 3.5.2017 passed in Writ-C No. 18599 of 2017 (Smt. Harmaya vs. State of UP and 5 others); and in Bhagwati vs. State of UP and others, 2005 (1) AWC 732.

24. I, therefore, find that apart from making specific allegation in placing sufficient material in the election petition itself plaintiff has discharged its burden to prove his case. Insofar as the vote cast by any imposter is concerned, there was no such pleading in the case and the petitioner herein failed to prove this case. This Court may have observed regarding casting of vote by imposter, however, even thereafter no effort was made by the petitioner to lead any evidence on that. On the contrary, the evidence before the Court was sufficient to hold that the ten voters have actually cast their vote as held by the tribunal.

25. For the reasons discussed hereinabove, I do not find any good ground to interfere in the impugned order.

26. Present petition is devoid of merit and is accordingly dismissed.

27. No order as costs.

Order Date :- 3.5.2019

Abhishek