Allahabad High Court
Smt. Aashma vs State Of U.P. And 16 Others on 10 November, 2022
Bench: Prakash Padia
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 9
Case :- WRIT - C No. - 33675 of 2022
Petitioner :- Smt. Aashma
Respondent :- State Of U.P. And 16 Others
Counsel for Petitioner :- Siddharth Nandan,Imtiaz Husain
Counsel for Respondent :- C.S.C.
Hon'ble Prakash Padia,J.
Heard Shri Siddharth Nandan, learned counsel for the petitioner, learned Standing Counsel for the respondents no.1 to 3 and Shri Shailesh Pandey, Advocate, along-with Shri Jaffar Abbas, learned counsel for the respondent no.5.
The petitioner has preferred present writ petition inter-alia with the prayer to quash the order dated 29.10.2022 passed by respondent no.2 in Election Petition No.T202113540205746 (Smt. Fatma Vs. Smt. Ashma and others) and the consequential order dated 29.10.2022 passed by the respondent no.2.
It is argued by Shri Siddharth Nandan, learned counsel for the petitioner that the order impugned passed by the respondent no.2 namely Prescribed Authority/Sub Divisional Magistrate, Bilari, District Moradabad is absolutely illegal. It is further argued that no evidence whatsoever has been led during the arguments in the election petition and without leading any evidence order impugned has been passed directing for recounting of ballot papers. It is further argued that the order impugned is absolutely non speaking order and no independent findings has been recorded in the election petition. He also placed reliance upon judgment of the Coordinate Bench of this Court in the case of Yogendra Yadav Vs. State of U.P. and others passed in Writ C No.3674 of 2022.
In so far as the arguements made by Shri Siddharth Nandan, learned counsel for the petitioner that the order impugned dated 29.10.2022 passed by the respondent no.2/Prescribed Authority/Sub Divisional Magistrate, Bilari, District Moradabad has been passed without leading any evidence, this fact has not been denied by the learned counsel appearing on behalf of respondents.
It reveals from perusal of the record that the opposite party no.5 challenged the election of the petitioner by filing the election petition under Section 12-C of the U.P. Panchayat Raj Act, 1947 before the Sub Divisional Magistrate, Bilari, District Moradabad on 12.07.2021. The Sub Divisional Magistrate, Bilari, District Moradabad has passed the impugned order for recounting of votes. The aforesaid order has been passed only on the basis of averments made in the election petition and in the objections without the parties having led evidence in support of their respective pleadings.
It is settled law that recounting cannot be ordered on mere asking, without recording a finding that any irregularity had been committed during counting of the ballot papers.
Keeping in view of the aforesaid discussion, the order impugned order 29.10.2022 passed by respondent no.2 in Election Petition No.5746 of 2021, Computer Case No.T202113540205746 (Smt. Fatma Vs. Smt. Ashma and others) under Section 12-C of the U.P. Panchayat Raj Act, 1947 is not sustainable in law and is accordingly quashed.
The Sub Divisional Magistrate, Bilari, District Moradabad is directed to proceed to decide the aforesaid election petition filed under Section 12-C of the U.P. Panchayat Raj Act, 1947 expeditiously and preferably within a period of four months strictly in accordance with law after giving opportunity to the respective parties to lead evidence in support of their respective case.
Learned Additional Chief Standing Counsel will inform regarding the order passed today to the respondent no.2/Prescribed Authority/Sub Divisional Magistrate, Bilari, District Moradabad through District Magistrate, Moradabad today itself.
Order Date :- 10.11.2022
Pramod Tripathi
