Parmeshwar Prasad vs Incharge Distt. Judge Bahraich ...
2023 Latest Caselaw 10803 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 7
 
Case :- WRIT - C No. - 2857 of 2023
 

 
Petitioner :- Parmeshwar Prasad
 
Respondent :- Incharge Distt. Judge Bahraich And 9 Others
 
Counsel for Petitioner :- Mohan Singh,Shobhit Mohan Shukla
 
Counsel for Respondent :- Amrendra Nath Tripathi,Ashish Raman Mishra,Atul Kumar Dubey,C.S.C.
 

 
Hon'ble Rajnish Kumar,J.

1. Heard Sri Shobhit Mohan Shukla, learned counsel for the petitioner alongwith Sri Nagendra Khare, Advocate and Sri Mohan Singh,Advocate and Sri Amrendra Nath Tripathi, learned counsel for the respondent no.3 renumbered as 2 alongwith sri Ashish Raman Mishra, Advocate.

2. This petition has been filed challenging the order dated 03.04.2023 passed by the Prescribed Authority/ Sub Divisional Magistrate, Tehsil Payagpur, District Bahraich/respondent no.1 in Election Petition No.2876 of 2021(Vivek Kumar Singh versus Parmeshwar Prasad and others), contained in Annexure No.2 to the petition, by means of which a direction has been issued for re-counting and the order dated 05.04.2023 passed by the Incharge District Judge, Bahraich in Revision No.32 of 2023, contained in Annexure No.1 to the writ petition, by means of which the revision filed by the petitioner against the aforesaid order has been dismissed as not maintainable.

3. Submission of learned counsel for the petitioner is that the petitioner is the elected Gram Pradhan of Village Panchayat Shambhu Tikari, Block Payagpur, District Bahraich. The impugned order dated 03.04.2023 has been passed by the Prescribed Authority/Sub Divisional Magistrate, Tehsil Payagpur, District Bahraich/ respondent no.1(hereinafter referred to as the Prescribed Authority) without considering the pleadings and the evidence on record. He further submits that the the petitioner has got 341 votes in the counting and the respondent no.2 334 votes. Accordingly, the petitioner won the election by a margin of 7 votes and the margin of votes cannot be a ground for direction for recounting of votes. He further submits that the election petition filed by the respondent no.2 is not in accordance with the Rules as the material pleadings for recounting have not been made and without any proof of allegations by the respondent no.2, the impugned order has been passed. He further submits that 8 issues were framed in the election petition. The issues no.1,2,3 and 4 are inter connected. The issues no. 2,3 and 4 have been decided in negative and against the respondent no.2. Even then the issue no.1 has been decided in favour of the petitioner and recounting has been directed, which could not have been done. He further submits that the Assistant Returning Officer(hereinafter referred to as the A.R.O.) was examined but his evidence has not been considered while deciding the impugned order. The A.R.O. has stated that election has been held in fair and proper manner and no application for re-counting was moved by the petitioner but it has not been considered. The issue no.1 has been decided recording a prima facie satisfaction, whereas the final order cannot be passed recording a prima facie satisfaction.

4. On the basis of above, learned counsel for the petitioner submits that the impugned order contained in Annexure No.2 is not sustainable in the eyes of law. He further submits that by means of the impugned order, a final decision has been taken in regard to the recounting of votes, therefore the revision was maintainable but it has wrongly and illegally been dismissed as not maintainable. However, he submits that even if the order passed on the revision is sustainable, the order passed by the Prescribed Authority for recounting is not sustainable, which has also been challenged in this petition and the petition is maintainable against the same, if the revision is not maintainable.

5. Per contra, learned counsel for the respondent no.2 submits that there were serious irregularities and illegalities in the counting. Initially, the respondent no.2 was informed that he has got 340 votes and the petitioner has got 335 votes but thereafter the bungling was done and the result was changed on the ground that there was some mistake and the petitioner got 341 votes and respondent no.2 got 334 votes and the petitioner has been elected, whereas the votes shown in the Form under Part II Rule 104 and 107 does not indicate the name of the petitioner. It indicates the votes of Vivek Kumar Mishra, who did not contest and it does not indicate the name of the petitioner with his correct votes, which itself shows that some bungling was done. He further submits that contention of learned counsel for the petitioner that the respondent no.2 had not made any application for re-counting on 03.05.2021 at the time of counting is fully mis-conceived and not tenable because the petitioner himself has admitted in the petition that the respondent no.2 had moved an application for re-counting before the Election Officer on 03.05.2021 and has also annexed a copy thereof as Annexure No.6 to the petition. However, it has been stated that the application does not indicate the votes gained by the respondent no.2 as well as the winner of the election.

6. He further submits that the respondent no.2 has specifically disclosed the material facts with particulars for recounting in the election petition filed by him and proved the pleadings by adducing the evidence of 4 oral witnesses alongwith documentary evidence referred in the impugned order. The witnesses have supported the case of the respondent no.2 as pleaded in the election petition. He also submits that one of the witnesses produced on behalf of the respondent no.2 i.e. P.W.4, namely, Onkar Nath Mishra was an independent witness and election agent of one other contestant, namely, Pankaj Kumar/ respondent no.4, who has also supported the case of the respondent no.2, whereas the petitioner and his other witness could not contradict the pleadings and evidence adduced by the respondent no.2. Further submission is that the petitioner has specifically stated that he has not seen the counting as he was standing on the back side. After considering the pleadings of the parties and recording specific findings on the issue no.1, which is, ''as to whether irregularities and illegalities has been committed in the counting on the basis of the pleadings in the petition', Prescribed Authority found that illegality and irregularity is shown to have been committed. He also submits that though the word ''prima facie' has been mentioned in the impugned order but in fact the conclusive finding has been recorded for direction for recounting. Therefore, merely mention of prima facie satisfaction would not vitiate the order. He relies on the judgment and order dated 12.04.2019 passed by a Coordinate Bench of this Court in the case of Rajesh Kumar versus District Judge, Sharwasti and others; Misc. Single No.9609 of 2018, in which it has been held that even if most of the issues or all of the issues which had been framed have been decided, the Prescribed Authority is yet to decide the issue as to whether the result of the Election declared on 13.02.2015, by which the opposite party no.3 was elected is required to be declared as void-ab-initio and a nullity and whether the election petition is liable to be allowed or is to be rejected.

7. In rejoinder, learned counsel for the petitioner submits that though the application was moved by the respondent no.2 on 03.05.2021 but it does not disclose as to who did it, what happened and where it was done. He further submits that the evidence adduced before the Prescribed Authority should have been considered and dealt with while deciding the issue for recounting. The reliance placed on the evidence of D.W.2 for recounting is mis-conceived and not tenable for the reason that he has stated only the correct facts, which are not disputed. Lastly, he repeats that prima facie satisfaction cannot be a ground for direction for recounting. He relies on Vadivelu versus Sundaram and others;(2000) 8 SCC 355, Amit Narain Rai versus State of U.P. and others; 2012 SCC Online All 681. He also submits that the judgement relied by learned counsel for the petitioner in the case of Rajesh Kumar(supra) is per incurium for the reason that it does not consider the judgment of the Hon'ble Supreme Court in the case of Vadivelu versus Sundaram(supra).

8. Having considered the submissions of learned counsel for the parties, I have perused the records.

9. The Panchayat Election 2021 was notified, in which the post of Pradhan of Village Panchayat Shambhu Tikari, Block Payagpur, District Bahraich was also notified, which was unreserved. The petitioner, alongwith others i.e. opposite party nos. 2 to 6, filed his nomination for the post of Pradhan of the Village Panchayat in question. As per schedule, the election was held on 29.04.2021. Thereafter the ballot boxes were sealed by the A.R.O. in presence of the contesting candidates, including the petitioner. The counting of votes was done on 03.05.2021, in which the petitioner secured the highest votes i.e. 341 and declared winner, whereas the respondent no.2 secured 334 votes. The respondent no.2 filed the Election Petition under Section 12(c) of the U.P. Panchayati Raj Act, 1947(hereinafter referred to as the Act of 1947). After exchange of pleadings, recording of evidence and hearing, the impugned order dated 03.04.2023 has been passed by the Prescribed Authority, by means of which the recounting has been directed.

10. The petitioner challenged the said order before the District Judge in Revision No.32 of 2023, which has been dismissed as not maintainable. This Court does not find any illegality or error in the order passed by the Incharge District Judge, Baharich on 05.04.2022 on the revision in view of a Division Bench judgment of this Court passed in the case of Mohd. Mustafa versus U.P. Ziladhikari, Phoolpur, Azamgarh and others; 2007(103) RD 282[MANU/UP/0904/2007], in which this Court has held that a revision under Section 12-C(6) of the Act shall lie only against a final order passed by the Prescribed Authority deciding the election application preferred under section 12-C(1) and not against any interlocutory order or order of recount of votes and as a natural corollary a writ petition would be maintainable against an order of recount passed by the Prescribed Authority.

11. This petition has been filed challenging the order dated 03.04.2023 passed by the Prescribed Authority for recounting also, which can be challenged in the writ petition in view of the aforesaid law laid down by this Court, being the interlocutory order and the revision is not maintainable against the same, therefore the validity of same can be examined by this Court in this petition.

12. The respondent no.2 filed Election Petition with pleading in paragraph 11 that on 03.05.2021, the counting was done in which many irregularities have been committed. In paragraph 12, it has been stated that during the counting, the employees created hindrances in showing the votes to the agent of the respondent no.2 namely Dinesh Pratap Singh and Bhanu Pratap Singh and declared the valid votes in favour of the respondent no.2 as invalid without any cause and invalid votes polled in favour of the petitioner were declared valid. Several objections were raised but the same were not considered and bungling was done in making bundles and despite being asked the same were not shown, therefore the agents called to the respondent no.2 but he was not allowed to go inside. On account of serious irregularities,illegalities and corrupt conduct, the counting was affected completely and in hadbadi and aapadhapi(हड़बड़ी और आपधापी), the surname of the petitioner i.e. the respondent no.2 here in this petition was written as Mishr in place of Singh and the petitioner was declared as elected. The respondent no.2 made oral and written request for re-counting on 03.05.2021, but no action was taken. In paragraph 13, it has been mentioned that in the counting made before the agent of the respondent no.2, the respondent no.2 got 340 votes and the petitioner got 335 votes and it was informed that the petitioner has won but after some time under influence of the petitioner, the employees of counting and A.R.O./ respondent no.6 made bungling in the chart to give undue benefit to the petitioner and stated that some mistake has been committed and told that the respondent no.2 has got 334 votes and the petitioner has got 341 votes in a collusive manner and the petitioner has been declared elected. It has further been stated in paragraph 13 that prima facie, gross illegalities has been committed which can be clarified by recounting and comparing them with the details of votes. The petitioner filed written statement.

13. On the basis of the pleadings, the following 8 issues were framed.

1.क्या याचिका में वर्णीत कथनों के आधार पर मतगणना में अनियमितता व अवैधानिकता बरती गई है, यदि हां तो उसका प्रभाव ?

2. क्या ग्राम पंचायत शम्भूटिकरी का चुनाव शांतिपूर्ण ढंग से सम्पादित नहीं हुआ?

3. क्या उपरोक्त चुनाव अनुचित साधन व प्रतिभाग का परिणाम है?

4. क्या उक्त चुनाव में अवैध व्याक्तियों द्वारा मतदान किया गया?

5. क्या मतगणना अधिकारी / कर्मचारी शम्भूटिकरी के निवासी होने के कारण मतगणना में हेराफेरी की गयी?

6. क्या याचिका आदेश 7 नियम 11 सी०पी०सी० बाधित है?

7. क्या याची द्वारा याचिका में मांगा गया अनुतोष पाने का अधिकारी है?

8. क्या याचिगत विवाद का समाधान न्यायालय पर मतगणना एवं उसके परिणाम के अनुसार हो सकता है?

14. After framing of the issues, the evidence was adduced in which the respondent no.2 got himself examined as P.W.1, Dinesh Pratap Singh as P.W.2, Bhanu Pratap Singh as P.W.3 and Onkar Nath Mishra as P.W.4. P.W.2 and P.W.3 are agent of the respondent no.2, whereas P.W.4 is the agent of the other contestant namely Pankaj Kumar i.e. respondent no.4. On behalf of the petitioner, the petitioner himself got examined as D.W.1 and his agent, Dev Narayan as D.W.2.

15. One of the contention of learned counsel for the petitioner is that the issue nos.1 to 4 are interconnected, therefore once the issue nos. 2 to 4 have been decided in negative and against the respondent no.2, the issue no.1 could not have been decided in favour of the respondent no.2 and recounting could not have been directed. The issue nos. 2,3 and 4 are in regard to the irregularities and illegality in polling, whereas the issue no.1 is in regard to the irregularities and illegalities committed in counting. This Court is of the view that the contention of learned counsel for the petitioner is mis-conceived and not tenable because even if the polling has been done correctly and there was no illegality or irregularity in the same, the counting can be done in an illegal and irregular manner and the result may be effected by the same.

16. The aforesaid pleadings made in the election petition by the respondent no.2 has been supported by the witnesses in their evidence and nothing can be extracted in the cross examination. An objection has been raised by learned counsel for the respondent no.2 that the evidence has not been filed before this Court. In regard to this, learned counsel for the petitioner specifically stated that the evidence recorded in the impugned order is the same as has been adduced, which is not disputed but the same has not been correctly considered and appreciated, therefore there is no dispute in regard to pleadings and evidence disclosed in the impugned order. Even otherwise, learned counsel for the petitioner does not pray for time for filing the same.

17. The P.W.1 to P.W.4, including P.W.4 i.e. Onkar Nath Mishra who is brother of the respondent no.4 i.e. the other contestant namely Pankaj Kumar has also supported the pleadings of the petitioner and stated that the counting was done in the Gaon Sabha on 03.05.2012, which started at 4:00 in the morning. His brother Pankaj Kumar got 293 votes whereas Vinay Kumar got 106 votes, Ram Naresh Maurya got 224 votes, Ashutosh Shukla got 81 votes, Parmeshwar Prasad earlier got 335 votes and Vivek Kumar Singh got 340 votes but subsequently the officers informed that there is some mistake in the counting and second time informed that Vivek Kumar Singh has got 334 votes and the petitioner Parmeshwar Prasad got 341 votes. He also stated that it is wrong to say that no irregularity or illegality has been committed in the counting. Therefore the independent witness, who is not the agent of the respondent no.2, has also supported the plea of the respondent no.2 and learned counsel for the petitioner failed to point out that anything contrary could be extracted by him in cross examination, which may disbelieve his evidence.

18. On the other hand the petitioner, who has got himself examined as D.W.1, stated in his cross examination that he had gone to the place of counting. He had made two agents, one he himself and other Dev Narayan Mishra/D.W.2. He had not seen that the box of which booth was brought first on account of rush. He also could not see as to counting of which booth is going on as he was standing on the back side. He also stated that he cannot say as to how much votes he got on each booth and how much votes were invalid. He also stated that he cannot say as to whether such number of bundles were made as were the contestants or not and stated that the votes which were being obtained by the contestants were being informed. He does not know as to how many employees were there on each table. Vivek Kumar Singh was on second number. Therefore it was stringent fight. The D.W.2 stated in his cross examination that total 1446 votes were polled in all three booths. He was standing at the place of counting alongwith the petitioner. 1379 votes were counted in the counting. Therefore it is apparent that the petitioner could not adduce any substantive evidence in regard to counting because the petitioner and his agent were standing on the back side.

19. Considering the pleadings, evidence and material on record, the Prescribed Authority recorded a finding that the pleadings made in the petition by the petitioner i.e. respondent no.2 found proved by the P.W 1, P.W. 2 and P.W.3 and the independent witness P.W.4 in his affidavit and the cross examination who have also stated that the counting employees declared the valid votes polled in favour of the respondent no.2, Vivek Kumar Singh as invalid and valid in favour of the petitioner and there was bungling in making bundles of votes. They have also stated that counting employees initially informed that the respondent no.2 has got 340 votes and the petitioner got 335 votes but after some time they informed that there was some mistake in counting and the respondent no.2 has got 334 votes and the petitioner has got 341 votes and by collusion, the petitioner has been declared elected. An application for re-counting had been given to the A.R.O. but no receiving was given and it remained unheard. Therefore considering the difference of 7 votes in the petitioner and respondent no.2, and 67 invalid votes and prima facie illegality and irregularity committed by the employees in counting and that the petition has been filed by the respondent no.2 with substantive pleadings and clear grounds which have been proved by the oral and documentary evidence therefore the counting of votes for the post of Pradhan does not seem to be correct, therefore the recounting is liable to be held in accordance with law and accordingly decided the issue positively and directed for recounting of votes. Therefore, firstly it cannot be said that the issue has been decided on the basis of prima facie satisfaction, whereas prima facie satisfaction has been recorded in regard to irregularity and illegality committed by the employees of counting and secondly the issue has been decided after considering the pleadings, material on record and the evidence adduced. Therefore merely because the evidence of A.R.O. has not been considered, cannot be a ground for setting aside the order because as per own admission of the petitioner, the application for recounting was made by the respondent no.2, whereas it has been denied by the A.R.O. in his evidence, which is apparent from perusal of his evidence,which has been placed on record alongwith the supplementary affidavit, relying which it has been argued that his evidence was required to be considered. Thus contention of learned counsel for the petitioner is not tenable and rejected. The relevant findings recorded by the Prescribed Authority in regard to issue no.1(2 appears to have wrongly mentioned by typographical error and oversight) are extracted below:-

वाद बिन्दु संख्या 2 उपरोक्त चुनाव की मतगणना में की गई अनियमितता व अवैधानिकता के कारण उसके प्रभाव से सम्बन्धित विचारण में न्यायालय की राय से याची द्वारा प्रस्तुत याचिका में सारवान तथ्यों का समावेश किया गया है। मुख्य रूप से यह कहा गया है कि मतगणना में मतदान कर्मियों द्वारा याची विवेक कुमार सिंह के वैध मतो को अवैध किया गया तथा विपक्षी परमेश्वर प्रसाद के अवैध मतों को वैध मत मान करके उसके मतो में गणना करना, एजेन्ट के बार-बार कहने के बाद भी मतपत्रों की गड्डी को न दिखाना, याची के एजेन्ट के सामने मतगणना मे माथी को 340 मत प्राप्त होना व विपक्षी संख्या को 335 मत प्राप्त होना बताया गया परन्तु कुछ देर बाद अनुचित प्रभाव में मतगणना कार्मियों व ए०आर०ओ० द्वारा पक्षपात करते हुए मतगणना चार्ट में हेरा फेरी करके याची को 334 मत व विपक्षी सं० 1 को 341 मत प्राप्त होना बताकर मनचाहे ढंग से हारे हुए प्रत्याशी को प्रधान घोषित किया जाना तथा याची के मतगणना अभिकर्ता द्वारा पुर्नमतगणना प्रार्थनापत्र देने पर उसे अस्वीकृत करके विपक्षी सं० 1 परमेश्वर प्रसाद को साजिशन मनचाहे ढंग से प्रधान घोषित कर दिया गया। याची द्वारा याचिका में किये गये उक्त कथनों की पुष्टि याची स्वयं P.W.1 व उसकी तरफ से प्रस्तुत गवाह मतगणना एजेन्ट दिनेश प्रताप सिंह P. W.2 व भानु प्रताप सिंह P. W.3 व उक्त चुनाव में प्रधान प्रत्याशी पद के उम्मीदवार पंकज कुमार के भाई ओंकारनाथ मिश्र P.W.4 (स्वतन्त्र गवाह) के शपथपत्र व जिरह में किये गये कथन से होती है जिसमे उन्होंने मुख्य रूप से यह कहा है कि मतगणना कर्मचारी विवेक कुमार सिंह के मतो को अवैध तथा विपक्षी परमेश्वर प्रसाद के अवैध मतो को वैध मत मानकर गणना कर देते थे मतगणना मे मतपत्रों की गड्डी बनाने में हेराफेरी की गई। मतगणना कर्मियों द्वारा पहले बताया गया कि विवेक कुमार सिंह को 340 मत मिले तथा विपक्षी संo 1 परमेश्वर प्रसाद को 335 मत प्राप्त हुए थोडी देर बाद काउन्टिंग कर रहे कर्मचारी मे बताया कि जोड़-गाँठ में गडबडी हो गई और दुबारा बताया कि विवेक कुमार सिंह को 334 मत व परमेशवर प्रसाद को 341 मत प्राप्त होना बताकर साजिशन प्रधान परमेश्वर प्रसाद को घोषित करवा दिया गया। पुर्नमतगणना प्रार्थनापत्र एजेन्ट द्वारा आर०ओ० को दिया गया परन्तु एजेन्ट को कोई रिसीविंग नहीं दी गई और उस प्रार्थनापत्र पर कोई सुनवाई नही हुई।

P. W.2 दिनेश प्रताप सिंह ने अपने जिरह मे यह भी कहा है कि मुझे व मेरे साथ विवेक कुमार सिंह के एजेन्ट भानुप्रताप को मतगणना स्थान से बिना गड्डी दिखाये, बिना पुर्नमतगणना कराये ही मतगणना स्थल से एस०ओ० साहब ने भगा दिया था। P.W.3 भानुप्रताप सिंह व P.W.4 ओंकारनाथ मिश्र द्वारा भी अपने जिरह में यह कहा गया है कि यह कहना गलत हैं कि मतगणना पारदर्शिता पूर्ण ढंग से हुई, कोई अनियमितता नही हुई।

विपक्षी संख्या 1 D.W.1 परमेश्वर प्रसाद द्वारा अपने जिरह से कहा गया है कि मतगणना के लिए सबसे पहले किस बूथ का बक्शा लाया गया था चूंकि वहाँ भीड़-भाड़ थी। भीड़ की वजह से नही देख पाया कि किस-किस बूथ की मतगणना की जा रही है क्योंकि मैं पीछे खड़ा था। मैं अलग-अलग बूथवार नहीं बता सकता कि किसको कितना-कितना मत मिला तथा बूथवार कितने-कितने अवैध हुए, मैं नहीं बता सकता। मतगणना में जितने प्रत्याशी रहे होगे उतनी ही गड्डी बनाई गई होगी। मैं मतगणना में पीछे खड़ा था। जितने-जितने मत प्रत्याशियों को मिल रहे थे सबको बताया जा रहा था। परमेश्वर प्रसाद के उक्त बयान से यह स्पष्ट है कि मतगणना के बारे में इन्हें कुछ नही मालूम है तथा इस बात की पुष्टि होती है कि मतगणना कर्मियों द्वारा सभी प्रत्याशियों को जो मत प्राप्त हुए, उसे बताया जा रहा था, जिसमें याची विवेक कुमार सिंह P. W.1 व उसके मतगणना एजेन्ट दिनेश प्रताप सिंह P. W.2 व मानुप्रताप सिंह P. W.3 द्वारा अपने शपथपत्र / जिरह मे जो कहा गया है कि पहले विवेक कुमार सिंह को 340 मत व विपक्षी सं० १ परमेश्वर प्रसाद को 335 मत प्राप्त होना बताया गया उसके बाद जोड गाठ मे गडबडी कर विवेक कुमार सिंह को 334 मत व विपक्षी सं० 1 परमेश्वर प्रसाद को 341 मत प्राप्त होना बताकर साजिशन प्रधान निर्वाचित घोषित करवा दिया गया, को बल मिलता है तथा मतगणना कर्मियों द्वारा किये गये मतगणना कार्य को संदिग्ध बनाता है।

विपक्षी संख्या 1 के मतगणना अभिकर्ता देवनरायन पुत्र रामदीन D.W.2 द्वारा अपने जिरह में कहा गया है कि तीनो बूथो को मिलाकर कुल 1446 मत पड़े थे। मतगणना स्थल पर परमेश्वर प्रसाद के साथ खड़ा था। मतगणना मे 1379 मतों की गणना हुई थी। विपक्षी संख्या 1 के उक्त गवाह का बयान मतदान मे पडे मत व मतगणना किये गये मत को अलग-अलग सिद्ध करता है जो आपस मे विरोधाभाषी है तथा मतगणना कार्य को संदिग्ध बनाता है।

याची असफल प्रत्याशी व प्रतिवादी संख्या 1 सफल प्रत्याशी के मध्य सात मतो का अन्तर है व अवैध मतो की संख्या 67 है तथा उपरोक्त विवेचना में मतगणना कर्मियों द्वारा किये गये मतगणना कार्य मे प्रथमदृष्टया अनियमितता व अवैधानिकता परिलक्षित होती है तथा याची द्वारा अपनी चुनाव याचिका में सारवान तथ्यों का समावेस करते हुए विशिष्ट एवं स्पष्ट आधारों पर याचिका प्रस्तुत की गई है तथा विशिष्ट एवं स्पष्ट आधारों को मौखिक एवं दस्तावेजी साक्ष्य से सिद्ध किया है। इस प्रकार उपरोक्त प्रधान पद की गई मतगणना सही प्रतीत नही हो रही है। अतः पुर्गमतगणना कराया जाना विधिसंगत प्रतीत होता है। तदनुसार वाद बिन्दु संख्या-2 सकारात्मक रूप से निर्णीत किया जाता है।

20. A Coordinate Bench of this Court, in the case of Rajesh Kumar(supra), has held that order of recount is an order in aid of final determination which has to be made in respect of the election which have been made the basis for claiming such recount and the disposal of such an application by itself does not finally touch upon the result of the election and is not a final decision on the relief claimed in an election application. The ultimate relief claimed in an election application is to set aside the election of a successful candidate, unless and until such order is passed finally determining the fate of the election, it cannot be said that an order passed for recount attaches finality to the proceedings. The order of recount by itself does not dispose of the election application finally and something more remains to be done thereafter namely the final decision on the basis of the evidence led on the subject of recount and there is very possibility of the election application being allowed after the tribunal comes to the conclusion that the recount has materially effected the result and has tilted the balance in favour of the election petitioner. It is therefore obvious that the final disposal will occur only after a decision is rendered upon the outcome of the recount.

21. The Hon'ble Supreme Court, in the case of Vadivelu versus Sundaram(supra), has held that the Supreme Court has consistently taken a view that recount of votes could be ordered very rarely and on specific allegation in the pleadings in the election petition that illegality or irregularity has been committed while counting. The petitioner who seeks recount should allege and prove that there was improper acceptance of invalid votes or improper rejection of valid votes and if only the Court is satisfied about the truthfulness of the above allegation it can order recount of votes.

22. Another Coordinate Bench of this Court, in the case of Amit Narain Rai(supra), has held that the onus lie upon the person who challenges the election of a returned candidate. One of the ground for challenge of an election seeking recounting is irregularity in counting of votes which can justify recounting. It is well settled that the pleadings play significant role in a case of challenge to an election.

23. Adverting to the facts of the present case, as discussed above, specific pleadings have been made in the petition for recounting as irregularity and illegality has been committed in counting by declaring valid votes in favour of respondent no.2 as invalid and invalid votes in favour of petitioner as valid and informing the votes of respondent no.2 as 340 and the petitioner as 335 and subsequently changing and the petitioner got 341 votes and one Vivek Kumar Mishra got 334 votes, which are said to be the votes of the respondent no.2 and name of respondent no.2 is not in the form showing the votes and despite the specific request made by the respondent no.2 for recounting, no decision was taken thereon and the same remained unheard. The pleadings made in the election petition have been proved by the petitioner by adducing the oral as well as documentary evidence and the petitioner failed to contradict or extract anything in the cross examination from the witnesses produced by the respondent no.2, which may doubt the veracity of the witnesses, which includes an independent witness or by the evidence adduced by the petitioner and D.W2. Admittedly the petitioner and his agent were standing at the back side and they have not seen as to in what manner and how the counting was done. Therefore this Court is of the view that there is no illegality or error in the order dated 03.04.2023 passed by the Prescribed Authority, which may call for any interference by this Court. Thus the grounds taken for challenging the order dated 03.04.2023 are misconceived, and not tenable and the writ petition lacks merit, which is liable to be dismissed.

24. The writ petition is accordingly dismissed. No order as to costs.

(Rajnish Kumar,J.)

Order Date :- 12.04.2023

Akanksha