Rukhsani vs State Of U.P. And 11 Others
2023 Latest Caselaw 4594 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Judgment Reserved on 8.2.2023
 
Delivered on 13.2.2023 
 
Court No. - 34
 
Case :- WRIT - C No. - 2970 of 2023
 
Petitioner :- Rukhsani
 
Respondent :- State Of U.P. And 11 Others
 
Counsel for Petitioner :- Samarath Singh,Madan Mohan,Sankalp Narain,Sr. Advocate
 
Counsel for Respondent :- C.S.C.,Sumit Daga,Surya Pratap Singh Parmar
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. Heard Sri G.K.Singh, learned Senior Counsel assisted by Sri Samarath Singh, learned counsel for petitioner and Sri Sumit Daga, learned counsel appearing on behalf of respondent no.4.

2. Considering the heading of impugned order (Antarim Aadesh), whereby order for recounting was passed and election petition was kept for final decision, therefore, it being an interlocutory order, same could be challenged by way of filing a Writ Petition under Article 226 of the Constitution of India, therefore, preliminary objection that impugned order ought to have been challenged by way of filing a revision petition is hereby rejected. (See Mohd. Mustafa Vs. Up Ziladhikari, Phoolpur,Azamgarh & Ors, 2007 (6) AWC 5536, wherein the question referred was answered by the Full Bench 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 by the Prescribed Authority.")

3. This is the second round of litigation.

4. In the first round, Election Tribunal has passed order for recounting which was challenged at the instance of petitioner by way of filing Writ Petition No.2951 of 2022, whereby the impugned order therein was set-aside and the matter was remanded back for fresh consideration with certain observations.

5. In pursuance of above order, parties were permitted to adduce evidence and issues were framed and were decided that a case of recounting was made out, since out of total ballot papers i.e. 3653 all were declared to be valid and not a single ballot paper was found invalid, whereas margin of victory was only one vote.

6. Learned Senior Counsel appearing for petitioner a returned candidate has submitted that Election Tribunal has recorded the pleadings in many pages, but recorded the finding and operative order only in following six lines:

" उपरोक्त का तथा पक्षकारों द्वारा प्रस्तुत किये गये साक्ष्यों व लिखित अभिकथनों के आधार पर मै इस निष्कर्ष पर हूं कि वाद बिन्दु संख्या 1 आशिंक रूप से स्वीकार किये जाने योग्य तथा वाद बिन्दु संख्या 2 व 3 याची के पक्ष में निर्णित किये जाते है क्योंकि मतगणना प्रपत्र 46 के अनुसार प्रतिक्षेपित (खारिज / रद्द) मतों की संख्या शून्य है जबकि कुल पड़े मतों की संख्या 3653 है तथा विधिमान्य मतों संख्या 3653 दिखायी गयी है जो स्वीकार करने योग्य नहीं है। इस आधार पर पुनर्गणना कराये जाने के सम्बन्ध में याची के याचिका को बल मिलता है।"

(Emphasis supplied)

7. Learned Senior Counsel also referred to a document which is a Proforma 46 Part II that in total 164 ballot papers were declared invalid and since it was not included in total votes counted, wherein final calculation was done, which shows that 3659 valid votes were cast. He further submitted that not only above order was bereft of any reasoning, but certain available materials such as referred above were not taken into consideration and as such illegality erupted in impugned order.

8. Learned counsel for rival parties have placed reliance upon judgments of Supreme Court in Chandrika Prasad Yadav Vs. State of Bihar and Ors, (2004) 6 SCC 331, Ratnesh Vs. Ramesh Chandra & Ors, 2013 (10) ADJ, 480, Ashok Kumar Vs. Upper Distt Judge Court No.4 Raebareli & Ors, 2019 (6) ADJ 817 and a judgment of this Court in Writ-C No.31255 of 2022, Tekchand Vs. State of U.P. and Ors, decided on 28.1.2023.

9. Heard learned counsel for parties and perused the records.

10. Before considering rival submissions, few paragraphs of a judgment passed by this Court in Writ-C No.294 of 2023, Smt. Sajida Vs. Sub Divisional Magistrate Kairana District Shamli/Prescribed Authority and 15 Ors, decided on 11.1.2023 would be apposite to mention and relevant paragraphs are 12, 15 and 16 states as follows:

" 12. It is well settled that it is important to maintain secrecy of ballot which is sacrosanct and it should not be allowed to be violated on frivolous, vague and indefinite allegations and before inspection is allowed, the allegations made against elected candidate must be clear and specific and must be supported by adequate statements of material facts. (See, Bhabhi vs. Sheo Govind and others, AIR 1975 SC 2217 and Ram Sewak Yadav vs. Hussain Kamil Kidwai and others, AIR 1964 SC 1249). The discretion conferred on Courts should be not exercised in such a way so as to enable election petitioner to indulge in a roving enquiry in order to fish out materials for declaring election to be void.

13.x x x

14.x x x

15. I have carefully perused the statements of witnesses recorded before Sub-Divisional Magistrate. Petitioner has not mentioned in categorical terms that she raised any objection during counting including the prayer to recount on specific ground and that her husband was not present at counting centre though in later part of cross-examination she referred about complaint that her polling agent has communicated her that some votes were wrongly rejected. Therefore, there is no specific averment with regard to number of votes which have been declared wrongly invalid and could materially affected the election. In this regard following paragraph of judgment passed by Supreme Court in M.R. Gopalalkrishnan (supra) would be relevant:

"20. We now come to the third ground advanced by the learned counsel for the appellant that invalid votes were counted in favour of the returned candidate respondent No. 1 and that out of the total rejected votes of 1375, quite a large number of valid votes in favour of the appellant were rejected, which materially affected the result of the election. Learned counsel for the respondent submitted that the appellant has not set forth the concise statement of material fact with regard to the allegation of counting invalid votes in favour of the respondent No. 1 nor has given any particulars of such invalid votes which are alleged to have been counted in favour of respondent No. 1 He also submitted that similarly there are no particulars with regard to the rejection of valid votes in favour of the appellant nor number of such votes in order to support the allegation that such rejection of valid votes in favour of the appellant materially affected the result of the election. In our opinion there is no substance in these submissions made by the learned counsel for the appellant. In fact the appellant has neither pleaded the details and the number of such invalid votes which were counted in favour of respondent No. 1 nor has given the particulars of the number of such valid votes in favour of the, appellant which were wrongfully rejected during the course of counting. This apart, the Returning Officer, Supervisors and other officials were also present in the counting hall throughout the process of counting and the observers also visited the counting hall, but neither the appellant nor any of his counting agents pointed out or objected either orally or in writing that invalid votes were counted in favour of the respondent No. 1 or valid votes in favour of the appellant were rejected. The evidence of the Returning Officer, PW 16 clearly goes to show that no such complaint was made by any one during the course of counting. In these facts and circumstances it is difficult to accept the allegations made by the appellant which seem to be only an after thought and without any evidence or material to support the same."

16. It is settled that order of recounting cannot be passed only for the sake of it and on the basis of vague allegation without specifying any particular irregularity in counting as well as how it would affect election result materially. In the present case in the body of election petition vague assertions have been made regarding illegal rejection of valid votes which are not substantiated either in examination of election petitioner or otherwise on the basis of record available. Parties have to take proper pleadings by adducing evidence that by particular irregularity of illegality result of election has been materially affected. There is no dispute to the settled legal proposition that as a rule relief not founded in pleadings should not be granted [See, Arikala Narasa Reddy (supra)]."

(Emphasis supplied)

11. I have carefully perused the impugned order.

12. I find merit in the argument of learned Senior Counsel for petitioner that though pleadings and evidence were narrated in as many as 21 pages in impugned order. However, the discussion and operative portion of order as referred above was only in six lines. There is a merit in further argument of learned Senior Counsel that document placed at Annexure No.6 which is a copy of Proforma 46 (Part-II) wherein details of rejected votes were mentioned was not even considered, therefore, illegality has occurred in the impugned order.

13. In these circumstances, normally this Court quashes the impugned order. However, since the winning margin is very thin and the above referred document which is Proforma 46 (Part-II) has not been taken into consideration, therefore the finding that not a single ballot paper was rejected appears to be contrary to record. Therefore, while setting-aside the order impugned dated 9.1.2023, matter is remanded back to the authority concerned to pass a fresh order taking note of above referred document and pass a reasoned order which shall refer consideration and reasons, taking note of judgement of Supreme Court in State Bank of India and Anr. Vs. Ajay Kumar Sood, 2022 SCC OnLine SC 1067 that ''Finally, it is always useful for a court to summarize and lay out the ''Conclusion' on the basis of its determination of the application of the rule to the issue along with the decision vis-à-vis the specific facts. This allows stakeholders, especially members of the bar as well as judges relying upon the case in the future, to concisely understand the holding of the case." .

14. Aforesaid proceedings shall be concluded within a period of four weeks from today.

15. With the aforesaid observations and direction, this writ petition is disposed of.

Order Date :-13.2.2023

SB