Smt. Pushpa Devi vs Smt. Sheela And 6 Others
2023 Latest Caselaw 5201 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 7
 

 
Case :- WRIT - C No. - 1276 of 2023
 
Petitioner :- Smt. Pushpa Devi
 
Respondent :- Smt. Sheela And 6 Others
 
Counsel for Petitioner :- Atma Ram Mishra,Samanvya Dhar Dwivedi
 
Counsel for Respondent :- Diwakar Pratap Pandey,C.S.C.,Rakesh Kumar Chaudhary
 

 
Hon'ble Abdul Moin,J.

Heard Sri Samanvya Dhar Dwivedi, learned counsel for the petitioner, Sri Diwakar Pratap Pandey, learned counsel appearing for the respondent no. 1, learned Standing counsel appearing for the respondents no. 2, 3 & 7 and Sri Rakesh Kumar Chaudhary, learned counsel appearing for the respondents no. 4 to 6.

Instant petition has been filed praying for quashing of the order dated 06.02.2023 passed by the prescribed authority in Case No. 2485 of 2021, a copy of which is annexure 1 to the writ petition.

The contention of learned counsel for the petitioner is that after the petitioner had been elected as Gram Pradhan of Village- Pura Baksaray, Post- Badagaon, Ibrahimpur, Pargana, Block & Tehsil-Tanda District- Ambedkar Nagar in the year 2021, the respondent no. 1 filed an election petition before the prescribed authority under Section 12-C of the Uttar Pradesh Panchayat Raj Act, 1947 (hereinafter referred to as "Act, 1947"). Various issues were framed. Of the issues framed, Issues No. 3, 4 to 5 pertain to the votes that had been polled and whether less votes were counted. Issue No. 2 was whether the election petition had been filed on wrong facts. Issues No. 2 to 5 were considered by the prescribed authority and an order dated 18.02.2023, a copy of which is annexure 9 to the writ petition was passed whereby the prescribed authority summoned the counter foil of the ballot papers for its perusal.

A challenge was raised to the order dated 18.01.2023, while filing writ petition namely Writ-C No. 898 of 2023 Inre; Smt. Pushpa Devi Vs. State of U.P and Ors and this Court vide order dated 03.02.2023, a copy of which is annexure 10 to the writ petition dismissed the writ petition.

Subsequent thereto, the order impugned dated 06.02.2023 has been passed whereby the prescribed authority, in continuation to the earlier order dated 18.01.2023, has indicated that the counting/examination of the polled votes is required to be done and consequently, has summoned the entire documents pertaining to the polling and fixed the matter for 20.01.2023. Being aggrieved, the instant writ petition has been filed.

Learned counsel for the petitioner has challenged the order impugned on the ground that (a) no opportunity to cross examine the witnesses has been given to the petitioner (b) in the order dated 18.01.2023 passed by the prescribed authority, no issues were decided & (c) no evidence as led by the petitioner has been considered prior to passing of the order impugned.

On the other hand, learned counsel appearing for the respondents argues that the order impugned dated 06.02.2023 is in consequence to the order dated 18.01.2023 passed by the prescribed authority which order has been upheld with the dismissal of the writ petition filed by the petitioner herself. It is contended that once the initial order has been upheld consequently, there cannot be any challenge raised to the consequential order in this regard. The other argument is that this Court in the case of Smt. Lali Devi Vs. State of U.P and Ors passed in Writ-C No. 900 of 2023 decided on 02.02.2023, after placing reliance on the various judgments of the Apex Court has held that the power of prescribed authority/election tribunal to call for recounting is justified where the Court trying the election petition is prima facie satisfied that making of such order is imperatively necessary to decide the dispute. It is contended that in the earlier order dated 18.01.2023 as well as the order dated 06.02.2023, reasons are forthcoming as to why the recounting has been directed and consequently, the order impugned does not call for any interference.

Having heard the learned counsel appearing for the contesting parties and having perused the records that emerges is that after the petitioner had been elected as Gram Pradhan of the concerned village, an election petition was filed by the respondent on. 1 challenging the election of the petitioner. Initially, the prescribed authority vide order dated 18.01.2023 after considering issues no. 2 to 5 which pertain to the ground as to the votes being counted less, had passed a detailed order whereby counter foils of the ballot papers had been summoned for its perusal. Upon a challenge being raised to the said order by filing Writ-C No. 898 of 2023 Inre; Smt. Pushpa Devi Vs. State of U.P and Ors, the said order was upheld with the dismissal of the writ petition by this Court vide judgment and order dated 02.02.2023. In consequence of the order dated 18.01.2023 now the prescribed authority has passed the order dated 06.02.2023 whereby the entire records pertaining to the polling have been summoned. Sri Rakesh Chaudhary, learned counsel appearing for the returning officer as well as learned Election Commission points out that the matter has been fixed for 20.02.2023 for the purpose of recounting of votes.

Apart from the fact that the order dated 06.02.2023 is a consequential order to the earlier order dated 18.01.2023, the validity of which has already been upheld with the dismissal of the writ petition filed by the petitioner, the power of the learned election tribunal/prescribed authority to order for a recounting has been considered threadbare by this Court after considering various judgments of the Apex Court and it has been held that the prescribed authority/election tribunal can direct for recounting of votes where the Court is prima facie satisfied that making of such order is necessary to decide the dispute and to do complete and effective justice between the parties. From the order dated 18.01.2023 as well as the order impugned dated 06.02.2023 it clearly emerges that the sufficient reasons have been assigned by the prescribed authority for directing for recounting.

For the sake of convenience, the relevant paragraphs of judgment of this Court in the case of Smt.Lali Devi (supra) are reproduced below:-

"29. In this regard, the judgments of the Uday Chand (supra), Arikala Narasa Reddy (supra) & Amit Narain Rai (supra) over which reliance have been placed by the learned counsel for the petitioner all indicate that a direction for re-counting of votes can be done and the Court would be justified in ordering a re-count of the ballot papers where the Court trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties.

30. In this regard, it would be apt to reproduce as to what has been held by the Apex Court in the case of Uday Chand (supra) :-

11. Before adverting to the merits of the issue raised by the parties with reference to the statutory provisions, it would be appropriate to bear in mind the salutary principle laid down in the election law that since an order for inspection and re-count of the ballot papers affects the secrecy of ballot, such an order cannot be made as a matter of course. Undoubtedly, in the entire election process, the secrecy of ballot is sacrosanct and inviolable except where strong prima facie circumstances to suspect the purity, propriety and legality in the counting are made out.

12. The importance of maintenance of secrecy of ballot papers and the circumstances under which that secrecy can be breached, has been considered by this Court in several cases. It would be trite to state that before an Election Tribunal can permit scrutiny of ballot papers and order re-count, two basic requirements viz.

(i) the election petition seeking re-count of the ballot papers must contain an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded, and

ii) on the basis of evidence adduced in support of the allegations, the Tribunal must be prima facie satisfied that in order to decide the dispute and to do complete and effectual justice between the parties, making of such an order is imperatively necessary, are satisfied.

31. Likewise, the Apex Court in the case of Arikala Narasa Reddy (supra) has held as under:-

13. It is a settled legal proposition that the statutory requirements relating to election law have to be strictly adhered to for the reason that an election dispute is a statutory proceeding unknown to the common law and thus, the doctrine of equity, etc. does not apply in such dispute. All the technicalities prescribed/mandated in election law have been provided to safeguard the purity of the election process and courts have a duty to enforce the same with all rigours and not to minimize their operation. A right to be elected is neither a fundamental right nor a common law right, though it may be very fundamental to a democratic set-up of governance. Therefore, answer to every question raised in election dispute is to be solved within the four corners of the statute. The result announced by the Returning Officer leads to formation of a government which requires the stability and continuity as an essential feature in election process and therefore, the counting of ballots is not to be interfered with frequently. More so, secrecy of ballot which is sacrosanct gets exposed if recounting of votes is made easy. The court has to be more careful when the margin between the contesting candidates is very narrow. "Looking for numerical good fortune or windfall of chance discovery of illegal rejection or reception of ballots must be avoided, as it may tend to a dangerous disorientation which invades the democratic order by providing scope for reopening of declared results". However, a genuine apprehension of mis- count or illegality and other compulsions of justice may require the recourse to a drastic step.

14. Before the court permits the recounting, the following conditions must be satisfied:

(i) The court must be satisfied that a prima facie case is established;

(ii) The material facts and full particulars have been pleaded stating the irregularities in counting of votes;

(iii) A roving and fishing inquiry should not be directed by way of an order to re-count the votes;

(iv) An opportunity should be given to file objection; and

(v) Secrecy of the ballot should be guarded."

32. The Full Bench of this Court in the case of Ram Adhar Singh (supra) has held as under:-

"11. In the case of Ram Sewak Yudav v. Hussain Kamil Kidwai AIR 1964 SC 1249, the Supreme Court while dealing with a similar question arising under the Representation of the People Act held that before an authority or court dealing with an election petition is not to look into or direct inspection of ballot papers unless following two conditions co- exist:

(i) that the petition for setting aside an election contains an adequate statement of the material facts on which the Petitioner relied in support of his case (the petition meets the requirement of Section 83(1) of the Representation of the People Act regarding contents of the election petition), and

(ii) The Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary."

12. In this connection, the learned Judges of the Supreme Court went on to observe thus:

"But an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The case of the Petitioner must be set out with provision supported by averments of material facts. To establish a case so pleaded an order for inspection may undoubtedly, if the interest of justice require, be granted. But a mere allegation that the Petitioner suspects or believes that there has been an Jim proper reception, refusal or rejection of votes will not be sufficient to support an order for inspection."

13. In the case of Bhabhi v. Sheo Govind AIR 1975 SC 2117, the Supreme Court approved the principles for inspection of ballot papers laid down in Ram Sewak's case (supra) and after noticing its decisions in the cases of Dr. Jagjit Singh v. Giani Kartar Singh : AIR 1966 SC 773, Jitendra Bahadur Singh v. Krishna Behari AIR 1970 SC 276, Shashi Bhusan v. Prof. Balraj Madhok: AIR 1972 SC 1251, Sumitra Devi v. Shri Sheo Shanker Prasad Yadav AIR 1973 SC 215, Beliram Bhalaik v. Jai Behari Lal Kachi AIR SC 283, Baldeo Singh v. Teja Singh : AIR 1975 SC 693 and Suresh Prasad Yedav v. Jai Prakash Misra : AIR 1975 SC 376, the Court observed thus:

Thus on a close and careful consideration of the various authorities of this Court from time to time it is manifest that the following conditions are imperative before a Court can grant inspection, or for that matter sample inspection, of the ballot papers;

(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 satis action of the Court regarding the truth of the allegations made for a re-count, and not for the purpose of fishing out materials.

14. The principles laid down in Bhabhi's case (supra) have again been applied and followed by that Court in the case of N. Narayanan v. S. Semalai : AIR 1980 SC 206 wherein it observed thus:

Finally, the entire case law on the subject regarding the circumstances under which recount could be ordered was fully summarised and catelogued by this Court in the case of Bhabhi v. Sheo Govind : 1975 SCR 202 to which one of us (Fazal Ali, J.) was a party and which may be extracted thus:

The Court would be justified in ordering a recount of the ballot papers only where;

(1) the election petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded;

(2) On the basis of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting, and

(3) The court trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties.

15. This Court has consistently applied aforementioned principles enunciated by the Supreme Court, for looking into and permitting inspection of ballot papers in cases arising under the Representation of the Peoples Act, to similar cases arising under the U.P. Panchyayat Raj Act as well. See Dhanai Prasad v. Sub-Divisional Magistrate, Chunar, District Mirzapur 1974 ALJ 371, Charon Singh v. Sub-Divisional Officer 1974 ALJ 748, Kali Prasad v. Prescribed Authority (SDO), Pratapgarh 1980 ALJ 378 and Mohammad Husain v. S.D.O. Shahabad 1983 AWC 430.

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18. Applying the principle with regard to inspection of ballot papers enunciated by the Supreme Court in cases arising under the Representation of the People Act to an election petition dealt with under the provisions of the U.P. Panchayat Raj Act, there is no escape from the conclusion that before an authority hearing the election petition under the said Act can be permitted to look into or to direct inspection of the ballot papers, following two conditions must co-exist:

(1) that the petition for setting aside an election contains the grounds on which the election of the Respondent is being questioned as also the summary of the circumstances alleged to justify the election being questioned on such ground; and

(2) the authority is, prima facie, satisfied on the basis of the materials produced before it that there is ground for believing the existence of such ground and that making of such an inspection is imperatively necessary for deciding the dispute and for doing complete justice between the parties."

Accordingly, keeping in view the aforesaid discussion as well as the power of the prescribed authority/election tribunal to direct for the recounting of votes and sufficient reasons having been assigned by the prescribed authority as to why such recounting is required, this Court does not deem it fit to interfere with the order impugned dated 06.02.2023.

Accordingly, the writ petition is dismissed.

Order Date :- 16.2.2023

Pachhere/-