Allahabad High Court
Sabiha Khatoon vs Prescribed Authority/ ... on 21 February, 2023
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on 20.02.2023
Delivered on 21.02.2023
Court No. - 34
Case :- WRIT - C No. - 5784 of 2023
Petitioner :- Sabiha Khatoon
Respondent :- Prescribed Authority/ Upziladhikari And 8 Others
Counsel for Petitioner :- Tripathi B.G. Bhai,Sr. Advocate
Counsel for Respondent :- C.S.C.,Prabhakar Dubey,Ravindra Prakash Srivastava
Hon'ble Saurabh Shyam Shamshery,J.
1. Petitioner is a returned candidate, i.e., Gram Pradhan of Village Panchayat Mehdupur, Block Santha, District Sant Kabir Nagar and Respondent-2 (election petitioner), remained runner up with margin of two votes.
2. Respondent-2 filed an election petition under Section 12-C of U.P. Panchayat Raj Act, 1947 taking a specific averment in para 7 of it that on Booth Nos. 1 and 2 there were discrepancy between number of ballot papers, number of votes cast and number of votes rejected, therefore, prima facie an illegality was committed and a prayer for recounting was also made.
3. From record it appears that after pleadings, issues were framed on 07.04.2022 and thereafter rival parties brought on record their witnesses and by means of impugned order dated 01.02.2023 direction for recounting was passed.
4. Sri H.N. Singh, learned Senior Advocate assisted by Sri Tripathi B.G. Bhai, learned counsel for petitioner, vehemently argued that Prescribed Authority has referred pleadings in almost three pages and in a very summarily manner decided all ten issues in one page. Even Issue-1, which was with regard to final relief to election petitioner, was decided in affirmative, i.e., in favour of election petitioner. So far as issue with regard to recounting was concerned, only reason assigned was that objections made by election petitioner at the time of counting were not considered by Election Officer. Learned Senior Advocate placed reliance on a judgment passed by this Court in Sajida vs. Sub Divisional Magistrate, Kairana, District Shamli/ Prescribed Authority and others, 2023(2) ADJ 78 and judgments passed by Supreme Court in Mahendra Pal vs. Ram Dass Malanger and others (2002) 3 SCC 457; D.P. Sharma vs. The Commissioner and Returning Officer and others, 1984 (supp) SCC 157 and Kattinokkula Murali Krishna vs. Veeramalla Koteswara Rao and others (2010) 1 SCC 466 and contended that a justification for an order of recount of votes should be provided by material placed by an election petitioner on the threshold before an order for recount of votes is actually made. In absence of material facts only on the ground of thin margin or that complaint was not considered by Election Officer, order for recounting cannot be passed.
5. Per contra, Sri V.K. Singh, learned Senior Advocate assisted by Sri Ravindra Prakash Srivastava, learned counsel appearing for Respondent-2, i.e., election petitioner, submitted that in election petition material facts were mentioned that there was mismatch of votes cast, votes rejected which was taken note by Prescribed Authority as well as there was no denial on behalf of returned candidate about such discrepency. Prescribed Authority has considered rival submissions and material on record and decided all issues holding that it was a fit case for recounting. He placed reliance on a judgment passed by this Court in Om Prakash Upadhyay vs. State of U.P. and others, 2008(105) RD 58 and contended that in the facts of present case where there is prima facie mismatch of number of votes cast, rejected and counted votes and that there was a very small margin of victory also, order of recounting was legally permissible and it would not be a case of roving or fishing inquiry.
6. Heard learned counsel for parties and perused the material available on record.
7. In order to ascertain, whether by way of impugned order election petition was finally disposed of or not, I have carefully perused the same. Heading of impugned order is "Antim Aadesh", i.e., "Final Order". In the order below heading ''Aadesh', i.e., ''Order', the Prescribed Authority has stated that election petition is accepted and order of recounting has been passed. Thereafter it has also been mentioned that file be consigned to record. In impugned order Prescribed Authority has not fixed any further date to consider the outcome of recounting. Therefore, impugned order is an order of final in nature whereby election petition was disposed of and in the light of this Court's judgment in Parshuram vs. State of U.P. and others (Matters Under Article 227 No. 31424 of 2021), decided on 23.12.2022 the same can be set aside on this ground only. Relevant para of the judgment in Parshuram (supra) is reproduced as under:
"37 Keeping in view the aforesaid discussion, the legal question which has arisen in the instant petition is answered below:-
The Prescribed Authority on finally deciding an election petition becomes functus officio and can not pass any order subsequent thereto even if the election petition has been decided finally calling for the re-counting of votes."
8. As learned Senior Advocates appearing on behalf of rival parties have raised submissions on merit also, therefore, the Court now proceed to consider case on merit, however, I find that Prescribed Authority has committed various errors.
9. First of all Prescribed Authority has not noted issues framed and thereafter in very summarily manner all issues were decided. Even Issue-1, which ought to have been decided after the outcome of recounting, was decided in favour of election petitioner. Issue-1 was with regard to declaration of election to be void and to declare election petitioner as a returned candidate. This relief could be granted only after the outcome of recounting.
10. Prescribed Authority though noted about discrepancy in numbers of rejected votes however while deciding issue of recounting, only reason given was that objections raised by election petitioner at the time of counting were not considered. Prescribed Authority has also not considered the objections raised by returned candidate that declaration in affidavit, filed in support of election petition, was defective with regard to knowledge of averments therein by election petitioner.
11. The outcome of above discussion is that the Prescribed Authority has committed various errors which has rendered the impugned order illegal. Accordingly, writ petition is allowed. Impugned order dated 01.02.2023 passed by Prescribed Authority/ Up-Ziladhikari, Mehdawal, Sant Kabir Nagar in Case No. 02145 of 2021 (Computerized Case No. T202117650302145) (Farzana vs. Sabiha Khatoon and others), is hereby set aside. Matter is remanded back to Prescribed Authority to pass a fresh order in accordance with law expeditiously.
Order Date :- 21.02.2023
AK
