Suman Devi vs State Of U.P. And 12 Others
2023 Latest Caselaw 16938 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR
 
Neutral Citation No. - 2023:AHC:123067
 
Court No. - 69
 

 
Case :- WRIT - C No. - 19450 of 2023
 

 
Petitioner :- Suman Devi
 
Respondent :- State Of U.P. And 12 Others
 
Counsel for Petitioner :- Sunil Kumar,Raghvendra Singh
 
Counsel for Respondent :- C.S.C.,Akhilesh Singh,Shivam Yadav
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. The Court is sitting as a vacation Bench.

2. Heard Sri Sunil Kumar, learned counsel for petitioner and Sri Akhilesh Singh, Advocate for Respondent-3.

3. Present writ petition is arising out of an election petition filed by Respondent-3, a runner up candidate of election conducted for Village Pradhan of Village Panchayat Bharaul, Tehsil Sirsaganj, District Firozabad. Winning margin in election is eight votes.

4. Election petitioner (Respondent-3) filed an election petition under the provisions of Section 12-C of U.P. Panchayat Raj Act, 1947 (hereinafter referred to as ?Act, 1947?) on various grounds. Prescribed Authority under Act, 1947, after due service to all respondents, framed following issues:

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2. ???? ????? ????????? ?? ????? ??? ?? ???? ???????? ?????? ??-?? ??? ????? ???? ?? ??? ??? ?? ?????? ?

3. ???? ?????? ?? ????? ??????? ??0- 1 ?? ??? ???????? ?? ??? ?? ?????? ??? ?????? ?? ?? ?? ??? ??? ?? ?????? ?

4. ???? ????? ?????? ??? ?????? ?????? ?? ???? ?? ???? ?? ?????? ??????? ???? ???? ????? ?? ??? ??? ?? ?????? ?

5. ???? ????? ?????? ???? ?? ?????? ???? ??? 25 ???????? ?? ????? ??? ????? ?? ?? ????????? ???? ????? ?????? ?? ????? ?? ???????? ???? ?? ??? ??? ?? ?????? ?

6. ???? ???? ?? ????? ???? ?? ???? ????? ????? ?? ??? ???? ?? 19 ???? ?? ???? ?? ????? ?????????? ?? ???? ?? ???? ?? ???? ?? 8 ???? ?? ???????? ????? ?? ??? ??? ?? ?????? ?

7. ???? ???? ?????? ??? ?????? ?????? ?? ?????????? ??? ??????????? ??? ???? ?? ??????? ?? ??? ??? ?? ?????? ?

8. ???? ????? ?????? ???? ?? ?????? ???? ??? ???? ?????? ?? ????? ?? ??????? ???? ???? ???? ?? ??? ???? ??? ????? ????? ?? ???? ???? ?? ????? ???????? ??? ?? ??? ??? ?? ?????? ??

5. It appears that petitioner herein (Returned Candidate) has not appeared before Prescribed Authority and no reply was filed to election petition. It also appears that no evidence was called by Prescribed Authority during proceedings.

6. Learned counsel for petitioner submits that Prescribed Authority in impugned order dated 06.04.2023 has not found any merit in election petition qua to issues framed therein including the issue no. 7 regarding recounting and he referred the findings of Prescribed Authority in this regard, which are reproduced as under:

"????? ?????? -1 ????? ?? ?? ??? ????? ?????? ?? ????????? ?? ?????? ?? ?? ??, ?? ?????? ?? ?????? ??? ?? ?????? ???? ???? ??? ?? ?? ????????? ??? ?????? ?? ?? ??? ????????? ???? ?????? ?? ?? ?? ?????? ?? ?????? ?????? ?? ???? ?? ? ?????? ??0-2 ??? ?? ???? ???????? ?????? ??-?? ??? ????? ???? ?? ?????? ? ?????? ??0- 3 ?????? ??? ?????? ?? ?? ?? ???? ??????, ?? ???????? ?? ???? ?????? ??? ??????? ???????? ???? ???? ??? ?? ? ?????? ??0- 5, 6, 7, 8 ?? ?? ???? ?????? ??? ??? ??????? ???????? ???? ???? ?? ??? ?"

7. Learned counsel further submits that after the above finding given by Prescribed Authority that all the issues go against election petitioner, only on the ground that all respondents appearing in election petition have no objection if an order for recounting be passed, the Prescribed Authority passed order for recounting of votes. Learned counsel submits that the reasons given by Prescribed Authority are absolutely contrary to the well established law of election petition. He also referred paras 12, 13 and 16 of a judgment passed by this Court in Smt. Sajida vs. Sub-Divisional Magistrate, Kairana District Shamli and others, 2023 SCC OnLine All 11 and for reference said paragraphs are mentioned hereinafter:

?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. Election petitioner has made a assertion in election petition that vote given in her favour were placed in the bundle of votes given in favour of returned candidate and during counting when election petitioner came to know that number of votes given in her favour are 990 and in favour of elected candidate are 993 and number of rejected votes are 157, she raised an objection and prayed for recounting but Election Officer has not paid attention. A further assertion has been made that bundle of 157 rejected votes included some valid votes also.?

?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)].?

8. Learned counsel appearing for election petitioner (Respondent-3) submits that petitioner (Returned Candidate) has not appeared before Prescribed Authority despite service and no prejudice is caused to her by impugned order, i.e., order for recounting. He further submits that considering the winning margin, i.e., of only eight votes, recounting is necessary to show that it was a fair election and counting.

9. Heard learned counsel for parties and perused the material available on record.

10. From bare perusal of impugned order, it appears that Prescribed Authority has no knowledge about well established principle of election law. Prescribed Authority has proceeded with election petition as if he is dealing with an administrative issue and despite a specific finding given that election petitioner has miserably failed to brought on record any evidence with regard to issues framed and all issues are decided against election petitioner, it has moved further and only on the basis of consent given by respondents, i.e., other candidates participated in election concerned, impugned order has been passed for recounting of votes despite issue framed for ?recounting? was already rejected since election petitioner has not brought any material on record in support of said issue. This is nothing but a perverse finding and thus impugned order is absolutely unsustainable in the eyes of law. For reference relevant part of impugned order is mentioned hereinafter:

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???? ??????? ?? ?????? ?? ?????? ?? ????? ??????? ???? ?????? ???? ?? ?? ?????? ?? ??? ???????? ???? ???????? ?? ???? ?????? ?? ?? ?? ???? ??? ????? ??? ???, ????? ????? ????? ??? ??? ???? ???? ??? ???? ?? ????? ?????? ???? ?????? ?? ????? ???? ????? ???? ?? ???? ? ??????? ??0-3,4,7,8 ???? ?? ? ?? ?????? ???? ?????? ????? ?????? ?? ????? ????? ???? ???? ?????? ???? ?? ???? ?????????? ???????? ??? ????? ??? ???? ?? ?????? ???? ?? ?????????-???? ?????? 31.05.2021 ?????? ???? ?????? ??????? ???? ???? ?? ?"

11. In view of above discussion and taking note of Smt. Sajida (supra) and that above referred direction is based on absolutely erroneous grounds, therefore, an illegality has erupted in impugned order, the writ petition is allowed. Impugned order dated 06.04.2023 passed by Up-Ziladhikari, Sirsaganj District Firozabad in Election Petition No. 03/20-21/ T20210121605013161 (Vinay Kumar vs. Suman Devi and others), is hereby set aside. District Magistrate, Firozabad is directed to take note of impugned order and, if necessary, proper training should be given to officers who are discharging duties as Prescribed Authority under Section 12 of Act, 1947.

12. A copy of this order shall also be sent to Principal Secretary, Government of U.P., Lucknow for information and necessary action.

13. Registrar (Compliance) to take steps.

Order Date :- 1.6.2023

AK