Khursheed Ahmad vs Additional District Judge And 13 ...
2023 Latest Caselaw 16942 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:124438
 
AFR
 
Reserved on 05.06.2023
 
Delivered on 06.06.2023
 

 
HIGH COURT OF JUDICATURE AT ALLAHABAD
 

 
Court No. - 70
 
CASE :- WRIT - C No. - 17356 of 2023
 

 
Khursheed Ahmad				  	---			      Petitioner
 
Through : Ashok Khare, Sr. Advocate
 
Shantanu Khare, Advocate
 
Vs. 
 
Additional District Judge and others   	---			Respondents  
 
Through : Anand Bhaskar Srivastava, Standing Counsel
 
Prabhakar Awasthi, Advocate
 

 
*****
 
CORAM : HON'BLE SAURABH SHYAM SHAMSHERY,J.

1. The present case is arising out of an election dispute with regard to an election for the post of Pradhan of Gram Panchayat Jogiyabeer, Kshetra Panchayat Azmatgarh, Tehsil Sagri, District Azamgarh conducted on 19.04.2021.

2. It is not in dispute that petitioner before this Court is the returned candidate whereas Respondent-3 remained runner up in election and margin of victory was only one vote. Remaining private respondents have also participated in the election.

3. Respondent-3 (election-petitioner) has approached the Prescribed Authority under Section 12-C of U.P. Panchayat Raj Act, 1947 (hereinafter referred to as "Act, 1947) by way of filing an Election Petition No. 6727 of 2021 (Computerized Case No. T202115060706727) with prayer for an order for recounting and to declare election petitioner to be returned candidate. Paragraphs No. 3 and 4 of the election petition, being relevant, are reproduced as under:

"3- यह कि दिनांक 19.04.2021 को मतदान सम्पन्न हुआ। मतदान के समय प्रतियाची प्रथम पक्ष के द्वारा मौके पर न रहने वाले व्यक्तियों एवं बाहर रहने वाले व्यक्त्यिों के भी वोट डाल दिया गया। चुनाव सम्पन्न कराने के लिये कुल तीन बूथ बनाये गये थे, बूथ नं01 पर1 ता 4 वार्ड मे 313, बूथ नं० 2 पर 5 से 8 वार्ड में 376 एवं बूथ नं0 3 पर 9से 13 वार्ड में 481 मत पडे यानी कुल 1170 मत पड़े।

4- यह कि दिनांक 02.05.2021 को मतगणना करायी गयी। मतगणना मे हम याची को 255, प्रतियाची प्रथम को 256, प्रतियाची नं0 3 को 11 मत 9 को 113मत, 4 को 112 मत, 5 को 02, 6 को 51, 7 को 17, 8 को 001, 09 को 68, 10 को 137, 11 की 72 एवं 12 को 01 मत प्राप्त दिखाया गया है। 71 मत अवैध रहा। कुल 1167 मत मतगणना मे दिखाये गये। 3 मतपत्र गायब कर दिया गया, जो मत पत्र गायब किये गये थे हम याची के पक्ष में थे यदि वे गायब नही किये जाते तो निश्चित ही हम याची निर्वाचित होते।"

(Emphasis supplied)

4. It is evident from above referred averments that the dispute is, whether total number of votes cast were 1167 or 1170?

5. Returned candidate has filed a reply to election petition wherein averments made in election petition including the averments referred above were denied and in Additional Statement it was specifically stated that no ballot paper was removed and entire counting was undertaken in a peaceful and fair manner.

6. Prescribed Authority on the basis of pleadings, framed following issues:

"1- क्या प्रस्तुत चुनाव याचिका की सुनवाई का क्षेत्राधिकार इस न्यायालय को प्राप्त है?

2- क्या प्रस्तुत चुनाव याचिका में मतगणना के समक्ष याची के पक्ष में 255 मत व विपक्षी को 256 मतपत्र मिले?

3- क्या मतगणना में कुल मतों की सं0 1170 थी। जब कि मतगणना के समय चुनाव अधिकारी द्वारा 1167 मत पत्र की गणना की गयी तथा तीन मत पत्रों की गणना नहीं की गयी। तो याचिका में इसका प्रभाव?

4- क्या याची व उसके मतगणना एजेण्ट द्वारा शिकायत की गयी लेकिन उनकी बातों को अनसुना कर दिया गया?

5- क्या पीठासीन अधिकारी चुनाव अधिकारी द्वारा घोषित परिणाम में ओवर राईटिंग कर 1168 के स्थान पर 1167 मत पत्र दिखाया गया है?

6- क्या पीठासीन अधिकारी द्वारा तीन मत पत्रों को वैध या अवैध घोषित किया गया है?

7- क्या याची पुनः मतगणना कराने का अधिकारी है?"

7. Prescribed Authority on basis of evidence of parties and documents provided by the office of Election Officer decided relevant issue Nos. 3, 4, 5, 6 and 7 and rejected the Election Petition by order dated 03.10.2022. Relevant part of the order is reproduced as under:

"वाद बिन्दु सं0 3, 4, 5, 6, 7, एक दूसरे से सम्बन्धित है। अतः इनका निस्तारण एक साथ किया जाता है। ग्राम प्रधान पद हेतु डाले गये मतपत्रों की सं0 1167 है। जिसमें विधिमान्य मतों की कुल सं0 1096 है। प्रतिक्षेपित (खारिज / रद्द) मतों की सं0 71 है। इस प्रकार प्रतियाची प्रथम पक्ष खुर्शीद अहमद 1 मत से विजयी घोषित हुये। प्रधान पद हेतु कुल 13 उम्मीदवार थे जिनके प्राप्त वैध मतो का योग 1096 होता है। याची व उसके एजेण्ट द्वारा मतगणनों के सम्बन्ध में शिकायत के बाबत कोई प्रमाण पत्र प्रस्तुत नहीं किया गया इसके विपरीत उसका यह कथन कि पुनर्मतगणना की बात अनसुनी कर दी गयी, जो कि विश्वसनीय नहीं है। पीठासीन अधिकारी (चुनाव अधिकारी) द्वारा घोषित परिणाम के बावत ओवरराइटिंग करने के बावत कोई साक्ष्य नहीं प्रस्तुत किया गया। तीन मतों को अवैध या वैध घोषित करने के बारे में भी कोई ठोस साक्ष्य नही प्रस्तुत किया गया। याची द्वारा अपनी याचिका में प्रधान पद हेतु सम्पन्न निर्वाचन को अवैध या अनियमित घोषित कर पुनः चुनाव कराये जाने व पुनर्मतगणना कराने दोनो की मॉग की गयी है, याची की तरफ से कोई भी विश्वस्नीय अभिलेखीय साक्ष्य प्रस्तुत न किये जाने की दशा में याची के कथनों में बल प्रतीत नही होता है। पुनः मतगणना कराने हेतु कोई औचित्य प्रतीत नहीं होता है। अतः वाद बिन्दु सं0 3, 4, 5, 6, 7 नकारात्मक निर्णित किया जाता है।"

(Emphasis supplied)

8. Election petitioner being aggrieved by aforesaid order preferred Revision bearing No. 161 of 2022 and the same has been allowed by impugned order dated 06.05.2023 whereby above referred order dated 03.10.2022 was set aside and a direction was passed for recounting of votes within 30 days.

9. Sri Ashok Khare, learned Senior Advocate assisted by Sri Shantanu Khare, learned counsel for petitioner, submitted that order of recounting passed by Revisional Authority was illegal being passed without any legally sustainable grounds. Learned Senior Advocate further submitted that in case Revisional Authority was not satisfied or has come to conclusion that certain relevant material/ documents were not considered by Prescribed Authority, the correct approach was to remand the matter to the Prescribed Authority to decide afresh.

10. Learned Senior Advocate also submitted that Revisional Authority has passed impugned order mainly on two grounds. Firstly that State Election Commission has not provided proforma Form '36' and secondly there was an overwriting on number of proforma Form '46' as well as on number of total votes cast, i.e., '1167' and that there were affidavits filed on behalf of other candidates that number of total votes cast were 1170 and not 1167.

11. Learned Senior Advocate lastly submitted that reasons given by Revisional Authority to pass order for recounting are not based on any material except that there were overwriting. No specific finding was given that total number of votes cast were 1170 and not 1167. The alleged overwriting has not made any material effect on election result since there is no dispute that number '1167' is the correct number of total votes cast in favour of candidates including number of votes declared invalid as mentioned in the said form. According to Deputy District Election Officer, Azamgarh, Form 36 was not available, therefore, it was not a case of withholding any document and that said Form has details of number of ballot papers only, therefore, it has no bearing on merit of election dispute since other relevant proforma forms were available. He has placed reliance on a Full Bench judgment of this Court in Ram Adhar Singh vs. District Judge, Ghazipur and others 1985 SCC OnLine All 246, Para 18 of which is reproduced hereinafter:

"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."

12. Sri Prabhakar Awasthi, learned counsel appearing for Respondent-3 (Election-Petitioner), has vehemently opposed the above submissions. He submitted that Deputy District Election Officer has not provided a copy of proforma Form 36 and as such a material document has been suppressed. This is the document where details of number of votes cast are mentioned. The Prescribed Authority has not dealt with relevant issues and material on record and has not taken note of specific averment made in the Election Petition, therefore, the Revisional Authority was right in interfering with said order and further on basis of reasons, as referred earlier, the Revisional Authority has rightly passed order for recounting and there is no illegality in the impugned order.

13. Sri Anand Bhaskar Srivastava, learned Standing Counsel appearing for State-Respondents, has not denied that copy of proforma Form 36 was not provided to the Prescribed Authority since it was not available on record and all other relevant documents were provided.

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

15. Before dealing with rival submissions few paragraphs of a judgment passed by this Court in Smt. Sajida vs. Sub-Divisional Magistrate, Kairana District Shamli and others, 2023 SCC OnLine All 11 being relevant 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)]." (Emphasis supplied)

16. In the factual background as referred above, there is no dispute that petitioner has won the election of Gram Pradhan by only one vote. Election petitioner has taken a ground in election petition that total number of votes cast were 1170 and not 1167. It is also not in dispute that according to proforma Form 46 number of total valid votes were 1096 whereas number of rejected votes were 71 which comes to total votes cast to be 1167.

17. One of the grounds taken by Revisional Authority that there was an overwriting on number of proforma Form '46' as well as an overwriting on number of total votes cast, i.e., 1167, however both overwriting would have no consequence, since it is not in dispute that number of votes mentioned in said proforma Form with addition of number of votes rejected, would come to 1167 and overwriting on number of Form would also have no bearing since it was not the case of election petitioner that document was not genuine.

18. The issue which appears to be disturbing is the letter dated 09.09.2022 from the office of District Election Officer that proforma Form 36, i.e., a document where details of number of ballot paper and votes cast, are mentioned was not available in the office. This is the form where there are details of number of ballot papers received by Election Officer as well as number of ballot papers remained unused or rejected due to any reason and number of votes cast in ballot box, were mentioned. Issue in the present case, whether number of votes cast were 1170 or 1167 could be reverified by said proforma Form 36, however, admittedly Election Officer has not placed it on record on the ground that it was not available. The election petitioner has also not placed any material regarding his claim that number of total votes cast were 1170 except an assertion and affidavits of other candidates, who have participated in election.

19. In the present case both authorities, i.e., Prescribed Authority and Revisional Authority have rushed through the matter. Prescribed Authority has summarily rejected election petition without taking note of relevant materials and aspect of case, i.e., to verify from records that the total number of votes cast were 1170 or 1167, however, said exercise was not undertaken or it appears that it could not be undertaken since proforma Form 36 was not available.

20. The Prescribed Authority was within its jurisdiction to summon Election Officer with record, however, such exercise was not undertaken. Similarly, Revisional Authority though noted errors committed by Prescribed Authority, i.e., it has not taken note of allegation of difference of total number of votes cast, however, it has erroneously taken note of some aspects of the case which may not be relevant such as overwriting on proforma Form 46 or on number of total votes cast. As already referred above, there is no calculation error, therefore, that overwriting may not have any material impact on result of election. However, a document which definitely required to be placed on record is proforma Form 36 of election in question.

21. The Revisional Authority without summoning record or taking an explanation from Election Officer has rushed through the matter and without any reasonable basis or finding arrived to a conclusion that there was an error in number of valid votes and passed order for recounting. As held in Smt. Sajida (supra) order of recounting cannot be passed on assumption rather there must be a ground based on material and evidence that a case of recounting is made out, however, such basis is missing in the impugned order.

22. The outcome of above discussion is that both authorities have rushed through the matter and has taken a decision without relevant document, i.e., proforma Form '36' being on record and in these circumstances, the Revisional Authority ought to have remanded the election petition back to the Prescribed Authority for fresh consideration with a direction that records including proforma Form 36 be summoned from the office of District Election Officer, however, since same has not been followed, therefore, an error has been erupted in the impugned order.

23. In view of above, direction passed in impugned order dated 06.05.2023 for recounting is set aside and operative part of order is modified to the extent that order dated 03.10.2022 passed by Prescribed Authority is set aside and the election petition is remanded back to the Prescribed Authority to decide afresh with direction that Prescribed Authority shall pass appropriate order to summon records including copy of proforma Form 36 of election in question from the office of District Election Officer, Azamgarh and if necessary may summon concerned officer to give evidence in terms of Rule 4 of U.P. Panchayat Raj (Settlement of Election Disputes) Rules, 1994. The Prescribed Authority shall pass afresh order expeditiously, preferably within a period of eight weeks from today in accordance with law.

24. The writ petition is accordingly disposed of with above observations and directions.

Order Date :- 06.06.2023

AK