Ramesh Kumar Seth vs The State Of U P And 17 Others
2023 Latest Caselaw 8721 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Judgement Reserved on 19.12.2022
 
Judgement Delivered on 24.03.2022
 

 
Court No. - 5
 

 
Case :- WRIT - C No. - 28955 of 2022
 

 
Petitioner :- Ramesh Kumar Seth
 
Respondent :- The State Of U P And 17 Others
 
Counsel for Petitioner :- Prashant Kumar Tripathi
 
Counsel for Respondent :- C.S.C.,Ramendra Asthana,Saroj Kumar Yadav,Vishakha Pande,Yashaswin Venugopal Bajpai
 

 
Hon'ble Prakash Padia,J.

1. Heard Sri Ashish Singh, learned counsel for the petitioner and Sri Rakesh Pandey, learned Senior Counsel assisted by Sri Saroj Kumar Yadav, learned counsel for the contesting respondents.

2. The petitioner has preferred the present writ petition with the prayer to quash the order dated 03.08.2022 passed by the District Judge, Varanasi in Election Revision No.Nil of 2022 (Ramesh Kumar Seth Vs. State Election Officer and others) as well as the order dated 04.07.2022 passed by the respondent No.3/Prescribed Authority/Sub Divisional Officer, Raja Talab Varanasi in Case No.03520 of 2021 (Computer Case No.T202114700303520) (Subhas Chandra Jaiswal Vs. District Election Officer through Collector Varanasi).

3. Facts in brief as contained in the writ petition are that the election of Village Pradhan of village Rakhi Nevada, Kshetra Panchayat Sevapuri, Tehsil Rajatalab, District Varanasi, was scheduled to be held 19.04.2021. The petitioner is a resident of Village Uparwar Kutiya, Gram Panchayat Rakhi Newada, Kshetra Panchayat, Sewapuri, Tehsil Rajatalab, District Varanasi and the respondent Nos. 5 to 18 are the residents of Gram Panchayat Uparwar, Kshetra Panchayat Sevapuri, Tehsil-Raja Talab, Dist-Varanasi and they were the candidates for the post of Gram Pradhan.

4. The Electoral Mark (Chunav Chinha) allotted to the petitioner was the "Camera" and the Electoral Mark (Chunav Chinha) allotted to the Plaintiff Respondent No.5 namely Subhas Chandra was "Charpai."

5. The voting for the post of Gram Pradhan of Gram Panchayat Rakhi Newada, Tehsil Rajatalab, District Varanasi, was taken place on 19.04.2021 and the counting of votes was done on 02.05.2021 in which the petitioner acquired 297 votes and the Respondent No.5, namely Subhas Chandra Jaiswal acquired 294 votes. Thus the petitioner namely Ramesh Kumar Seth, was declared successful/winning candidate for the post of Gram Pradhan of aforesaid Gram Panchayat.

6. Aggrieved with the result, the Respondent No. 5 namely Subhas Chandra Jaiswal, filed an Election Petition on 07.06.2021 in the court of Sub Divisional Officer, Rajatalab, District Varanasi/respondent No.3. The same was registered as Election Petition No. 03520 of 2021, Computerized Case No. 1T202114700303520 of 2021 (Subhas Chandra Jaiswal Vs. District Election Officer through District Magistrate).

7. The petitioner filed his Written Statement/Objection on 08.07.2021 to the aforesaid Election Petition and the respondent No.5 filed his rejoinder on 28.07.2021 to the aforesaid objection/Written Statement. The Prescribed Authority/respondent No.3 passed the order dated 04.07.2022 allowed the Election Petition filed by the respondent No.5 and a direction was given for recounting of votes by fixing date, i.e., 26.07.2022 and time, i.e., 10 a.m.

8. Against the order dated 04.07.2022 passed by the Prescribed Authority/Sub Divisional Officer, Rajatalab, District Varanasi/respondent No.3, the petitioner preferred a revision before the District Judge, Varanasi on 08.07.2022 being Election Revision No. NIL of 2022 (Ramesh Kumar Seth Vs. State of U.P. and others).

9. Ultimately, the District Judge, Varanasi passed the order dated 03.08.2022 in Election Revision No. NIL of 2022 (Ramesh Kumar Seth Vs. State Election Officer and others) dismissing the Election Revision in Limine at the stage of admission itself and while dismissing the Election Revision he has taken the ground that Revision is not maintainable against the order of recounting passed by the Prescribed Authority. Aggrieved against the aforesaid orders, the petitioner has preferred the present petition.

10. From the perusal of the impugned judgment dated 4.7.2022, the Court finds that even before the issues were decided, the Election Tribunal undertook the exercise of seeing whether the ballot papers ought to be recounted. Thereafter, without deciding the issues, the election petition was allowed and the order was passed for re-counting. Aggrieved thereof, the petitioner had approached the Revisional Court by filing the aforesaid Revision which was also dismissed on 03.08.2022.

11. Learned counsel for the petitioner has argued that during the course of the decision of the election petition, if the Court considers that recounting of ballot papers was essential, then the recounting could have been done. Learned counsel for the petitioner further submits that if the recounting was not essential then definitely no recounting had to be done. He further submits that if during the course of the decision of any issue, it was essential that recounting was required then the recounting could have been done. Learned counsel further submitted that after the order of recounting was passed, the Tribunal could not have outright stated that the election petition itself was disposed of. Learned counsel for the petitioner submitted that the result of recounting could have been only an evidence for the Court to come to the conclusion as to whether the election petition could be allowed or could be dismissed. Learned counsel, therefore, submits that the order impugned dated 4.7.2022 be set-aside. He further submits that because of the fact that the election petition had been decided finally, the Revision also ought to have been entertained. Learned counsel for the petitioner further submitted that even otherwise no ground was made out for the opening of the ballot box and recounting of the ballot papers. The Prescribed Authority could have ordered for recount of the ballot papers only where; (i) the election petition contained an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting were made; (ii) on the basis of evidence adduced such allegations were prima facie established and afforded a good ground for believing that there had been a mistake in counting; and (iii). the court trying the petition was prima facie satisfied that the making of such an order was imperatively necessary to decide the dispute and to do complete and effective justice between the parties. He, therefore, submitted that in the Full Bench decision of this Court in Ram Adhar Singh vs. District Judge & Ors. reported in 1985 ACJ 196, it had been laid down that on vague and indefinite allegations recounting could not be ordered and that recounting could not be made as a matter of course. Recount of votes could be ordered very rarely and on specific allegation in the pleadings in the Election Petition that illegality or irregularity was committed while counting. The election petitioner who seeks recount should allege and prove that there was improper acceptance of invalid votes or improper rejection of valid votes. If only the Court was satisfied about the truthfulness of the allegations, could it order the recount of votes. Secrecy of ballot has always been considered sacrosanct in a democratic process of election and it cannot be disturbed lightly by bare allegations of illegality or irregularity in counting. And if it is proved that purity of elections has been tarnished and it has materially affected the result of the election whereby the defeated candidate is seriously prejudiced, the Court can resort to recount of votes to do justice between the parties.

12. Sri Rakesh Pandey, learned Senior Counsel appearing for the election petitioner, in reply, submitted that the recounting order need not be interfered with as there were substantial grounds on the basis of which the recounting was ordered and even if this Court was of the view that the petition could not have been finally allowed after the passing of the recounting order, the order for recounting need not be interfered with. Learned counsel has very fairly conceded that even if the Revision was not filed, this Court could have looked into this aspect of the matter as to whether recounting had been validly ordered. Learned counsel further submitted that the recounting would enhance the concept that "purity of election" has always to be given supremacy. He submitted that the predominant feature of a democracy is that only such incumbent should represent a constituency who had in fact been chosen by the majority of electors. In this regard he has drawn the attention of the Court to a decision of the Supreme Court in A. Neelalohithadasan Nadar vs. George Mascrene & Ors. reported in 1994 Supp. (2) SCC 619 and submitted that the principle of secrecy of ballot box must yield to the principle of purity of election in larger public interest. Learned counsel also submitted that secrecy of ballot cannot stand aloof or in isolation and in confrontation to the foundation of free and fair election. He submitted that "secrecy of ballot" and "purity of free and fair election" have to co-exist and one concept cannot be used to destroy the other. Secrecy of ballot must yield to the principle of purity of election in public interest.

13. Having heard learned counsel for the parties, I am of the view that the order dated 4.7.2022 cannot be sustained in the eyes of law. From the perusal of the judgment, the Court finds that without deciding any of the issues, the election petition itself has been finally decided. This approach of the Election Tribunal was patently erroneous. During the decision of any issue, an order could have been passed for the recounting of votes but the Election Tribunal could not have separately, without deciding any of the issues, ordered for the recounting of votes.

14. Under such circumstances, the order impugned dated 4.7.2022 is set-aside. Since the Revisional Court has also failed in its duty to consider as to whether the Election Tribunal had decided the election petition correctly, the order of the Revisional Court dated 3.8.2022 is also set-aside. The matter is remanded to the Election Tribunal which shall decide the case afresh and if while deciding any particular issue, it is of the view that the recounting had to be done, then it can always order for the recounting provided it adheres to the provisions of law as have been mentioned above. For the purpose of recounting, it has to give specific reasons.

15. The Court expects that the election petition shall be decided within a period of three months from the date of presentation of a certified copy of this order.

16. The present petition under Article 226 of the Constitution of India is, accordingly, partly allowed. No order as to costs.

Order Date :-24.03.2023

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