Gayatri Devi vs Afsari And Others
2021 Latest Caselaw 910 UK

        HIGH COURT OF UTTARAKHAND
                AT NAINITAL

              Writ Petition (M/S) No. 3284 of 2019
Gayatri Devi                                          ...Petitioner
                                    Vs.

Afsari and others                                     ...Respondents
Advocates :    Mr. C.S. Rawat, Advocate, along with Mr. Prabhakar Narayan,
               Advocate, for the petitioner.
               Mr. Suyash Pant, Standing Counsel, for the State.
               Mr. Himanshu Pal, Advocate for respondent No. 1.
               Mr. Sanjay Bhatt, Advocate, for respondent No. 3


Hon'ble Sharad Kumar Sharma, J.

The petitioner before this Court is a returned candidate, who was declared elected in pursuance to the election, which was held for the post of Nagar Panchayat Mahuwadabara, Tehsil Jaspur, District Udham Singh Nagar, in an election, which has been held on 20.11.2018, and the result of which was declared on the same day i.e. 20.11.2018. Consequent to the declaration of the result, the respondent and the petitioner both have secured equal votes i.e. 1426 votes. Later on, the respondent/election petitioner had questioned the election of the petitioner/returned candidate by invoking the provisions contained under Section 20 of the Uttar Pradesh (Uttarakhand) Municipalities Act, by filing an election petition and, in the election petition, thus instituted by the election petitioner/respondent No. 1 herein, it has been contended in its para nos. 10, 11, 12 and 14 of the election petition that, certain votes, which had been declared to be invalid for the respondent or valid votes for the petitoner, which has been counted in favour of the returned candidates, have been wrongfully included and counted; though they were invalid votes of the election of the election petition, which was wrongfully rejected were to be counted and due to that, a margin was relatively sought to be reduced, as far as respondent is concerned,

in order to bring an equivalence of votes, having been casted in their favour and as a consequence thereto, the result of the election was declared on the basis of a lottery, which was drawn by the Election Officer.

2. During the pendency of the election petition, which was preferred in December 2018, the respondent had filed an application i.e. paper No. 37C, before the Court of District Judge, Udham Singh Nagar, which was Election Tribunal, under the Act, wherein in the application thus filed by the respondent, she has prayed for the recounting of the ballots and if the application for recounting itself is taken into consideration, where the prayer for recounting has been made, it has been specifically foundationed on the plea of a rightful and wrongful inclusion or rejection of ballots, which were counted in favour of the petitioner and wrongful rejection of valid votes, which have been rejected, to be counted so far it relates to the election petitioner, the respondent herein.

3. The argument of the learned counsel for the petitioner, while giving a challenge to the impugned order, as has been passed by the Election Tribunal dated 16.02.2019, is concerned, it is from the perspective that, recounting of votes, should not be permitted under the election laws, as no fishing and roving efforts, are required to be made once the election result has been declared and the petitioner has been declared, as to be a returned candidate, may be even based on the lottery system.

4. The learned counsel for the petitioner, simultaneously argues that, even if at all as per the ratio laid down by the various judicial precedents, if at all the recounting of the ballots is permissible, then too it is not the recounting of the entire votes,

which is required or intended to be made, but its only the limited votes, which have been alleged to be wrongfully rejected or accepted which are required to be counted and is required to be permitted to be recounted, in view of the ratio, which has been placed reliance by the learned counsel petitioner as reported in 2014 (5) SCC 312, Arikala Narasa Reddy Vs. Venkata Ram Reddy Reddygari and another. Particularly, the learned counsel for the petitioner has drawn the attention of this Court to the contents of the para 26 and 27 of the said judgement, which is referred to hereunder:-

"26. The instant case requires to be considered in light of the above settled legal propositions. In the instant case, as explained hereinabove, there were 706 total votes, out of which 701 votes were polled. At the time of initial counting on 2.4.2009, both the candidates got equal votes as 336 and 29 votes were found invalid. On the request of the appellant, the Returning Officer permitted recounting of the votes and the appellant got 336 votes while the respondent no.1 got 335 votes and 30 votes were found to be invalid. In the election petition, the only grounds had been that 3 votes i.e. Ex.X-1 to X-3 polled in favour of respondent no.1 which had wrongly been rejected and one vote Ex.Y-13 which had been counted in favour of the appellant ought to have been declared invalid.

27. In view of the pleadings in the election petition, the case should have been restricted only to these four votes and even if the recrimination petition is taken into account, there could have been no occasion for the High Court to direct recounting of all the votes and in case certain discrepancies were found out in recounting of votes by the Registrar of the High Court as per the direction of the High Court, it was not permissible for the High Court to take into consideration all such discrepancies and decide the election petition or recrimination petition on the basis thereof. The course adopted by the High Court is impermissible and cannot be taken note of being in contravention with statutory requirements. Therefore, the case has to be restricted only to the four votes in the election petition and the allegations made in the recrimination petition ignoring altogether what had been found out in the recounting of votes as under no circumstance the recounting of votes at that stage was permissible."

5. Even if the said judgment, is taken into consideration, the recounting of the ballots, have not been completely barred, but in view of the reasoning, which has been given in para 27 of the said judgement, the permissibility of recounting of the ballots,

has been limited only to the extent of those ballots, which have been alleged to be wrongfully accepted or rejected in relation to the candidates, who have contested the election, it may be the returned candidate or the election petitioner, who has challenged the election of the returned candidate. Meaning thereby, as per the principle argued by the learned counsel for the petitioner, its only an exception which is being carved out is that the direction to recount the entire ballots is not an intention, which has been provided by the ratio propounded by the Hon'ble Apex Court in the light of the judgment of Arikala Narasa Reddy (Supra).

6. But, simultaneously, he also agrees to the principle, that if at all a discretion is to be exercised by the Election Tribunal for recounting of the ballots, it could be only limited to the ballots, which are said to be disputed and wrongfully rejected or wrongfully counted by the Election Officer, at the time of counting of the ballots, which if at all required could be directed to be recounted, in the proceedings of an election petition.

7. The ground taken by the learned counsel for the petitioner, is that the application, which was submitted by the election petitioner i.e. paper No. 37C, requesting before the Tribunal, for recounting the ballots since is not foundationed appropriately and no plea as such has been raised to substantiate the impugned order or a direction which has been given for recounting, is not sustainable for the reason being that, if the application paper No. 37C, for recounting of ballots, which has been preferred by the election petitioner/respondent herein itself is taken into consideration, the election petitioner herself, in the application thus filed before the Election Tribunal, has taken a specific plea limited to the extent of the action and inaction, which has been complained of, as against the Election Officials, it was limited to

the wrongfully rejection of the ballots, which otherwise according to his case, was expected to be counted, in favour of the election petitioner, and further the application paper 37C, which was filed praying for recounting, has also been foundationed on the fact that some of the votes which were otherwise had been counted in favour of the returned candidate they deserved rejection, for whatsoever valid reasons, that has been pleaded in the application paper No. 37C. Hence the argument extended by the learned counsel for the petitioner that the application paper No. 37C, for the recounting of the ballots was not based upon a sound and specific finding or quantifying the number of votes, which has been wrongfully rejected or accepted to be counted, that itself, may not be a valid reason to accept the argument of the learned counsel for the petitioner for the reason being that logically and otherwise also rationally too, it is practically impossible for the applicant to exactly to satisfy to exact number of ballots, which have been wrongfully rejected or accepted, to be counted in relation to the candidates who have contested an election.

8. Specification of the number of ballots, which have been wrongly included or excluded, from being counted, is not a condition precedent for considering the application for recounting and the contention of the learned counsel for the petitioner, that the application is not foundationed on material placed before it, is not acceptable by this Court expect to the proposition, which has been argued by the learned counsel for the petitioner, that if at all the counting was required to be resorted to, then too it ought to have been in consonance to the ratio of the Hon'ble Apex Court, as it has been observed in para 27 of the judgement Arikala Narasa Reddy (Supra), that recounting ought to be confined and limited to the invalid votes or the valid votes, which have been

wrongfully rejected to be counted or wrongfully counted in relation to the candidates in contest to an election. Hence as far as application paper no. 37C is concerned and its correlation to the impugned order, which is put to challenge, is being modified to the extent that the recounting of the ballots, as contemplated by the application paper No. 37C and consequent to order passed on it on 16.10.2019, is only modified to the extent that the recounting of the ballots, would be only limited to the number of votes, which has been determined to be wrongfully rejected to be counted and the entire ballots will not be recounted as directed by the order dated 16.10.2019. Hence, it is directed, that the recounting would be specifically limited to the ballots, which have been wrongfully rejected to be counted in relation to the election petitioner, as well as the returned candidates also.

9. Consequently, subject to the aforesaid observations, the impugned order dated 16.10.2019, permitting the recounting of the ballots is modified and would be confined to the direction as already given above of the recounting the ballots wrongfully rejected, the impugned order stands modified to that extent only.

(Sharad Kumar Sharma, J.) 16.03.2021 Mahinder/