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IN THE HIGH COURT OF ALLAHABAD
O. P. Garg, J.
SHOOBH NATH - Appellant
Versus
STATE OF UTTAR PRADESHAND OTHERS - Respondents
C. M. W. P. 35019 Of 1998
Decided On : 11/10/1998
ELECTION LAW - U. P. PANCHAYAT RAJ ACT, 1947 - SECTION 12C - RECOUNTING OF VOTES - CONDITIONS PRECEDENT - MATERIAL FACTS AND EVIDENCE REQUIRED - INTERPRETATION AND APPLICATION.
Fact of the Case:
In an election for the office of Pradhan of Gaon Sabha, Aazon, Block Sujangarh, Nyaya panchayat Amau, district Jaunpur, the petitioner, Shobh Nath, was declared elected with 168 votes, while the nearest contesting candidate, Lalji, secured 167 votes. Lalji filed an election petition challenging the result, alleging that the ballot papers were not correctly counted and that votes polled in his favor were wrongly counted in favor of the petitioner. The Prescribed Authority ordered a recount of the votes.
Finding of the Court:
The court held that the order for recounting of votes was justified in the circumstances of the case. The election petition contained precise allegations about the alleged mess created in the counting of votes, and the election petitioner had also moved an application for inspection and recount of the ballot papers. The court found that there was a glaring discrepancy in the number of votes actually polled and the number of votes found at the time of counting, and that this discrepancy was unexplained and irreconcilable. The court also noted that the contesting parties had sailed or sunk only by a margin of one vote, which was a narrowest possible margin in the victory and defeat. This narrow margin of votes was a weighty and apt circumstance which would also justify the recounting of the votes.
Issues: 1. Whether the Prescribed Authority had the jurisdiction to order a recount of votes without an application from the election petitioner specifying the relevant details with precision? 2. Whether the Prescribed Authority could order a recount of votes without any evidence or material having been placed by the election petitioner in support of his allegations?
Ratio Decidendi: 1. The court held that the election petitioner had made an application for recounting of the votes, and that this application had to be read in conjunction with the verified allegations and contents made in the election petition. The court found that the election petitioner had challenged the declaration of the result in favor of the petitioner only on the ground that the ballot papers were not correctly counted and that the votes polled in his favor were wrongly counted in favor of the petitioner. The court held that it could not allow any party to resort to unnecessary hair-splitting, and that the substance of the matter was that besides the petition, which contains the precise allegations about the alleged mess created in the counting of the votes, another application had been moved as a step in aid of the order for recounting. 2. The court held that the order of recount of votes stands or falls on the nature of the averments made and the evidence required to be/or adduced before the order of recount is made. The court held that it is true that an order of recount has to be passed in very sparing circumstances and the onus lies on the election petitioner to indicate the circumstances in which the recount of the votes has become necessary. The court held that the election petitioner had made specific and precise pleadings for the purpose and had also led evidence and placed such material which should leave the Prescribed Authority with no option but to order for the recount of the votes.
Final Decision: The court dismissed the writ petition challenging the order of the Prescribed Authority for recounting of votes.
( 1 ) THE validity of the order passed by the Prescribed Authority under Section 12c of the U. P. Panchayat Raj Act. 1947, whereby he has ordered for recounting of the votes, has come to be challenged in the present writ petition in the following circumstances.
( 2 ) THE election to the office of Pradhan of Gaon Sabha, Aazon. Block Sujangarh, Nyaya panchayat Amau, district Jaunpur had taken place, on 12,4. 1995, in which besides the petitioner-Shobh Nath. respondent Nos. 3 to 6, namely, Lalji, Basant Raj, Shiv Bahadur and ajay Kumar were the congesting candidates. The counting of the votes took place on 20. 4. 1995 in which Shobh Nath, petitioner was declared to have been elected as Pradhan having secured 168 votes. His nearest contesting rival candidate was Lalji- respondent No. 3. who polled 167 votes. Lalji respondent No. 3 filed an election petition before the Sub- Divisional Officer. Macchli Shahr. Jaunpur. The present petitioner had filed a written statement. By the impugned order dated 23. 10. 1998, which is Annexure-4 to this writ petition, the Sub-Divisional officer/prescribed Authority has directed that the recounting of the ballot papers shall take place in his presence on 8. 11. 1998. It is this order, which has come to be challenged before this Court in the present petition.
( 3 ) SRI V. K. Shukla, appeared on behalf of Lalji, election petitioner- respondent No. 3. He made a statement that since a pure question of law is involved in the present petition for determination by this Court, he would not like to file any counter-affidavit and the petition be decided on merits on the basis of material available on record. A supplementary affidavit has also been filed by the petitioner.
( 4 ) HEARD Sri B. B. Paul, learned counsel for the petitioner and Sri V. K. Shukla, learned counsel for the respondent No. 3.
( 5 ) THE impugned order for recounting of the votes passed by the Prescribed Authority has come to be challenged 011 the only ground that the election petitioner (respondent No. 3) has not filed any application taking specific plea for recount of the votes and that he had also not placed any material or evidence, which may justify recount of the votes. This submission has been repelled by the learned counsel for the respondent No. 3.
( 6 ) BEFORE examining the facts of the present case and the rival contentions of the parties, it would be proper to set out the position of law which has since been crystalised by a plethora of decisions of this Court as well as the Apex Court. Without burdening this judgment with a series of decisions, I would do better to make a passing reference to some of the decisions and to give elaborate observations in some decisions which lay down a well embedded legal position.
( 7 ) THE first case in the series, which is required to be referred is Jagjit Singh v. Gyani Kartar singh, AIR 1966 SC 773. It was observed that in a proper case, the election Tribunal can order the inspection of the ballot boxes and may proceed to examine the objections raised by the parties in relation to the improper acceptance or rejection of the voting papers. In exercising this power, the Tribunal has to bear in mind certain important considerations, such as that the petition should contain a concise statement of the material facts on which the petitioner relies and in every case where a prayer is made by the petitioner for the inspection of the ballot boxes, the tribunal must enquire whether the application made by the petitioner in that behalf contained a concise statement of the material facts on which he relied. In an earlier case of Ram Sewak yadav v. Hussain Kamil Kidwai, AIR 1964 SC 1249, the Apex Court set out the circumstances when an order of inspection of ballot papers can be made in the following terms :
"an order for inspection may not be granted as a matter of course ; having regard to the insistence upon the secrecy of the ballot papers, the Court would be justified in granting an
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