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HIGH COURT OF ALLAHABAD
O.P.Garg
SHOBH NATH
Versus
STATE OF U P
Decided On : 10 November 1998
C. M. W. P. No. 35019 of 1998
ELECTION - U. P. PANCHAYAT RAJ ACT, 1947 - SECTION 12-C - RECOUNTING OF VOTES - CONDITIONS PRECEDENT - ELECTION PETITIONER MUST FILE AN APPLICATION SPECIFYING RELEVANT DETAILS WITH PRECISION - PRESCRIBED AUTHORITY MUST BE PRIMA FACIE SATISFIED 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.
Fact of the Case:
Election to the office of Pradhan of Gaon Sabha, Aazon, Block Sujan-Sarh, Nyaya Panchayat Amau, District aunpur had taken place, on 12-4-1995, in which besides the petitioner Shoblvnath, respondent Nos. 3 to 6, namely, Lalji, Basant Raj, Shiv Bahadur and Ajay Kumar were the contesting 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 con testing rival candidate was Lalji respon dent 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.
Finding of the Court:
The court held that the order for recounting of votes passed by the Prescribed Authority was valid and justified. The court found that the election petitioner had made specific and precise allegations in his election petition about the alleged mess created in the counting of the votes. The court also 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. The court held that this discrepancy was a weighty and apt circumstance which justified the recounting of the votes.
Issues: 1. Whether the Prescribed Authority had the jurisdiction to order recounting of votes without an application from the election petitioner specifying the relevant details with precision? 2. Whether the Prescribed Authority was justified in ordering recounting of votes in the absence of any evidence or material placed by the election petitioner in support of his allegations?
Ratio Decidendi: 1. The court held that an election petitioner must file an application specifying the relevant details with precision before the Prescribed Authority can order recounting of votes. The court also held that the Prescribed Authority must be prima facie satisfied 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. 2. The court held that the Prescribed Authority was justified in ordering recounting of votes in the present case. The court found that the election petitioner had made specific and precise allegations in his election petition about the alleged mess created in the counting of the votes. The court also 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. The court held that this discrepancy was a weighty and apt circumstance which justified the recounting of the votes.
Final Decision: The court dismissed the writ petition filed by the petitioner challenging the order of the Prescribed Authority for recounting of votes.
The validity of the order passed by the Prescribed Authority under Section 12-C 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 Prad-han of Gaon Sabha, Aazon, Block Sujan-
5arh, Nyaya Panchayat Amau, District aunpur had taken place, on 12-4-1995, in which besides the petitioner Shoblvnath, respondent Nos. 3 to 6, namely, Lalji, Basant Raj, Shiv Bahadur and Ajay Kumar were the contesting 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 con testing rival candidate was Lalji respon dent 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 VK. Shukla, appeared on be half of Lalji, election petitioner respon dent 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 af fidavit has also been filed by the petitioner.
4. Heard Sri B. B. Paul, learned Coun sel for the petitioner and Sri YK. Shukla, learned Counsel for the respondent No, 3.
5. The impugned order for recount ing of the votes passed by the Prescribed Authority has come to be challenged on 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 sub mission 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 to 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 par ties in relation to the improper acceptance or rejection of the voting papers. In exer cising 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 Kamilkidwai, AIR 1964 SC 1249, the apex Court set out the circumstances when an order of inspection ballot of 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 order for inspection provide
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