Rajdeep Singh v. Vijay Singh) by which
Case Details
Neutral Citation No. - 2024:AHC:186559 RESERVED Court No. - 92 Case :- FIRST APPEAL No. - 434 of 2024 Appellant :- Vijay Singh Respondent :- Rajdeep Singh And Another Counsel for Appellant :- Kartikeya Saran,Suchita Mehrotra Counsel for Respondent :- C.S.C.,Jaysingh Yadav, Rananjay Singh With Case :- FIRST APPEAL No. - 337 of 2024 Appellant :- Rajdeep Singh Respondent :- Vijay Singh And Another Counsel for Appellant :- Jaysingh Yadav,Sr. Advocate Hon'ble Vipin Chandra Dixit,J. 1. First Appeal No. 434 of 2024 has been filed on behalf of appellant- defendant no. 1 under Rule 49 of U.P. Kshettra Panchayat (Election of Pramukhs and Up Prakukhs and Settlement of Election Disputes) Rules, 1994 (herein after referred to as “Rule, 1994”) read with Section 96 C.P.C. against the judgment and order dated 07.03.2024 passed by Election Tribunal / District Judge, Lalitpur in Election Petition No. 01 of 2023 (Rajdeep Singh vs. Vijay Singh) by which respondent no. 1 Rajdeep Singh was declared successful candidate and election of Vijay Singh for the post of Pramukh, Kshettra Panchayat, Talbehat, Tehsil Talbehat, District Lalitpur was declared void. 2. First Appeal No. 337 of 2024 has been filed against the same impugned order dated 07.03.2024 by the election petitioner, by which five votes were declared invalid. 3. Since both the first appeals have been filed against the same impugned order, both the appeals are being decided by common order. 4. Brief facts of the case are that the election of Pramukh, Kshettra Panchayat, Talbehat Constituency, Lalitpur was held on 10.07.2021 in pursuance of notification issued by State Election Commission of Uttar Pradesh dated 05.07.2021. Total 83 votes were cast, out of which 1 of 13 appellant secured 39 votes, whereas, 38 votes were cast in favour of respondent no. 1 and 6 votes were declared invalid and the appellant was declared successful candidate. 5. Respondent no. 1 Rajdeep Singh has filed election petition under Rule 35 of Rule, 1994 challenging the election dated 10.07.2021 on the
Legal Reasoning
ground that the defendant-appellant herein was an active member of ruling party BJP and on account of corrupt practice, six votes were declared invalid only to facilitate him. It is also pleaded in the election petition that six votes which were cast in favour of election petitioner, were declared invalid only to defeat the election petitioner in the election. The election petition was registered as Election Petition No. 01 of 2023. 6. The appellant has filed a detailed objection on 25.04.2023 stating therein that the election was conducted in a very fair manner. The election was never challenged by election petitioner for such a long time and the present election petition has been filed with false allegation. It is also stated in the objection that the election petitioner has not disclosed his criminal history at the time of nomination. The criminal history are deliberately and purposefully concealed by election petitioner and as such, the election petition is liable to be rejected on this ground alone. 7. District Election Officer, Lalitpur has also filed written statement denying the allegation of election petitioner and it is stated that the election was conducted in a very fair manner after following the procedure prescribed under the law. 8. The election tribunal has framed seven issues for determination. The election petitioner had moved an application on 11.05.2023 which is paper no. 50-C(2) for summoning of ballot papers for recounting on the ground that six votes which were declared invalid were cast in favour of election petitioner and the election officer only to facilitate the candidate of ruling party has deliberately declared those votes invalid. 2 of 13 9. The appellant-defendant in election petition has filed a detailed objection to the application 50-C(2). 10. The appellant has also filed an application on 22.05.2023 with the prayer to decide issue no. 5 regarding jurisdiction of this Court as a preliminary issue in view of order 14 Rule 2(a) C.P.C. It is also stated that the election petition is barred by Order 7 Rule 11 C.P.C. 11. The election tribunal vide order dated 22.05.2023 has declined to summon the ballot papers on the ground that the election petition has been filed without any affidavit and the issues have already been framed, but no evidence was adduced by the election petitioner in support of his election petition. It was also observed that the application 50-C(2) will be decided after the evidence adduced by the election petitioner. 12. The election petitioner had filed some evidence in Pendrive on 03.07.2023 and had moved another application for summoning the ballot papers for the purposes of recounting of votes which is paper no. 57-C(2) and 63-C(2). 13. The appellant had filed detailed objection on 05.07.2023 to the application filed by election petitioner dated 03.07.2023. The appellant had also moved an application on 05.07.2023 with the prayer to decide the application filed by appellant dated 22.05.2023 regarding jurisdiction of election tribunal. The election tribunal without deciding the issue of jurisdiction had summoned the ballot papers vide order dated 5.7.2023. 14. The order dated 05.07.2023 passed by election tribunal was challenged by the appellant before this court by filing Writ-C No. 23105 of 2023 (Vijay Singh vs. Rajdeep Singh and another) on the ground that earlier the election tribunal has refused to summon the ballot papers vide order dated 11.05.2023 and in spite of repeated request for deciding the issue of jurisdiction (Issue No. 5), the order dated 05.07.2023 has been
Decision
passed. The writ petition filed by appellant was allowed by this Court vide 3 of 13 judgment dated 02.08.2023 and the order passed by election tribunal dated 05.07.2023 was quashed. 15. The election petitioner had filed another application on 01.12.2023 for summoning of ballot papers for recounting on the ground that there was a margin of only one vote. The objection has been filed by the appellant on 02.12.2023 stating therein that the evidence of the parties have not been concluded and the election petitioner has failed to produce any documentary evidence in support of his case. It was also pleaded that the Hon’ble High court has already quashed the order dated 05.07.2023 by which ballot papers were summoned. 16. The election tribunal by ignoring the order dated 02.08.2023 passed by this Court in Writ -C No. 23105 of 2023 had passed the order dated 29.02.2024 and summoned the entire record of election of Pramukh including ballot box and the case was fixed for 04.03.2024 at 02:00 P.M. 17. The order dated 29.02.2024 was again challenged by the appellant by filing Writ Petition No. 7665 of 2024 (Vijay Singh vs. Rajdeep Singh and another), which was dismissed by this Court, vide order dated 05.03.2024. After dismissal of writ petition, the ballot papers were summoned and recounting was conducted by a panel constituted by the court below and declared one vote out of six invalid votes to be valid in favour of election petitioner and consequently allowed the election petition. 18. Heard Sri Kartikeya Saran, learned counsel for appellant, Sri P.P. Yadav, learned Senior Advocate assisted by Sri Jay Singh Yadav, learned counsel for respondent no.1 and perused the record. 19. It is submitted by learned counsel for appellant that learned Election Tribunal/District Judge, Lalitpur has erred in allowing the election petition declaring respondent no.1 as successful candidate. It is further submitted that admittedly the appellant was elected as Pramukh of Kshettra Panchayat Talbehat Constituency, Lalitpur in election dated 4 of 13 10.7.2021. The respondent no.1 has filed election petition challenging the election of appellant on various grounds and it was also pleaded that six votes which were cast in favour of election petitioner were declared invalid only to defeat the election petitioner in the election. The respondent no.1 had moved an application for recounting of votes which was rejected by the Election Tribunal vide order dated 22.5.2023. The finding has been recorded by the Election Tribunal that the election petition is not supported with an affidavit and the election petitioner has not adduced any evidence in support of his election petition. The respondent no.1 has filed another application for summoning of ballot box and the Election Tribunal had summoned the ballot box vide order dated 5.7.2023 which was challenged by the appellant before this Court by filing Writ- C No.23105 of 2023. The writ petition was allowed and the order passed by Election Tribunal dated 5.7.2023 was quashed. The respondent no.1 had again filed an application on 1.12.2023 for the same relief to summon the ballot box, was rejected vide order dated 4.12.2023 with the observation that issue of recounting will be considered after arguments of parties. The Election Tribunal without deciding any issues framed for determination has again summoned the ballot box with all documents vide order dated 29.2.2024 which was again challenged by the appellant before this Court by filing Writ-C No.7665 of 2024 and the same was dismissed on 5.3.2024. This Court was of the view that recounting of votes had already been set-aside by a co-ordinate Bench of this Court. The writ petition was dismissed on 5.3.20234 and the learned Election Tribunal on the same day proceeded to recounting of ballot papers. It is further submitted that the order for summoning the ballot box dated 5.7.2023 had already been set-aside by this Court holding that the re-counting of votes could be ordered very rarely and on specific allegation in the pleadings, vide judgement dated 2.8.2023. The judgment of this Court was not challenged by respondent no.1 and has become final. This Court has again observed in Writ-C No.7665 of 2024 that 5 of 13 recounting of votes had already been set-aside by co-ordinate Bench of this Court but in spite of order dated 2.8.2023 and 5.3.2024, the Election Tribunal had summoned the ballot box. The Election Tribunal without deciding the issues on merits, in a very hurry manner had decided the election petition only on the basis of recounting, whereas this Court has restrained the Election Tribunal for recounting. The Election Tribunal without considering the evidence and materials which are available on record and ignoring the directions issued by this Court dated 2.8.2023 and 5.3.2024 had summoned the ballot box, recounted the ballot papers and declared one vote valid in favour of respondent no.1. The approach of learned District Judge/Election Tribunal, Lalitpur appears to be contemptuous and in violation of orders passed by this Court. Lastly, it is submitted that learned Election Tribunal has also erred in declaring one vote valid in favour of respondent no.1 accepting that it was marked in Devnagri script. The ballot paper 1 at page 20 appears to be 9 and the Election Tribunal has erred in accepting the same as 1 in favour of respondent no.1. The respondent no.1 had not disclosed his criminal history in the nomination papers and had concealed the material facts but this important aspect have not been considered by the Election Tribunal. The Election Tribunal has failed to discussed the evidence adduced by the parties and has not decided the issues framed for determination independentally. 20. Learned counsel for the appellant has further submits that order of recounting of votes could not be ordered on vague allegations and it can be passed only on the specific allegations in the pleadings and materials brought before the Tribunal by the election petitioner that some irregularities were committed while counting of votes. The secrecy of ballot papers cannot be ordinarily disturbed unless there is strong evidence adduced by the election petitioner. The secrecy of the ballot is sacrosanct which cannot be lightly or hastily broken unless there is a prima-facie genuine need for it. In the present case the election petitioner 6 of 13 has failed to produce any evidence before the Election Tribunal that any irregularity has been committed in election process. The Tribunal without recording any satisfaction to the effect that there was some irregularity committed in counting of votes had passed the order for recounting. The Election Tribunal has failed to decide the issues framed for determination and without discussing any evidence adduced by the rival parties had decided the election petition only on the basis of result of recounting which is not permissible under the law. He placed reliance on the following judgments of Hon’ble Apex Court :- “(i) Bhabhi MANU/SC/0281/1975; Vs. Sheo Govind and others reported in (ii) V.S. Achuthanandan Vs. P.J. Francis and others reported in MANU/SC/0061/2001; (iii) Mahendra Pal Vs. Ram Dass Malanger and others reported in MANU/SC/0146/2002; (iv) Udey Chand Vs. Surat Singh and others reported in MANU/SC/1721/2009; (v) Senthilbalaji Vs. A.P. Geetha and others reported in MANU/SC/0616/2023.” 21. On the other hand, learned Senior Advocate appearing on behalf of respondent no.1 has submitted that appellant is belonging to ruling party BJP and the returning officer only to facilitate the appellant has declared six votes invalid, which were cast in favour of respondent no.1. Learned Election Tribunal has rightly summoned the ballot box and after recounting has found that one vote out of six invalid votes was cast in favour of respondent no.1./election petitioner. He further submits that all the 6 votes were cast in favour of election petitioner but 5 votes were illegally declared invalid and only one vote is accepted valid in favour of election petitioner. After recounting of votes both the candidates become equal and after draw of lots, the respondent no.1 has rightly been declared successful. The respondent no.1 has already assumed the charge of Pramukh on 14.3.2024 and after taking oath had conveyed the meeting of Kshetriya panchayat Members of Vikas Khand Talbehat on 15.3.2024. It is further submitted that learned Election Tribunal has rightly allowed the 7 of 13 election petition after found that one vote was illegally declared invalid by the returning officer only to facilitate the appellant. It is further submitted that the order of recounting dated 5.7.2023 was set-aside by this Court vide judgment dated 2.8.2023 merely on the ground that there was no sufficient evidence before the Election Tribunal and without recording any satisfaction order of recounting has been passed. Both the parties had adduced their evidence and after completing the evidence, the ballot papers were summoned vide order dated 29.2.2024 at the argument stage. The order dated 29.2.2024 was challenged by the appellant by filing Writ C No.7665 of 2024 and this Court has declined to interfere in the order dated 29.2.2024 by which ballot papers were summoned, and dismissed the writ petition vide judgment dated 5.3.2024. It is further submitted that after dismissal of writ petition filed against the order dated 29.2.2024, the recounting has rightly been done by the Election Tribunal. The Election Tribunal has rightly allowed the election petition after found that there was some manipulation in counting of votes only to facilitates the appellant. One vote out of six invalid votes was found in favour of respondent no.1/Election petitioner. There is no illegality in any manner and no interference is warranting. 22. Considered the submissions of learned counsel for the parties and perused the record. 23. The Election Tribunal had allowed the application filed by election petitioner for recounting vide order dated 5.7.2023 which was challenged by the appellant before this Court by filing Writ-C No.23105 of 2023 which was allowed vide judgment and order dated 2.8.2023. The relevant paragraph 35, 36, 37 and 38 are quoted herein below:- “35. From the above discussion it is clear that ordering of recount on basis of bare allegations in election petition would not be a proper exercise of jurisdiction and a mere fact that there is narrow margin of votes between the winning an defeated candidate, would not be sufficient to direct recount of votes, the same has been held in Apex Court judgement passed in case of Udey Chand vs. Surat Singh and Another, (2009) 10 Supreme Court Cases 170. 8 of 13 36. The result of the analysis of the above cases would show that this Court has consistently taken the view that re-count 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 petitioner who seeks re-count should allege and prove that there was improper acceptance of invalid votes or improper rejection of valid votes. If only the Court is satisfied about the truthfulness of the above allegation, it can order re-count 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. But 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 re-count of votes under such circumstances to do justice between the parties. This has been held in case of Vadivelu v. Sundaram, (2000) 8 Supreme Court Cases 355. Lordship contention 37. Thus, a narrow margin of votes between the elected candidate and election-petitioner, does not per se give rise to a presumption that there had been an irregularity and illegality in counting of votes to some other, before Court can order for recount, two basic requirements must be satisfied i.e., (i) election petition must contain adequate statement of all material facts on which the petitioner relies in support of his allegations as to irregularity or illegality in counting of votes, and (ii) on basis of evidence adduced in support of allegations, Court must be prima facie satisfied that in order to decide the dispute and to do complete and effectual justice between the parties, making of order as to recount is imperatively necessary. 38. This Court finds that the impugned order suffers from illegality as there was no justification or prima facie satisfaction recorded by the Presiding Office prior to passing the order directing for recounting, thus, the impugned order dated 05.07.2023 cannot be sustained and is quashed. The writ petition is allowed.” 24. This Court has recorded the finding while allowing the writ petition that the Election Tribunal without recording any prima-facie satisfaction had passed the order of recounting. The Election Tribunal had again passed the order of recounting on 4.3.2024 which was again challenged by the appellant by filing Writ-C No.7665 of 2024 and this Court has taken note of this fact that order of recounting has already been set-aside by this Court and considering the statement of election petitioner that no 9 of 13 recounting are going on had dismissed the writ petition. The Election Tribunal had framed seven issues for determination and without deciding any of the issues, had summoned the ballot box and after recounting has declared the election petitioner as successful candidate. The Election Tribunal without discussing the evidence adduced by the parties and without recording any finding in respect of irregularities committed in the process of counting had decided the election petition only on the basis of result of recounting. The objection of the appellant regarding non- disclosure of criminal history of election petitioner in his nomination form has not at all be considered by the Election Tribunal. The Election Tribunal itself has recorded the finding in para 30 while deciding the issues no.1, 2, 3 and 4 that there is no definite evidence regarding the unfairness of the election. The relevant paragraph 30 is quoted herein below:- “30. There is no definite evidence regarding the unfairness of the election, hiding of convicted criminal history during nomination, and obtaining votes by illegal practice, as rival parties have made the allegations in their evidence against each other due to political rivalry. Hence, issues nos.1, 2, 3 and 4 are being decided accordingly.” 25. The Election Tribunal has committed gross illegality in allowing the election petition under the circumstances when there was no definite evidence regarding the unfairness of the election. The Hon’ble Apex Court as well as this Court in series of cases has held that the order of recounting can be passed very rarely when there was sufficient evidence that some irregularities were committed in counting of votes and after prima-facie satisfaction the order of recounting could be passed. In the present case no finding has been recorded by the Election Tribunal regarding any irregularity or illegality have been committed while counting of votes. The Election Tribunal has committed manifest error in ordering for recounting and it is in violation of order dated 02.08.2023, by which order of recounting dated 05.07.2023 was set aside by this Court, under the circumstances when the order of this Court dated 2.8.2023 was never challenged and it becomes final. The Election Tribunal has also 10 of 13 erred in declaring the election petitioner as successful candidate only on relying the result of recounting which was done in the teeth of order of this Court. Once the order of recounting has already been set-aside by this Court, the Election Tribunal has erred in proceeding for recounting and decided the election petition on the basis of result of recounting. No finding has been recorded by the Election Tribunal that there was any illegality and no evidence was discussed while deciding the election petition and merely on the basis of result of recounting the election petition was allowed by the Election Tribunal. The Hon’ble Apex Court in the case of V.S. Achuthanandan (supra) has held that re-count cannot be relied upon by the election petitioner to support the prayer and sustain the order for re-count if the pleadings and materials available on record anterior to actual re-count did not justify grant of the prayer for re-count. The same view has been taken by Hon’ble Apex Court in the case of Udey Chand (supra). The relevant paragraphs 9, 11 and 20 are quoted herein below:- “9. Before adverting to the merits of the issue raised by the parties with reference to the statutory provisions, it would be appropriate to bear in mind the salutary principle laid down in the election law that since an order for inspection and re-count of the ballot papers affects the secrecy of ballot, such an order cannot be made as a matter of course. Undoubtedly, in the entire election process, the secrecy of ballot is sacrosanct and inviolable except where strong prima facie circumstances to suspect the purity, propriety and legality in the counting are made out. The importance of maintenance of secrecy of ballot papers and the circumstances under which that secrecy can be breached, has been considered by this Court in several cases. It would be trite to state that before an Election Tribunal can permit scrutiny of ballot papers and order re-count, two basic requirements viz. (i) the election petition seeking re-count of the ballot papers must contain an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded, and (ii) on the basis of evidence adduced in support of the allegations, the Tribunal must be prima facie satisfied that in order to decide the dispute and to do complete and effectual justice between the parties, making of such an order is imperatively necessary, are satisfied. 11. In P.K.K. Shamsudeen Vs. K.A.M. Mappillai Mohindeen & Ors., the petitioner contested the election for the post of the President of a Panchayat in Tamil Nadu. In the election, the 1st respondent was declared elected and the petitioner challenged the election on the ground that while counting, the Returning Officer had wrongly treated some valid votes cast in favour of the petitioner as invalid votes and certain invalid votes were 11 of 13 treated as valid votes which were cast in favour of the 1st respondent and that the Returning Officer had not permitted the petitioner's agents to have scrutiny of the ballot papers at the time of counting. The Tribunal, after recording the evidence of all candidates and the Assistant Returning Officer, ordered re- count of votes. On re-counting of votes, it was found that there was no difference in the number of votes secured by the petitioner but insofar as the 1st respondent was concerned he had secured only 528 votes as against 649 votes he was originally held to have secured. 121 votes cast in his favour had been found to be invalid votes. Based on the figures of the re- count, the election petitioner was declared duly elected as he had secured 28 votes more than the 1st respondent on re- count. This order was challenged by the 1st respondent in a Civil Revision petition before the High Court. The learned Single Judge allowed the revision petition and held that the Tribunal had erred in ordering a re- count of the votes when the petitioner had not made out a prima facie case for an order of re-count of votes cast. This order was challenged before this Court. Upholding the view taken by the High Court, it was held as under: (SCC p. 531) "13. Thus the settled position of law is that the justification for an order for examination of ballot papers and re-count of votes is not to be derived from hindsight and by the result of the re-count of votes. On the contrary, the justification for an order of re-count of votes should be provided by the material placed by an election petitioner on the threshold before an order for re-count of votes is actually made. The reason for this salutary rule is that the preservation of the secrecy of the ballot is a sacrosanct principle which cannot be lightly or hastily broken unless there is prima facie genuine need for it. The right of a defeated candidate to assail the validity of an election result and seek re-counting of votes has to be subject to the basic principle that the secrecy of the ballot is sacrosanct in a democracy and hence unless the affected candidate is able to allege and substantiate in acceptable measure by means of evidence that a prima facie case of a high degree of probability existed for the re- count of votes being ordered by the Election Tribunal in the interests of justice, a Tribunal or court should not order the recount of votes." 20. Before parting with the case, we may also deal with the contention urged on behalf of the election petitioner to the effect that re-counting having taken place in terms of the Tribunal's order, this appeal is rendered infructuous. The argument is noted to be rejected. An order of re-count of votes has to stand or fall on the nature of the averments made in the election petition and the material produced in support thereof before the order of re-count is made and not from the result emanating from the re- count of votes. A similar view was echoed by a three-Judge Bench of this Court in V.S. Achuthanandan's case (supra). Speaking for the Bench, R.C. Lahoti, J. (as His Lordship then was) held thus: "...if the validity of an order passed by the High Court permitting inspection of ballot papers and directing a re-count is brought in issue before the Supreme Court, the facts revealed by re-count cannot be relied upon by the election petitioner to support the prayer and sustain the order for re-count if the pleadings and 12 of 13 material available on record anterior to actual re-count did not justify grant of the prayer for inspection and re-count." 26. In view of aforesaid discussions, it is very much clear from the evidence adduced by the parties that earlier the application filed by election petitioner dated 11.5.2023 for summoning ballot papers was rejected vide order dated 22.5.2023 and again the order of summoning the ballot papers dated 5.7.2023 was set-aside by this Court vide order dated 2.8.2023. The order dated 2.8.2023 passed by this Court has become final and in spite of order dated 2.8.2023 the Election Tribunal has again summoned the ballot papers without recording any prima-facie satisfaction and without considering the evidence adduced by the parties. The order passed by Election Tribunal is contemptuous in nature and is violating the order passed by this Court dated 2.8.2023. It appears that the Election Tribunal was adamant for recounting and recounting was done in a very hurry manner and has decided the election petition on the basis of result of recounting without discussing the evidence adduced by the parties. 27. In view of above, the First Appeal No. 434 of 2024 is allowed and First Appeal No. 337 of 2024 is dismissed. The order dated 7.3.2024 passed by Election Tribunal/District Judge, Lalitpur in Election Petition No.01 of 2023 is set-aside. The Election Petition lacking material facts is rejected and any consequential action in pursuance of order dated 07.03.2024 is also nullified. 28. No order as to cost. Order Date :- 28.11.2024 sailesh 13 of 13