Saroja Devi v. Sarita Yadav and others For Short
Case Details
1 AFR Neutral Citation No. - 2023:AHC:160002 Reserved Court No. - 6 Case :- WRIT - C No. - 21891 of 2023 Petitioner :- Sarita Yadav Respondent :- Saroja Devi And 8 Others Counsel for Petitioner :- Ram Pravesh Pandey Counsel for Respondent :- C.S.C,Raj Karan Yadav,Vidya Dhar Yadav,Yadvendra Kumar Yadav Hon'ble Mrs. Manju Rani Chauhan,J. 1. This writ petition has been filed by the petitioner with a prayer to quash an order dated 03.07.2023 passed by Sub-Divisional Officer/ Prescribed Authority, Mirzapur in Election Petition No. 7687 of 2021 1, whereby an order directing for recounting of votes has been passed. 2. Brief facts of the case are that elections of Panchayat in Uttar Pradesh were held in the year 2021, the petitioner was one of the candidates for the post of Pradhan of Gram Panchayat Kolahi, Development Block – Chhanbe, Tehsil Sadar, District Mirzapur2. The Gram Panchayat was reserved for ‘OBC Category Candidate’. The petitioner, being eligible, contested the aforesaid election, having been allotted ‘Car’ as election symbol. The polling was conducted on 26.04.2021 and counting took place on 02.05.2021. Petitioner secured 471 votes and was declared elected as Pradhan of the said Gram Panchayat. The respondent3 no. 1, namely, Saroja Devi secured 448 votes and thus the petitioner was declared elected by a margin of 23 votes. 3. Challenging the aforesaid election on several grounds, stating that election was not conducted in free and fair manner, respondent 1 2 3 Saroja Devi v. Sarita Yadav and others For Short, ‘Gram Panchayat’ ‘Respondent’ is being used to denote – ‘opposite party’ in present writ petition no.1 - the defeated candidate filed an election petition under Section 12-C of the U.P. Panchayat Raj Act, 19474 inter alia on the following grounds: 2 3.1 Valid votes cast in favour of Saroja Devi – respondent no. 1 herein, (election petitioner), were declared invalid; 3.2 Valid votes cast in favour of respondent no. 1 – Saroja Devi were mixed in bundles of petitioner Sarita Yadav (opposite party5 no. 1 in election petition) and respondent no. 7 - Neelam (opposite party no. 2 in election petition); 3.3 Number of votes, which were declared invalid, were mixed in the bundle of petitioner and were counted in her favour; 3.4 Number of votes cast in favour of the petitioner which were declared invalid were counted as valid votes in her favour. 4. The aforesaid fact regarding illegalities as done in counting was pointed out by husband of respondent no. 1 – Saroja Devi, who was present as her agent, raising objections in this regard before Counting Supervisor - Paryavekshak (i;Zos{kd) and counting agents (x.kukdehZ) but no attention was paid. It has also been alleged in the election petition that, after completion of counting, respondent no. 1 having election symbol ‘Kitab’ (fdrkc), the bundle of valid papers of respondent no. 1 were more than that of the petitioner. It was informed by Paryavekshak and Gadnakarmi to the counting agent, present on behalf of respondent no. 1/ election petitioner that she had secured 448 votes whereas the petitioner herein (opposite party no. 1 in election petition) having symbol ‘Car’ had secured 413 votes, whereas opposite party no. 2 in election petition – Neelam Devi having election symbol ‘Imli’ (beyh) 4 Act, 1947 5 ‘Opposite party’ is being used to denote – ‘opposite party’ in election petition filed before the Prescribed Authority 3 had secured 60 votes, opposite party no. 3, namely, Anita Devi having symbol ‘Anaj Osata Kisan’ (vukt vkslkrk fdlku) got 2 votes, opposite party no. 4 having symbol ‘Kanni’ (dUuh) secured 1 vote and total 80 votes were rejected. 5. After giving the aforesaid information, Paryavekshak and Gadnakarmi asked husband of respondent no. 1, who was present as counting agent on her behalf, to call respondent no. 1, so that certificate in this respect could be given to her. It has also been alleged in paragraph-6 of the election petition that Paryavekshak and Gadnakarmi had made a chart accordingly. Receiving the aforesaid information, the counting agent left the counting hall in order to call his wife / respondent no. 1. He, standing at the door of counting centre Kanya Inter College, asked his wife to come inside the centre. 6. In paragraph-7 of the election petition, it has been alleged that as soon as the counting agent entered the aforesaid counting centre along with his wife, namely, Saroja Devi / respondent no. 1, they saw that the Paryavekshak and Gadnakarmi, without preparing the counting chart, had opened the bundle of booth nos. 158 and 159, to manipulate / do Herapheri, do some bungling which was objected by the election petitioner, but no attention was paid, ignoring the objection, they forcefully, as per their convenience made the bundle and started preparing counting chart / Parishisht. After the aforesaid, the respondent no. 1 was shown to have obtained 448 votes whereas the petitioner had secured 471 votes declaring her as winning candidate by 23 votes. 7. It has also been alleged that only 44 votes were declared invalid in place of 80 votes. The certificate was also issued to the petitioner in a hurried manner. In paragraph-8 of the election petition, it has been alleged that the voter list indicated total 1354 voters, out of which 1004 4 votes were cast for the election of Pradhan, Member Kshetra Panchayat, Member Zila Panchayat but proceeding in unfair manner, manipulated, and in Prapatra, 22 extra votes have been shown. 80 invalid votes have been shown only in place of 44, rest 36 have been counted in favour of the petitioner by putting the invalid votes in her bundle and showing 471 votes on top of the petitioner’s bundle. 8. Specifying the aforesaid aspect, it has been alleged in paragraph- 9 of the election petition that in polling booth 158, total 573 votes were cast; whereas in polling booth no. 159, 431 votes were cast thus total 1004 votes were cast, but, 36 invalid votes were placed in the bundle of petitioner and from 413 votes which were counted earlier, 471 votes have been shown in her favour, accordingly, making Prapatra and declaring the petitioner to have won by the margin of 23 votes. 9. Emphasizing upon the bungling/ manipulation, which has been done in the elections of Pradhan, it has been alleged in paragraph-11 of the election petition that in Matgadna Chart, Gadna Parchi, Parishishth 5 Prapatra 43 and Parishisht 7 Prapatra 45, Parishisht 8 Prapatra 46, wrong entries have been made after cutting and accordingly, the result has been declared, which is illegal. 10. An affidavit of husband of respondent no. 1, who was her agent at the time of counting of votes, was submitted as an evidence to prove the allegations as made in the election petition. The petitioner cross- examined the witness produced by respondent no. 1. 11. The Prescribed Authority summoned the record of election like the counterfoil of ballot paper and also the voter list, on the basis of which the order dated 03.07.2023 directing for recounting of votes has been passed, thus the present writ petition challenging the aforesaid order has been filed. 5 12.
Legal Reasoning
and on the basis of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting, as also, if the court trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties. In support of his submissions, learned counsel for 6 the petitioner has relied upon a judgement of the Supreme Court in the case of Mahendra Pal v. Shri Ram Dass Malanger & Ors.6. 15. Learned counsel for the petitioner next contends that an order for inspection of ballot papers cannot be granted to support vague pleas, not supported by material facts or to fish out evidence to support such pleas. The case must be set out with provision supported by averments of material facts and mere allegation that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection. Reference has been made in this regard to a judgement of Full Bench of this Court in the case of Ram Adhar Singh v. District Judge7. 16. Placing reliance upon a judgement of the Supreme Court in the case of R. Narayanan v. S. Semmalai And Ors.8, learned counsel for the petitioner submits that law on the subject regarding circumstances under which recount could be ordered has been summarized as follows: “The Court would be justified in ordering a recount of the ballot papers only where: (1) The election petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded; (2) On the basis of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting; and (3) The court trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties.” 17. Learned counsel for the petitioner further submits that allegations which have been made, must not only be clearly made but also be proved by cogent evidence and the narrow margin of votes (2002) 3 SCC 457 6 7 Civil Misc. Writ Petition No. 11079 of 1983 8 1980 AIR 206 : 1980 SCR (1) 571 7 undoubtedly, is an important factor to be considered, but the same would not by itself vitiate the counting or justify recounting. In support of his submission, he has placed reliance on a judgement of of this Court in the case of Surendra Singh v. State of U.P. and others9. 18. Thus, such an election petition with vague and indefinite allegation, without there being any basis to prove the aforesaid situation, cannot be entertained and the order directing for recounting is liable to be aside. 19. Learned counsel for the respondent submits that there is no illegality in the order impugned, vide which recounting of votes has been directed. He submits that there is specific allegation with respect to valid votes in favour of election petitioner being declared invalid, valid votes cast in favour of election petitioner being mixed in bundles of the petitioner Sarita Yadav and one Neelam, and invalid votes being mixed in bundle of petitioner and counted in her favour as well as invalid votes of the petitioner being counted as valid votes in her favour. The same being supported by statement of election agent, namely, Suryamani Yadav – husband of the defeated candidate. There is also a definite allegation with respect to total number of votes cast i.e. 1004, which were manipulated and total votes cast were shown 1026. 20. Learned counsel for the respondent further submits that the respondent – election petitioner has specifically made allegations regarding the aforesaid irregularities and has proved the same on the basis of statement of counting agent, thus to maintain purity of elections, the order of recounting should be passed where it has materially affected the result of election, whereby the defeated candidate is seriously prejudiced in order to do justice between the 9 Civil Misc. Writ Petition No. 3701 of 2011, Decided on 24.01.2011 8 parties. In support of his submissions, he has relied upon a judgement of this Court in the case of Smt. Harmaya v. State of U.P. And 5 Others10. 21. Learned counsel arguing on behalf of respondent next submits that sufficient material was there in the form of statement of counting agent to clearly make out a prima facie case for the unexplained discrepancy in the number of votes cast as well as other allegations with respect to valid votes being declared invalid and votes in favour of the defeated candidate being counted in favour of the petitioner, therefore, there is no illegality in the order directing for recounting and objection was also raised by the defeated candidate for the aforesaid, but the same has not been considered. He has relied upon a judgement of this Court in the case of Om Prakash Upadhyay v. State of U.P. and others11, wherein, it is stated in relevant paragraphs of the election petition that, at the time of counting, on the influence of certain persons, undue pressure was exercised and void votes cast in favour of the defeated candidate were added in the bundle of winning candidate, wherein objection was made against the illegalities, the order directing for recount for the unexplained discrepancy in the total number of votes is not bad. 22. Learned Senior Counsel for the respondent also contends that the election petition contains an adequate statement of all facts on which allegations of irregularity or illegality, are found, there being specific averments made in relevant paragraphs of the election petition and the same have not been specifically denied by the petitioner, evidence being adduced in support of the same by the counting agent of respondents in support of the averments made in the election petition, prima facie establish a good ground to believe that there has 10 Writ-C No. 18599 of 2017, decided on 03.05.2017 11 2008(5) ADJ 454 9 been illegality and irregularity in counting, therefore, to decide the dispute and do complete and effectual justice between the parties, the order of recounting by the election tribunal on its prima facie satisfaction cannot be said to suffer from any irregularity as in the present case. In support of his submission, he has relied upon a judgement of this Court in the case of Smt. Usha Devi v. Smt. Chandrakanta and Others12. 23. Mr. Yadav has also placed the provisions of U.P. Panchayat Raj (Election of Members, Pradhans and Up-Pradhans), Rules, 199413, wherein provisions of from Rules 76 to 96 indicate that the returning officer shall, at close of polling, prepare ballot papers in specified form and if the aforesaid papers are counted, the polling agents have every right to know about the actual votes cast in the polling, therefore, the aforesaid fact that the polling agents were not aware of the number of votes cast and after manipulation, Prapatra was prepared by cutting and overwriting, such allegation being fair and proper can be looked into only after directing for recount of votes, thus to know about the aforesaid as to how many votes were cast, whether 1004 or 1026, the Tribunal has rightly called for the voter list and counterfoil and seeing discrepancy in the same, the order impugned has been passed, which is
Arguments
Sri R.P. Pandey, learned counsel appeared for the petitioner, Sri Vijay Prakash Mishra, learned Standing Counsel for the State, and Sri C.B. Yadav, learned Senior Advocate, assisted by Sri V.D. Yadav, learned counsel for private respondents. 13. Learned counsel for the petitioner, while challenging the impugned order whereby recounting of votes has been ordered, submits that, the election petition has been filed on the following grounds: 13.1 Improper rejection of valid votes; 13.2 Improper acceptance of invalid ballot papers, and counting the same as valid votes in favour of writ petitioner; 13.3 Gross irregularities / mistakes committed during the course of counting ballot papers; 13.4 Making wrong entries in total number of votes by cutting and overwriting in Prapatra; 13.5 Lastly, disputing the total number of votes cast on the said date for the post of Pradhan being 1004 in place of 1026. 14. Learned counsel for the petitioner submits that the Court would be justified in ordering recounting of ballot papers only where the election petition contains an adequate statement of material facts on which the allegations of irregularity or illegality in counting are found,
Decision
not illegal, therefore, no interference is required and the writ petition is liable to be dismissed. 24. I have heard learned counsel for the parties and perused the record. 25. With the consent of learned counsel appearing for the parties, the writ petition is being heard finally, without calling counter affidavit, at this stage, in terms of Rules of the Court. 12 (2018) 4 UPLBEC 2706 13 The Rules, 1994 10 26. The only question which falls to be determined in this regard is whether the order directing for recount is justified in the facts of the present case. In considering this question, material provisions of the U.P. Panchayat Raj Act, 1947 read with Uttar Pradesh Panchayat Raj (Settlement of Election Disputes) Rules, 199414 may first be noticed. 27. It would be apt to mention relevant part of Section 12-C of the Uttar Pradesh Panchayat Raj Act, 1947, which is as under: “12-C. Application for questioning the elections.—(1) The election of a person as Pradhan15[* * *] or as member of a Gram Panchayat [x x x ]16 shall not be called in question except by an application presented to such authority within such time and in such manner as may be prescribed on the ground that— (a) the election has not been a free election by reason that the corrupt practice of bribery or undue influence has extensively prevailed at the election, or (b) that the result of the election has been materially affected— (i) by the improper acceptance or rejection of any nomination; or (ii) by gross failure to comply with the provisions of this Act or the rules framed thereunder.” 28. From the aforesaid it is clear that the election petition should contain a concise statement of material fact, on which the petitioner relies, and material supporting the allegations made thereunder. It also reveals that the ground on which the election of Gram Pradhan and its members can be challenged are (a) the election has not been a free election by reason that the corrupt practice of bribery or undue influence has extensively prevailed at the election, or (b) that the result of the election has been materially affected. 29. Sub-section (3) of Section 12-C of the Act, 1947 provides the procedure for filing application under sub-section (1) of which 14 For short, ‘Settelement of Election Disputes Rules, 1994’ 15 Omitted by U.P. Act No. 9 of 1994 16 The words “including the election of a person appointed as a Panch of a Nyaya Panchayat under Section 43” omitted by U.P. No. 6 of 2017. 11 hereinafter shall be referred to as ‘election petition’. The Statute says that election petition shall contain such particulars as may be prescribed. 30. In respect to further procedure, the Statute contemplates its prescription by Settlement of Election Disputes Rules, 1994. Rule-3 of the said Rules, 1994 is relevant to be reproduced hereunder: “3. Election Petition.-(1) An application under sub-section (1) of Section 12-C of the Act shall be presented before the Sub-Divisional Officer, within whose jurisdiction the concerned Gram Panchayat lies, within ninety days after the day on which the result of the election questioned is announced and shall specify the ground or grounds on which the election of the respon- dent is questioned and contain a summary of the circumstances alleged to justify the election being questioned on such ground.” 31. Rule-4 of the Settlement of Disputes Rules, 1994 prescribes a procedure to be followed by the Tribunal while hearing the petition. It provides that subject to provisions of the Act and these Rules, every election petition shall be tried by a Sub-Divisional Officer as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908. Rule-4 is quoted herein-below: “4. Hearing of the petition.-(1) Subject to the provisions of the Act and these rules, every election petition shall be tried by the Sub- Divisional Officer, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, for the trial of suits.” 32. The procedure for holding election has been prescribed under the U.P. Panchayat Raj (Election of Members, Pradhans and Up- Pradhans), Rules, 1994. Rules 96, 104 & 112 are necessary to be mentioned below: Account of ballot papers.---The Matdan Adhyaksh shall at the 96. close of the poll prepare a ballot paper account in the specified form. *** *** *** 104. Procedure at the counting.---On the date and at the time and place appointed under Rule 101, the Nirvachan Adhikari shall proceed as follows: 12 (a) The Nirvachan Adhikari shall satisfy himself that all the ballot boxes used at the poll and which are to be counted at that place have been received and accounted for; (b) The Nirvachan Adhikari shall then allow the candidates and their Nirvachan Abhikartas and Ganana Abhikartas present at the counting an opportunity to inspect the ballot boxes and their seals for satisfying themselves that they are in order; (c) The Nirvachan Adhikari shall also satisfy himself that none of the boxes has in fact been tampered with. If any ballot box is found by him to have been tampered with or destroyed or lost, the Nirvachan Adhikari shall not proceed with the counting of votes and the provisions of Rule 100 shall apply. (d) If the Nirvachan Adhikari is satisfied that all such ballot boxes which are to be counted at such place have been received and are in order, he shall take up the counting of ballot papers contained in the ballot boxes. All the ballot boxes used at a polling place shall be opened, and the counting of the ballot papers found in those boxes proceeded with, in accordance with the instructions of the State Election Commission, at the same time; (e) An account of the ballot papers found in the boxes of the polling place shall be recorded in a statement in the form specified by the State Election Commission; (f) The Nirvachan Adhikari shall allow the candidates, their Nirvachan Abhikartas and Ganana Abhikartas, who may be present, reasonable opportunity to inspect all ballot papers which in the opinion of the Nirvachan Adhikari are liable to be rejected, but shall not allow them to handle those or any other ballot papers. The Nirvachan Adhikari shall on every ballot paper, which is rejected, endorse rejection thereon in Hindi. If any candidate or his Nirvachan Abhikarta questions the correctness of the rejection of any ballot paper, the Nirvachan Adhikari shall also record briefly on such ballot paper grounds for his rejection; (g) After the counting of all ballot papers contained in the ballot boxes of the polling place has been completed the Nirvachan Adhikari shall cause all such ballot papers to be kept in a separate packet on which shall be indicated such particulars as will identify the name of the Gram Panchayat to which the ballot papers relate. *** *** *** 112. Production and inspection of election papers.---(1) While in the custody of the Assistant District Election Officer (Panchayat and Local Bodies) the packets of ballot papers whether valid, rejected or tendered, and of the marked copy of the electoral roll shall not be inspected by or produced before any person or authority except under the order of a competent Court or of an authority hearing an election petition. 13 (2) Copies of the election return forwarded by the Nirvachan Adhikari under sub-rule (1) of Rule 111 shall be furnished by the Assistant District Election Officer (Panchayat and Local Bodies) on payment of a fee of rupees twelve for each copy. (3) All other papers relating to the election shall be opened to public inspection subject to such condition and subject to the payment of such fees as may be specified by the State Election Commission.” 33. Rule-95 of the Rules, 1994 speaks about sealing of ballot boxes, etc., after poll; Rule-96 of the Rules, 1994 deals with account of ballot papers in specified form; Rule-97 says about transmission of ballot boxes, etc., to the Election Officer; Rule-103 is about person who may be present at the counting; Rule-106 envisages verification of accounts submitted by the Matdan Adhyaksh; Rule 107 enumerates election return by the Election Officer. Other provisions with respect to appointment of time, place and date for counting, Ganana Adhikari, procedure of counting, grounds for rejection of ballot papers, equality of votes, declaration of result are provided between Rules 101 to 109. 34. While deciding the election petition, it has to be kept in mind and as is well settled, that a right to elect is fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. To be more specific, right to elect, right to be elected and right to dispute an election are statutory creations, therefore, are subject to statutory limitation. An election petition is not an action at common law, nor in equity. It is a statutory proceeding to which neither the common law nor principles of equity applies but only those Rules apply, which the Statute makes. It is a special jurisdiction and special jurisdiction has always to be exercised in accordance with the Statute creating it. Meaning thereby that in the trial of election disputes, court is put in straitjacket. 35. In the case of F.A. Sapa etc. v. Singora and others17, the Court said, “it is fairly well settled that “our election law being statutory in 17 1991 (2) JT 503 14 character must be strictly complied with since an election petition is not guided by ever changing common law principles of justice and notions of equity. Being statutory in character, it is essential that it must conform to the requirements of our election law. But, at the same time, the purity of election process must be maintained at all costs and those who violate the statutory norms must suffer for such violation”. 36. In another case of Mr. V. Narayanaswamy v. Mr. C.P. Thirunavukkarasu18, in paragraph-23 the Court observed “an election petition is based on the rights, which are purely the creature of statute, and if the statute renders any particular requirement mandatory, the court cannot exercise dispensing powers to waive non-compliance”. 37. From the above discussion, it is clear that the provisions, as narrated above, have to be kept in mind while deciding an election petition. 38. It has been held in a catena of decisions that secrecy of ballot papers is sacrosanct and is required to be maintained at all costs and that recounting should not be allowed to be ordered on frivolous, fake and indefinite allegations. Thus, the right of defeated candidate to assail the validity of an election result and seek recounting of votes is subject to basic principle that the secrecy of ballot paper is sacrosanct and that a recount can be done only when a prima facie case is made out. Reference may be made to the judgement in the case of Sabarunnisha v. Tahira and others19. 39. Starting from the case of Ram Sewak Yadav v. Hussain Kamil Kidwai and others20 to the case of Bhabhi v. Sheo Govind and others21, and several other cases it has been held that an order of inspection / recounting may not be granted as a matter of course,