High Court
Case Details
Reserved on 27.03.2023 Delivered on 29.03.2023 Court No. - 76 Case :- WRIT - C No. - 33777 of 2022 Petitioner :- Manoj Devi Respondent :- State Of U.P. And 20 Others Counsel for Petitioner :- Kunwar Akhilendra Singh,Ajay Kumar,Brijesh Kumar Verma Counsel for Respondent :- C.S.C.,Vivek Saran Hon'ble Saurabh Shyam Shamshery,J. 1. Petitioner is a returned candidate (Gram Pradhan of Gram Panchayat Parauli Suhagpur, Block Jaithra, Tehsil Aliganj, District Etah), whereas Respondent-3 remained as runner up. 2. Respondent-3 filed an election petition under Section 12C of U.P. Panchayat Raj Act, 1947 (hereinafter referred to as “Act, 1947”) alleging that there were difference of number of total votes cast and number of votes counted as mentioned in Proforma 45 and prayed that order of recounting be passed and on basis of its result, declare election of returned candidate to be void and she be declared as returned candidate. 3. The Prescribed Authority by impugned order dated 05.11.2022 (according to heading “interim order”) while passing order for recounting, has accepted election petition and does not fix any date for considering the consequence of recounting. For reference operative portion of impugned order dated 05.11.2022 is mentioned hereinafter: "न्यायहि(cid:5)त को दृቕኌ(cid:12)(cid:13)गत रखते (cid:5)ुए ्ቇाम पंचायत परौली सु(cid:5)ागपुर हि(cid:29)कास खंड जैथरा में ्ቇाम ्ቚधान पद की पुनम(तगड़ना कराया जाना न्यायोचिचत ्ቚतीत (cid:5)ोता (cid:5)ै। आदेश ्ቦीमती उኌमला दे(cid:29)ी पत्नी दाताराम हिन(cid:29)ासी गहि2या माजरा परौली सु(cid:5)ागपुर हि(cid:29)कास खंड जैथरा, त(cid:5)सील अलीगंज जिजला ए(cid:13)ा की याचिचका स्(cid:29)ीकार की जाती (cid:5)ै तथा ्ቚचित(cid:29)ादी संख्या-1 ्ቦीमती मनोज दे(cid:29)ी पत्नी हिदनेश हिन(cid:29)ासी नगला धम्मी हि(cid:29)कास खंड जैथरा त(cid:5)सील अलीगंज जिजला ए(cid:13)ा का बयान त(cid:5)रीरी हिनरस्त हिकया जाता (cid:5)ै। ्ቇाम पंचायत परौली सु(cid:5)ागपुर हि(cid:29)कास खंड जैथरा त(cid:5)सील 2 अलीगंज जिजला ए(cid:13)ा के हि9स्तरीय पंचायत चुना(cid:29) में ्ቇाम ्ቚधान पद की पुनम(तगड़ना कराइ जाय। पुनम(तगड़ना अधो(cid:5)स्ता्ቌरी के न्यायलय में हिदनांक 07.11.2022 को ्ቚातः 10.00 बजे से (cid:5)ोगी। पुनम(तगड़ना (cid:5)ेतु आ(cid:29)(cid:12)यक ब्य(cid:29)स्थाएँ / पय((cid:29)े्ቌण (cid:5)ेतु ्ቦी राकेश कुमार त(cid:5)सीलदार अलीगंज को नाहिमत हिकया जाता (cid:5)ै।" 4. The returned candidate filed present writ petition challenging impugned order. The Court by a reasoned order granted interim order dated 06.11.2022 and operation of impugned order was stayed. 5. Arguments were heard on 28.02.2023 and writ petition was put up for further hearing on 15.03.2023, however, counsel for petitioner remained absent on 15.03.2023, therefore, interim order was vacated. On 16.03.2023 a recall application was filed for recall of order dated 15.03.2023. 6.
Legal Reasoning
“12. It is well settled that it is important to maintain secrecy of ballot which is sacrosanct and it should not be allowed to be violated on frivolous, vague and indefinite allegations and before inspection is allowed, the allegations made against elected candidate must be clear and specific and must be supported by adequate statements of material facts (See, Bhabhi vs. Sheo Govind and others, AIR 1975 SC 2217 and Ram Sewak Yadav vs. Hussain Kamil Kidwai and others, AIR 1964 SC 1249). The discretion conferred on Courts should be not exercised in such a way so as to enable election petitioner to 3 indulge in a roving enquiry in order to fish out materials for declaring election to be void.” “16. It is settled that order of recounting cannot be passed only for the sake of it and on the basis of vague allegation without specifying any particular irregularity in counting as well as how it would affect election result materially. In the present case in the body of election petition vague assertions have been made regarding illegal rejection of valid votes which are not substantiated either in examination of election petitioner or otherwise on the basis of record available. Parties have to take proper pleadings by adducing evidence that by particular irregularity of illegality result of election has been materially affected. There is no dispute to the settled legal proposition that as a rule relief not founded in pleadings should not be granted [See, Arikala Narasa Reddy (supra)].” 7. Learned counsel appearing for Respondent-3 has submitted that since recounting has been done and Respondent-3 has been declared winner, therefore, writ petition has rendered infructuous. 8. Heard learned counsel for parties and perused the material available on record. 9. Before entering into merit of case, there is a hurdle which has to be overcome. The Prescribed Authority while passing order dated 05.11.2022 has accepted the election petition, i.e., it has granted final relief even before actual recounting could take place and, therefore, it become a functus officio. In this regard few paragraphs of the judgment passed by Coordinate Bench of this Court in Parshuram vs. State of U.P. and others (Matters Under Article 227 No. 31424 of 2021), decided on 23.12.2022 are relevant and reproduced as under: “6. The legal question which has arisen in the instant petition is whether the Prescribed Authority has erred in law in directing for re-counting of votes while finally deciding the election petition inasmuch as to whether the Prescribed Authority could pass any further order on receipt of the result of the re-counting 4 of votes once the election petition had been finally decided and consequently the Prescribed Authority became ''functus officio'?” “36. As already indicated above, the Apex Court in the case of Hari Vishnu Kamath (supra) has held that after the Election Tribunal finally pronounces its decision, it becomes 'functus officio' meaning thereby that it would not have any power to pass any order in the election petition after it pronounces its order. In the instant case what the Election Tribunal headed by the Prescribed Authority has done is that it has finally allowed the election petition and has directed for a recounting. Even if the result of recounting of the votes is to be either way, the Election Tribunal having become 'functus officio' after pronouncement of its decision/allowing the petition, it would not be able to pass any further orders. As such keeping in view the settled proposition of law, Article 243-O of the Constitution of India categorically providing that only by means of an election petition the election to the Panchayat can be called in question and the election petition having been finally decided, the Prescribed Authority/Election Tribunal, thus became functus officio and cannot pass any further orders in the matter. As such, the impugned order has to be treated as a final order in all respects and accordingly it is apparent that the Prescribed Authority has passed a patently perverse order and has failed to exercise jurisdiction vested in him i.e. of finally deciding an election petition either way. 37 Keeping in view the aforesaid discussion, the legal question which has arisen in the instant petition is answered below:- The Prescribed Authority on finally deciding an election petition becomes functus officio and can not pass any order subsequent thereto even if the election petition has been decided finally calling for the re-counting of votes.” 5 10. The Prescribed Authority has thus committed an illegality, therefore, impugned order cannot survive. Counsel for election petitioner (Respondent- 3) could not convince the Court on this issue. 11. The Prescribed Authority has further committed a legal error that it allowed recounting and passed order to declare election petitioner as returned candidate. Therefore, impugned order dated 05.11.2022 as well as consequential recounting and result of election, are set aside. 12. Normally in these circumstances, matter is remanded back for reconsideration. However, considering that impugned order does not even satisfy the law discussed in Smt. Sajida (supra) regarding recounting, therefore, matter is not remanded back. 13. Writ petition is accordingly allowed. 14. The Sub-Divisional Magistrate/Prescribed Authority, Aliganj, District Etah is directed to remain cautious in future while dealing with election petitions. Order Date :-29.03.2023 AK Digitally signed by :- AWADESH KUMAR High Court of Judicature at Allahabad
Arguments
Sri Shiv Nath Singh, learned Senior Advocate assisted by Sri Kunwar Akhilendra Singh, learned counsel for petitioner has submitted that after interim order was vacated, recounting was conducted on 17.03.2023 and election petitioner (Respondent-3) was declared returned candidate. Learned Senior Advocate submitted on merit that order of recounting cannot be passed in routine manner and has placed reliance on a judgment passed by this Court in Smt. Sajida vs. Sub-Divisional Magistrate, Kairana, District Shamli and others, 2023 SCC OnLine All 11, relevant paras 12 and 16 thereof are reproduced as under: