Tekchand v. State of U.P. and 6 Others

Judgment reserved on 03.01.2023 Judgment delivered on 28.01.2023 Court No. - 34 Case :- WRIT - C No. - 31255 of 2022 Petitioner :- Tekchand Respondent :- State Of U.P. And 6 Others Counsel for Petitioner :- Dinesh Kumar Singh Counsel for Respondent :- C.S.C.,Dinesh Kumar,Yogendra Nath Shukla Hon'ble Saurabh Shyam Shamshery,J.

¶1Petitioner before this Court is returned candidate who has defeated respondent No.4 with a margin of five votes in a Panchayat Election whereas respondents No. 5, 6 and 7 were also participated in election. Respondent No.4 Rajbeer filed an election petition under Section 12-C of Uttar Pradesh Panchayat Raj Act, 1947 (for short "Act, 1947"). After pleadings were exchanged, Election Tribunal by a judgment and order dated

23.10.2021 rejected claim of election petitioner for recounting on ground that he was failed to make out a case for recounting as pleadings and evidence were not sufficient to pass an order for recounting.

¶2Election petitioner being aggrieved filed a revision petition challenging above referred order and by impugned order dated

22.09.2022, the order passed by Prescribed Authority in election petition was set aside with a direction of recounting. The petitioner herein has challenged the above order.

¶3Sri R.K. Ojha, learned Senior Advocate assisted by Sri Dinesh Kumar Singh for petitioner has vehemently urged that Revisional Court has upset order passed by Election Tribunal on a flimsy ground that an objection was taken by election petitioner at the time of counting was not considered by Election Officer as well as other defeated candidates have supported the claim of election petitioner, without appreciating factors relevant for directing recounting of votes, i.e. (i) a prima facie case must be established, (ii) material facts must be pleaded stating irregularities in counting of votes, (iii) a roving and fishing inquiry shall not be directed by way of an order for recounting of votes, (iv) an objection to said effect should be raised, and (v) secrecy of ballot papers should be maintained.

¶4Learned Senior Advocate in support of his above submissions has placed reliance upon judgments of Supreme Court in cases of Sadhu Singh vs. Darshan Singh and another,

(2006) 6 SCC 255; Udey Chand vs. Surat Singh and another,

(2009) 10 SCC 170 and Surendra Singh vs. State of U.P. and others, 2011 SCC OnLine All 2721.

¶5Per contra, Sri Rahul Sripat, learned Senior Advocate assisted by Sri Dinesh Kumar for respondent No.4 (election petitioner) has also vehemently urged that election petitioner has specifically pleaded about irregularities in counting of votes and that the votes cast in favour of election petitioner were wrongly rejected as well as the votes which ought to have been rejected were counted in favour of returned candidate. The witnesses have supported specific stand taken by election petitioner before Election Tribunal and that though margin of victory is not a sole ground to disturb secrecy of ballot papers but if a case is made out that due to irregularities in counting 2 of 7 number of rejected votes are much more than margin of victory, an order of recounting can be passed.

¶6Learned Senior Advocate appearing for respondent No. 4 has placed reliance on Chandeshwar Saw v. Brij Bhushan Prasad, (2020) 12 SCC 70 and Smt. Harmaya vs. State of U.P. and 5 others, 2017 SCC OnLine All 3332.

¶7Heard learned counsel for parties and perused record.

¶8Before adverting to rival submissions, following paragraphs of recent judgment of this Court in case of Smt. Sajida vs. Sub Divisional Magistrate, Kairana, District Shamli and 15 others, 2023 SCC OnLine All 11 would be relevant which is mentioned hereinafter -: "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 v. Sheo Govind, (1976) 1 SCC 687:AIR 1975 SC 2117 and Ram Sewak Yadav v. Hussain Kamil Kidwai, AIR 1964 SC 1249). The discretion conferred on Courts should be not exercised in such a way so as to enable election petitioner to indulge in a roving enquiry in order to fish out materials for declaring election to be void.

¶16It 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 3 of 7 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)]."

¶9In factual and legal background, firstly, I have carefully perused contents of election petition filed under Section 12-C of U.P. Panchayat Raj Act, 1947 and averment in regard to recounting is mentioned in paragraphs 4, 5 and 6 which are mentioned hereinafter -: "4. यह‌वि क‌चुनाव‌सम् प्ቐ ‌हो‌जाने‌के ‌बाद‌वि दनांक‌02/05/2021 को‌मतगणना पቚ ारम् भ‌की‌गयी।‌पቚ थम‌राउण् ड‌मे‌याची‌को‌133 मत‌पቚ ा् ‌हुये‌व‌जि जतेन् दቖ ‌को‌61 मत‌पቚ ा् ‌हुये‌व‌जयपाल‌को‌3 मत‌पቚ ा् ‌हुये‌व‌टेकचन् द‌को‌94 मत‌पቚ ा् ‌थ यादराम‌को‌1 मत‌पቚ ा् ‌हुआ‌व‌51 मतपतቔ ों ‌को‌गलत‌तौर‌से‌वि नरस् त‌वि कया‌गया एवं‌दसू रे‌राउण् ड‌ममं‌जि जतेन् दቖ ‌को‌48 मतपतቔ ‌पቚ ा् ‌हुये‌व‌जयपाल‌को‌1 मत‌पቚ ा् हुआ‌व‌टेकचन् द‌को‌285 मतपतቔ ‌पቚ ा् ‌हुये‌दशኋ ारये‌गये‌व‌यादराम‌को‌कोई‌गतपतቔ पቚ ा् ‌नही‌हुआ‌व‌याची‌को‌243 मतपतቔ ‌पቚ ा् ‌हुये‌है‌34 मतों ‌को‌कहं जि सल‌दशኋ ारया गया।‌इस‌पቚ कार‌गቇ ाम‌मझोई‌बागं र‌के ‌पቚ धान‌की‌मतगणना‌ममं‌पቚ थम‌राउण् ड‌ममं‌341 व‌वि दतीय‌राउण् ड‌ममं‌611 टोटल‌952 वोटों ‌की‌वि गनती‌की‌गयी। 5-यह‌वि क‌याची‌दारा‌चुनाव‌की‌साजि जशኋ ‌की‌बावत‌सभी‌अधि धकारि रयों ‌का‌अवगत कराया‌गया‌व‌गडधि डयों ‌के ‌बारे‌व‌वि नरस् त‌मतो‌की‌बाबत‌सही‌तरीके ‌से‌पनु ः मतगणना‌कराये‌जाने‌हेतु‌अवगत‌वि कया‌गया।‌परन् तु‌मतगणना‌अधि धकारी‌कोई‌बात सुनने‌को‌तयै ार‌नही‌हुये‌तथा‌यह‌कहकर‌तथा‌फटकारकर‌चपु ‌कर‌वि दया‌गया‌वि क तुम् हे‌कोई‌परशኋे ानी‌हो‌तो‌याधि चका‌दायर‌कर‌देना। 4oofo7 6-यह कि मतगणना मे किवप्ቌी सं० 1 े :ारा मतगणना अधिधारिरयों से साजिजቦኋ द षडयं्ቔ से मतप्ቔों ी जो गडडी बनायी गयी थी उ्ሹ गडधिडयो ा म या ज्यादा े आधार पर तैयार किया गया व अलावा इसे मतप्ቔों ी किगनती े दौरान याची े प्ቌ मे पडे सही मतप्ቔों ा किनरस्त र किदया गया व किवप्ቌी सं० 1 े किनरस्त मतप्ቔों ो सही मान लिलया गया। उ्ሹ मतगणना े दौरान जब याची े एजेन््ቖ :ारा इस ्ቚार मतगणना अधिधारी ो गलत ग्ቂी बनाने व किनरस्त मतप्ቔों ा सही आलन न रने ी बावत हा गया तो मतगणना अधिधारी :ारा याची ो डाट फटारर चुप रा किदया गया तथा यह ह किदया गया यकिद तुम्हे आपलिG है तो याधिचा दायर र देना।"

¶10In written statement, returned candidate/petitioner herein has denied above referred averments with a specific assertion that no document was placed in support of contention that any objection was raised during counting by election petitioner.

¶11I have carefully perused statement of witnesses recorded by Election Tribunal.

¶12Rajbeer, election petitioner has stated in his statement that he has no knowledge about number of votes polled in favour of each candidate as well as number of votes cancelled. He was not present at the time of counting and averments in election petition were based on instructions given by her agent whereas declaration made in election petition is contrary that averments made in election petition were based on his knowledge as well as on legal advice.

¶13Respondent No.2 Lokmani who was agent of election petitioner has stated that written complaint made by him was not received, however, nothing has come on record that there 5 of 7 were material irregularities in recounting or averments made in election petition were true.

¶14Election Tribunal has considered entire material on record and found that essential requirement for recounting that there must be a case that irregularity was committed in counting should not be based on a vague allegation. In revision petition, Revisional Authority though noted law on recounting in paragraph 15 of impugned order, however, only on ground that, complain during counting was not noted, number of votes rejected were much more than winning margin and only in order to give confidence to voters, impugned order was passed. Relevant part of impugned order is mentioned hereinafter -: "इस‌पቚ स् तुत‌मामले‌ममं‌याधि चका‌ममं‌यह‌स् पस् ट‌अणि भवचन‌है‌वि क‌मतपतቔ ों ‌को‌वि नरस् त करने‌ममं‌अवि नयवि मतता‌बरती‌गयी‌ह।ै ‌इस‌अणि भवचन‌के ‌समथरन‌ममं‌मतगणना‌के समय‌उपसኌ स् थत‌याची‌के ‌एजेन् ट‌का‌साकኚ य‌है‌और‌मतगणना‌के ‌समय‌वि वरोध‌दजर कराने‌और‌वि वरोध‌के ‌बाद‌भी‌तत् समय‌पुनः‌मतगणना‌न‌करने‌तथा‌पुलि लस‌का‌भय वि दखाने‌के ‌साकኚ य‌के ‌पቚ धि त‌वि वप+ቌ ी‌के ‌एजेन् ट‌की‌पुवि षकारक‌पቚ धि तपरी+ቌ ा‌भी‌ह।ै उपरोकሹ ‌सኌ स् थधि त‌व‌बहुत‌कम‌अन् तर‌से‌जीत‌होना।‌तथा‌जीत‌के ‌अन् तर‌के ‌सापे+ቌ कई‌गना‌मतों ‌का‌वि नरस् त‌होना,‌वि नरस् त‌मतों ‌के ‌वि नरी+ቌ ण‌की‌बावत‌अधि धकारी‌की पቚ थम‌दृ षया‌संतुवि ष‌के ‌लि लए‌पयार् ‌ह।ै ‌मुख् य‌आरोप‌वि नरस् त‌मतों ‌के ‌गलत वि नरस् तीकरण‌से‌सम् बसኌ न् धत‌है,‌इसलि लए‌वि नरस् त‌मतों ‌का‌पुनः‌वि नरी+ቌ ण‌और‌पनु ः गणना‌मतदान‌की‌गोपनीयता‌को‌पቚ भावि वत‌करने‌वाली‌नहीं ‌ह।ै ‌ऐसा‌वि नरी+ቌ ण‌और ऐसी‌गणना‌मतदान‌के ‌पቚ धि त‌वि व1ቫ सनीयता‌और‌न् याय‌के ‌पቚ धि त‌वि व1ቫ ास‌के ‌लि लए आवश् यक‌ह।ै ‌मातቔ ‌वि नरस् त‌मतों ‌का‌वि नरी+ቌ ण‌और‌गणना‌याची‌को‌कोई‌ऐसा आधार‌उपलब् ध‌कराने‌ममं‌स+ቌ म‌पቚ तीत‌नहीं ‌हो‌रहा‌है‌वि क‌वह‌पूरे‌चुनाव‌को‌ही शኋ ून् य‌घोवि षत‌कराने‌के ‌लि लए‌वि कसी‌साकኚ य‌की‌खोज‌कर‌सके ।‌वि नष् कषरतः‌यह पቚ स् तुत‌पቚ करण‌वि नरस् त‌मतों ‌के ‌वि नरी+ቌ ण‌और‌पुनः‌गणना‌के ‌लि लए‌आवश् यक‌वि वधि धक कसौवि टयों ‌पर‌सफल‌सावि बत‌हो‌रहा‌ह।ै " 6oofo7

¶15Above referred finding are based only on a vague assertion that a written complaint was not accepted, however, there is no documentary proof to it, even it is deemed that written complaint was refused to be received, there must be material facts supported by evidence that irregularity was committed.

¶16As discussed above, witnesses have no knowledge even about number of votes declared invalid and how it was wrongly declared invalid. Therefore, in absence of such specific assertion with a support in their evidence, as discussed above, Revisional Court has exercised its jurisdiction to recounting only on basis of roving inquiry without any substantial material supported by statements by election petitioner or her agent and has erred in disturbing the well reasoned order passed by Election Tribunal.

¶17Accordingly, impugned order dated 22.09.2022 is set aside. Petition stands allowed. Order Date :- January 28, 2023 Nirmal Sinha [Saurabh Shyam Shamshery, J.] 7 of 7 High Court of Judicature at Allahabad