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Smt. Hazzee vs Prescribed Authority Under … on 22 November, 2002

Allahabad High Court
Smt. Hazzee vs Prescribed Authority Under … on 22 November, 2002
Equivalent citations: 2003 (1) AWC 311
Author: S Ambwani
Bench: S Ambwani


JUDGMENT

Sunil Ambwani, J.

1. An order dated 23.9.2002 passed by the Prescribed Authority/Sub-Divisional Magistrate, Baberu in election petition No, 14 of 2000 under Section 12C of the U. P. Panchayat Raj Act, 1947 directing recount of votes has been challenged by the winning candidate, who was declared elected as Pradhan of Gram Panchayat, Lahureta, Tehsil and Pargana Naraini, district Banda.

2. I have heard Sri Shashi Nandan learned counsel for petitioner and Sri B.D. Mandhyan and W.H. Khan for contesting respondents.

3. The facts in brief are that Smt. Zummi Khatoori, respondent No. 2 filed the above election petition for declaring the election of Smt. Hazzee, petitioner as Pradhan of Gram Panchayat, Lahureta. The issue with regard to the jurisdiction of the Court to decide the matter and the payment of requisite fees was decided in favour of e’lection petitioner. The District Judge allowed the Revision No. 45 of 2001 on 15.5.2001 and directed the issue to be decided as fresh once again. The application of the winning candidate was rejected on 11.7.2001, against which the revision was dismissed by the District Judge, Banda and a Writ Petition No. 30837 of 2001, was also dismissed. The election petitioner thereafter filed an application for recount of votes on 24.7.2001, which was directed to be decided after the evidence was recorded. Both the parties adduced oral and documentary evidence on which, prima facie, by an order dated 23.4.2002, Prescribed Authority passed orders for recount, which was challenged in Writ Petition No. 17641 of 2002. This Court set aside the order of recount on 24.7.2002 and directed Prescribed Authority to decide the matter afresh. By the impugned order dated 23.9.2002, Prescribed Authority has directed recount on following grounds :

(1) The counting of votes was over by evening of 26.6.2000, whereas the results were declared on the next day on 27.6.2000.

(2) From the statement of Santoo, it is found that election petitioner’s husband was shouting at the time of counting that manipulations are being made. The complaints and Fax Message were sent at the time of counting to the Administration and Election Officer, which prima facie shows that some manipulation was made. These factors also supported by the persons present in the panda! where the counting was held.

(3) Witnesses of the election petitioner as well as the affidavits were filed by her stating that about 50-60 votes were taken out from the bundle of invalid votes and were added to the valid votes of Smt. Hazzee whereby it was increased from 787 to 846. In case these votes were not added, the election petitioner could have secured 846 instead of 787. Petitioner’s husband deposed that there was manipulation of 50-55 votes.

(4) It was stated that 1,808 votes were found to have polled in the ballot box whereas at the time of counting 1,809 votes were counted and entered in Schedule 4K which was prima facie proved that there was irregularities in counting.

4. Sri Shashi Nandan appearing for petitioner submits that material particulars with regard to irregularity or malpractices in counting were lacking in election petition and that the evidence led by election petitioner was not sufficient to support the conclusion of the Prescribed Authority with regard to his prima facie satisfaction for recount. The election petitioner wanted a roving inquiry to fish out material for declaring the election to be void. He has relied upon the judgments of Supreme Court in Bhabhi v. Sheo Govind, AIR 1975 SC 2117 and Vadivelu v. Sunderam and Ors., (2000) 8 SCC 355.

5. In support of the order of recount, Sri B.D. Mandhyan submits that the Prescribed Authority has taken into account the entire evidence and after going through the oral as well as documentary evidence, recorded prima facie satisfaction that there were material irregularities in counting justifying recount. He submits that the election petition contains material averments with regard to gross irregularities in which the results were declared with an unreasonable delay, complaints were made at the time of counting and that about 50-60 invalid votes were wrongly added and counted in favour of the winning candidate. According to him, the fact that there were 1,809 votes counted as against 1,808 found in the ballot box, shows that there were irregularities in counting calling for recounting.

6. The condition imperative for recount of votes in an election petition, have been settled in a number of decisions, in Beli Ram Bhalaik v. Jai Behari Lal Kachi, AIR 1975 SC 283, the Supreme Court cautioned that since an order for a recount touches upon the secrecy of ballot, it should not be made lightly or as a matter of course. Although no cast iron rule of universal application can be or has been laid down, yct, from a bedroll of the decisions of this Court, two broad guidelines are discernible that the Court would be justified in ordering a recount or permitting inspection of the ballot papers only where (i) all the material facts on which the allegations of irregularity, or illegality in counting are founded, are pleaded adequately in the election petition, and (ii) the Court/Tribunal trying the petition is prima Jade 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 Suresh Prasad Yadav v. Jai Prakash Mishra, AIR 1975 SC 376 : Chanda Singh v. Ch. Shiv Ram, AIR 1975 SC 403 : Manphul Singh v. Surinder Singh, AIR 1975 SC 502, same principles were upheld. These principles were reiterated in Bhabhi v. Sheo Govind, AIR 1975 SC 2117, as follows :

“(1) That it is important to maintain the secrecy of the ballot which is sacrosant and should not be allowed to be violated on frivolous, vague and indefinite allegations ;

(2) That before inspection is allowed, the allegations made against the elected candidate must be supported by adequate statements of material facts :

(3) That the Court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations made for a recount ;

(4) That the Court must come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties ;

(5) That the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fish materials for declaring the election to be void ; and

(6) That on the special facts of the given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a recount, and not for the purpose of fishing out materials.”

7. In S. Raghubir Singh Gill v. S. Gurucharan Singh Tohra, 1980 Supp SCC 53, it was held as under :

“True, recount cannot be ordered Just for the asking. A petition for recount cannot be ordered after inspection of ballot papers must contain an adequate statement on material facts on which the petitioner relies in support of his case and secondly the Tribunal must be prima facie satisfied that in order to decide the dispute and to do complete justice between the parties an inspection of the ballot papers is necessary. The discretion conferred in this behalf should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fishing out materials for declaring the election void.”

8. In M.R. Gopalakrishanan v. Thachady Prabhakaran, 1995 Supp (2) SCC 101, it was held that the demand of defeated candidate for recount of votes has to be considered keeping in view that secrecy of the ballot is sacrosanct in a democracy, and, therefore, unless the election petitioner is able not only to plead and disclose the material facts but also substantiate the same by means of evidence of reliable character that there existed a prima facie case for recount, no Tribunal or Court would be justified in directing a recount.

9. In Vadivelu v. Sitndaram, 2000 (8) SCC 355, same principle was reiterated with emphasis in paragraph 16, quoted as below ;

“The result of the analysis of the above cases would show that this Court has consistently taken the view that recount 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 recount 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 recount 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 recount of votes under such circumstances to do Justice between the parties.”

10. In V.S. Achuthanandan v. P.J. Francis, 2001 (4) AWC 2.9 (SC) (NOC) : (2001) 3 SCC 81, Supreme Court went to the extent of holding that even if a recount is validly ordered, and the statistics revealed by the recount are available to be used for deciding election dispute, the facts revealed by recount cannot be relied upon by the election petitioner to support the prayer and sustain the order of recount. If the Supreme Court found that pleadings and material available on record anterior to actual recount did not justify grant of the prayer for inspection and recount.

11. Coming to the facts of the present case, the allegations in the election petition, in paragraph 24 relevant for the prayer of recount are that in all the four booths, the election petitioner polled 808 votes whereas the winning candidate polled 787 votes, the respondent No. 2 polled 33 and respondent No. 3 polled 15 votes and that 165 votes were declared invalid. The results were, however, not declared immediately after counting. The son of respondent No. 1 exercises undue influence on the employees engaged in counting and with the help of money and power about 50-60 invalid votes were taken out and were deliberately added to the votes of respondent No. 1 and accordingly, in a pre-planned manner, a forged and imaginary election result was prepared in which petitioner was shown to have polled 787 valid votes as against 846 votes polled by her and that invalid votes were shown to be only 107 as against 165 votes and that inspite of complaints being made to the present officers, the invalid votes were not separated and that the respondent No. 1 was declared to have won the election. That 1,808 votes were taken out, whereas 1,809, votes were counted in the election. The Prescribed Authority found that these allegations were proved from the statement of witnesses, affidavits filed on behalf of petitioner as well as other documents on record. These averments were denied by the petitioner. She has also denied the affidavits on the ground that the affidavits were not filed with the permission of the Court and that the persons swearing the affidavits were not subjected to cross-examination.

12. A perusal of the election petition shows that the allegations were vague and lack material particulars. The fact that the counting was completed in the evening of 26.6.2000 and the result was declared on 27.6.2000, does not by itself casts any doubt over the result. The statement of Santoo, who supported the allegation that election petitioner’s husband was shouting at the time of election that irregularities are being made, by itself does not specify the allegations. The statement of Sant Ram alias Santoo does not prove anything except this fact that Abdul Hakim, husband of election petitioner was shouting about the irregularities at the time of counting. He specifically stated that he did not see Abdul Hakim giving any application in this regard. He deposed that election took place peacefully in which Zummi Khatoon polled 808 votes whereas Hazzee polled 846 votes and there were 107 invalid votes. In cross-examination, he admitted that his wife Raj Rani had contested election from ward No. 52 and had lost the election. In the counter-affidavit of Abdul Hakim, husband of winning candidate, along with the counter-affidavit, application of Zummi dated 26.6.2000 and 27.6.2000, have been annexed as Annexures-C.A. 6 and C.A. 7 whereas in the first application dated 26.6.2000 it has been stated that after actual count in four booths the applicant polled 808 votes and Smt. Hazzee 787 votes, Smt. Jainab 33 votes and Smt. Jhingia 15 votes and 165 votes were found to be invalid, efforts are being made to include 50-60 votes in the bundle of Hazzee in an attempt to allow her to win election and a request was made for recount. The application has been addressed to Assistant Election Officer, Vikas Khand, Naralni. In the subsequent application dated 27.6.2000, addressed to the Chief Election Commissioner, Panchayat Raj, U. P. Government, Lucknow, it is stated, after reiterating the same facts as in the earlier application, that inspite of concluded election held last evening the results were not declared and that the son of Smt. Hazzee along with present senior politician exercising undue influence and has added 50-60 invalid votes with the votes of Smt. Hazzee and that inspite of request of recount, no action was taken and that the District Magistrate refused recount, and thereafter Smt. Hazzee was declared to be elected. Both these applications and the statement of Santoo goes to show that election petitioner was not aggrieved by the acceptance or rejection of votes or any failure of any of the statutory provisions in counting. The main grievance was with regard to adding 50-60 invalid votes to the bundle of Smt. Hazzee. From the record it is apparent that after the election petitioner found that she has lost the election, her husband made an application for counting 50-60 invalid votes in favour of winning candidate. The application given by the election petitioner on 26.6.2000, contradicts her stand that in the election result she was found to have polled higher votes but the result was withheld upto next morning and in between manipulations were made to count invalid votes in favour of the winning candidates. Schedule 4K, recording the count of votes, was prepared on 26.6.2000 and has been signed by the Assistant Election Officer (Gram Panchayat) on 27.6.2000, it shows that the total number of 1,809 votes were polled which includes 1702 valid and 107 invalid votes, out of which winning candidate polled 846 votes. There is absolutely no material on record nor any evidence by way of statement of witnesses or any affidavit to support that there were 165 invalid votes and the decision as to who was responsible to have taken out 55-60 invalid votes from the bundle in favour of winning candidate. The allegations in this regard are vague and lack material particulars. Sant Ram alias Santoo had also stated that the invalid votes were not more than 107. There is no statutory rule pressed into service to show that the result should be declared immediately after the counting. The fact that 1,809 votes were counted whereas 1,808 votes were found to have taken out from the ballot box is not supported by any document or evidence of any witness. In any case, the difference of one vote does not materially affect the result of the election.

13. From the aforesaid discussion, I find that the satisfaction of the Prescribed Authority that there were material irregularities in counting of votes is not based on proper- appreciation of evidence on record. The petition lacks necessary, clear and specific averments with regard to acceptance or rejection of votes or non-compliance of any statutory provisions in counting. There is no trustworthy material to support order of recount of the votes.

14. For the aforesaid reasons, the writ petition succeeds and is allowed. The impugned order dated 23.9.2002, passed by the Prescribed Authority/ Sub-Divisional Magistrate in Election Petition No. 14 of 2000 for recount of ballot papers is set aside. The Prescribed Authority shall proceed to decide the election petition in accordance with law.

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