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Ram Ratan Singh Yadav v. A.D.J. J.P. Nagar & Others - WRIT - C No. 116 of 2002 [2005] RD-AH 960 (4 April 2005)


This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).


Hon'ble Rakesh Tiwari, J.

The petitioner- Ram Ratan Singh Yadav and Ram Prasad- respondent no. 2 contested the election of Pradhan of Gram Panchayat Gajasthal, Tehsil Amroha, District Jyotibaphule Nagar held on 14.6.2000 in which respondent no. 2 was declared elected by a margin of only one vote.  The petitioner challenged the validity of election of the respondent no. 2 by means of an application dated 15.7.2000 moved before sub Division Officer under Section 12-C of U.P. Panchayat Raj Act, 1947 (hereinafter referred to as ''the Act').   The petitioner claimed that the counting of votes took place in the premises of Vikas Khand, Amroha on 26.6.2000 and respondent no. 4 was the returning officer and respondent no. 2 and respondent no. 4 were present at the time of counting.  On the date of polling, apart from election to the post of Pradhan, votes were also polled for election of members of Gram Panchayat, Kshetra Panchayat and Zila Panchayat.  Thus, the election was to be held for four posts.  Each voter was issued four ballot papers out of which two were given in the first round and the remaining two in the second round.  Ballot paper issued to elect Pradhan was in green colour whereas for Member of Gram Panchayat, it was in white colour; for member of Kshetra Panchayat was in blue colour and that for member of Zila Panchayat was in pink colour.  Two polling booths were made and in each booth, two ballot boxes were kept- one for Gram Pradhan and member Gram Panchayat and the other for member Kshetra Panchayat and member Zila Panchyat.  Thus, votes polled for two posts were put in one ballot box.  The petitioner's allegation is that when one 26.6.2000, the ballot box containing votes polled for Gram Pradhan and member Gram Panchayat was opened, the counting staff told the persons present at the place of counting that the ballot box contained 1160 votes polled for the post of Pradhan whereas 1168ballot papers had been issued to the voters.  Thus, 8 ballot papers were short.   On his request to check the other ballot box, when the other ballot box was opened, 8 ballot papers of green colour was found in that box.  His request to count these 8 ballot papers was turned down on one pretext or the other. That apart, during the course of counting 1160 ballot papers, he saw that 2 ballot papers in his favour were not counted. The petitioner made a complaint by FAX to the Election Commissioner (Panchayat), U.P., Lucknow but no relief was granted.  Recounting was held and byordeer dated 12.1.2001, petitioner was declared elected defeating his rival respondent no. 2 by 3 votes.  In pursuance of the said order, the petitioner took the charge of Pradhan on 16.1.2001 and took oath of office on 22.1.2001.  The respondent no. 2 challenged the order dated 12.1.2001 before the District Judge, Jyotiba Phuley Nagar. Vide order dated 9.2.2001, the District Judge Jyotiba Phule Nagar rejected the stay application of respondent no. 2 holding the same to be in fructuous as charge had already been delivered to the petitioner.  On 2.3.2001, the petitioner moved an application before the District Judge praying for dismissal of the revision. Thereafter, respondent no. 2 moved an application for amendment of memo of revision.  Petitioner filed objection on 16.4.2001 and the District Judge vide order dated 9.5.2001 dismissed the amendment application with certain observations.  The petitioner thereafter moved application on 26.7.2001 before the District Judge for deletion of observations that the memo of revision contained prayer for setting aside the order dated 12.1.2001 in the  order dated 9.5.2001.  On 18.12.2001 the application of the petitioner was allowed and on 19.12.2001 final arguments were heard.

Eventually, vide order dated 20.12.2001, the respondent no. 1 allowed the revision application of the respondent no. 2 by setting aside the order dated 12.1.2001. Hence this petition.

The main ground of attack of counsel for the petitioner is that the order of recounting dated 28.11.2000 was confirmed twice on 1.12.2000 and 9.1.2001 by the District Judge in the revision of the respondent no. 2 and , therefore, he had no jurisdiction to decide the validity of order dated 28.11.2000 and annul the result of recounting dated 12.1.2001 wherein the petitioner was declared elected by a margin of 3 votes. In support of his contentions, he placed reliance on the decision in Prescribed Authority/Sub divisional Magistrate, Jakhani Ghazipur and others with Smt. Fahmida V. 1st Additional District Judge, Ghazipur and others - 2004 (2) JCLR-954(Alld).

Counsel for the respondents submits that apex court has already laid down the law that court would be justified in ordering the recount of the ballot papers only when the election petition contains adequate statement of all material facts on which allegation of irregularity or illegality in the counting are founded and on the basis of evidence adduced such allegations are prima facie established affording good ground for belief that there  has been a mistake in counting but in the instant case, the Sub Divisional Officer passed the order on election petition though there was no sufficient evidence to prove the allegations contained in the election petition. That apart, after framing issues in the election petition, no evidence was produced by the petitioner to prove his allegations in the election petition.  There were only two affidavits on which the petitioner was relying and were filed in support of his application for recounting and no other evidence was produced after framing of issues in the election petition and these two affidavits can be read as evidence in view of the bar under Order XIX Rule 1 Code of Civil Procedure wherein permission of court is necessary to give evidence on affidavit.  In Mahendra Pal V. Ram Dass Malanger and others (2002)3 S.C.C-457 and N. Narayanan V. S. Semmalai and others - A.I.R. 1980 S.C-206 the apex court has held that it is well settled that the allegation in election petition must not only be clearly made but also proved by cogent evidence.  The apex court has also held in P.S. Pujar V. Kanthi Raja Shkkher Kidyappa and others - 2002 (3) SCC-742 that for seeking recount, proper foundation is to be laid in pleadings by setting out material facts and later proving it by adducing requisite evidence.  It can be ordered in rare cases where specific allegations are made and proved so as to do complete justice between the parties.  It is well settled that discretion regarding order of recounting should not be exercised in such a way so as to enable the applicant to indulge in a roving enquiry with a view to fish materials for declaring election to be void.   The apex court in V.S. Achuthanandan V. P.J. Francis and another (2001) SCC-81 has held that the fact revealed by recount of votes cannot be relied upon by the petitioner to support the prayer and sustain the order for recounting if the pleading and material available on record anterior to actual recount did not justify grant of prayer for inspection and recount.   He submits that the orders dated 1.12.2000 and 9.1.2001 passed by the Additional District Judge rejecting the revisions of the respondent no. 2 were passed only on the ground that it was made against interlocutory order hence not maintainable. Thus, the question of res judicata does not arise.   He submits that though 1166 votes out of 1168 were casted but the Sub Divisional Officer Amroha recounted 1168 votes which is contrary to erecord.  He lastly contended that the finding of fact recorded by revision court is not open for judicial review.  In support of his contentions, he also placed reliance in Smt. Hazzee  v. Prescribed Authority - 2003 (1) AWC-311.

Having heard counsel for the parties and after going through the record of the case, a perusal of the order dated 28.11.2000 shows that the petitioner had submitted his evidence but the respondent no. 3, despite several opportunities, did not adduce any evidence.  The order dated 28.11.2000 is as under :-

" fu.kZ;

mijksDr ;kfpdk Jh jkejru flag Onkjk fnukad 18&7&2000 dks izLrqr dh xbZ ftlesa mUgksus erx.kuk esa dh x;h vfu;ferrk ds laca/k esa vk/kkj fy;s gSa A foi{kh jke izlkn Onkjk fnukad4&9&2000 dks viuk izfrokn Ik= izLrqr fd;k A nksuksa Ik{kksa ds vfHkdFkuksa ds vkk/kj ij okn fcUnq cuk;s x;s A oknh ds Onkjk lk{; izLrqr fd;k x;k ijUrq izfroknh ds Onkjk leqfpr volj fn;s tkus ds I'pkr~ Hkh viuk dksbZ lk{; izLrqr ugha fd;k x;k A ;kfpdk izFke n`"V;k er x.kuk gsrq ekeyk curk gS A vr% ekeys dk fuLrkj.k djus ds fy, eri=ksa dks ryc fd;k tkuk vko';d gS A


     mijksDr ds vk/kkj ij mDr in ds fuokZpu ls lacaf/kr erksa dh x.kuk gsrq frfFk fnukad 30&11&2000 fu;r dh tkrh gS A [k.M fodkl vf/kdkjh vejksgk mDr in ls lacaf/kr er Ik=ksa dk lhYM iSfdV iqu% eu x.kuk gsrq fnukad 30&11&2000 dks le; 4 cts vijkUg rd izLrqr djusa gsrq funsZf'kr fd;k tkrk gS A U;k;ky; esa x.kuk dh tk;sxh A bl laca/k esa rglhynkj vejksgk mDr er x.kuk ds le; mifLFkr jgdr erx.kuk esa lg;ksx djsaxs A

fnukad 28&11&2000           g0 ch0,e0feJ

                       mi ftykf/kdkjh vejksgk A"

In the aforementioned circumstances, the court of Prescribed Authority had rightly come to the conclusion that since no evidence had been given by respondent no. 3 before the Prescribed Authority in case no. 2/2000 and had directed recounting.  When evidence had not been filed before the Prescribed Authority by the respondent no. 3, the revisional court had exceeded its jurisdiction in allowing the revision and setting aside the order of the Prescribed Authority even though there was no evidence of respondent no. 3- the revisionist and allegation in support of his case remained unproved.  

For the reasons stated above, the writ petition is allowed. Impugned order dated 20.12.2001 passed by respondent no. 1 in P.R. No. 3 of 2001 is quashed. No order as to costs.

Dated 4thApril, 2005



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