Indradev v. Shri Umesh Singh and 19 Others

Order XX Rule 5 C.P.C.

¶19While deciding all the issues together, the District Judge has found that there was no evidence to establish as to how many votes of the return candidate were cancelled and how many votes of the election petitioner were cancelled. District Judge having himself recorded that there was no evidence to establish the aforesaid facts, the election of the return candidate could not have been set-aside on this count.

¶20The District Judge found that there appears to be force in the contention of the election petitioner that it had been announced on the loud-speakers installed at the counting center that he had won the election. However, this finding is not supported by the statement of the election petitioner made in his cross-examination, wherein he had categorically stated that at the close of the counting, the returning officer had told him that he had won by 78 votes, but no announcement to this effect was made. The R.O. had told him in a conversation that he had won by 78 votes and he should collect the winning certificate from Sadar Tahsil on the following day. The R.O. did not give him any round-wise counting details and no round-wise announcement was made by the R.O.

¶21The District Judge has recorded a finding that in the counting sheet of Mangraura III, Ward No. 11, the votes casted in polling booth nos. 64 and 181 – Panchayatghar Nevra A, had also been included whereas those booths fall outside the constituency of Mangraura-III. Moreover, the votes casted at Polling booth Salhipur Kanas – Booth D, had not been included while preparing the calculation-sheet, which shows that the calculation-sheet had not been prepared properly. The learned Counsel for the Writ Petitioner has fairly conceded that this finding recorded by the District Judge is correct and this error committed while preparing the calculation-sheet needs to be corrected by the authorities, although as per him, it will not make any difference in the outcome of the election.

¶22The District Judge has found that the counting sheet was erroneous, but it was not a fit case for ordering recount of votes and he has allowed the election petition and set-aside the election.

¶23The learned counsel for the petitioner has submitted that the error committed in preparation of the counting sheet was a curable defect and this defect ought to have been cured by preparing a correct counting sheet. Further submission of learned counsel for the petitioner is that even if this defect is cured, it will not affect the result of the election in any manner and in fact it would result in an increase in the votes of the returned candidate.

¶24The learned counsel for opposite party No.1 has vehemently opposed the writ petition and he has submitted that numerous illegalities were committed in conduct of the election, the most serious of those being non-declaration of result of the counting immediately after closure thereof in favour of the opposite party No.1 and subsequent illegal alteration of the result by issuing the winning certificate in favour of the writ petitioner. He has further submitted that issue no. 7 was framed by the District Judge regarding recounting of the votes and this Court should at least order a recount of the votes.

¶25When the District Judge has found that there was no evidence to establish as to how many votes of the returned candidate were cancelled and how many votes of the election petitioner were cancelled, the election of the returned candidate could not have been set-aside on this count.

¶26The finding of the District Judge that there appears to be force in the contention of the election petitioner that it had been announced on the loud-speakers installed at the counting center that he had won the election, is against the evidence on record in the shape of the statement of the election petitioner made in his cross-examination, wherein he had stated that at the close of the counting, the returning officer had told him that he had won by 78 votes, but no announcement to this effect was made. The R.O. had told him in a conversation that he had won by 78 votes and he should collect the winning certificate from Sadar Tahsil on the following day. Therefore, this finding is perverse.

¶27The alleged personal communication made by the returning officer with the opposite party no.1 cannot be the basis of setting aside election of the returned candidate when there is nothing on record to establish that the opposite party No.1 had in fact been declared successful prior to issuance of winning certificate in favour of the petitioner.

¶28So far as the submission of the learned Counsel for the respondent no. 1, that this Court should order a recount of votes, the law in this regard was explained in Chandrika Prasad Yadav v. State of Bihar,

(2004) 6 SCC 331, wherein the Hon'ble Supreme Court held that: - "20. It is well settled that an order of re-counting of votes can be passed when the following conditions are fulfilled:

(i) a prima facie case;

(ii) pleading of material facts stating irregularities in counting of votes;

(iii) a roving and fishing inquiry shall not be made while directing re-counting of votes; and

(iv) an objection to the said effect has been taken recourse to.

¶21The requirement of maintaining the secrecy of ballot papers must also be kept in view before a re-counting can be directed. Narrow margin of votes between the returned candidate and the election petitioner by itself would not be sufficient for issuing a direction for re-counting."

¶29The election petitioner had pleaded in para 10 of the petition that he had been declared elected with a margin of 78 votes but by committing illegality in counting of votes, the writ petitioner was declared to have won the election by 501 votes, there is a narrow margin of victory and it would be in the interest of justice that a recounting of votes be carried out. The allegation that the election petitioner had been declared elected with a margin of 78 votes, was not supported by the statement of the election petitioner himself, as has already been discussed above. The victory margin in the present case cannot be said to be a narrow margin and even if it is taken to be a narrow margin, it does not provide a good ground to order a recounting of votes in view of the law laid down by the Hon'ble Supreme Court in Chandrika Prasad Yadav (Supra).

¶30Election of a returned candidate can only be set aside on the proof of illegalities affecting the purity of election and it cannot be interfered lightly, on the basis of unsubstantiated allegations.

¶31In view of the aforesaid discussion, the writ petition is allowed. The impugned judgment and order dated 27.02.2024 passed by the District Judge, Pratapgarh in the Election Petition No. 01 of 2021 filed under Section 27 (2) Uttar Pradesh Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961, setting aside election of the petitioner, is hereby quashed.

¶32The matter is remanded to the District Judge for passing appropriate orders for preparation of a correct calculation sheet in light of the observations made in this order and the finding recorded in the judgment and order dated 27.02.2024, that in the counting sheet of Mangraura III, Ward No. 11, the votes casted in polling booth nos. 64 and 181 – Panchayatghar Nevra A, had also been included whereas those booths fall outside the constituency of Mangraura-III and that the votes casted at Polling booth Salhipur Kanas – Booth D, had not been included while preparing the calculation-sheet. (Subhash Vidyarthi J) Order Date: 19.04.2024 Preeti. High Court of Judicature at Allahabad, Lucknow Bench

A.F.R. Court No. - 19 Case :- WRIT - C No. - 2288 of 2024 Petitioner :- Indradev Respondent :- Shri Umesh Singh And 19 Others Counsel for Petitioner :- Sharad Pathak,Lalta Prasad Misra Counsel for Respondent :- Ashok Kumar Srivastava,Arun Kumar Singh Parihar,Avinash Srivastava,B/R0135,Dilip Mishra,Raj Kumar Upadhyaya (R.K.Upadhyaya),Sudeep Srivastava Hon'ble Subhash Vidyarthi J. 1. Heard Sri Sharad Pathak, the learned counsel for the petitioner, Sri R.K.Upadhyaya, learned counsel for the opposite party no.1, Sri Ashok Kumar Srivastava, learned counsel for the opposite party no.10 and Sri Sudeep Srivastava, learned counsel for the opposite parties no. 2, 3, 4, 5, 7, 8, 11 to 16. 2. By means of the writ petition filed under Section 226 of the Constitution of India, the petitioner has challenged the validity of the judgment and order date 27.02.2024 passed by the District Judge, Pratapgarh in Election Petition No. 01 of 2021 filed under Section 27(2) Uttar Pradesh Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961. 3. The opposite party no.1 had filed the aforesaid election petition inter alia stating that he was a candidate in the election held for the post of member of Zila Panchayat, Kshetra Mangraura III, Ward No. 11, Development Block Mangraura, Pargaana and Tehsil Patti, District Pratapgarh and he was allotted Polling symbol Axe. The opposite parties No. 1 to 17 in the election petition i.e. the petitioner and opposite parties no. 2 to 17 in this writ petition, were also candidates in the election. It was alleged in the election petition that serious irregularities were committed in preparation of the voters list. 4. In para 5 of the election petition it was pleased that a total of 27,928 ballots had been casted and 1933 ballets had been cancelled whereas a total of 27,160 ballets had been counted, out of which 1328 had been cancelled, whereas in para 7 of the election petition it was pleaded that a total of 27,160 ballets had been casted whereas 27,928 ballets had been counted and thus 768 ballets were counted in excess. The opposite party no.1 had contended that 3896 votes were casted in his favour and 833 votes casted in his favour were cancelled and the returned candidate (the writ petitioner) got 3818 votes. The opposite party no.1 claimed that he had won by 78 votes and the opposite parties no. 18 to 20 to the election petition – the Assistant Returning Officer, Returning Officer and District Election Officer, had made an announcement to this effect at the polling center, but a certificate to this affect was not given to him and it was told that the same will be provided at the district headquarter on the following day. When the election petitioner reached the district headquarter on the following day, the writ petitioner was declared successful by committing serious irregularities in counting of ballet papers, whereby 833 votes casted in favour of the election petitioner were cancelled and 768 excess votes were counted, which affected the result of the election. 5. In para 10 of the election petition seven grounds were taken by the election petitioner for assailing validity of the election which are as follows:- (i) The counting was not done in accordance with the provisions of the U. P. Kshetra Panchayat and Zila Panchayat Act, 1961 and the relavant rules and the counting sheet was prepared illegally and it is erroneous, ambiguous and misleading. (ii) The counting was not done in an independent, unbiased and legal manner. (iii) A total of 27,160 votes had been casted and 768 votes have been counted in excess of the votes casted. The election petitioner was told that his 3896 votes were valid and 833 votes were cancelled. He had been told that the returned candidate had got 3818 votes and thus he had won by 78 votes and the opposite parties 18 to 20 had made a declaration to this effect. However, it was told that the winning certificate will be given at the District Headquarter on the following day. Subsequently i