V.K. Shukla, J. - (1.) Present writ petition has been filed by the petitioner Mohd. Kaisar, once again questioning the validity of decision dated 29.5.2010 taken by the Election Tribunal allowing application 112ga dated 26.11.2009 and directing for summoning of the ballots and for recounting.
(2.) Brief background of the case, as mentioned in the writ petition, is that election for the post of President of Nagar Panchayat Devraniya, Tehsil Baheri, District Bareilly had been held on 3.11.2006 and the result of the said election was declared on 7.11.2006. In the election so held, in all, there were 9 contesting candidates, including the petitioner. The petitioner claims to have secured 240J votes, whereas the election petitioner had secured 2396 votes. Questioning the validity of said election, election petition was filed, being election petition No. 34 of 2006, by Smt. Chhabili Devi. In the said proceeding an application under Order VII Rule 11 C.P.C. for quashing of the election petition had been filed. The Election Tribunal proceeded to pass order on the said application that the same was not at all liable to be allowed. The matter travelled up to this Court in the shape of writ petition No. 19136 of 2008, and this Court vide its judgment dated 2.5.2008 dismissed the said writ petition, noting therein that the petitioner had not filed written statement till that date; he should file his written statement. Thereafter, written statement was filed and replica was also filed to the said written statement. In the election petition so filed, in all, 12 issues were framed. In support of the averments made in the election petition three witnesses were examined by respondent No. 1 and two witnesses were examined from the side of the petitioner. Said election petition was posted for hearing on 26.11.2009. On said date an application 112-gha was filed by respondent No. 1 for calling of the record from the election office with regard to election in question and for a direction for recounting of ballots. Against the said application objections had been filed and this document was numbered as 114-gha; counter-affidavit was also filed and the same was numbered as 116-ga. Said application had been allowed on 15.12.2009, directing for summoning of the election papers and for recounting of the ballot papers and straightaway for reserving the judgment. Said order dated 15.12^2009 was assailed before this Court in writ petition No. 304 of 2010, Mohd. Kaisar v. Chhabili Devi and another, and this Court on 11.1.2010 proceeded to pass order by quashing the order dated 15.12.2009 and directives were given to reconsider the application for recounting and taking appropriate decision in accordance with law. Relevant extract of the said judgment is being extracted below ; "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. Now facts of the present case are being tested on the touch stone of the principle which has been settled by Full Bench of the Court as well as by Hon'ble Apex Court noted above. In the present case earlier as to whether there existed material facts in the election petition or not, the matter had travelled up to this Court. This Court on 2.5.2008 while deciding the writ petition took the view that this Court did not find any illegality in the view taken by the Election Tribunal and the facts which were there in the election petition were sufficient and constituted material facts, on which material particulars were also given. The facts regarding 76 voters allowed to participate at both places and 21 dead electors, who were shown to have cast their votes, would constitute material facts. It was also mentioned in the said judgment that these facts would constitute material and basic facts, which were to be proved at the trial. The fact of the matter is that three witnesses, namely, Chandra Sen, Abdul Hamid and Maiku had been examined from the side of the election petitioner, and two from the side of the present petitioner, namely, the petitioner himself and Sharif Ahmad. The aforesaid election petition was posted for hearing on 26.11.2009, and then an application was moved for summoning the entire records for effective adjudication of the election petition. Against the said application objections had been filed alongwith counter-affidavit. Said application has been allowed. The Election Tribunal in the present case proceeds to mention in paragraph 12 of the judgment that in paragraphs 6 to 12 of the election petition detail facts have been mentioned in the way and manner in which irregularities had been committed and the election petitioner was declared elected by 11 votes and even in the garb recounting ultimately election petitioner was got defeated by five votes. The Election Tribunal then has proceeded to note down the facts as mentioned in paragraphs 6 to 12 of the election petition in paragraphs 13 to 19 of the judgment and nothing beyond the same. In paragraph 20 of the impugned judgment, it has been mentioned that all these facts had been mentioned in application 112-ga, which had been moved for recounting supported by affidavit of Chandra Sen, husband of election petitioner. Thereafter, Election Tribunal has proceeded to note down the details averred in the objection and the facts mentioned in the affidavit. In paragraph 26 of the judgment, the averments mention in paragraph 12 of the election petition has- been reiterated on oath, and in addition to it, it has been averred that returning officer was got changed and undue pressure was got exerted by Wafur Rehman and Afaur Rehman and got the result declared. In paragraph 27 arguments raised by the elected candidate has been noted, then it has been mentioned that election petitioner has filed her affidavit, her husband Chandrasen has also filed affidavit, and has also been cross examined at length. In paragraph 28 of the judgment, it has been mentioned, that arguments have been advanced that contampareous evidence is not on record. Thereafter, it has been mentioned that in the cross examination of Chandrasen, it has come that he made repeated complaint, but the same went unheeded, and it is accepted fact, that three letters were sent by fax after 6.4.2006 onwards. Election Tribunal, thereafter, has proceeded to note down the provisions of the Municipalities Act and the Full Bench judgment of this Court. In paragraphs 32 and 33 of the impugned order, Election Tribunal has proceeded to mention that in paragraphs 6 to 12 of the election petition the circumstances in detail have been set out. Smt. Chhabili Devi has given her affidavit. Sri Chandrasen has submitted his affidavit and has been cross examined at length. Sri Abdul Hamid has given his contamperous evidence, by stating that election petitioner was declared elected by eleven votes.but by putting undue pressure of Bafaur Rehman, Sri J. S. Mathur declared that election petitioner, instead of 2406 votes has polled 2396 votes and petitioner instead of 2395 votes has polled 2401 votes. In paragraph 33 of the judgment, statement of petitioner and Sharif Ahmad have been dealt with. Thereafter, judgments have been referred to in paragraphs 34 to 39 and the proposition of law laid therein. In paragraph 40 of the judgment Tribunal has proceeded to mention that what would be the impact of non-production of election in witness box, is not required to be answered at this stage. Again in paragraphs 41 and 42 judgments have been referred to, and then the sum and substance of said judgment and the principle noted therein has been noted, keeping in view the judgment. In the present case most surprising feature of the case, as is reflective from paragraphs 44,45,46 and 47 of the impugned order, is that the Election Tribunal has again proceeded to mention in paragraph 44 of the judgment that there is evidence on oath of election petitioner, that she was declared elected by 11 votes, at said point of time Ataur Rehman, local M.L.A. And Chairman, Minorities Financial Corporation, and his brother exerted undue pressure, in the garb of recounting, got her declared as having lost the election by five votes. In paragraph 45 of the judgment, again Election Tribunal has reiterated the facts that in support of material facts mentioned in paragraphs 7 to 12 of the election petition, there is affidavit of Chhabili Devi. Affidavit of Chandrasen is there, with cross examination. There is supporting evidence of Abdul Hamid. In paragraph 46, the Election Tribunal proceeds to mention that at this stage only prima facie satisfaction has to be recorded qua existence of credible ground, that for effective adjudication of election petition, inspection and recount is imperative. Election Tribunal proceeds to mention that in spite of all these alleged irregularities, there is difference of five votes. In paragraph 47 of the judgment, Election Tribunal proceeds to mention that the Election Tribunal is satisfied that the averments, which have been mentioned in application 112-ga, with affidavit 113-ga, counter-affidavit 118-ga, and the oral evidence of Chandrsen and Abdul Hamid is there, no decision can be taken qua the facts spelled out in cross examination, but for effective adjudication, documents are imperative to be called for. Election Tribunal at one place proceeds to mention that on the basis of cross examination, whatsoever, evidence is there, on the same he cannot give any opinion and it would be expedient to summon the record in the ends of justice. Cross examination portion has been appended before this Court and it ought to have been taken into consideration. The cross examination of the witnesses of the election petitioner clarified the factual situation as mentioned in the examination-in-chief, Election Tribunal has conveniently avoided to consider the cross examination portion and the statement of Chadnra Sen specially at page 79,80 and 81 of the paper book. The Election Tribunal while forming the opinion as to whether from the material facts which had been pleaded, prima facie there existed cogent evidence to direct for recounting, ought to have discussed the said statements, the way and manner in which result has been materially affected, the point of time when irregularities had been committed in the counting of votes, substantiating the same by giving details of polling stations, counting centres, tables, round of counting of votes in relation to which alleged irregularities had taken place. The Election Tribunal in the present case has not at all undertaken requisite exercise, as to what was the prima facie cogent evidence which prompted him to pass the order of recounting. Reasons for forming prima facie opinion, is not at all exhibited, inasmuch as mere mention has been made of the statement, the affidavit and has proceeded to mention that he was satisfied with the discussion and evidence available on record, totally ignoring the cross examination portion. As requisite exercise is lacking and missing, the order impugned is not at all approved of."
(3.) Pursuant to the judgment passed by this Court, matter was again taken up by the Election Tribunal and again orders have been passed for summoning of ballots and for recounting of votes polled at the election in question. At this juncture present writ petition has been filed.;