- (1.) THE facts leading to the present dispute, are that election of Gram Pradhan of Gram Panchayat Pure Birbal was held on 22.10.2010 in which eight candidates including the petitioner contested for the post of Gram Pradhan. Result of the said election was declared on 30.10.2010 and the petitioner was declared successful with 303 votes and one Santosh Kumar stood second with 301 votes, as a consequence of which the Assistant Returning Officer/Election Officer issued a certificate to the petitioner declaring him to be the Gram Pradhan of Gram Panchayat, Pure Birbal. Feeling aggrieved with the aforesaid action, Santosh Kumar preferred an Election Petition on 1.12.2010 before the Sub -Divisional Magistrate, Lalganj, Pratapgarh praying therein that election result of the aforesaid Gram Panchayat may be declared invalid and with a further prayer for recounting of votes and thereafter declaring the opposite party no.5 as new Pradhan. During the pendency of the aforesaid election petition, Santosh Kumar also preferred Writ Petition bearing no.12485(MB) of 2010 before this Court and this Court vide order dated 22.12.2010 was pleased to dispose of the said petition with a direction to the prescribed authority to decide the election petition within a period of one year in accordance with law. This Court also directed that if any application for recounting of votes is moved, the same shall also be decided within a period of six months. Thereafter, Assistant Returning Officer/Election Officer vide letter dated 18.2.2011 submitted a detailed reply to the Sub -Divisional Magistrate in the election petition denying all the allegations made in the election petition. In para 6 of the reply, it has been stated that total 1227 votes were polled and out of 1227 votes, 1154 votes were valid and the remaining 73 votes were invalid, as such the allegation of Santosh Kumar that 75 votes were illegally rejected is incorrect. It was further stated by the Assistant Returning Officer in his reply that any vote polled in favour of any candidate was not rejected by him nor under any pressure whatsoever and no illegality has been committed in the counting process. In para 7 of the reply, it was also stated that no application for recounting was ever made by Sri Santosh Kumar during or after the counting process. It was further stated that since Sri Santosh Kumar was defeated in the aforesaid election, as such due to disappointment, the aforesaid election petition was preferred by him. Petitioner also filed his written statement before the Sub -Divisional Magistrate. Thereafter, statements of Santosh Kumar and Harish Kumar (agent of Santosh Kumar) were recorded on 23.7.2011 and the statement of Rudra Narain Mishra (agent of the petitioner) was recorded on 25.7.2011.
(2.) THE Sub -Divisional Magistrate after considering the entire material on record and also the statements of the witnesses, passed an order on 28.7.2011 by means of which he admitted the election petition and directed for recounting of votes on the ground that the election symbol of the petitioner and Santosh Kumar were side by side, as such there must have been some irregularity in the counting process; secondly since the difference of votes secured by both the parties is only of two votes, as such if the statement of Santosh Kumar is construed to be true, then the election result would be materially affected and lastly that both the sides in their statements have alleged that their valid votes were declared as invalid, which were in their favour. Feeling aggrieved with the aforesaid order, petitioner preferred a revision before the revisional authority, which too was dismissed on 6.8.2011 as not maintainable. Hence this petition. Submission of counsel for the petitioner is that recounting application was not maintainable and the election petition ought to have been decided. It is also submitted that there was no evidence to support the case for recounting and the ground to set aside the election is different from the recounting. He has further submitted that the parameters and the legal requirements for recounting were not fulfilled by the election petitioner, so no recounting could have been ordered by the Sub -Divisional Magistrate. The evidence is lacking in this regard and on the basis of pleadings in the election petition and the evidence adduced in support of it, no case for recounting was made. In support of his contention, counsel for the petitioner has relied upon the following cases: - Bhabhi vs. Sheo Govind and others, (1976) 1 SCC 687; S. Raghbir Singh Gill vs. S. Gurcharan Singh Tohra and others, 1980 (Supp.) SCC 53; Ram Adhar Singh vs. District Judge, Ghazipur and others, 1985 UPLBEC 317 (FB) ; Vadivelu vs. Sundaram and others, (2000) 8 SCC 355; P.H. Pujar vs. Kanthi Rajashekhar Kidiyappa and others, (2002) 3 SCC 742 ; Shiv Shanker Chauhan vs. Amla and others, 2009 (27) LCD 52 ; R. Narayanan vs. S. Semmalai and others, (1980) 2 SCC 537 ; and Smt. Sushma Devi vs. State of U.P. and others, 2008 (26) LCD 919. Counsel for the opposite parties, on the other hand, has submitted that all the ingredients for recounting were fulfilled and the evidence was also led in support of recounting. The Sub -Divisional Magistrate after considering the pleadings in the election petition and the evidence on record, which was led in support of the pleadings, came to the conclusion that recounting was necessary so as to ascertain as to whether the result was properly declared after counting. An objection regarding recounting was raised by the agent of opposite party no.5, but his objection was turned down and recounting was not made though there was gross bungling in the counting and for recounting a FXA message was sent to the Election Commissioner and a registered letter was also sent on 1/2.11.2010. He further submits that it is wholly wrong to say that no prayer was made for recounting, but in fact every effort was made for recounting looking to the gross bungling done in the counting, but his attempt failed in spite of the best efforts made by the agent of opposite party no.5. It has also been submitted that a specific case has been set up in the election petition that there was irregularity and illegality in the counting of ballot papers and the objection of agent of opposite party no.5 was over ruled. The pleading in regard to recounting is complete as it has specifically been stated in para 5 of the election petition that 38 votes were treated as invalid votes on account of some confusion in the seal, which was not clear and in some of the ballot papers, the thumb impression has been appended instead of seal. Out of the total 75 ballot papers, which were declared invalid, mostly it contained the votes of opposite party no.5. The rules applicable for recounting were not followed and if those 38 invalid votes are counted properly and scrutinized, then opposite party no.5 has to be declared as elected. The evidence in support of the aforesaid pleading has also been adduced and the witnesses, namely, opposite party no.5 and his agent Harish Kumar have specifically proved the case for recounting. In the aforesaid background, it has been submitted that there is no illegality in the order passed by the Sub -Divisional Magistrate and recounting is justified in the facts and circumstances of the case.
(3.) I have heard counsel for the parties and perused the record. The argument of the counsel for the petitioner has to be considered in the context of the law propounded by the apex Court as well as by this Court in various cases, which are as follows: - In the case of Bhabhi (supra) the apex court while considering the question for recounting held as under : - " 5. Before, however, dealing with the order passed by the learned Judge it may be necessary to refer to a number of authorities of this Court on the circumstances under which an inspection of the ballot papers, or for that matter a sample inspection, can be allowed. In the case of Ram Sewak Yadav (supra) the matter was considered at great length and this Court pointed out that an order for inspection could not be granted as a matter of routine but only under special circumstances and observed as follows : "An order for inspection may not be granted as a matter of course : having regard to the insistence upon the secrecy of the ballot papers, the Court would be justified in granting an order for inspection provided two conditions are fulfilled: (I) that the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support of his case; and (ii) the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary. But an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The case of the petitioner must be set out with precision supported by averments of material facts. To establish a case so pleaded an order for inspection may undoubtedly, if the interests of justice require, be granted. But a mere allegation that the petitioner suspects or believe, that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection." 6. Two years later in Dr. Jagjit Singh's case (supra) this Court observed on the facts of that case that the discretion to allow inspection of ballot papers should not be used in such a way so as to make a roving or fishing inquiry in order to discover materials for declaring the election void. In this connection, this Court made the following observations : "The true legal position in this matter is no longer in doubt. Section 92 of the Act which defines the powers of the Tribunal, in terms, confers on it, by Cl. (a), the powers which are vested in a Court under the Code of Civil Procedure when trying a suit, inter alia, in respect of discovery and inspection. Therefore, in a proper case, the, Tribunal can order the inspection of the ballot boxes................... An application made for the inspection at ballot boxes must give material facts which would enable the Tribunal to consider whether in the interests of justice, the ballot boxes should be inspected or not. In dealing with this question, the importance of the secrecy of the ballot papers cannot be ignored, and it is always to be borne in mind that the statutory rules framed under the Act are intended to provide adequate safeguard for the examination of the validity or invalidity of votes and for their proper counting. It may be that in some cases, the ends of justice would make it necessary for the Tribunal to allow a party to inspect the ballot boxes and consider his objections about the improper acceptance or improper rejection of votes tendered by voters at any given election; but in considering the requirements of justice, care must be taken to see that election petitioners do not get a chance to make a roving or fishing enquiry in the ballot boxes so as to justify their claim that the returned candidate's election is void." 7. In Jitendra Bahadur Singh's case (supra) the order of the Election Judge granting inspection of the ballot papers was reversed by this Court because the Court thought that the learned Judge had not followed the essential conditions laid down before granting the prayer for inspection of the ballot papers. In that case the Court held that the allegations were vague and indefinite, no material fact was pleaded and further that the petitioner was present at the time of counting and yet he did not take any objection regarding the illegal rejection of the votes. In this connection Hegde, J., speaking for the Court laid down the following principles: (1) that the petition for setting aside the election must contain an adequate statement of the material facts on which the petitioner relies in support of his case; and (2) the Tribunal must be prima facie satisfied that in order to decide the dispute and to do complete justice between the parties, inspection of the ballot papers is necessary. The cases of Ram Sewak Yadav and Dr. Jagjit Singh mentioned (supra) were referred to and relied upon by Hegde, J., in his judgment. 10. In the case of Sumitra Devi (supra), Mathew, J., after reviewing the previous authorities of this Court, held as follows : "In the case at hand, the allegations in the election petition were vague and the petition did not contain an adequate statement of the material facts. The evidence adduced by the appellant to prove the allegations was found unreliable. No definite particulars were also given in the application for inspection as to the illegalities alleged to have been committed in the counting of the ballot papers. A recount will not be granted as a matter of right but only on the basis of evidence of good grounds for believing that there has been a mistake in the counting. It has to be decided in each case whether a prima facie ground has been made out for ordering an inspection." 11. In S. Baldev Singh v. Teja Singh Swatantar (dead) and Ors(1) Krishna Iyer, J., remarked as follows : "Coming to the facts of this case, we have already indicated that no good grounds for a Court order for inspection and recount, particularly after the Sherpur experiment, exist. Although we are free to admit that an imaginative Returning Officer might have quietened the qualms and silenced the scepticism of the appellant by a test check or partial recount, proceeding to a full recount if serious errors were found, we are inclined to agree with the High Court, there being no reason to reverse its elaborately discussed conclusions, and the relief of recount was rightly rejected." 12. In Beliram Bhalaik v. Jai Beharl Lai Kachi and Anr.(1) Sarkaria J., speaking for the Court, observed as follows : "Since an order for a recount touches upon the secrecy of the 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, yet, from a beadroll 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 facie 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." 13. In Suresh Prasad Yadav v. Jai Prakash Mishra and Ors.(2) while summarising the principles laid down by this Court from time to time in granting prayer for inspection of ballot papers, the Court adumberated the circumstances in which a prayer for inspection of ballot papers could be considered and observed as follows : "Before dealing with these contentions, we may recall, what this Court has repeatedly said, that an order for inspection and recount of the ballot papers cannot be made as a matter of course. The reason is twofold. Firstly such an order affects the secrecy of the ballot which under the law is not to be lightly disturbed. Secondly, the Rules provide an elaborate procedure for counting of ballot papers. This procedure contains so many statutory checks and effective safeguards against trickery, mistakes and fraud in counting, that it can be called almost foolproof. Although no hard and fast rule can be laid down, yet the broad guidelines, as discernible from the decisions of this Court, may be indicated thus The Court would be justified in ordering a recount of the ballot papers, only where : "(1) the election -petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded; (2) On the basis of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting; and (3) The Court trying the petition is prima facie 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." These principles were reiterated in Chanda Singh v. Ch.Shiv Ram Varma and others,(1) where speaking for this Court, Krishna Iyer, J., observed thus "On all hands, it is now agreed that the importance of the secrecy of the ballot must not be lost sight of, material facts to back the prayer for inspection must be bona fide, clear and cogent and must be supported by good evidence. We would only like to stress that in the whole process, the secrecy is sacrosanct and inviolable except where strong prima facie circumstances to suspect the purity,propriety and legality in the counting is made out by definite factual averments, credible probative material and good faith in the very prayer. We may even say that no winning candidate should be afraid of recount and, conditions as they are, a sceptical attitude expecting the unexpected may be correct, informed of course by the broad legal guidelines already set out." 14. Lastly in Ch.Manphul Singh v. Ch. Surinder Singh(2) the Court upheld the order of the High Court allowing inspection of ballot papers because the High Court had given a finding that the evidence of the witnesses was sufficient to prove the allegation of impersonation, in that case. The Court further held that the High Court did not act arbitrarily in granting the prayer for inspection. 15. Thus on a close and careful consideration of the various authorities of this Court from time to time it is manifest that the following conditions are imperative before a Court can grant inspection, or for that matter sample inspection, of the ballot papers : (1) That it is important to maintain the of the ballot which is sacrosanct and should not be allowed to be violated on, vague and indefinite allegations; (2) That before inspection is allowed, the allocations made against the elected candidate must be clear and specific and must be supported by adequate statements of material facts; (3) 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 a 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. If all these circumstances enter into the mind of the Judge and he is satisfied that these conditions are fulfilled in a given case, the exercise of the discretion would undoubtedly be proper. 16. In the instant case we find that the learned Judge while passing the order of sample inspection made no attempt to apply the principles mentioned above to the facts of the present case. What is more important is that the Court actually noticed some of the important decisions of this Court which we have discussed and yet it did not try to test the principles laid down on the touchstone of the allegations and the material facts pleaded by the respondent. Another error into which the learned Judge had fallen was that he did not realise that by allowing sample inspection he had provided an opportunity to the respondent to indulge in a roving inquiry in order to fish out materials to justify his plea in order to declare the election to be void a course which has been expressly prohibited by this Court, because it sets at naught the electoral process and causes a sense of instability and uncertainty amongst the duly elected candidates. Thirdly, while the learned Judge has observed that the Court must be prima facie satisfied regarding the truth of the materials, but it did not choose to record its satisfaction on the application of the respondent at all and has readily accepted the suggestion of the respondent for sample inspection on the ground that it was necessary for the ends of justice. Such an approach, in our opinion, is legally erroneous. While indicating in his order that both the parties had produced some affidavits before him in support of their pleas, the learned Judge has not at all tried to appreciate or consider the evidence in order to find out whether it was worthy of credence. In the absence of any such finding it was not open to the learned Judge to have passed an order for sample inspection just for the asking of the respondent. 17.Finally there were intrinsic circumstances in this case which went to show that unless the respondent was able to place cogent materials this was not a case for allowing sample inspection at all. in the first place although the counting agents of the respondent were present at the time when the votes were counted no application for a recount was made under r. 63 of the Conduct of Election Rules, 1961. The nature of the allegations made by the respondent in his petition as alluded to above was such as could have been easily verified at the spot by the Returning Officer, if his attention was drawn to those facts by an application made under r. 63 of the Conduct of Election Rules, 1961. Secondly the learned Judge overlooked that the respondent had not given the material particulars of the facts on the basis of which he wanted an order for sample inspection of ballot papers. No serial number of the ballot paper was mentioned in the petition nor were any particulars of the bundles containing the ballot papers which were alleged to have been wrongly rejected given by the respondent. Even the segment in which the irregularity had occurred was not mentioned in the petition. We, however, refrain from making any further observation as to what would be the effect of non -disclosure of these particulars because we intend to remit the case to the learned Judge for rehearing the matter and deciding the application for inspection. What appears to have weighed with the Judge is the solitary circumstance that the appellant had succeeded by a narrow margin and that was a sufficient ground for ordering sample inspection. We are, however, unable to agree with this broad statement of the law by the learned Judge because if a person is duly elected even by a narrow margin of votes there is no presumption that there has been illegality or irregularity in the election. This is a fact which has to be proved by a person who challenges the election of the duly elected candidate. After all in a large democracy such as our's where we have a multi -party system, where the number of voters is huge and diverse, where the voting is free and fair and where in quite a few cases the contest is close and neck to neck, a marginal victory by a successful candidate ,over his rival can sometimes be treated as a tremendous triumph so as to give a feeling of satisfaction to the victorious candidates The Court cannot lightly brush aside the success of the duly elected candidate on an election petition based on vague and indefinite allegations or frivolous and flimsy grounds.";