- (1.) The election for the post of Pradhan of Gram Panchayat Birohi for year 2015 was conducted, during which votes were cast, counted and result was declared by which petitioner Tejbali was declared elected. In this election, it was declared that petitioner had got 2039 votes and next highest count of votes was that of Arvind (respondent no.-4) who had obtained 2038 votes. Thus by margin of only one vote, petitioner was declared elected. This election was challenged before respondent no.-3 Prescribed Authority/SDM, Sadar, Mirzapur through Election Petition no. D-20151653001686 of 2015 (Arvind Vs. Tejbali and 17 others). The main ground of challenge by respondent no.-4 in his election petition was that he had obtained more votes than declared, but ballots cast in his favour were wrongly counted and there was mistake of calculation in counting of votes also. In said election petition only present petitioner had filed written-statement, on the basis of which the Prescribed Authority had framed seven issues. Then after affording opportunity of hearing to both the sides, the Prescribed Authority had passed impugned order dated 29.9.2016 (Annexure-14 to the writ petition), by which, it was held that there appears irregularity in counting of ballots. Therefore, Prescribed Authority directed for recounting of ballots for said election of Gram Panchayat Birohi. This impugned order dated 29.09.2016 has been challenged through present writ petition.
(2.) Learned counsel for the petitioner contended that impugned order of allowing the election petition of respondent no.-4 was based on three grounds. The first main ground was that Proforma-4 relating to said election was not available. His contention is that said document relating to Form-4 was not available because it was present with sealed ballot papers and was not called for perusal. His submission was that second ground of passing impugned order was the alleged arithmetical error in counting of voters in this regard. He has submitted that although there appears arithmetical error of one count in counting of votes, but this will not affect the result because in Form-4 and Form-6 relating to said elections, the total number of valid and invalid votes were specifically mentioned. Since Form-4 is prepared on the basis of Form-6 and Form-7, therefore this arithmetical error can be rectified by calculation; and in fact no error was committed when result of said election was declared. His further submission is that in spite of filing of written-statement, the Prescribed Authority had found it technically erroneous and had not accepted its pleadings, although there was no error in said written-statement, which is in accordance with law and procedure and such pleading should not be discarded at the time of judgment. On the basis of these contentions, learned counsel for the petitioner prayed for quashing of the impugned order of recounting of ballot papers.
(3.) These submission were refuted by Sri H.N. Singh, Senior Counsel for respondent no.-4 who submitted that written statement of the petitioner was not discarded by the Prescribed Authority, on the other hand it was considered. He further submitted that impugned order is passed after appreciating the facts and evidences and after application of judicial mind in which all relevant points including arithmetical error was also considered. His submission was that in this particular matter admittedly there was arithmetically error of one vote and the difference of votes of petitioner andof respondent no.-4 was also only "1" vote, therefore, in interest of justice recounting should be done and accordingly correct order was passed by Prescribed Authority. His further submission is that there has been specific report of returning officer that Form -4 relating to ballot counting was not filed in office, and in absence of such important document, declaration of result of election was erroneous. In this regard, he cited Rule 104,105(3), 112 of the U.P. Panchayat Raj (Election of Members, Pradhans and Up-Pradhan) Enquiry Rules, 1994. His submissions were relied by certain judgments of this Court.;