Tarun Agarwala - (1.) -The petitioner has challenged the order dated 30.8.2008 passed by the Additional District Judge, Court No. 2, Deoria in Election Petition No. 6 of 2006, whereby a preliminary issue has been decided and a direction has been issued to the District Magistrate for the recounting of the votes. The facts leading to the filing of the writ petition is, that the petitioner was declared elected as the President of Nagar Palika Parishad, Gaura Barhaj, Deoria by a margin of 188 votes in the election that was held on 31.10.2006. The petitioner secured 6,422 votes in contrast to his nearest rival Ajit Kumar Jaiswal, respondent No. 3, who secured 6,234 votes. The respondent No. 3, being aggrieved by the declaration of the result, filed an election petition under Section 20 of the U. P. Municipalities Act, 1916 challenging the election of the petitioner. The election was challenged on various grounds and one of the ground was, that there was an irregularity in the counting of votes on the basis of which, an issue was framed by the court below. It is alleged that the respondent No. 3 filed an amendment application incorporating certain other facts with regard to recounting of votes which was allowed, against which, the petitioner filed a writ petition which was dismissed by the High Court. It has also been stated that the respondent No. 3 filed an application for bringing on record, a compact disc which contained a videography of the counting of the votes, this application was allowed by an order dated 30.10.2007 directing that the compact disc be taken on record and that the admissibility of the compact disc would be subject to the evidence that would be led by the parties. It also transpires that the petitioner filed an application for summoning of the official videography recording of the counting of votes which application was rejected by an order dated 25.3.2008. Based on the evidence led by the parties, the election petition was heard and finally decided by an order dated 14.5.2008 allowing the election petition and declaring the election of the petitioner as the President of the Nagar Palika Parishad to be void and illegal and further directed the authorities to recount the votes. The petitioner, being aggrieved by the said order, filed Writ Petition No. 25082 of 2008 which was allowed by a judgment dated 22.5.2008 and the matter was remitted again to the Additional District Judge, Court No. 2, Deoria to decide the election petition afresh. The Court observed- "I find that the election Tribunal has committed an illegality in firstly declaring the election result to be illegal and void, and thereafter directed recount of votes. The order of recount is not a final order. It is a step-in-aid to the final decision of the election petition. Even after the actual recount, the objections may be taken to the procedure and validity of the votes which are counted either way."
(2.) IT transpires that upon remand, the petitioner moved an application raising certain objections against the compact disc vis-a-vis the admissibility of the compact disc. This application was rejected by the court below by an order dated 14.7.2008, against which, Writ Petition No. 35971 of 2008 was filed which was dismissed by a judgment dated 29.7.2008. IT has also come on record that the petitioner also moved a transfer application under Section 24 of the Code of Civil Procedure which was also rejected. The Additional District Judge eventually passed the impugned order on 30.8.2008 deciding issue No. 2 directing the District Magistrate to recount the ballot papers with regard to the election held on 31.10.2006. The petitioner, being aggrieved, has filed the present writ petition. Heard Sri Ashok Khare, the learned senior counsel assisted by Sri Siddharth Khare, the learned counsel for the petitioner and Sri Kesri Nath Tripathi, the learned senior counsel assisted by Sri Ved Byas Mishra, the learned counsel for the contesting respondent No. 3.
(3.) THE court below has directed the recounting of the votes on the ground that the Returning Officer in his statement had mentioned that for the purpose of counting of the ballot papers he had divided the said ballot papers into lots of 50 and that equal number of ballot papers was distributed for the purpose of counting. the court below on the basis of the statement of the Returning Officer compared the election sheet issued by the Returning Officer and has drawn adverse inference holding that some bungling may have taken place in the counting of votes and, on that basis directed the recounting of the votes. THE court below also considered the compact disc which allegedly indicated the destruction of ballot papers being torn after the completion of the counting of the votes and drew an adverse inference directing recounting of the votes. Sri Ashok Khare, the learned senior counsel submitted that with regard to the distribution of the ballot papers, there was no irregularity and the result sheet indicated more or less equal distribution of the ballot papers and that the fact that table No. 1 received 805 ballot papers does not indicate any irregularity but could only indicate that the remaining ballot papers were given to table No. 1. The learned counsel submitted that the distribution of the ballot papers was for the purpose of counting at different tables were almost equal and minor discrepancy would not create any adverse inference of any bungling in the counting of the votes especially when there was no discrepancy in the total number of votes polled . The learned counsel further submitted that the consideration of the compact disc without giving a finding on the admissibility of the compact disc under Section 65B of the Evidence Act was erroneous and that the court below did not consider its earlier order of 30.10.2007.;