Vineet Saran - (1.) THE petitioner, was elected as Pradhan in an election held in the year 2005. THE respondent Nos. 4 to 9 are the defeated candidates in the election. THE respondent No. 4 Kawalpatia had lost the election by margin of 5 votes. She, thus, filed an election petition praying for recounting of votes, which was registered as Election Petition No. 6 of 2005. By an order dated 18.8.2007, the election petition of the respondent No. 4 was dismissed on merits. Challenging the said order, the respondent No. 4-election petitioner filed a revision before the District Judge, which has been allowed by order dated 27.1.2009. Aggrieved by the said order, this writ petition has been filed.
(2.) ON 6.2.2009, an interim order was granted by this Court staying the operation of the order passed in revision and as such, the order, directing the re-counting of votes has not been implemented. I have heard Sri R. C. Singh, learned counsel for the petitioner as well as learned standing counsel appearing for respondent Nos. 1, 2 and 3 and Sri J. J. Munir, learned counsel appearing for contesting respondent No. 4. Pleadings between the parties have been exchanged and by the consent of learned counsel for the parties, the writ petition is being finally disposed of at the admission stage. While deciding the election petition, the prescribed authority has framed three issues, the English translation of which is as under : I. Whether in the first round of counting, election petitioner was declared elected by 5 votes and in subsequent counting of the votes, defendant No. 1 (petitioner) was declared elected by 5 votes? II. Whether recounting was done? III. Whether counting was done improperly/illegally?
(3.) ALL the three issues are related to recounting of votes. While deciding the aforesaid issues, categorical finding of fact has been recorded by the prescribed authority that the counting of votes was done only once and there was no recounting of votes. It has also recorded in the said order that the election petitioner herself did not appear in the witness box, although the same was necessary under Section 67 of the Evidence Act, and further that the persons whose affidavits have been filed, had also not been produced as witnesses, which was against the provisions of Section 68 of the Indian Evidence Act. The prescribed authority had also categorically mentioned that the election petitioner did not enter in the witness box and the statement made by the Returning Officer categorically stating that there was no discrepancy in the counting of votes and that the writ petitioner had been declared elected by 5 votes, had not been disputed by the election petitioner. On such basis, the election petition had been dismissed. From the perusal of the order passed by the revisional court, it is not clear as to how the Court has come to the conclusion that the recounting of votes was got done by the Returning Officer at the instance of the writ petitioner and in the second round of counting, the writ petitioner was declared elected, although in the first round she was found to be defeated by 5 votes. A categorical finding has been recorded by the prescribed authority that no application for recounting of votes was given to the Returning Officer and recounting could not be done without any such formal application. The same has been disbelieved by the revisional court merely by stating that normally such recounting is done without any application. Such observation of revisional court cannot be said to be justified as in an election matter, recounting can be ordered by the Returning Officer only if there is any objection filed by any party for which a formal application has to be filed. In the present case, no such application is said to have been filed by the election petitioner or any other party. In such view of the matter, the finding recorded by the prescribed authority that there was only one round of counting in which the writ petitioner was declared elected cannot be said to be unjustified.;