The Allahabad High Court while allowing the petition said that the election petition has to be tried in the same manner as a civil suit is tried by the civil court.
The Single-Judge Bench of Justice Manju Rani Chauhan said that apart from the pleadings of the parties, issues have to be framed, documentary evidence has to be laid, statements of witnesses have to be recorded, they have to be cross-examined.
Only thereafter, after recording findings on all the issues, either separately or jointly, the election petition can be decided, noted the Single-Judge Bench.
The High Court passed this order while hearing a petition filed by Rookame Alam.
The petition has been filed by the petitioner with a prayer to quash the order dated 20.06.2023 passed by the Prescribed Authority/Sub-Divisional Magistrate, Bilari in Election Petition (Javed vs Rookame Alam and others), under Sections 13-C of Panchayat Raj Act, 1947 whereby it was ordered for recounting of votes in the election held in 2021 of Gram Panchayat in Gram Lalpur Gangwari, Block Kundarki, Tehsil Bilari, Moradabad and further prayer to direct the respondent no 2 not to take any further step for recounting in pursuance of order dated 20.06.2023.
The facts of the case are that the petitioner and respondent no 3; Javed contested the elections for the post of Pradhan in gram panchayat Lalpur Gangwari. Polling took place on 26.04.2021 whereby after counting, the petitioner was declared as the winning candidate with the margin of 04 votes from the runner up candidate; Javed.
ii) The respondent no 3, who was defeated by margin of 04 votes, preferred election petition under Section 12(c) of Uttar Pradesh Panchayat Raj Act, 19471 on 01.07.2021 stating therein that at the time of counting, Dr. Minzar s/o Abrar, Bhura s/ o Yusuf and Alam s/o Nanhe colluded with the petitioner and seven ballots votes cast in favour of respondent no 3; Javed were declared invalid and one vote was kept in other category. Despite objections being raised by respondent no 3; Javed before Assistant Returning Officer/Returning Officer, nothing was done.
iii) In the aforesaid election petition, the notices were issued to the other parties and on 19.05.2023, the said election petition was dismissed by Prescribed Authority/Sub Divisional Magistrate for want of prosecution.
Thereafter, on 26.05.2022, the respondent no.3 filed recall application and by order dated 01.07.2022, the order dated 19.05.2022 was recalled and the matter was fixed for 21.07.2022 directing the petitioner (respondent in election petition) to file written statement before the court below.
iv) The petitioner has filed his written statement on 14.12.2022 to which rejoinder has been filed on 06.02.2023 by respondent no 3, thereafter, date was fixed for framing of issues. On 31.05.2022, the S.D.M Bilari had framed nine issues and closed the opportunity for producing the evidence and fixed the matter for final hearing on 07.06.2023.
v) subsequently, without providing an opportunity to the parties to appear for the statement and cross examination, the impugned order dated 20.06.2023 has been passed directing for recounting of votes. Hence the petition has been filed.
Counsel for the respondent no 3 has raised preliminary objection regarding maintainability of writ petition on the ground that against the order dated 20.06.2023 directing for recounting of votes, the petitioner had statutory remedy of filing a revision under Section 12-C (6) of the Act, 1947, therefore the writ petition is not maintainable.
Counsel for the petitioner submitted that the impugned order for recounting has been challenged on the ground that every election petition has to be tried by the Sub Divisional Officer following the procedure applicable under the Code of Civil Procedure, 1908. The Presiding Officer proceeded in a hurried manner to decide the election petition without adopting the legal procedure, which has to be followed.
The Prescribed Authority has framed nine issues, however, without taking any evidence, has closed the opportunity of providing evidence and fixed the case for final hearing. Though issues have been framed, but no findings with respect to the same has been recorded and that too without providing opportunity to the parties to appear for the statements and cross-examinations, which is against the provision of the C.P.C., which has to be followed while deciding the election petition.
He further submitted that though the respondent no 3 has taken an objection with respect to collusion of the counting agents, declaring 7 ballot votes cast in favour of the respondent no 3 as invalid, but no findings in this regard has been recorded while passing the impugned order. Only vague and false allegations have been made in the election petition, there being no evidence of either oral or documentary in support thereof.
The Prescribed Authority, on the basis of complaint and evidence adduced by the petitioner in the election petition (respondent no 3 herein) has recorded that there is difference of 4 votes between the petitioner and respondent no 3 and has passed the impugned order directing for recounting, which cannot be sustained in the eye of law.
On the other hand, Standing Counsel as well as counsel for the respondent no 3 has opposed the submission made by the counsel for the petitioner and submitted that nine issues have been framed and after analysing the specific averments made in para 9 & 10 of the election petition wherein it was mentioned that 7 valid votes cast in favour of the petitioner were declared invalid in collusion with the counting agents, i.e Dr Minzar s/o Abrar, Bhura s/o Yusuf and Alam s/o Nanhe, the impugned order of recounting has been passed, hence there is no illegality in the aforesaid order.
The Court found that Rule 4 of the UP Panchayat Raj Act (Settlement of Election Disputes) Rules, 19943 clearly provides that subject to the provisions of the Act and these Rules, every election petition shall be tried by the Sub Divisional Officer, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 for the trial of suits.
“In view of the above, the election petition has to be tried in the same manner as a civil suit is tried by the civil court, i.e to say that apart from the pleadings of the parties, issues have to be framed, documentary evidence has to be laid, statements of witnesses have to be recorded, they have to be cross-examined, and only thereafter, after recording findings on all the issues, either separately or jointly, the election petition can be decided.
In the case, the procedure prescribed in Rule 4 has been violated and despite the fact that 9 issues were framed during the course of the trial of election petition, none of the said issues has been decided and directly, an order of recount of votes has been passed.
It is well settled in catena of decisions of the Court as well as the Apex Court that the secrecy of ballot has to be maintained and an order of recount cannot be passed as a matter of choice of the parties and it requires a very critical analysis of the material placed and in accordance with the procedure prescribed for deciding election disputes.
In the case, the Prescribed Authority/Sub-Divisional Magistrate has exercised its jurisdiction of recounting only on the basis of roving inquiry without substantial ground or evidence on record. Conclusions arrived by Sub-Divisional Magistrate are based on vague submissions and without any substantial material produced by the election petitioner (respondent no 3 herein), therefore, the order impugned suffers from illegality and liable to be set aside”, the Court observed while allowing the petition.
In view of the above, the Court set aside the order dated 20.06.2023 passed by the Prescribed Authority.