The Allahabad High Court has stayed the Election Commissioner’s order to change the vote count by re-verifying the cancelled votes for the post of Gram Pradhan for re-counting and the result sheet order of July 5, 23 and July 11, 23.
A Single Bench of Justice Kshitij Shailendra passed this order while hearing a petition filed by Sunita Chaurasiya.
The petitioner being the elected Pradhan of the Village Panchayat concerned was subjected to the proceedings of election petition in which an order of recounting was passed which was assailed by the petitioner by filing Writ (Sunita Chaurasiya v Anisha And 7 Others) which was disposed of by the Court by order dated 20.02.2023 by issuing following directions:-
“7. Despite various arguments raised, counsel for petitioner has not been able to dispute on basis of material available that in Form 46, number of rejected ballot papers were mentioned as 24 which was not correct, therefore, there is no serious dispute between counsel for parties that the writ petition may be disposed of with following modifications in impugned order that in order to maintain fairness of election process and to keep confidence of voters high in the election process, therefore, the writ petition is disposed of with following modifications in the impugned order that District Election Officer at Ghazipur shall first verify numbers of rejected ballot papers and thereafter recounting shall be done only of rejected ballot papers, under the supervision of Election Commission or Officer authorised by Election Commission and fix a date for recounting within two weeks from today with prior due notice to parties and thereafter outcome of the same shall be placed in a sealed cover before Election Tribunal who will further proceed with Election Petition in accordance with law.”
It is contended that the order of Writ Court was complied with and after fixation of dates, an exercise was undertaken on 17.03.2023 whereby only rejected votes were verified as per Form 45 and the total number of such votes was found as 65. The said report was kept on record on 22.03.2023. The next exercise to be conducted as per order of the Writ Court was to carry out recounting within two weeks from the date of the order.
However, in the meantime, a Contempt Application was filed by the respondent no 4 (herein) being Contempt Application (Civil) (Anisha v Anup Chandra Pandey, State Chief Election Commissioner And 2 Others), in which, notices were issued to the concerned Officer on 02.05.2023 and affidavit of compliance was directed to be filed.
It is further contended that under the garb of the aforesaid contempt proceedings, the proceedings were compelled to be reopened by the Authorities and, therefore, in order to save their skin from the contempt proceedings, the order impugned has been passed on 05.07.2023 for holding recounting of the rejected votes out of total number of votes once again fixing 11.07.2023 and, on 11.07.2023, another exercise was done as brought on record alongwith supplementary affidavit, in which, 18 additional rejected votes have been calculated making the total number of rejected votes as 82.
The submission of the counsel for the petitioner is that once, the order of the Writ Court was complied with, irrespective of the contempt proceedings, the Authorities were not justified to reopen the closed process and the affidavit which was to be filed could be based upon the exercise undertaken on 17.03.2023 itself and, in any case, insofar as the number of rejected votes is concerned, in Form 46, the same was mentioned as 24 which was an accidental error on the part of the Authorities giving rise to the entire controversy.
Tarun Agrawal, counsel for the Election Commission submitted that the order of Writ Court was earlier complied with and, even if, the contempt proceedings were initiated, the same did not authorize the Officers to carry out recounting of the recounting already done by them, insofar as, the rejected ballots are concerned.
Santosh Kumar Singh, counsel for the private respondent no 4 submitted that exercise conducted on 17.03.2023 was an incorrect and incomplete exercise as rejected votes out of total number of votes were not counted and, therefore, the subsequent result dated 11.07.2023 is according to the factual and legal position.
“Prima Facie, I am not convinced by the argument advanced by respondent no 4. The crux of the matter is that Form 46 contained a wrong figure “24” and it appears that the Authorities missed to calculate the number of rejected votes mentioned in different Forms 45 booth-wise and, therefore, the Court had directed only verification of the rejected votes and never made it open for anyone to enter into recounting of the entire votes or to open all the ballots.
What was required to be done was only tallying the figures mentioned in different Forms 45. The exercise of recounting is to be done by the Election Tribunal where Election Petition is pending based upon the result of the proceedings dated 17.03.2023″, the Court observed.
The Court granted four weeks time to file counter affidavit for the respondents and granted two weeks thereafter for filing rejoinder affidavit for the petitioner.
“In the meantime, the effect and operation of the order dated 05.07.2023 and result sheet/report dated 11.07.2023 shall remain stayed.
It shall be open for the Election Tribunal to comply with the directions of the Writ Court regarding recounting of the rejected ballot papers based upon the proceedings held on 17.03.2023,” the Court ordered.
The Court has fixed the next hearing of the petition on 15.12.2023.