Sunday, December 10, 2023

Ordering recount of votes without concrete evidence isn’t correct, says Allahabad High Court

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The Allahabad High Court has said that it is not correct to order recount of votes on the basis of assumption without concrete evidence when the village head is declared victorious by one vote.

A Single Bench of Justice Saurabh Shyam Shamshery heard a petition filed by Khursheed Ahmad.

The case is arising out of an election dispute with regard to an election for the post of Pradhan of Gram Panchayat Jogiyabeer, Kshetra Panchayat Azmatgarh, Tehsil Sagri, District Azamgarh conducted on 19.04.2021.

It is not in dispute that petitioner before the Court is the returned candidate whereas Respondent-3 remained runner up in election and margin of victory was only one vote. Remaining private respondents have also participated in the election.

Respondent-3 (election-petitioner) has approached the Prescribed Authority under Section 12-C of U.P Panchayat Raj Act, 1947 by way of filing an Election Petition with prayer for an order for recounting and to declare election petitioner to be returned candidate.

Returned candidate has filed a reply to election petition wherein averments made in election petition including the averments referred above were denied and in Additional Statement it was specifically stated that no ballot paper was removed and entire counting was undertaken in a peaceful and fair manner.

The Prescribed Authority on the basis of evidence of parties and documents provided by the office of Election Officer decided relevant issues and rejected the Election Petition by order dated 03.10.2022.

Election petitioner being aggrieved by aforesaid order preferred Revision and the same has been allowed by the order dated 06.05.2023 whereby above referred order dated 03.10.2022 was set aside and a direction was passed for recounting of votes within 30 days.

Ashok Khare, Senior Advocate assisted by Shantanu Khare, counsel for petitioner, submitted that order of recounting passed by Revisional Authority was illegal being passed without any legally sustainable grounds.

Senior Advocate further submitted that in case Revisional Authority was not satisfied or has come to conclusion that certain relevant material/ documents were not considered by Prescribed Authority, the correct approach was to remand the matter to the Prescribed Authority to decide afresh.

Senior Advocate also submitted that Revisional Authority has passed impugned order mainly on two grounds. Firstly that State Election Commission has not provided proforma Form ‘36’ and secondly there was an overwriting on number of proforma Form ‘46’ as well as on number of total votes cast, i.e, ‘1167’ and that there were affidavits filed on behalf of other candidates that number of total votes cast were 1170 and not 1167.

Senior Advocate lastly submitted that reasons given by Revisional Authority to pass order for recounting are not based on any material except that there were overwriting. No specific finding was given that the total number of votes cast were 1170 and not 1167. The alleged overwriting has not made any material effect on election results since there is no dispute that number ‘1167’ is the correct number of total votes cast in favour of candidates including the number of votes declared invalid as mentioned in the said form. According to Deputy District Election Officer, Azamgarh, Form 36 was not available, therefore, it was not a case of withholding any document and that said Form has details of number of ballot papers only, therefore, it has no bearing on merit of election dispute since other relevant proforma forms were available.

Prabhakar Awasthi, counsel appearing for Respondent-3 (Election-Petitioner), has vehemently opposed the above submissions.

He submitted that the Deputy District Election Officer has not provided a copy of proforma Form 36 and as such a material document has been suppressed. This is the document where details of the number of votes cast are mentioned. The Prescribed Authority has not dealt with relevant issues and material on record and has not taken note of specific averment made in the Election Petition, therefore, the Revisional Authority was right in interfering with said order and further on basis of reasons, as referred earlier, the Revisional Authority has rightly passed order for recounting and there is no illegality in the impugned order.

The Court noted that in the factual background as referred above, there is no dispute that the petitioner has won the election of Gram Pradhan by only one vote. Election petitioner has taken a ground in election petition that total number of votes cast were 1170 and not 1167. It is also not in dispute that according to proforma Form 46 number of total valid votes were 1096 whereas number of rejected votes were 71 which comes to total votes cast to be 1167.

The Court said that,

One of the grounds taken by Revisional Authority that there was an overwriting on number of proforma Form ‘46’ as well as an overwriting on number of total votes cast, i.e, 1167, however both overwriting would have no consequence, since it is not in dispute that number of votes mentioned in said proforma Form with addition of number of votes rejected, would come to 1167 and overwriting on number of Form would also have no bearing since it was not the case of election petitioner that document was not genuine.

The issue which appears to be disturbing is the letter dated 09.09.2022 from the office of District Election Officer that proforma Form 36, i.e, a document where details of number of ballot paper and votes cast, are mentioned was not available in the office. This is the form where there are details of number of ballot papers received by the Election Officer as well as number of ballot papers remaining unused or rejected due to any reason and number of votes cast in the ballot box, were mentioned.

The Court further noted that,

Issue in this case, whether number of votes cast were 1170 or 1167 could be reverified by said proforma Form 36, however, admittedly Election Officer has not placed it on record on the ground that it was not available. The election petitioner has also not placed any material regarding his claim that the number of total votes cast were 1170 except an assertion and affidavits of other candidates, who have participated in the election.

In the case both authorities, i.e, Prescribed Authority and Revisional Authority have rushed through the matter. Prescribed Authority has summarily rejected election petition without taking note of relevant materials and aspect of case, i.e, to verify from records that the total number of votes cast were 1170 or 1167, however, said exercise was not undertaken or it appears that it could not be undertaken since proforma Form 36 was not available.

The Prescribed Authority was within its jurisdiction to summon an Election Officer with record, however, such exercise was not undertaken. Similarly, Revisional Authority though noted errors committed by Prescribed Authority, i.e, it has not taken note of allegation of difference of total number of votes cast, however, it has erroneously taken note of some aspects of the case which may not be relevant such as overwriting on proforma Form 46 or on number of total votes cast. As already referred above, there is no calculation error, therefore, that overwriting may not have any material impact on the result of the election. However, a document which definitely required to be placed on record is proforma Form 36 of election in question.

“The Revisional Authority without summoning records or taking an explanation from the Election Officer has rushed through the matter and without any reasonable basis or finding arrived at a conclusion that there was an error in the number of valid votes and passed an order for recounting. As held in Smt Sajida (supra) order of recounting cannot be passed on assumption rather there must be a ground based on material and evidence that a case of recounting is made out, however, such basis is missing in the impugned order.

The outcome of above discussion is that both authorities have rushed through the matter and has taken a decision without relevant document, i.e, proforma Form ‘36’ being on record and in these circumstances, the Revisional Authority ought to have remanded the election petition back to the Prescribed Authority for fresh consideration with a direction that records including proforma Form 36 be summoned from the office of District Election Officer, however, since same has not been followed, therefore, an error has been erupted in the impugned order”, the Court observed while disposing the petition.

“In view of above, direction passed in impugned order dated 06.05.2023 for recounting is set aside and operative part of order is modified to the extent that order dated 03.10.2022 passed by Prescribed Authority is set aside and the election petition is remanded back to the Prescribed Authority to decide afresh with direction that Prescribed Authority shall pass appropriate order to summon records including copy of proforma Form 36 of election in question from the office of District Election Officer, Azamgarh and if necessary may summon concerned officer to give evidence in terms of Rule 4 of U.P Panchayat Raj (Settlement of Election Disputes) Rules, 1994. The Prescribed Authority shall pass a fresh order expeditiously, preferably within a period of eight weeks from today in accordance with law”, the order reads.

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