HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 235 of 2010 (M/S) Kundan Singh Bisht. ………..Petitioner Versus Dungar Singh and others. …….Respondents Shri Dinesh Chauhan, Advocate for the petitioner, Shri Dinesh Gahtori and Shri D.C.S. Rawat, Advocates for respondent no.1, Shri R.C. Arya, Brief Holder for the State. Dated: May 31, 2010 Hon’ble V.K. Bist, J. Present petition has been filed by the petitioner challenging the order dated 20.02.2010 (annexure no.7 to the writ petition) passed by District Magistrate, Almora in Civil Revision No. 6 of 2009. A writ of mandamus has further been prayed for a direction to respondents not to interfere in the peaceful funtioning of petitioner as ‘Gram Pradhan’ of Gram Sabha-Dadholi, Post Manila, District Almora. 2. Brief facts of the case, as alleged in the petition, are that in the year 2008, the petitioner and respondent nos. 1 to 3 contested elections for the post of Gram Pradhan, Gram Panchayat Dadholi, District Almora. Election was held on 01.09.2008. In the election, the petitioner and respondent no.1 both got equal 99 votes. The Returning Officer, on the ground of equality of votes and in accordance to the Rule 108 of the U.P. Panchayat Raj (Election of Member, Pradhan and Up-Pradhan), Rules 1994 (hereinafter referred to as the Rules) decided the election between the petitioner and respondent no.1 by lot with the written consent of petitioner and respondent no.1 and issued certificate to the petitioner as elected Gram 2 Pradhan for the Gram Panchayat Dadholi, District Almora on 13.09.2008. Since then the petitioner is continuously holding the post of Gram Pradhan. The respondent no.1 filed an election petition under Section 12-C of Uttar Pradesh Panchayat Raj Act, 1947 (as applicable in the State of Uttarakhand vide Uttaranchal Act no. 8 of 2002) (hereinafter referred to as the Act) in the Court of Sub Divisional Officer, Bhikiyasain which was registered as Panchayat Election Case no. 2 of 2008-09. In the election petition, the respondent no.1 came up with the plea that in the said election total 296 votes were cast, out of which 291 votes were found valid and 5 votes were found invalid and out of total valid votes, the respondent no.1 got 100 votes while the petitioner got 99 votes, the respondent nos. 2 and 3 got 57 and 35 votes respectively. The respondent no.1 further alleged that he came to know from the Election Officer that the petitioner and respondent no.1 got equal votes i.e. 99 votes each and by way of lot, the petitioner was declared winning candidate by the Election Officer. It is alleged in the writ petition that the Election Officer also submitted his written statement before the Court of Sub-Divisional Officer that on the condition of getting equal votes and with the consent of both the parties, the result of the election was declared by way of lot, as stipulated in the Rules, therefore there is no irregularity in the election. After hearing both the parties, the Sub Divisional Officer, Bhikiyasain vide order dated 09.02.2009 dismissed the election petition filed by respondent no.1. Being aggrieved by the order dated 09.02.2009, the respondent no.1 preferred a revision in the Court of District Judge, Almora which was registered as Civil Revision No. 6 of 2009. The petitioner submitted his objection against the revision. It 3 is also alleged in the writ petition that the Revisional Court without passing any order for recounting, recounted the ballet papers on 20.02.2010 and declared respondent no.1 as the winning candidate and cancelled the election of the petitioner. 3. The respondent no.1 filed a counter affidavit stating therein that a total 296 votes were cast for the election of Gram Pradhan of Gram Panchayat, Dadholi and 291 votes were found valid out of which the respondent no.1 secured 100 votes, while the petitioner secured 99 votes and the respondent no. 2 and 3 secured 57 and 35 votes respectively. The Returning Officer declared the respondent no.1 as elected Gram Pradhan through loudspeaker, but when the respondent no. 1 went to obtain certificate, he was informed that he secured 99 votes only. Thereafter, the respondent filed election petition on the ground of irregularity and mistake in counting. It is stated in the counter affidavit that it is an admitted case that only 295 votes were cast and if for the sake of arguments it is assumed that petitioner and respondent no.1 each got 99 equal votes, the respondent nos. 2 & 3 got 57 and 35 votes respectively and 5 votes were found invalid, then total number of votes come to 295 only, then question arises as to where the remaining 1 vote has gone. It is further stated in the counter affidavit that the petitioner on 01.10.2009 moved an application before the District Judge for summoning the record relating to the said election and on his request the concerned record was summoned. On 20.02.2010 all votes were recounted in the presence of the petitioner, and in such counting the petitioner got only 99 votes whereas the respondent got 100 votes, accordingly, the 4 learned District Judge declared the respondent as the winning candidate. It is stated that the powers given to the Revisional Court in Sub Section (6) of Section 12 of Act no. 1947 are very wide and the Revisional Court can interfere in the revision if the Prescribed Authority has failed to exercise a jurisdiction so vested to him, like in case in hand. 4. I have heard Shri Dinesh Chauhan, the learned counsel for the petitioner, Shri Dinesh Gahtori and Shri D.C.S. Rawat, Advocates for respondent no.1, Shri R.C. Arya, Brief Holder for the State and perused the entire material available on record. 5. Shri Dinesh Chauhan, the learned counsel for the petitioner submitted that there was no order regarding recounting of the votes and recounting of votes was done without passing any formal order. Thus, recounting of votes on 20.02.2010 is against the provision of law. He also submitted that the Revisional Court has limited jurisdiction under Section 12 (2) of the Act of the Act No. 1947. He referred Sub Section 6 and 8 of Section 12 (C) of the Act no. 1947 which are being reproduced hereunder:- Section-(6) Any party aggrieved by an order of the prescribed authority upon an application under sub-section (1) may, within thirty days from the date of the order, apply to the District Judge for revision of such order on any one or more of the following grounds, namely- (a) that the prescribed authority has exercised a jurisdiction not vested in it by law; (b) that the prescribed authority has failed to exercise a jurisdiction no vested; (c) that the prescribed authority has acted in the exercise of its jurisdiction illegally or with material irregularity. 5 Section (8) The revising authority mentioned in sub-section (7) shall follow such procedure as may be prescribed, and may confirm, vary or rescind the order of the prescribed authority or remand the case to the prescribed authority for re-hearing and pending its decision pass such interim orders as may appear to it to be just and convenient. 6. Learned counsel for the petitioner submitted that since the Prescribed Authority acted in just and legal manner, the Revisional Court should not have interfered in the order passed by the Prescribed Authority. He further submitted that the learned District Judge failed to appreciate that recounting can only be done when it is found that petition for setting-aside the election contains an adequate statement of material facts on which he relies in support of his case and the Court must be prima-facie satisfied that recounting is necessary. He argued that in the present case there did not exist such situation and the learned District Judge erred in getting the votes recounted. In support of his arguments he relied on judgments of Hon’ble Apex Court reported in (2000)8 Supreme Court Cases-355, (2004) 6 Supreme Court Cases-331 and (2009) 10 Supreme Court Cases-541. 7. On the other hand, Shri Dinesh Gahtori and Shri D.C.S. Rawat, the learned counsel for respondent no.1 have submitted and argued that the petitioner himself submitted application on 01.10.2009 (annexure no.1 to the CA) for summoning the record pertaining to the election of Gram Pradhan, Dandoli before the Revisional Court and on his consent recounting was done and after recounting the petitioner accepted the same and signed the papers. Result of the recounting was also declared 6 with the consent of the petitioner. They submitted that in the election of Gram Pradhan one ballot paper was not counted. They also submitted that had the petitioner been aggrieved with the recounting of the votes, he would have not consented for the same. Learned counsel for the respondent no.1 further submitted that at the time of recounting, the Returning Officer as well as the Election Officer were present and they produced the ballot papers before the Revisional Court. They argued that the writ petition is totally misconceived as petitioner is stopped from raising objection against recounting in the Court when he himself agreed for the same before the Revisional Court. 8. After hearing learned counsel for the parties and after carefully examining the record of the petition I find that right from beginning the case of the respondent no.1 was that he secured more votes than the petitioner and he was illegally declared as unsuccessful candidate. Paragraph nos. 3,4,5,6,7,8,9 and 10 of the election petition are being quoted below:- “3- ;g fd fodkl [k.M lYV ds xzke iapk;r M<ksyh ds erksa dh x.kuk jk0b0dkyst iSafl;k] ftyk vYeksM+k esa lEiUu gq;h] ftlesa ;kph Lo;a viuk erxuk vfHkdrkZ FkkA 4- ;g fd xzke iapk;r M<ksyh esa iz/kku in gsrq dqy er 296 iM+s ftleasa 291 er oS/k ik;s x;s] voS/k er 5 iM+s rFkk eq>s 100 er izkIr gq, dqUnu flag dks 99 er] yfyr flag dks 57 er egs’k pUnz dks 35 er iM+sA 5- ;g fd f=Lrjh; iapk;r pquko vf/kdkjh ¼R.O.½ fodkl [k.M lYV }kjk ;kph ds fot;h gksus dh /ofu foLrkjd ;a= ls ?kks"k.kk dh x;hA 6- ;g fd tc izkFkhZ izek.ki= ysus ds fy, fuokZpu vf/kdkjh ds ikl x;k rks ;kph dks crk;k x;k fd nksuksa izR;kf’k;ksa dks 99&99 cjkcj&cjkcj er iM+s gSa rFkk iphZ fudkyus ij mRrjnkrk ua01 thr x;k gSA ;kph }kjk fojks/k djus ij ;kph dh f’kdk;r dks fdlh Hkh vf/kdkjh us ugha lqukA ;kph us fuokZpu vf/kdkjh lYV ls Hkh f’kdk;r dhA fyf[kr esa Hkh f’kdk;r nsus dk iz;kl fd;k ijUrq mUgksaus esjh f’kdk;r dks ugha lquk vkSj u gh f’kdk;r i= fy;kA 7 7- ;g fd erx.kuk LFky ij mifLFkr lHkh leFkZdksa] vfHkdrkZvksa rFkk ;kph us Lo;a pquko vf/kdkjh }kjk ;kph ds fot;h gksus dh ?kks"k.kk dh /ofu foLrkjd ;a= ls lquk gS] tks izR;{k lk{kh gSA 8- ;g fd er i= iqfLrdk eri=ksa dk ys[kk vfHkys[kh; lk{; gS ftlls 296 er iM+us dh iqf"V gks tk;sxhA 9- ;g fd bl izdkj erx.kuk dfeZ;ksa@fuokZpu vf/kdkjh lYV }kjk ?kksj vU;k; fd;k x;k gS yksdra= dh gR;k dh x;h gSA 10- ;g fd izR;{k lk{; ,oa vfHkys[kh; lk{; Ik;kZIr gS fd eri=ksa dh iqu% x.kuk fd;k tkuk U;k;fgr esa vko’;d gSA” 9. From perusal of above paragraphs it is clear that the respondent no.1 had a prima facie case in his favour and also had a valid ground for recounting of votes. 10. As far as argument of learned counsel for the petitioner regarding illegal action of District Judge without passing formal order prior to recounting of votes is concerned, the same appears to be correct. The learned District Judge before recounting of votes should have adopted correct procedure and should have passed formal order. But, the petitioner cannot be permitted to raise such arguments in the High Court as I find that petitioner himself moved an application before the District Judge on 01.10.2009 for summoning of ballot papers and other records. Application moved by the petitioner before the District Judge is being reproduced below: “ U;k;ky; Jheku~ ftyk tt egksn; vYeksM+kA fuxjkuhdrkZ& Mwaxj flag cuke mRrjnkrk&dqUnu flag nh0fu0 6@09 egksn;] mRrjnkrk foi{kh fuosnu djrk gS fd fn0 1-9-8 dks tks ernku izk0ik0M<ksyh esa iz/kku in gsrq gqvk Fkk ml esa [k.M fodkl vf/kdkjh lYV ls fuEu nLrkost eaxk;s tkuk U;k; fgr esa vko’;d gS nLrkost fuEu izdkj ls gSa%& ¼1½ xzke iapk;r M<ksyh esa iz/kku in ds pquko esa er i=ksa dk ys[kkA ¼2½ eri=ksa dk ys[kk fooj.kA ¼3½ ihBklhu vf/kdkjh dks Mqaxj flag o dqUnu flag }kjk gLrk{kj;qDr fn;k x;k vfHkys[k ftl ij ykVjh Ik)fr ls djkus dh ekWx dh&og fyf[krA 8 vr% mijksDr nLrkost [k.M fodkl vf/kdkjh lYV ls eaxk;s tkus ds vkns’k ikfjr djus dh d`ik dh tk;A 01-10-09 jsLiksMSUV mRrjnkrk ua01 ds vf/koDrk-” 11. Application filed by the petitioner was allowed by the District Judge same day. On 20.02.2010, recounting was done and petitioner voluntarily participated in the same. A report was prepared in which petitioner, respondent no.1, their advocates and Returning Officer signed. Report is also being reproduced below: “ U;k;ky; Jheku~ ftyk tt egksn; vYeksM+kA nh0fu0 6@09 Mwxj flag cuke dqUnu flag vkfn vkt fnukad 20-02-10 dks le; 1%05 cts nksigj Jh ,e0lh0frokjh] [k.M fodkl vf/kdkjh lYV }kjk ,d lhycan fyQkQk fuxjkuhdrkZ Mwaxj flag ,oa muds vf/koDrk Jh 'ks[kj y[kpkSM+k] Jh dqUnu flag izR;FkhZ ,oa muds vf/koDrk Jh pkewflag] Mh0th0lh0 flfoy] ds0ih0,l0esgrk] ,oa ,e0lh0 frokjh [k.M fodkl vf/kdkjh lYV ,oa Jh v’kksd dqekj pkS/kjh vkj0vks0dh mifLFkfr esa [kksyk x;kA eri=ksa ¼leLr eri=ksa dks½ vihykFkhZ ,oa mlds vf/koDrk] ,oa izR;FkhZ dqUnuflag ,oa mlds vf/koDrk us fxusA rnksijkar Jh v’kksd dqekj pkS/kjh vkj0vks0 ,oa Jh ,e0lh0frokjh] [k.M fodkl vf/kdkjh }kjk Hkh x.kuk dhA mDr leLr }kjk x.kuk djus ij fuEu oksV ik;s x;sA dz0la0 izR;FkhZ dk uke fpUg ,oa oksVksa dh fxurh ¼1½ dqanu flag 99& vukt dh ckyh ¼2½ Mwaxj flag 100&vUukl ¼3½ yfyr flag 57&bZeyh ¼4½ egs’k pUnz 35&vkbldzhe ¼5½ voS/k oksV dqy 05________ Total pquko eri= = 296 mDr rgjhj ij ge lc LosPNk ls gLrk{kj fd;sA dqUnu flag Mwxj flag ,e0lh0frokjh] Jh 'ks[kj y[kpkSM+k] Jh pkewflag] ds0ih0,l0esgrk] Jh v’kksd dqekj pkS/kjh” 9 12. Thus, it is clear that ballot papers and other records relating to election of petitioner were summoned by the District Judge on the request of the petitioner. Recounting was done by the petitioner, respondent no.1 and their advocates in the presence of Returning Officer. In such circumstances, the petitioner cannot be permitted to complain that recounting was illegal. Case law cited by the counsel for the petitioner do not help him rather same helps the case of respondent no.1. In the fact and circumstances of the present case, the learned District Judge was justified in getting the ballot papers recounted. Recounting of votes was also necessary due to fact that if petitioner’s version is assumed to be correct then the petitioner and respondent no.1 got 99 votes each, respondent nos. 2 & 3 got 57 & 35 votes respectively and 5 votes were declared invalid. If all these votes are added, the total reaches at 295, whereas 296 votes were cast and counted. Thus, there is one missing vote and this was sufficient ground for recounting of votes. Now in recounting, the respondent no.1 got 100 votes whereas the petitioner got only 99 votes, therefore, in my opinion recounting was done for doing complete justice to the parties and the actual winner has now been declared as elected Pradhan of Gram Panchayat, Dadholi, District Almora. I do not find any illegality in the order of the learned District Judge. 13. For the forgoing reasons, the writ petition is dismissed. No order as to costs. (V.K. Bist, J.) 31.05.2010 NCM: