Vineet Saran, J.@mdashThe 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.
3. 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.
4. 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?
5. 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 u/s 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.
6. 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.
7. The election petition is merely of 6 paragraphs of which only paragraphs 3 and 4 are relevant. In para 3 it has been stated that in the first round
of counting, the election petitioner had been declared elected by 5 votes whereas, on an application filed by the writ petitioner before the Returning
Officer recounting was ordered, after which the writ petitioner was declared elected by 5 votes. In such a view of the matter, since the election
petitioner had taken a stand that recounting was ordered on an application of the writ petitioner, the same ought to have been substantiated by the
election petitioner and in absence of the same, it could not be said that second round of counting was directed or got done by the Returning
Officer. In paragraph 4 of the election petition it has been said that undue influence and political pressure was put on the Returning Officer and that
the second round of counting was got done, in which the election agent of the petitioner was asked to sit at a distance and after declaration of the
result, when the election petitioner wanted to give a complaint to the Returning Officer, then with the help of police force, she was thrown out of
the counting area. From the record it is clear that the petitioner did not substantiate the said allegations before the prescribed authority. On the
contrary it has come in evidence that there was no police force inside the counting area. The election petitioner also did not make any attempt to
substantiate the assertion in the election petition that any written complaint was lodged with the Returning Officer, which the Returning Officer
refused to accept. On the contrary the statement of the Returning Officer before the prescribed authority went unchallenged where it has been
stated by him that there was no irregularity in the counting of votes and that it was wrong to say that there was any earlier counting done in which
the election petitioner had won by 5 votes.
8. Categorical findings have been recorded by the prescribed authority, which were based on evidence. The revisional court could have exercised
revision powers u/s 12C(6) of the U. P. Panchayat Raj Act, 1947 only when the prescribed authority had exercised the jurisdiction not vested in it
by law or it had failed to exercise a jurisdiction vested in it or if the prescribed authority had acted in the exercise of its jurisdiction illegally or with
material irregularities. The contention of the election petitioner is that the power was exercised under the last provision. However, the revisional
court does not say that the prescribed authority had committed any such illegality or irregularity. As such, the reversal of the finding given by the
prescribed authority cannot be said to be justified in the present case.
9. The Apex Court in the case of P.H. Pujar Vs. Kanthi Rajashekhar Kidiyappa and Others, , has held that the recounting of votes cannot be
ordered in a casual manner. The relevant paragraph 14 is as under:
The recount of the votes cannot be ordered in a casual manner. It cannot be ordered only because the margin of defeat is meagre. For seeking
recount, proper foundation is to be laid in the pleadings by setting out material facts and later proving it by adducing requisite evidence. The
recount cannot be ordered on the ipse dixit of the election petitioner. It can be ordered in rare cases where specific allegations are made and
proved so as to do complete justice between the parties.
10. In such a view of the matter, since the order of the prescribed authority is based on cogent evidence and the revisional court has, without
discussing the evidence and without upsetting the finding recorded by the prescribed authority, set aside the order of the prescribed authority, the
same cannot be justified in the eye of law.
11. Accordingly, for the foregoing reasons, the writ petition stands allowed. The order dated 27.1.2009, passed by the revisional court is set
aside, however, there shall be no order as to cost.