The Allahabad High Court has given a big relief to Gram Pradhan Sarita Yadav of Kolahi in Mirzapur. The court has set aside the order of re-counting of the Sub-Divisional Officer/ Prescribed Authority, Tehsil Sadar, District Mirzapur.

A Single Bench of Justice Manju Rani Chauhan passed this order while hearing a petition filed by Sarita Yadav.

The petition has been filed by the petitioner with a prayer to quash an order dated 03.07.2023 passed by Sub-Divisional Officer/ Prescribed Authority, Mirzapur in Election Petition, whereby an order directing for recounting of Votes has been passed.

The facts of the case are that elections of Panchayat in Uttar Pradesh were held in the year 2021, the petitioner was one of the candidates for the post of Pradhan of Gram Panchayat Kolahi, Development Block – Chhanbe, Tehsil Sadar, District Mirzapur. The Gram Panchayat was reserved for ‘OBC Category Candidate’. The petitioner, being eligible, contested the aforesaid election, having been allotted ‘Car’ as election symbol. The polling was conducted on 26.04.2021 and counting took place on 02.05.2021. Petitioner secured 471 votes and was declared elected as Pradhan of the said Gram Panchayat. The respondent no 1, namely, Saroja Devi secured 448 votes and thus the petitioner was declared elected by a margin of 23 votes.

Challenging the aforesaid election on several grounds, stating that election was not conducted in free and fair manner, respondent no1 – the defeated candidate filed an Election Petition under Section 12-C of the UP Panchayat Raj Act, 1947 inter alia on the following grounds:-

3.1 Valid votes cast in favour of Saroja Devi – respondent no 1 herein, (election petitioner), were declared invalid;

 3.2 Valid votes cast in favour of respondent no 1 – Saroja Devi were mixed in bundles of petitioner Sarita Yadav (opposite party5 no. 1 in election petition) and respondent no 7 – Neelam (opposite party no 2 in election petition);

3.3 Number of votes, which were declared invalid, were mixed in the bundle of petitioner and were counted in her favour;

3.4 Number of votes cast in favour of the petitioner which were declared invalid were counted as valid votes in her favour.

The aforesaid fact regarding illegalities as done in counting was pointed out by husband of respondent no 1 – Saroja Devi, who was present as her agent, raising objections in this regard before Counting Supervisor – Paryavekshak and counting agents but no attention was paid.

It has also been alleged in the election petition that, after completion of counting, respondent no 1 having election symbol ‘Kitab’ the bundle of valid papers of respondent no 1 were more than that of the petitioner.

It was informed by Paryavekshak and Gadnakarmi to the counting agent, present on behalf of respondent no 1/ election petitioner that she had secured 448 votes whereas the petitioner herein (opposite party no 1 in election petition) having symbol ‘Car’ had secured 413 votes, whereas opposite party no 2 in election petition – Neelam Devi having election symbol ‘Imli’ had secured 60 votes, opposite party no 3, namely, Anita Devi having symbol ‘Anaj Osata Kisan’ got 2 votes, opposite party no 4 having symbol ‘Kanni’ secured 1 vote and total 80 votes were rejected.

After giving the aforesaid information, Paryavekshak and Gadnakarmi asked husband of respondent no 1, who was present as counting agent on her behalf, to call respondent no 1, so that certificate in this respect could be given to her.

It has also been alleged in the election petition that Paryavekshak and Gadnakarmi had made a chart accordingly. Receiving the aforesaid information, the counting agent left the counting hall in order to call his wife / respondent no 1. He, standing at the door of the counting centre Kanya Inter College, asked his wife to come inside the centre.

It has been alleged that as soon as the counting agent entered the aforesaid counting centre along with his wife, namely, Saroja Devi / respondent no 1, they saw that the Paryavekshak and Gadnakarmi, without preparing the counting chart, had opened the bundle of booth nos 158 and 159, to manipulate / do Hera Pheri, do some bungling which was objected by the election petitioner, but no attention was paid, ignoring the objection, they forcefully, as per their convenience made the bundle and started preparing counting chart / Parishisht. After the aforesaid, the respondent no 1 was shown to have obtained 448 votes whereas the petitioner had secured 471 votes declaring her as winning candidate by 23 votes.

It has also been alleged that only 44 votes were declared invalid in place of 80 votes. The certificate was also issued to the petitioner in a hurried manner.

It has been also alleged that the voter list indicated total 1354 voters, out of which 1004 votes were cast for the election of Pradhan, Member Kshetra Panchayat, Member Zila Panchayat but proceeding in unfair manner, manipulated, and in Prapatra, 22 extra votes have been shown.

80 invalid votes have been shown only in place of 44, rest 36 have been counted in favour of the petitioner by putting the invalid votes in her bundle and showing 471 votes on top of the petitioner’s bundle.

It has been further alleged that in polling booth 158, total 573 votes were cast; whereas in polling booth no 159, 431 votes were cast thus total 1004 votes were cast, but, 36 invalid votes were placed in the bundle of petitioner and from 413 votes which were counted earlier, 471 votes have been shown in her favour, accordingly, making Prapatra and declaring the petitioner to have won by the margin of 23 votes.

Emphasizing upon the bungling/ manipulation, which has been done in the elections of Pradhan, it has been alleged that in Matgadna Chart, Gadna Parchi, Parishisht 5 Prapatra 43 and Parishisht 7 Prapatra 45, Parishisht 8 Prapatra 46, wrong entries have been made after cutting and accordingly, the result has been declared, which is illegal.

The Prescribed Authority summoned the record of election like the counterfoil of ballot paper and also the voter list, on the basis of which the order dated 03.07.2023 directing for recounting of votes has been passed, thus the petition challenging the aforesaid order has been filed.

The Court said that,

While deciding the election petition, it has to be kept in mind and as is well settled, that a right to elect is fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. To be more specific, the right to elect, right to be elected and right to dispute an election are statutory creations, therefore, are subject to statutory limitation. An election petition is not an action at common law, nor in equity. It is a statutory proceeding to which neither the common law nor principles of equity apply but only those Rules apply, which the Statute makes. It is a special jurisdiction and special jurisdiction has always to be exercised in accordance with the Statute creating it. Meaning thereby that in the trial of election disputes, court is put in straitjacket.

“From the above discussion, it is clear that averments of the election petition containing the grounds of challenge, the allegations regarding illegality or irregularity in the counting of votes are not only fake, even the basic material fact as could have been made, the election tribunal’s prima facie satisfaction that recount of ballots are necessary, are missing in the petition. The evidence in the form of a statement of polling agent is beyond the pleadings, therefore, the same cannot be taken into consideration. Similarly, a narrow margin of votes between returning candidate and election petitioner does not give a right to say that there has been illegality or irregularity in the counting of votes.

The Court feels that guidelines and conditions which are imperative to direct recount of ballot papers are not there in the facts of the case. The petitioner has tried to add flavour of illegality and irregularity on the basis of vague pleadings which lack substance. The onus lies upon the person, who challenges the election of a returning candidate. One of the grounds for challenge of election, seeking recount, is irregularity in counting of votes, which can justify recounting to demonstrate any irregularity at the time of counting, however, pleadings in this regard are virtually silent and in any case extremely vague and cryptic”, the Court observed allowing the petition.

“Accordingly, the order dated 03.07.2023 passed by respondent no 2 is set aside. A direction is issued upon respondent no 2 to take all endeavours to decide the election petition, finally, in accordance with the procedure prescribed and relevant Act as well as Rules, expeditiously, preferably within a period of four months from the date of production of certified copy of the order, without granting any unnecessary adjournment to either of the parties and without being influenced by any of the observations made in this order”, the Court ordered.

The post Allahabad High Court grants relief to Gram Pradhan Sarita Yadav of Kolahi in Mirzapur appeared first on India Legal.