# Anita v. State of U.P. & Ors

- **Citation:** (2022) 12 ILRA 261
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-13
- **Case number:** Writ C No. 8349 of 2022
- **Bench:** Manish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anita-v-state-of-u-p-ors-48011
- **Pages:** 6

## Headnote

A. Civil Law - UP Panchayat Raj Act, 1947
- Section 12-C - Election petition for
recounting - Maintainability - No prayer
sought for setting aside the election of
Pradhan - Only prayer for re-counting of
votes was made - Election petition neither
contains any specific pleading nor there is
any evidence shown to support the case in
the election petitioner - Effect - Once the
respondent no. 6 is not aggrieved by the
election, as there is no prayer for setting
aside the same then there would be no
occasion
for
passing
an
order
for
recounting of votes as the same will
amount to be a futile exercise - An
application u/s 12-C of the Act, 1947
confining the prayer only for recounting
and
nothing
else,
would
not
be
maintainable. (Para 15, 23 and 24)
Writ petition allowed. (E-1)
List of Cases cited:

## Text

12 All. Anita Vs. State of U.P. & Ors.
261
devoid of any merits. Hence, the writ is
dismissed.
The
interim
order
dated
10.11.2022 stands vacated. The respondent
is free to go ahead with the Tendering
process as per law. In the facts of the case,
there shall be no order as to cost.
----------
(2022) 12 ILRA 261
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.12.2022

BEFORE

THE HON'BLE MANISH KUMAR, J.

Writ C No. 8349 of 2022

Anita ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Akhilesh
Kumar
Srivastav,
Desh
Raj
Chaurasiya, Priyanka Singh

Counsel for the Respondents:
C.S.C., Atul Kumar Dubey, Dev Mani Mishra

A. Civil Law - UP Panchayat Raj Act, 1947
- Section 12-C - Election petition for
recounting - Maintainability - No prayer
sought for setting aside the election of
Pradhan - Only prayer for re-counting of
votes was made - Election petition neither
contains any specific pleading nor there is
any evidence shown to support the case in
the election petitioner - Effect - Once the
respondent no. 6 is not aggrieved by the
election, as there is no prayer for setting
aside the same then there would be no
occasion
for
passing
an
order
for
recounting of votes as the same will
amount to be a futile exercise - An
application u/s 12-C of the Act, 1947
confining the prayer only for recounting
and
nothing
else,
would
not
be
maintainable. (Para 15, 23 and 24)
Writ petition allowed. (E-1)
List of Cases cited:
1. Udey Chand Vs Surat Singh & anr.; (2009) 10
SCC 170
2. Arikala Narasa Reddy Vs Venkata Ram Reddy
Reddygari & anr.; (2014) 5 SCC 312
3. Writ C No. 63380 of 2011; Amit Narain Rai Vs
St. of U.P. & ors. decided on 09.04.2012
4. Civil Misc. Writ Petition No. 47982 of 2009;
Satyendra Pal Singh Vs St. of U.P. & ors.
decided on 13.01.2010
5. Gurusewak Singh Vs Avtar Singh & ors.; 2006
4 SCC 542
(Delivered by Hon'ble Manish Kumar, J.)

1. The present writ petition has been
preferred for quashing of the judgment and
order dated 08.11.2022 passed by the District
Judge, Pratapgarh in the revision filed by the
petitioner under Section 12-C(6) of U.P.
Panchayat Raj Act, 1947 (hereinafter referred
to as 'the Act, 1947') holding the revision is
not maintainable and the order dated
15.10.2022 passed by the respondent no. 3
i.e. the Prescribed Authority/ Sub Divisional
Officer, Patti, District Pratapgarh in Election
Petition filed under Section 12-C of the Act,
1947 filed by respondent no. 6 by which a
direction was issued for re-counting of the
votes and with a further prayer to issue an adinterim mandamus staying the operation and
implementation of the judgment/order dated
15.10.2022 passed by respondent no. 3.

2. Notices to the respondent nos. 7 to 11
are hereby dispensed with as they had neither
filed the election petition nor raised any
objection against the declaration of result of
the election in favour of the petitioner. The
respondent no. 6, who has filed the election
petition is represented by her counsel.

3. With the consent of the parties, the
present writ petition is decided at the
admission stage.
262 INDIAN LAW REPORTS ALLAHABAD SERIES

4. The brief facts of the case as per
the petitioner are that the polling was held
on 19.04.2021 for election on the post of
Pradhan in village Ashapur Athgawan,
Block Baba Belkharnath Dham, Pargana
and Tehsil Patti, District Pratapgarh and
total 922 votes were casted amongst the
seven persons, who contested the election
for the post of Pradhan including the
petitioner and the respondent no. 6. All the
parties had appointed their Counting Agent,
who were present at the time of counting of
the votes.

5. The counting of the votes was held
on 03.05.2021 in the presence of aforesaid
duly
authorized
Counting
Agents
of
respective contestants. Out of total votes,
216 votes were found to be casted in favour
of the petitioner and the respondent no. 6
each, under the surveillance of CCTV
camera on single table. When the equal
votes were found casted in favour of the
petitioner and the respondent no. 6, then the
duly
authorized
Counting
Agent
of
respondent no. 6 i.e. husband of respondent
no. 6 namely Mr. Sushil Kumar made an
oral request for re-counting of the votes
before the respondent nos. 4 & 5 which was
accepted and twice the votes were counted
and both the time, the result was found to
be the same.

6. In the event of equal votes, casted
in favour of the petitioner and the
respondent no. 6, the Returning Officer
while following the procedure as provided
under Rule 108 of the U.P. Panchayat Raj
(Election of Members, Pradhans and UpPradhans) Rules, 1994 (hereinafter referred
to as the Rules, 1994 declared the result by
adopting the procedure of lot and in the lot,
the name of the petitioner had come so one
additional vote was added in favour of the
petitioner and the results were declared.

7. The petitioner after declaration of
the result and issuance of certificate has
taken the oath for the post of pradhan. After
about two months of the declaration of the
result, the election petition was filed by the
respondent no. 6 on 01.07.2021 with a
solitary prayer of recounting of votes.

8. Learned counsel for the petitioner
has submitted that as per Section 12 C(1) of
the
Act,
1947
which
provides
for
application of questioning the elections also
mentions the grounds for challenging the
election whereas in the present case, the
respondent no. 6 has not challenged the
election on none of the grounds provided
under Section 12-C of the Act, 1947 but
made a prayer only for recounting of the
votes, which could be an ad-interim prayer
in the election petition and once the
respondent no. 6 has not challenged the
election,
the
election
petition
is
misconceived and is liable to be rejected.
Section 12 C(1) provides for questioning
the elections which has not been questioned
in the election petition preferred by the
respondent no. 6.

9. It is further submitted that in the
election petition, the vague allegations have
been made that polling agent of respondent
no. 6 made a representation to the
Returning Officer for recounting but
neither the said representation has been
enclosed in the list of the document filed
along with the election petition nor any
representation was made by the respondent
no.6 or on her behalf to any higher
authority that the Returning Officer had
turned down their request for recounting of
votes.

10. It is further submitted that Form
46 indicates 81 invalid votes. Respondent
no. 6 in her election petition has alleged
12 All. Anita Vs. State of U.P. & Ors.
263
that out of 81 invalid votes, maximum
votes were casted in favour of respondent
no. 6. In support of the said averment, no
material or evidence has been enclosed
alongwith the election petition.

11. It is further submitted that the
election petition has been filed on vague
and bald allegations just for conducting a
fishing and roving enquiry, which is not
permissible as per the law laid down by
Hon'ble the Supreme Court in the case of
Udey Chand Vs. Surat Singh and another
reported in (2009) 10 SCC 170 and the
judgment in the case of Arikala Narasa
Reddy Vs. Venkata Ram Reddy Reddygari
and Another reported in (2014) 5 SCC
312.

12. On the other hand, learned
counsel for the respondent no. 6 has
submitted that the result was declared
without adopting the procedure of lot as
provided under Rule 108 of the Rules, 1994
and there is an overwriting on Form 46
which makes the counting of votes doubtful
and there is no illegality in the order passed
by the Prescribed Authority for recounting
of votes.

13. It is further submitted that out of
81 votes shown to be invalid votes most of
them were casted in favour of the
respondent no. 6. Procedure of lot was not
valid without there being any consent taken
from the agent of respondent no. 6.

14. Learned Standing Counsel has
submitted that there is no illegality in the
revisional order as well as the in the order
passed by the Prescribed Authority for
recounting of votes.

15. Considering the submissions
raised by learned counsel for the respective
parties, going through the record, the
provisions of the Act, 1947 as well as the
Rules, 1994 and the judgments cited by
learned counsel for the petitioner, the
election
petition
preferred
by
the
respondent no. 6 is only for recounting of
votes without there being any prayer for
setting aside the election and declare the
candidate accordingly. The solitary prayer
for recounting of votes could be an adinterim prayer in the election petition with
a prayer as provided under Section 12-C(4)
of the Act, 1947 for setting aside the
election, or declaring the election to be
void or declaring the applicant to be duly
elected or any other relief that may be
granted to the petitioner, but there is no
such prayer made by the respondent no. 6
in
the
election
petition.
Once
the
respondent no.6 is not aggrieved by the
election, as there is no prayer for setting
aside the same then there would be no
occasion
for
passing
an
order
for
recounting of votes as the same will
amount to be a futile exercise.

16. In the election petition preferred
by the respondent no. 6, none of the
grounds as provided under Section 12-C
has been taken. For the convenience,
Section 12-C (1)-(4) of the Act, 1947 are
quoted hereinbelow:-

"12-C Application for questioning
the elections. (1) The election of a person
as Pradhan or as member of a Gram
Panchayat including the election of a
person appointed as the Panch of a Nyaya
Panchayat under Section 43 shall not be
called in question except by an application
presented to such authority within such
time and in such manner as may be
prescribed on the ground that -

(a) the election has not been a
free election by reason that the corrupt
264 INDIAN LAW REPORTS ALLAHABAD SERIES
practice of bribery or undue influence has
extensively prevailed at the election; or

(b) that the result of the election
has been materially affected-

(i) by the improper acceptance or
rejection of any nomination, or

(ii) by gross failure to comply
with the provisions of this Act or the rules
framed thereunder.

(2) The following shall be deemed
to be corrupt practices of bribery or undue
influence for the purposes of this Act-

(A) Bribery, that is to say, any
gift, offer or promise by a candidate or by
any other person with the connivance of a
candidate of any gratification of any
person whomsoever, with the object,
directly, or indirectly of including ?

(a) a person to stand or not to
stand as, or withdraw from being, a
candidate at any election; or

(b) an elector to vote or refrain
from voting at an election; or as a reward
to ?

(i) a person for having so stood
or not stood or having withdrawn his
candidature; or

(ii) an elector for having voted or
refrained from voting.

(B) Undue influence, that is to
say, any direct or indirect interference or
attempt to interfere on the part of a
candidate or of any other person with the
connivance of the candidate with the free
exercise of any electoral right;

Provided that without prejudice
to the generality of the provisions of this
clause any such person as is referred to
therein who ?

(i) threatens any candidate, or
any elector, or any person in whom a
candidate or any elector is interested, with
injury of any kind including social
ostracism
and
ex-communication
or
expulsion from any caste or community; or

(ii) induces or attempts to induce
a candidate or an elector to believe that he
or any person in whom he is interested will
become or will be rendered an object of
divine displeasure or spiritual censure,
shall be deemed to interfere with the free
exercise of the electoral right of such
candidate or elector within the meaning of
this clause.

(3) This application under subsection (1) may be presented by any
candidate at the election or any elector and
shall contain such particulars as may be
prescribed.

Explanation ? Any person who
filed a nomination paper at the election
whether such nomination paper was
accepted or rejected, shall be deemed to be
a candidates at the election

4) The authority to whom the
application under sub-section (1) is made
shall in the matter of ?

(i) hearing of the application and
the procedure to be followed at such
hearing;

(ii) setting aside the election, or
declaring the election to be void or
declaring the applicant to be duly elected
or any other relief that may be granted to
the petitioner, have such powers and
authority as may be prescribed."

17. As far as the submission of
learned counsel for the respondent that no
consent was taken from the Polling Agent
of respondent no.6 while adopting the
procedure of lot as provided under Rule
108 of the Rules, 1994 is also not tenable
as there is no such requirement under Rule
108 of the Rules, 1994.

18. Rule 108 of the Rules, 1994
provides that if there are equal number of
votes, the Returning Officer will adopt the
procedure of lot forthwith and proceed as if
12 All. Anita Vs. State of U.P. & Ors.
265
the candidate in whose favour, the lot falls
would be considered to have received an
additional vote, for the convenience, the
Rule 108 of the Rules, 1994 is quoted
hereinbelow:-

"108. Equality of votes:- If after
the counting of the votes is completed an
equality of votes is found to exist between
any candidates and the addition of one vote
will entitle any of those candidates to be
declared elected, the Nirvachan Adhikari
shall forthwith decide between those
candidates by lot, and proceed as if the
candidate on whom the lot falls had
received an additional vote."

19. The submission that there is an
overwriting on Form 46 in the election
petition is also not correct as there is no
overwriting on Form 46 which has been
enclosed as annexure no. 4 to the writ
petition which has not been disputed by the
learned counsel for the respondent no. 6
that the Form 46 enclosed by the petitioner
is a forged document.

20. The submission of learned counsel
for the respondent no. 6 that procedure for
lot was not adopted is a vague averment in
the
election
petition
and
the
said
submission also does not find support from
the finding given in the order dated
15.10.2022 passed by the Prescribed
Authority wherein a finding has been given
that both the candidates had got the equal
votes and from the record it has been found
that one additional vote fell in favour of the
petitioner but the same has been doubted by
the Prescribed Authority merely on the
ground that it is not disclosed as to by
which order the procedure provided under
Rule 108 of the Rules, 1994 was adopted,
ignoring completely that there is no such
requirement of passing an order under Rule
108 of the Rules, 1994 whereas, Rule 108
of the Rules provides that the Returning
Officer will adopt the procedure of lot
forthwith. The respondent no. 6 has not
challenged this order passed by the
Prescribed Authority that the findings given
are wrong.

21. As per the law settled by Hon'ble
the Supreme Court which has been
followed by this Court in Writ C No. 63380
of 2011 in the case of Amit Narain Rai Vs.
State of U.P. and others vide judgment and
order dated 09.04.2012 and in Civil Misc.
Writ Petition No. 47982 of 2009 in the case
of Satyendra Pal Singh Vs. State of U.P.
and others vide judgment and order dated
13.01.2010 wherein this Court has held that
a petition for recount must contain
adequate statement of material facts on
which the election petitioner relies in
support of his allegations and it must also
be supported by some contemporaneous
evidence to show any irregularity or
illegality in the counting which are lacking
in the present case as the respondent no. 6
in her election petition has not given any
evidence in support of her submission to
show any irregularity or illegality in the
counting.

22. Hon'ble the Supreme Court in the
case of Gurusewak Singh Vs. Avtar Singh
and others reported in 2006 4 SCC 542
wherein it has been held that although we
need not go into the law of re-counting, as
the said question does not arise before us,
we may notice a decision of this Court in
Chandrika Prasad Yadav v. State of Bihar
wherein it is stated: (SCC p. 337, para 20)

"20. It is well settled that an order
of re-counting of votes can be passed when
the following conditions are fulfilled:

(i) a prima facie case;
266 INDIAN LAW REPORTS ALLAHABAD SERIES

(ii) pleading of material facts
stating irregularities in counting of votes;

(iii) a roving and fishing inquiry
shall not be made while directing recounting of votes; and

(iv) an objection to the said effect
has been taken recourse to".

23. In the present case, the election
petition neither contains any specific
pleading nor there is any evidence shown to
support the case in the election petitioner.

24. It is found that respondent no. 6
made no prayer for setting aside the
election, or declaring the election to be
void or declaring the applicant to be duly
elected or any other relief that may be
granted
to
the
petitioner.
In
these
circumstances,
any
application
under
Section 12-C of the Act, 1947 confining the
prayer only for recounting and nothing else,
would not be maintainable. It has also been
seen that the election petition does not
plead any of the grounds challenging the
election as prescribed under Section 12-C
of the Act. There is also no reason to
disbelieve that the Returning Officer
adopted the procedure of lot in the event of
equal votes in any manner not permissible
under the law. He has to proceed with the
procedure of lot 'forthwith' without there
being any requirement of order in writing.

25. In view of the discussions made
hereinabove, the writ petition is allowed.
The impugned orders dated 08.11.2022 &
15.10.2022 passed by the District Judge,
Pratapgarh and the respondent no. 3 i.e. the
Prescribed
Authority/Sub
Divisional
Officer,
Patti,
District
Pratapgarh
respectively are hereby quashed.
----------
(2022) 12 ILRA 266
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.12.2022

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE SAURABH SRIVASTAVA, J.

Writ C No. 8505 of 2022

Balkaran Das Gupta ...Petitioner
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioner:
Sridhar Awasthi, Sr. Advocate

Counsel for the Respondents:
A.S.G.I., C.S.C.

A. Constitution of India, 1950 - Article
226 - Writ - Legal impediment to exercise
discretionary power - Public law remedy,
whether is available for private-law right
- Held, damages/compensation can be
awarded by this Court in exercise of its
jurisdiction under Article 226 of the
Constitution of India only in case some
infringement
of
public-law
right
is
involved
and
found
-
For
mere
infringement of private-law right, publiclaw remedy under Article 226 of the
Constitution of India is not available.
(Para 8)
B. Constitution of India - Article 226 -
Writ - Infringement of private-law right -
Damage for demolition of construction
done
by
the Railway
authority
was
claimed - Exercise of discretionary power,
extent of - Held, determination of the
issue as to where exactly the building in
question is situated, whether on the land
belonging to the petitioner or on the
railway
land,
will
necessary
require
leading of the evidence by both the
parties, which will not be permissible in
exercise of jurisdiction of this Court under
Article 226 of the Constitution of India.
(Para 11)