# Court in Lazarus Chhindwara v. Smt

- **Citation:** (2002) 1 ILRA 182
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002
- **Case number:** Civil Misc. Writ Petition No. 43947 of 2001
- **Bench:** R.R. Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/court-in-lazarus-chhindwara-v-smt-39771
- **Pages:** 4

## Headnote

Constitution of India-Article 226 - to do
full justice between the parties, order for
1All] Anuradhika V. Additional District Judge, Azamgarh and another
183
inspection of ballot papers is necessary
and imperative. In case on hand it
cannot be said that inspection of ballot
papers has been ordered by Election
Tribunal for fishing and roving inquiry.

(Held in para 11)
Case Law Relied on 1985 All C.J. P. 196

The Election Tribunal has committed no
error in arriving at a consideration that
to do full justice between the parties
order for inspection of ballot papers is
necessary and imperative. The Election
Tribunal instead of taking idealistic view
it has taken pragmatic view directing
inspection, of ballot papers to do full
justice between the parties. In the case
on hand it cannot be said that inspection
of ballot papers has been ordered by
Election Tribunal for fishing and roving
inquiry, therefore, I decline to issue a
prerogative
writ
making
the
order
impugned dated 13.12.2001 ineffective.

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2002
182
reported in AIR 1984 NOC 284 and Full
Bench decision of Madhya Pradesh High
Court in Lazarus Chhindwara Vs. Smt.
Lavina Lazarus, Indore and others,
reported in AIR 1979 MP 70 (FB) and
also a decision of this Court in Gayatri
Devi Vs. Om Prakash Gautam and others,
reported in AIR 1985 Alld 356.

7. It is not pleaded by the petitioners
that the facts which were to be pleaded by
means of amendment were not in their
knowledge at the time when the original
objection was filled by them. The Deputy
Director of Consolidation after taking into
consideration the entire material on the
record rightly held as under:-

"orZeku eqdnesa esa foi{khx.k dh vksj foyEc
dk dksbZ dkj.k ugha crk;k x;k vkSj u gh izLrkfor
rjehe dk dksbZ vkSfpR; crk;k x;k A rudhg cukus
ds ckn vkSj fo'ks"kdj tc ,di{k dh 'kgknr Hkh
lekIr gks pqdh gS rks la'kks/ku Lohdkj djus dk dksbZ
vkSfpR; ugha gS A bl rjehe ls foi{khx.k us
fcYdqy u;k okn vk/kkj fy;k gS A ,djkjukek dh
ckr lekIr dj nh x;h gS vkSj nLrojnkjh ,oa
cUnkscLr dk vfHkopu fy;k x;k gS ftldh vuqefr
ugha nh tk ldrh A pdcUnh vf/kdkjh us tks vkns'k
ikfjr fd;k og +=qfViw.kZ gS eSa muds }kjk O;Dr fd,
x, er ls lger ugha gwWa fuxjkuh esa cy gS A
QyLo:i fuxjkuh Lohdkj dh tkrh gSA pdcUnh
vf/kdkjh dk vkns'k fnukaWd 30-6-76 fujLr fd;k
tkrk gS foi{khx.k dk rjehe izkFkZuk i= vLohdkj
fd;k tkrk gSA lEcfU/kr p0v0 ds le{k i{kx.k
17-1-1977 dks mifLFkr gksaA"

8. I fully agree with the view taken
by the Deputy Director of Consolidation.
The parties cannot be permitted to change
their cases by amending their pleadings
and set up new cases unless, of course, the
amendment is necessary for resolving the
controversy involved in the case. The
amendment sought by the petitioners in
the present case was not necessary for
resolving the controversy involved in the
case. The finding recorded by the Deputy
Director of Consolidation are based on
relevant evidence on the record and do
not suffer from any illegality or infirmity.
The writ petition, therefore, has got no
merits, the same fails and is hereby
dismissed. The interim order, if any,
granted
by
this
Court
is
hereby
discharged.

Since the matter has become very old
because of the interim order granted by
this Court, the Consolidation Officer, if
the work of consolidation is going on in
the district otherwise the competent
authority, is directed to decide the case
expeditiously preferably within a period
of two months from the date a certified
copy of this judgement is communicated
to him.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD JANUARY 4, 2002.

BEFORE
THE HON'BLE R.R. YADAV, J.

Civil Misc. Writ Petition No. 43947 of 2001

Anuradhika

...Petitioner
Versus
Additional District Judge, Azamgarh and
another

 ...Respondents

Counsel for the Petitioner:
Sri A. Khare
Sri J.P. Singh

Counsel for the Respondents:
Sri R.K. Yadav
S.C.

Constitution of India-Article 226 - to do
full justice between the parties, order for
1All] Anuradhika V. Additional District Judge, Azamgarh and another
183
inspection of ballot papers is necessary
and imperative. In case on hand it
cannot be said that inspection of ballot
papers has been ordered by Election
Tribunal for fishing and roving inquiry.

(Held in para 11)
Case Law Relied on 1985 All C.J. P. 196

The Election Tribunal has committed no
error in arriving at a consideration that
to do full justice between the parties
order for inspection of ballot papers is
necessary and imperative. The Election
Tribunal instead of taking idealistic view
it has taken pragmatic view directing
inspection, of ballot papers to do full
justice between the parties. In the case
on hand it cannot be said that inspection
of ballot papers has been ordered by
Election Tribunal for fishing and roving
inquiry, therefore, I decline to issue a
prerogative
writ
making
the
order
impugned dated 13.12.2001 ineffective.

(Delivered by Hon'ble R.R. Yadav, J.)

1. Heard the learned counsel for the
petitioner.

2. Perused the order impugned dated
13.12.2001
passed
by
the
Election
Tribunal a copy whereof is filed and
marked as Annexure-7 to the writ
petition.

3. By filing the instant writ petition
the petitioner questions the legality and
validity of the order impugned passed by
Additional District Judge (Court No. 1),
Azamgarh whereby inspection of ballot
papers is directed in an election petition
filed by respondent no. 2.

4. With the assistance of the learned
counsel for the petitioner Sri Ashok
Khare, I have gone through the order
passed by the Election Tribunal. The
Election Tribunal has given cogent and
convincing reasons in support of its order
impugned. I am objectively satisfied that
the order impugned passed by the
Election Tribunal is eminently just and
proper. By passing the impugned order,
the Election Tribunal intended to do
material justice between the parties. The
Election Tribunal has committed no error
in passing the order impugned relying on
catena of decisions rendered by High
Court and Supreme Court.

5. It is submitted by the learned
counsel for the petitioner that indefinite
allegations cannot be basis for directing
inspection of ballot papers. It is urged by
the learned counsel for the petitioner that
inspection of ballot papers in an election
petition can be ordered only if election
petition contains an adequate statement of
all the material facts on which the
allegation of irregularity or illegality in
counting is founded supported with
evidence to prima-facie believe that there
has been mistake in counting. Lastly, it is
submitted the Election Tribunal can order
for inspection of ballot papers only in
such or situation condition where passing
such order is imperatively necessary to
decide the dispute and to do complete
justice between parties. In support of his
aforesaid contention he placed reliance on
a decision rendered by the learned Single
Judge of this Court in case of Ashok Jain
Advocate Vs. XIIIth Additional District
Judge, Agra and others, reported in
2000(1) JCLR 281 (Allahabad).

6. There is no quarrel with the
aforesaid submissions made by the
learned counsel for the petitioner, but in
the facts and circumstances of the present
case all these conditions precedent are
satisfied. It is revealed from perusal of
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
184
Election Petition (Annexure-2 to the Writ
petition) that it is specifically averred in
the Election Petition that during counting
of votes four ballot papers were found
with special marks by which electors of
these votes can be identified. Out of four
votes, one vote was rejected, but three
votes were counted in favour of petitioner
which is perse illegal within the meaning
of Rule 26(3)(d) of U.P. Kshettra
Panchayats (Election of Pramuks and UpPramukhs and Settlement of Election
Disputes)
Rules,
1994.
For
ready
reference the aforesaid rule is quoted
hereinbelow:

Rule 26 - Procedure at the counting
(1)..................................
(2)..................................

(a) ...........................

(b) ...........................

(c) ...........................
(3) A ballot paper shall be rejected as
invalid on which

(a) ...........................

(b) ...........................

(c) ...........................

(d) any mark is made by which the
voter may afterwards be identified.

7.

From
discussion
made
hereinabove, there is adequate statement
of all material facts on which the
allegation of irregularity in counting is
established and upon which impugned
order for inspection of ballot papers is
founded.

8. Coming to the second condition
precedent as suggested by the learned
counsel for the petitioner Sri Ashok Khare
to the effect that the allegations are to be
proved for believing that there has been a
mistake in counting. Suffice it to say in
this regard that expression 'proved' is
defined under Section 3 of Indian
Evidence Act which reads thus:

"Section 3, proved - A fact is said
to be proved when after considering the
matter before it the Court either believes
it to exist or considers its existence so
probable that a prudent man ought under
the circumstances of the particulars case
to act upon the supposition that it exists".
In the present case from attending facts
and circumstances the Election Tribunal
has committed no error in believing that
there was irregularity in counting of
votes.

9. As regards last condition
precedent about prima facie satisfaction
of
the
Election
Tribunal
directing
inspection of ballot papers imperatively
necessary to decide the dispute to do
complete and effective justice between
the parties, it is held that the Election
Tribunal for its prima facie satisfaction
has given cogent and convincing reasons,
with which I am at one.

10. My aforesaid view is buttressed
from a decision rendered by Full Bench of
this Court in case of Ram Adhar Singh
Vs. District Judge, Ghazipur and others,
reported in 1985 All.C.J. 196, wherein the
learned Judges constituting the Full
Bench ruled in paragraph 12, which reads
thus:

Paragraph 12 -
"In case of Bhabhi Vs. Sheo Govind
and others (AIR 1975 SC 2117), the
Supreme Court approved the principles
for inspection of ballot papers laid down
in Ram Sewak's case (supra) and after
noticing its decisions in the cases of Dr.
Jagit Singh Vs. Giani Kartar Singh (AIR
1966 SC 773), Jitendra Bhadur Singh v.
1All] Haribabu V. State of U.P. and another
185
Krishna Behrai (AIR 1970 SC 276),
Shashi Bhushan v. Prof. Balraj Madhok
(AIR 1972 SC 1251), Sumitra Devi v.
Shri Sheo Shanker Prasad Yadav (AIR
1973 SC 215), Beliram Bhalaik v. Jai
Behari lal Kachi (AIR (sic) SC 283),
Baldeo Singh v. Teja Singh (AIR 1975
SC 693) and Suresh Prasad Yadav v. Jai
Prakash Mishra (AIR 1975 SC 376), the
Court observed thus:

"Thus on a close and careful
consideration of the various authorities of
this Court from time to time it is manifest
that
the
following
conditions
are
imperative before a Court can grant
inspection or for that matter sample
inspection of the ballot papers:

(1) That it is important to maintain
the secrecy of the ballot which is
sacrosanct and should not be allowed to
be violated on frivolous, vague and
indefinite allegations;

(2) That before inspection is
allowed, the allegations made against the
elected candidate must be clear and
specific and must be supported by
adequate statements of material facts;

(3) The Court must be prima facie
satisfied on the materials produced before
the Court regarding the truth of the
allegations made for a recount;

(4) That the Court must come to the
conclusion that in order to grant prayer
for
inspection
it is necessary and
imperative to do full justice between
parties;

(5) That the discretion conferred on
the Court should not be exercised in such
a way so as to enable the applicant to
indulge in a roving inquiry with a view to
fish materials for declaring the election to
be void; and

(6) That on the special facts of a
given case sample inspection may be
ordered to lend further assurance to the
prima facie satisfaction of the Court
regarding the truth of the allegations made
for a recount and not for the purpose of
fishing out materials."

11. From the discussion made
hereinabove the Election Tribunal has
committed no errors in arriving at a
consideration that to do full justice
between the parties order for inspection of
ballot papers is necessary and imperative.
The Election Tribunal instead of taking
idealistic view it has taken pragmatic
view directing inspection, of ballot papers
to do full justice between the parties. In
the case on hand it cannot be said that
inspection of ballot papers has been
ordered by Election Tribunal for fishing
and roving inquiry, therefore, I decline to
issue a prerogative writ making the order
impugned dated 13.12.2001 ineffective.

Upshot of the aforesaid discussions
is that the instant petition lacks merit and
it is hereby dismissed in limine.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD DECEMBER 13, 2001.

BEFORE
THE HON'BLE SUSHIL HARKAULI, J.

Civil Misc. Application No. 6411 of 2001

Haribabu

...Petitioner
Versus
State of U.P. and another ...Respondents