# Godawari v. Zubaida & Ors

- **Citation:** (2020) 11 ILRA 346
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-03
- **Case number:** WRIT - C No. 8526 of 2018
- **Bench:** Ashwani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/godawari-v-zubaida-ors-45406
- **Pages:** 5

## Headnote

A. Civil Law - U.P. Panchayat Raj Act, 1947 -
Section 12-C - Election of Pradhan -
Recounting of votes - It is settled that order
for recount of votes should not be passed as
a matter of course unless there exists
clinching evidence on record to support the
election petition - Allegations to doubt
correctness
of
votes
cast
have
been
specifically made which is duly supported by
the evidence led by the election petitioner -
Small margin of victory and large number of
votes having been declared invalid is also a
circumstance which cannot be brushed aside
lightly in view of attending facts - Held,
Sanctity of the election process requires a
further scrutiny, which is possible only if a
recount is ordered. (Para 6 and 14)
Writ Petition dismissed (E-1)
Cases relied on :-

## Text

346 INDIAN LAW REPORTS ALLAHABAD SERIES
scheme for allotting dealership to the
dependent of a deceased dealer is to tide over
the financial difficulty which befall upon the
family on account of death of the bread
earner. I am of the opinion that the said time
limit is therefore directory in nature and in
appropriate cases, it can be relaxed. Since in
the instant case no fresh dealership has been
finalized till date and on the other hand, the
case of the petitioner is that he had duly filed
application for allotment of dealership in his
name well within the prescribed time limit,
but its acknowledgement was not issued by
the office of respondent no. 4, therefore I am
of considered opinion that a lenient view
should be taken. In case the application of the
petitioner is directed to be considered on
merits, no prejudice is going to be caused to
any one, as no new dealer has been appointed
till date.

7. Accordingly, the impugned order
dated 3.12.2019 is quashed. Respondent no. 4
is directed to consider the application of the
petitioner for allotment of dealership in his
name in place of his deceased father on
merits, within a period of six weeks from the
date of production of a true attested copy of
the instant order.

8. The petition stands allowed to the
extent indicated above.
----------
(2020)11ILR A346
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.10.2020

BEFORE
THE HON'BLE ASHWANI KUMAR MISHRA, J.

WRIT - C No. 8526 of 2018

Godawari ...Petitioner
Versus
Zubaida & Ors. ...Respondents

Counsel for the Petitioner:
Sri Deepak Kumar Jaiswal, Sri Omkar Nath
Rai

Counsel for the Respondents:
C.S.C., Sri Ashok Kumar Ojha, Sri Satish
Chandra Mishra, Sri Sudhir Tiwari

A. Civil Law - U.P. Panchayat Raj Act, 1947 -
Section 12-C - Election of Pradhan -
Recounting of votes - It is settled that order
for recount of votes should not be passed as
a matter of course unless there exists
clinching evidence on record to support the
election petition - Allegations to doubt
correctness
of
votes
cast
have
been
specifically made which is duly supported by
the evidence led by the election petitioner -
Small margin of victory and large number of
votes having been declared invalid is also a
circumstance which cannot be brushed aside
lightly in view of attending facts - Held,
Sanctity of the election process requires a
further scrutiny, which is possible only if a
recount is ordered. (Para 6 and 14)
Writ Petition dismissed (E-1)
Cases relied on :-
1. Ram Adhar Singh Vs D.J., Ghazipur, 1995
All CJ 196
2. Pratap Singh Vs St. of U.P. & ors., 2008 (3)
AWC 2974
(Delivered by Hon'ble Ashwani Kumar Mishra, J.)

1. Upon an application filed by
respondent no.1 under Section 12-C of the
U.P. Panchayat Raj Act, 1947, the
prescribed authority has directed for
recount of votes on 9.3.2018 vide order
impugned dated 28.2.2018. Aggrieved by
this order the the petitioner, who is elected
Pradhan, has filed the present petition.

2. Elections were notified for the
office
of
Pradhan
of
Gram
Sabha
Sarisawan,
Nyay
pachayat
Koriyan
11 All. Godawari Vs. Zubaida & Ors.
347
Khiriyan,
Block
Dudahi,
Tahsil
Tamkuhiraj, District Kushinagar. Petitioner
as also respondent nos.1, 2 and 3 contested
the election for which voting took place on
9.12.2015.
Votes
were
counted
on
13.2.2018 at Adarsh Anglo Inter College,
Dudahi, Block Dudahi, Tahsil Tamkuhiraj,
District Kushinagar in Room No.1. Booth
Nos.49Ka and 50kha were set up. 1626
voters were registered. Petitioner was
allotted
symbal
of
'Imli'
whereas
respondent no.1 was assigned 'Kanni' as the
election symbol. Respondent no.2 was
assigned election symbol of 'Anaj Ugata
Hua Kisan' while respondent no.3 has 'Car'
as her election symbol. According to the
election petitioner, a total number of 1139
votes were cast whereas at the time of
counting only 1129 votes were found
available. As per the election petitioner
ballots from serial no.9181001 to 9181623
were cast on booth no.49Ka while on other
booth ballots from serial no.9180401 to
9180916 numbering 516 votes were cast.
Total of the above number reportedly
works out to 1139 votes but at the time of
counting only 1129 votes were found. 37
votes were declared invalid. Petitioner with
546 votes was declared elected while the
election petitioner secured 544 votes. The
victory margin was for 2 votes. The other
two contestant secured 1 vote each. An
application for recount of votes was moved
on
13.12.2015
itself.
The
Returning
Officer, however, rejected the application
by observing that results have already been
declared and it is no longer possible to
direct recounting of votes. It is in this
background that election petition came to
be filed under Section 12C of the Act of
1947. In para 9 it is averred that the
election petitioner had nominated two
counting agents but the Returning Officer
and Assistant Returning Officer were in the
influence of present petitioner so as to
ensure her success. In para 10 it is stated
that at the time of counting of votes on
13.12.2015
the
election
agents
were
required to stand at a long distance from
the place of counting and as the ballots
could not been seen and they raised an
objection but the respondents removed
them from the counting site. In para 11 it is
averred that the Returning Officer in
collusion
with
the
elected
Pradhan
surreptitiously
removed
10
ballots
notwithstanding strong protest by her. It is
further alleged that 37 votes cast in favour
of
petitioner
were
declared
invalid
arbitrarily. In para 16 it is stated that in the
event all votes casted were counted then
election petitioner would have won the
election. An objection has been filed by the
returned candidate denying the averments
made in the election petition.

3. An objection to the maintainability of
the election petition was filed by the
petitioner. This objection was considered on
9.8.2017 vide annexure-1 to the counter
affidavit. The prescribed authority has
observed that election petition has been filed
by the petitioner in accordance with law and
all relevant parties have been impleaded as
defendants. Initially, an order was passed on
26.10.2018 to proceed exparte but later on
objections were filed by the petitioner on
12.5.2017. The prescribed authority has
therefore observed that there is no further
requirement of passing any order and that the
election petition has been entertained subject
to final orders passed therein.

4. After considering the respective
pleadings and evidences led the prescribed
authority has directed for recounting of
votes vide order impugned.

5. Law relating to recount of votes has
been examined in a larger number of
348 INDIAN LAW REPORTS ALLAHABAD SERIES
decisions of this Court, relying upon the
adjudications made by the Apex Court. A
Full Bench of this Court in Ram Adhar
Singh vs. District Judge, Ghazipur, 1995
All CJ 196 summarized the principles in
following words:-

"'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 the 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.'"

6. The above view expressed in Ram
Adhar Singh's case (supra) has since been
consistently followed. It is settled that order for
recount of votes should not be passed as a
matter of course unless there exists clinching
evidence on record to support the election
petition.

7. In Pratap Singh vs. State of U.P. and
others, 2008 (3) AWC 2974 this Court
observed as under:-

"Although no cast iron rule of
universal application can be or has been laid
down, yet, from a bed-roll decision of this
Court, two broad guidelines are discernible; that
the court would be justified in ordering a
recount or permitting inspection of the ballot
papers only where (i) all the material facts on
which the allegations of irregularity, or illegality
in counting are founded, are pleaded adequately
in
the
election
petition,
and
(ii)
the
Court/Tribunal trying the petition in prima facie
satisified that the making of such an order is
imperatively necessary to do complete and
effectual justice between the parties."

8. Various judgements have been relied
upon by the parties in support of their respective
submissions
but
the
principles
noticed
hereinabove are not disputed. It is in light of the
above principles that the facts of the case needs
to be examined.

9. The prescribed authority has taken
note
of
the
respective
submissions
advanced by the parties. The result sheet
has been taken note of as per which 1129
votes were counted while 37 votes declared
invalid. The contention advanced on behalf
of the election petitioner that in fact 1139
votes were cast as against 1129 votes that
were available at the time of counting has
been noticed. It has also been observed that
margin of victory is only 2 votes while 37
votes have been declared invalid. The
prescribed authority has therefore observed
that where margin of victory is narrow in
11 All. Godawari Vs. Zubaida & Ors.
349
comparison to large number of votes
declared invalid then such facts would be
relevant for arriving at a decision about
recounting of votes. It is submitted that
sanctity
of
election
is
of
prime
consideration for successful functioning of
democracy. It has been observed that facts
pleaded on behalf of the election petitioner
have been substantiated by the evidence,
and therefore, it would be necessary to
direct recounting of votes so that sanctity of
elections is not compromised.

10. Sri Deepak Jaiswal, learned
counsel appearing for the petitioner states
that the election petition has not been filed
by the respondent no.1 as such the same is
not maintainable. It is also urged that
results of election has been declared on the
basis of correct facts, and therefore, the
direction to conduct recounting is merely to
institute a roving and fishing enquiry which
is impermissible.

11.

Learned
counsel
for
the
respondents, however, submtis that the
order of recount has correctly been passed
on the basis of evidence on record.

12. I have learned counsel for the
parties and have perused the materials
brought on record.

13. Facts as have been noticed above
are not in dispute. The margin of victory in
the facts of the present case is of two votes.
The election petitioner has pleaded that 10
votes have been misplaced while 37 ballots
have been arbitrarily declared invalid.

14. So far as the casting of 1139 votes
is concerned, the oral evidence on behalf of
election petitioner is specific inasmuch as
number of ballots have been clearly
specified. Although the elected Pradhan
states that only 1129 votes have been
casted but the details of ballot numbers
specifically narrated on behalf of election
petitioner has not been challenged. It is also
not disputed that 37 votes have been
declared invalid. Specific allegations have
been made against the Returning Officer
and Assistant Returning Officer who are
alleged to have acted in collusion of the
Pradhan concerned. Specific prayer for
recount of votes was made before the
Returning Officer but the same has been
rejected. It is clear that from the very initial
stages an objection was being raised by the
petitioner and her election agents which
includes her husband but the same was not
being examined. The Returning Officer
appears to have summarily rejected the
request of recount and the issues framed
before him have apparently not been
considered. A serious triable issue has been
raised on behalf of the election petitioner in
respect of which necessary pleadings have
also been made. Whether or not 10 votes
have been less counted or 37 votes have
been wrongly excluded can be conclusively
established only at the time of recount of
votes. Allegations to doubt correctness of
votes cast have been specifically made
which is duly supported by the evidence led
by the election petitioner. It is not a case of
roving or fishing inquiry on the asking of
election petitioner inasmuch as pleadings
are specific and evidence has also been lead
in its support. Sanctity of the election
process requires a further scrutiny in the
facts of this case, which is possible only if
a recount is ordered. Small margin of
victory and large number of votes having
been declared invalid is also a circumstance
which cannot be brushed aside lightly in
view of attending facts. The election
petition is also filed by respondent no.1 as
is clearly recorded in the order dated
9.8.2017.
350 INDIAN LAW REPORTS ALLAHABAD SERIES

15. In such circumstances, if the
prescribed authority has directed a recount
of votes to be carried out this Court finds
no error of jurisdiction or arbitrariness in
the
order
which
may
require
any
interference. Writ petition lacks merit and
is, accordingly, dismissed.
----------
(2020)11ILR A350
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.08.2020

BEFORE
THE HON'BLE NAHEED ARA MOONIS, J.
THE HON'BLE DEEPAK VERMA, J.

WRIT - C No. 11611 of 2020

M/s Mata Kaila Devi Gangsar Stone Pvt.
Ltd., District Agra ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Birendra Singh

Counsel for the Respondents:
C.S.C., Sri Sanjai Singh

A.
Civil
Law
-
Securitization
and
Reconstruction of Financial Assets and
Enforcement of Security Interest Act,
2002 - Sections 13 and 17 - Enforcement
of Secured Interest - Notice to discharge
liability u/s 13(2) within 60 days and
Possession notice u/s 13(8) issued -
Alternative Remedy - Held, the petitioner
has the remedy to prefer an appeal under
Section 17 of the Act before the Debt
Recovery Tribunal. (Para 16 and 17)
B. Constitution of India - Article 14 and
226 - Scope of Writ - Recovery matter -
Alternative
Remedy
-
Discretionary
jurisdiction under Article 226 is not
absolute and can be exercised judiciously
in a given facts of the case and in
accordance with law - High Court will
ordinarily not entertain a petition under
Article 226 of the Constitution if an
effective remedy is available to the
aggrieved person - This rule applies with
greater
rigour
in
matters
involving
recovery of taxes, cess, fees, other types
of public money and the dues of banks and
other financial institutions. (Para 20 and
21)
Writ Petition dismissed (E-1)
Cases relied on :-
1. United Bank of India Vs Satyawati Tandon &
ors., (2010) 8 SCC 110
2. Civil Appeal No. 1281 of 2018; Authorized
Officer, State Bank of Tranvancore & anr. Vs
Mathew K.C.
3. Civil Appeal No. nil of 2018 (Arising out of
SLP No. 10215-10217 of 2016) ITC Limited Vs
Blue Coast Hotels Ltd & ors..
4. In Union Bank of India & anr. Vs Panchanan
Subudhi, (2010) 15 SCC 552
5. Kanaiyalal Lalchand Sachdev & ors. Vs State
of Maharashtra & ors., (2011) 2 SCC 782
6. Punjab National Bank & anr. Vs Imperial Gift
House & ors., (2013) 14 SCC 622
7. State of Maharashtra Vs Digambar, (1995) 4
SCC 683

(Delivered by Hon'ble Naheed Ara Moonis, J.
& Hon'ble Deepak Verma, J.)

1. Heard the learned counsel for the
petitioner Sri Birendra Singh, Sri S. Singh,
learned counsel appearing on behalf of the
respondent no. 3 and the learned Standing
Counsel appearing on behalf of respondent
nos. 1 and 2.

2. The instant petition has been filed
invoking extraordinary jurisdiction of this
court under Article 226 of the Constitution
of India with the following prayer;

"I. Issue a writ, order or direction
in the nature of certiorari quashing the