# Indradev v. Shri Umesh Singh & Ors

- **Citation:** (2024) 4 ILRA 1389
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-04-19
- **Case number:** Writ -C No. 2288 of 2024
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/indradev-v-shri-umesh-singh-ors-51811
- **Pages:** 8

## Headnote

Ashok Kumar Srivastava, Arun Kumar Singh
Parihar, Avinash Srivastava, B/R0135, Raj Kumar
Upadhyaya(R.K. Upadhyaya), Sudeep Srivastava

Election Petition-Opposite party no.1 had
filed the election petition -was a candidate in
the election held for the post of member of Zila
Panchayat- alleged in the election petition that
serious
irregularities
were
committed
in
preparation of the voters list- District Judge has
committed a patent error of law in holding that
the election petition was not a regular Civil Suit-
and it has to be decided keeping in view the
principles of natural justice only- Election of a
returned candidate can only be set aside on the
proof of illegalities affecting the purity of
election-it cannot be interfered lightly remanded
to for passing appropriate orders for preparation
of
a
correct
calculation
sheet-impugned
judgment quashed.

Writ Petition allowed. (E-9)

## Text

4 All. Indradev Vs. Shri Umesh Singh & Ors.
1389
dated 5.1.1996 where opportunity has been
given to the applicants to move appropriate
application
before
the
Selection
Commission in case there is any delay in
taking decision taken by the Committees.

16. Considering that the appeal
preferred by the petitioner is pending for
substantially long length of time, the
District Level Committee shall make all
endevour to conclude the proceedings
within a period of three weeks from the
date a certified copy of this order is
produced before him in accordance with
law and communicate the decision to the
petitioner.

17. With aforesaid observations
and directions the petition stands disposed
of.
----------
(2024) 4 ILRA 1389
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.04.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Writ -C No. 2288 of 2024

Indradev ...Petitioner
Versus
Shri Umesh Singh & Ors. ...Respondents

Counsel for the Petitioner:
Sharad Pathak, Lalta Prasad Misra

Counsel for the Respondents:
Ashok Kumar Srivastava, Arun Kumar Singh
Parihar, Avinash Srivastava, B/R0135, Raj Kumar
Upadhyaya(R.K. Upadhyaya), Sudeep Srivastava

Election Petition-Opposite party no.1 had
filed the election petition -was a candidate in
the election held for the post of member of Zila
Panchayat- alleged in the election petition that
serious
irregularities
were
committed
in
preparation of the voters list- District Judge has
committed a patent error of law in holding that
the election petition was not a regular Civil Suit-
and it has to be decided keeping in view the
principles of natural justice only- Election of a
returned candidate can only be set aside on the
proof of illegalities affecting the purity of
election-it cannot be interfered lightly remanded
to for passing appropriate orders for preparation
of
a
correct
calculation
sheet-impugned
judgment quashed.

Writ Petition allowed. (E-9)

(Delivered by Hon'ble Subhash Vidyarthi J.)

1. Heard Sri Sharad Pathak, the
learned counsel for the petitioner, Sri
R.K.Upadhyaya, learned counsel for the
opposite party no.1, Sri Ashok Kumar
Srivastava, learned counsel for the opposite
party no.10 and Sri Sudeep Srivastava,
learned counsel for the opposite parties no.
2, 3, 4, 5, 7, 8, 11 to 16.

2. By means of the writ petition
filed under Section 226 of the Constitution
of India, the petitioner has challenged the
validity of the judgment and order date
27.02.2024 passed by the District Judge,
Pratapgarh in Election Petition No. 01 of
2021 filed under Section 27(2) Uttar
Pradesh Kshettra Panchayat and Zila
Panchayat Adhiniyam, 1961.

3. The opposite party no.1 had
filed the aforesaid election petition inter
alia stating that he was a candidate in the
election held for the post of member of Zila
Panchayat, Kshetra Mangraura III, Ward
No. 11, Development Block Mangraura,
Pargaana
and
Tehsil
Patti,
District
Pratapgarh and he was allotted Polling
symbol Axe. The opposite parties No. 1 to
17 in the election petition i.e. the petitioner
and opposite parties no. 2 to 17 in this writ
petition, were also candidates in the
1390 INDIAN LAW REPORTS ALLAHABAD SERIES
election. It was alleged in the election
petition that serious irregularities were
committed in preparation of the voters list.

4. In para 5 of the election petition it
was pleased that a total of 27,928 ballots had
been casted and 1933 ballets had been
cancelled whereas a total of 27,160 ballets
had been counted, out of which 1328 had
been cancelled, whereas in para 7 of the
election petition it was pleaded that a total of
27,160 ballets had been casted whereas
27,928 ballets had been counted and thus 768
ballets were counted in excess. The opposite
party no.1 had contended that 3896 votes
were casted in his favour and 833 votes
casted in his favour were cancelled and the
returned candidate (the writ petitioner) got
3818 votes. The opposite party no.1 claimed
that he had won by 78 votes and the opposite
parties no. 18 to 20 to the election petition -
the Assistant Returning Officer, Returning
Officer and District Election Officer, had
made an announcement to this effect at the
polling center, but a certificate to this affect
was not given to him and it was told that the
same will be provided at the district
headquarter on the following day. When the
election petitioner reached the district
headquarter on the following day, the writ
petitioner
was
declared
successful
by
committing serious irregularities in counting
of ballet papers, whereby 833 votes casted in
favour of the election petitioner were
cancelled and 768 excess votes were counted,
which affected the result of the election.

5. In para 10 of the election
petition seven grounds were taken by the
election petitioner for assailing validity of
the election which are as follows:-

(i) The counting was not done in
accordance with the provisions of the U. P.
Kshetra Panchayat and Zila Panchayat Act,
1961 and the relavant rules and the
counting sheet was prepared illegally and it
is erroneous, ambiguous and misleading.
(ii) The counting was not done in
an independent, unbiased and legal manner.
(iii) A total of 27,160 votes had
been casted and 768 votes have been
counted in excess of the votes casted. The
election petitioner was told that his 3896
votes were valid and 833 votes were
cancelled. He had been told that the returned
candidate had got 3818 votes and thus he
had won by 78 votes and the opposite parties
18 to 20 had made a declaration to this
effect. However, it was told that the winning
certificate will be given at the District
Headquarter
on
the
following
day.
Subsequently in absence of the election
petitioner, his 833 valid votes were
cancelled, his 78 votes were added to the
votes of the returned candidate and the writ
petitioner was declared to have won the
election.
(iv) The election petitioner's 78
votes were added to the votes of the returned
candidate and in place of 27,169 votes that
were casted, 27,928 votes were counted.
Thus 768 excess votes were counted.
(v) The election petitioner's valid
votes were illegally cancelled and 768
excess votes were counted and by doing this,
the writ petitioner was declared elected with
a margin of 501 votes.
(vi)
The
counting
sheet
is
ambiguous and misleading, it is based on
counting of false votes and it is irregular and
void.
(vii) The election petitioner had
been declared elected with a margin of 78
votes but by committing illegality in
counting of votes, the writ petitioner was
declared to have won the election by 501
votes. There is a narrow margin of victory
and it would be in the interest of justice that
a recounting of votes be carried out.
4 All. Indradev Vs. Shri Umesh Singh & Ors.
1391
6. The writ petitioner - opposite
party no.1 to the election petition, and some
other
defendants
filed
their
written
statement/objections.

7. The trial court had framed the
following nine issues on 01.04.2023: -

(i) Whether in counting of votes for
election of member of Zila Panchayat
Mangaraura III, Ward No. 11, Patti,
Pratapgarh votes were counted in excess of
votes that were actually polled and thus the
election result was declared in an illegal
manner?
(ii) Whether 833 votes casted in
favour of the election petition Umesh Singh
were not included in counting and those
were cancelled illegally, which affected the
election result?
(iii) Whether 78 votes casted in
favour of the election petitioner Umesh
Singh were counted in favour of the Writ
Petitioner Indradev? If yes, then its effect.
(iv) Whether 768 votes casted in
favour of some other candidates were
irregularly included in the votes of the Writ
Petitioner and thus he was illegally
declared successful?
(v) Whether the calculation sheet
was prepared against the actual votes
casted in favour of the candidates?
(vi) Whether the calculation sheet
for election of member of Zila Panchayat
Mangaraura III, Ward No. 11, Patti,
Pratapgarh has not been prepared in an
impartial manner?
(vii) Whether the petitioner was
entitled to a recounting of votes on the
basis of averments made in para 10 of the
petition?
(viii) Whether the election of
member of Zila Panchayat Mangaraura III,
Ward No. 11 is liable to be declared illegal
as it violates the rules and the law?
(ix) Whether the petitioner was
entitled to any relief?

8. The election petitioner adduced
his evidence in support of the election
petition on 12.04.2023. When the matter
was fixed for cross-examination of the
election petitioner on 25.04.2023, he filed a
supplementary affidavit along with an
application under Section 151 C.P.C.
stating that he has already filed his
examination-in-chief (Paper no. 39 A) but
some facts were left to be incorporated due
to inadvertence of the author of the
affidavit, which were being brought to light
by way of the supplementary affidavit.

9. The writ petitioner filed
objections against the application stating
that there were no pleadings regarding the
facts sought to be brought on record by
way of the supplementary affidavit.

10. On 25.04.2023, the writ
petitioner filed an application before the
District Judge stating that the issues no. 1
to 4 framed on 01.04.2023 deal with one
issue and these should be reformulated as a
single issue. The petitioner further stated
that the issue no. 5 did not arise from the
pleadings and it should be deleted. The
District Judge disposed of this application
by means of an order dated 24.05.2023
stating that issue no. 1 to 4 will be decided
together at the time of final disposal of the
petition. Regarding issue no. 5, the District
Judge stated that the same will be disposed
off in case its importance comes to light
after considering the entire facts and
material at the time of final decision of the
petition.

11. The election petition was
decided by means of the impugned
judgment dated 27.02.2024, in which the
1392 INDIAN LAW REPORTS ALLAHABAD SERIES
District Judge has decided issue Nos.1 to 6
together. The objection of
the
writ
petitioner that issue No.5 did not arise from
the pleadings of the parties, which was
ordered to be decided while decision of the
election petition finally, has not been
decided
while
allowing
the
election
petition.

12. The opposite party No.1 to the
election petition had raised a specific
objection that the facts which had not been
pleaded in the election petition, cannot be
proved by leading evidence and the facts
stated in the supplementary affidavit filed
after the examination-in-chief of the
election petitioner, cannot be taken into
consideration by the Court. While dealing
with this objection, the District Judge has
held that the election petition was not a
regular Civil Suit and it has to be decided
keeping in view the principles of natural
justice. He further held that the election
petition should not be allowed or rejected
merely on any technical ground.

13. At this stage, it would be
appropriate to have a look at Rule 11 of the
U.P. Zila Panchayat (Settlement and
Dispute Relating to Membership) Rules,
1994, which reads thus: -

"11. Procedure before the Judge. -
(1) Except so far as provided by the Act or
in these Rules, the procedure provided in
Civil Procedure Code, 1908 in regard to
suits shall so far as it is not inconsistent
with the Act or any provisions of these
rules and it can be made applicable be
followed in the hearing of the petitions :
Provided that-
(a) any two or more petitions to the
membership of the same person may be
heard ogether ;
(b) the Judge shall not be required
to record the evidence in full but shall make
a memorandum of the evidence sufficient in
his opinion for the purpose of deciding the
case ;
(c) the Judge may, at any stage of
the proceedings, require the petitioner to
give further cash security for the payment
of the costs incurred or likely to be incurred
by any respondent;
(d) for the purpose of deciding any
issue, the Judge shall only be bound to
order production of or to receive only so
much evidence, oral or documentary as he
considers necessary ;
(e) any person aggrieved from the
decision of the Judge may apply for review
to the Judge within 15 days from the date of
the decision and the Judge may thereupon
review the decision.
(2) The provisions of the Indian
Evidence Act, 1872 (Act No. 1 of 1872)
shall, subject to the provision of the Act and
these rules, be deemed to apply in all
respects in the proceedings for the disposal
of the petition."

14. Thus the District Judge has
committed a patent error of law in holding
that the election petition was not a regular
Civil Suit and it has to be decided keeping
in view the principles of natural justice
only, as Rule 11 aforesaid provides that the
election petitions are to be decided as per
the procedure provided in Civil Procedure
Code in regard to suits.

15. Order XIV C.P.C. deals with
settlement of Issues and determination of
suit on issues of law or on issues agreed
upon. Rules 1 and 2 of Order XIV C.P.C.
are being reproduced below: -

"1. Framing of issues.-
4 All. Indradev Vs. Shri Umesh Singh & Ors.
1393
(1) Issues arise when a material
proposition of fact or law is affirmed by
the one party and denied by the other.
(2) Material propositions are those
propositions of law or fact which a
plaintiff must allege in order to show a
right to sue or a defendant must allege in
order to constitute his defence.
(3)
Each
material
proposition
affirmed by one party and denied by the
other shall form the subject of a distinct
issue.
(4) Issues are of two kinds:
(a) issues of fact,
(b) issues of law.
(5) At the first hearing of the suit
the Court shall, after reading the plaint
and the written statements, if any,
and after examination under Rule 2 of
Order X and after hearing the parties or
their pleaders, ascertain upon what
material propositions of fact or of law the
parties
are
at
variance,
and
shall
thereupon proceed to frame and record
the issues on which the right decision of
the case appears to depend.
(6) Nothing in this rule requires the
Court to frame and record issues where the
defendant at the first hearing of the suit
makes no defence.
2. Court to pronounce judgment
on all issues.-
(1) Notwithstanding that a case may
be disposed of on a preliminary issue, the
Court shall, subject to the provisions of subrule (2), pronounce judgment on all issues.
(2) Where issues both of law and of
fact arise in the same suit, and the Court is
of opinion that the case or any part thereof
may be disposed of on an issue of law only,
it may try that issue first if that issue relates
to-
(a) the jurisdiction of the Court, or
(b) a bar to the suit created by any
law for the time being in force,
and for that purpose may, if it
thinks fit, postpone the settlement of the
other issues until after that issue has been
determined, and may deal with the suit in
accordance with the decision on that issue.

16. It is clear from a bare reading
of Rule 1 of Order XIV that issues have to
be framed on the first date of hearing, after
reading
the
plaint
and
the
written
statements, if any, and after examination
under Rule 2 of Order X and after hearing
the parties or their pleaders. No issue can
be framed which does not arise from the
aforesaid material. Therefore, when issue
no. 5 did not arise from the pleadings of the
parties or from the examination of the
parties under Order X Rule 2 - which was
not done, issue no. 5 could not have been
framed and no judgment could be given on
this issue.

17. There are only two principles
of natural justice - (i) no person can be a
judge in his own cause and (ii) no person
can be condemned un-heard. There is no
principle of natural justice which may
justify the trial Court's approach of
ignoring the basic principle of dispensation
of justice that all the cases are to be decided
on the basis of pleadings of the parties and
in absence of pleadings, no amount of
evidence can be looked into. The District
Judge has committed a patent error of law
in
ignoring
this
basic
principle
of
dispensation of justice and rejecting the
objection of the petitioner regarding lack of
pleadings to support issue No.5.

18. Issue No.1 to 6 have been
decided
together
and
even
while
concluding the discussion on six issues, no
separate
specific
findings
has
been
recorded regarding the issue No.6. Order
XIV Rule 2 C.P.C. provides that the Court
1394 INDIAN LAW REPORTS ALLAHABAD SERIES
shall pronounce judgment on all issues.
Order XX Rule 5 C.P.C. mandates that the
Court shall state its finding or decision,
with the reasons thereof, on each separate
issue, unless the finding upon any one or
more of the issues is sufficient for the
decision of the suit. Therefore, even while
proceeding
to
decide
several
issues
together, it was incumbent on the trial
Court to give its finding on each of the
issues and impugned order passed by the
District Judge without giving the findings
on each of the issues no. 1 to 6, does not
fulfill the legislative mandate contained in
Order XIV Rule 2 and Order XX Rule 5
C.P.C.

19. While deciding all the issues
together, the District Judge has found that
there was no evidence to establish as to
how many votes of the return candidate
were cancelled and how many votes of the
election petitioner were cancelled. District
Judge having himself recorded that there
was no evidence to establish the aforesaid
facts, the election of the return candidate
could not have been set-aside on this count.

20. The District Judge found that
there appears to be force in the contention
of the election petitioner that it had been
announced on the loud-speakers installed at
the counting center that he had won the
election. However, this finding is not
supported by the statement of the election
petitioner made in his cross-examination,
wherein he had categorically stated that at
the close of the counting, the returning
officer had told him that he had won by 78
votes, but no announcement to this effect
was made. The R.O. had told him in a
conversation that he had won by 78 votes
and
he
should
collect
the
winning
certificate from Sadar Tahsil on the
following day. The R.O. did not give him
any round-wise counting details and no
round-wise announcement was made by the
R.O.

21. The District Judge has
recorded a finding that in the counting
sheet of Mangraura III, Ward No. 11, the
votes casted in polling booth nos. 64 and
181 - Panchayatghar Nevra A, had also
been included whereas those booths fall
outside the constituency of Mangraura-III.
Moreover, the votes casted at Polling booth
Salhipur Kanas - Booth D, had not been
included while preparing the calculationsheet, which shows that the calculationsheet had not been prepared properly. The
learned Counsel for the Writ Petitioner has
fairly conceded that this finding recorded
by the District Judge is correct and this
error committed while preparing the
calculation-sheet needs to be corrected by
the authorities, although as per him, it will
not make any difference in the outcome of
the election.

22. The District Judge has found
that the counting sheet was erroneous, but
it was not a fit case for ordering recount of
votes and he has allowed the election
petition and set-aside the election.

23. The learned counsel for the
petitioner has submitted that the error
committed in preparation of the counting
sheet was a curable defect and this defect
ought to have been cured by preparing a
correct counting sheet. Further submission
of learned counsel for the petitioner is that
even if this defect is cured, it will not affect
the result of the election in any manner and
in fact it would result in an increase in the
votes of the returned candidate.

24. The learned counsel for
opposite
party
No.1 has
vehemently
4 All. Indradev Vs. Shri Umesh Singh & Ors.
1395
opposed the writ petition and he has
submitted that numerous illegalities were
committed in conduct of the election, the
most serious of those being non-declaration
of result of the counting immediately after
closure thereof in favour of the opposite
party No.1 and subsequent illegal alteration
of the result by issuing the winning
certificate in favour of the writ petitioner.
He has further submitted that issue no. 7
was framed by the District Judge regarding
recounting of the votes and this Court
should at least order a recount of the votes.

25. When the District Judge has
found that there was no evidence to
establish as to how many votes of the
returned candidate were cancelled and how
many votes of the election petitioner were
cancelled, the election of the returned
candidate could not have been set-aside on
this count.

26. The finding of the District
Judge that there appears to be force in the
contention of the election petitioner that it
had been announced on the loud-speakers
installed at the counting center that he had
won the election, is against the evidence on
record in the shape of the statement of the
election petitioner made in his crossexamination, wherein he had stated that at
the close of the counting, the returning
officer had told him that he had won by 78
votes, but no announcement to this effect
was made. The R.O. had told him in a
conversation that he had won by 78 votes
and
he
should
collect
the
winning
certificate from Sadar Tahsil on the
following day. Therefore, this finding is
perverse.

27.

The
alleged
personal
communication made by the returning
officer with the opposite party no.1 cannot
be the basis of setting aside election of the
returned candidate when there is nothing on
record to establish that the opposite party
No.1 had in fact been declared successful
prior to issuance of winning certificate in
favour of the petitioner.

28. So far as the submission of the
learned Counsel for the respondent no. 1,
that this Court should order a recount of
votes, the law in this regard was explained
in Chandrika Prasad Yadav v. State of
Bihar, (2004) 6 SCC 331, wherein the
Hon'ble Supreme Court held that: -

"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;
(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.
21. The requirement of maintaining
the secrecy of ballot papers must also be
kept in view before a re-counting can be
directed. Narrow margin of votes between
the returned candidate and the election
petitioner by itself would not be sufficient
for issuing a direction for re-counting."

29. The election petitioner had
pleaded in para 10 of the petition that he
had been declared elected with a margin of
78 votes but by committing illegality in
counting of votes, the writ petitioner was
declared to have won the election by 501
votes, there is a narrow margin of victory
and it would be in the interest of justice that
a recounting of votes be carried out. The
allegation that the election petitioner had
been declared elected with a margin of 78
1396 INDIAN LAW REPORTS ALLAHABAD SERIES
votes, was not supported by the statement
of the election petitioner himself, as has
already been discussed above. The victory
margin in the present case cannot be said to
be a narrow margin and even if it is taken
to be a narrow margin, it does not provide a
good ground to order a recounting of votes
in view of the law laid down by the
Hon'ble Supreme Court in Chandrika
Prasad Yadav (Supra).

30. Election of a returned
candidate can only be set aside on the
proof of illegalities affecting the purity of
election and it cannot be interfered lightly,
on the basis of unsubstantiated allegations.

31. In view of the aforesaid
discussion, the writ petition is allowed. The
impugned judgment and order dated
27.02.2024 passed by the District Judge,
Pratapgarh in the Election Petition No. 01
of 2021 filed under Section 27 (2) Uttar
Pradesh Kshettra Panchayat and Zila
Panchayat Adhiniyam, 1961, setting aside
election of the petitioner, is hereby
quashed.

32. The matter is remanded to the
District Judge for passing appropriate
orders for preparation of a correct
calculation
sheet
in
light
of
the
observations made in this order and the
finding recorded in the judgment and order
dated 27.02.2024, that in the counting
sheet of Mangraura III, Ward No. 11, the
votes casted in polling booth nos. 64 and
181 - Panchayatghar Nevra A, had also
been included whereas those booths fall
outside the constituency of Mangraura-III
and that the votes casted at Polling booth
Salhipur Kanas - Booth D, had not been
included while preparing the calculationsheet.
----------
(2024) 4 ILRA 1396
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.03.2024

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

Writ -C No. 2686 of 2024

Ram Tirath ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Rakshit Raj Singh

Counsel for the Respondents:
C.S.C., Mohan Singh

U.P.
Zamindari
Abolition
and
Land
Reforms Act, 1950-Section 122-B(4-F)-
Impugned order - the respondent no.3 directed
the revenue official concerned to evict the
petitioner-
petitioner
and
his
wife
are
Bhumidhar with transferable rights- On being
found in possession of a part land recorded as
Grade-5 'Banjar' land in the revenue records-
the Lekhpal of the vicinity submitted a report
and
the
respondent
no.3
initiated
the
proceedings under Section 67 of Code of 2006-
Section 122-B(4-F) of Act, 1950- he had
acquired the rights over part of Gata-impugned
orders set aside.

Writ Petition allowed. (E-9)

List of Cases cited:

1. Satya Veer and another vs State of U.P. and
others; 2015 SCC Online All 7504

2. Special Appeal no.479 of 2015 (Sushila and
another vs State of U.P. and others)

3. Writ-C no.129 of 2013 (Brahmanand and
others vs State of U.P. and others)

(Delivered by Hon'ble Saurabh Lavania, J.)