# Irshad Fatma v. State of U.P. & Ors

- **Citation:** (2020) 1 ILRA 524
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-06
- **Case number:** Matters Under Article 227 No. 8040 of 2019
- **Bench:** Siddhartha Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/irshad-fatma-v-state-of-u-p-ors-45101
- **Pages:** 10

## Headnote

1 All. Irshad Fatma Vs. State of U.P. & Ors.
525
C.S.C., Sri Syed Ahmed Faizan

A.
Uttar
Pradesh
Panchayat
Raj
(Settlement of Election Disputes) Rules,
1994 - Election dispute - Pradhan - when
there was no allegation with regard to
outside votes being included by the
counting
authorities
and
the
only
allegation was with regard to wrong
counting of votes cast in favour of the
petitioner then a re-count was the only
method
by
which
the
Prescribed
Authority could have found out as to
whether the counting was done properly.
(Para 17)

Election for the post of Pradhan - Election
petition dismissed - Revisional court remanded
the matter with a direction that a re-count be
done & findings be returned on two issue
whether 2238 or 2228 votes were cast &
whether the election petitioner had got 985
votes or more - Recount was done , petitioner
in the recount obtained 988 votes as against
981 votes which the respondent no. 1, the
earlier elected candidate had got - Held -
when the recounting had been done & it was
found that 988 votes were cast in favour of the
petitioner, which number was greater than the
votes which were cast in favour of the
respondent no. 4 then no further findings with
regard to the other issues were required as
were desired in the order of remand of the
Revisional Court.

Matter Under Article 227 allowed. (E-5)

List of cases cited: -

## Text

524 INDIAN LAW REPORTS ALLAHABAD SERIES
ground of eviction under Section 20(2)(f)
of the U.P. Act XIII of 1972, there should
not only be a clear denial of title of the
landlord by the tenant but the landlord
should also allege and prove that he had
not waived right of re-entry, or condoned
the conduct of the tenant.

20. The principle as stated above also
finds support from the law laid down in
Keshar Bai vs. Chhunulal, (2014) 11
SCC 438, Sheela vs. Firm Prhlad Rai
Prem Prakash, (2002) 3 SCC 375
(paras-11 to 17), J.J. Lal Pvt Ltd. and
others vs. M.R. Murli and another, AIR
2002 SC 1061 (Para-18), Sheikh Abdulla
vs. Mohammad Muslim, 1926 AIR
(Cal.) 1205, Sugga Bai vs. Hiralal, 1969
AIR (MP) 32, 1937 AIR (PC) 251 (para10), Mohd. Arif vs. IVth Additional
District Judge, Aligarh and others, 1984
(2) ARC 255 (All.) (Para-8), Dr. A.S. Raj
vs. District Judge, Lucknow and others,
1982 ARC 515 (All.) (Para-26), Ram
Autar Goel vs. Jagannath Gupta and
another, 1998 (2) AWC 828 (paras-13
and 14), Pradeep Gautam and another
vs. VIIIth Additional District Judge
(Judge, SCC) Allahabad and another,
1993 (1) ARC 44, Brij Bhushan Mishra
vs. Surita Sarbabdhikari, 2009 (74)
All.LR 266 (paras-7 and 8), Jalsabh
Shaikh vs. State of Goa, AIR 2000 (SC)
568 and Sahaj Ram vs. Rajednra
Prasad, 2016 (6) ADJ 626.

21. Perusal of the undisputed facts as
noted above in paragraphs 3 to 6 leaves no
manner of doubt that the defendantpetitioner/ tenant has not denied the title of
the plaintiff-respondent/ landlady. The
tenant has specifically stated that he has
never denied the title of the respondentlandlady with respect to the disputed shop.
The tenant has also deposited entire rent
on the first date of hearing and continued
to deposit/ pay rent to the plaintiffrespondent/
landlady.
Under
the
circumstances, the finding of the courts
below in the impugned judgment dated
04.01.2013 in SCC Suit No.05 of 2007
(Smt. Dr. Mithilesh Bansal vs. Banke Lal
Agrawal passed by Civil Judge (S.D.)/
Small Cause Court, Gautam Budh Nagar
and the judgment and decree dated
30.03.2015 in SCC Revision No.01 of
2013 (Banke Lal Agarwal vs. Smt. Dr.
Mithilesh Bansal) passed by the Additional
District Judge, Court No.2, Gautam Buddh
Nagar with respect to the finding on the
ground of denial of title of the plaintiff
respondent as a ground for eviction from
the disputed shop, is hereby set aside. The
impugned judgments and decree are
accordingly modified. Consequently, the
eviction of the defendant-tenant/ petitioner
under the impugned judgments, also stands
set aside.

22. In view of the aforesaid, the
petition is allowed to the extent indicated
above.
----------
(2020)1ILR 524

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.12.2019

BEFORE
THE HON'BLE SIDDHARTHA VARMA, J.

Matters Under Article 227 No. 8040 of 2019

Irshad Fatma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Shahabuddin

Counsel
for
the
Respondents:
1 All. Irshad Fatma Vs. State of U.P. & Ors.
525
C.S.C., Sri Syed Ahmed Faizan

A.
Uttar
Pradesh
Panchayat
Raj
(Settlement of Election Disputes) Rules,
1994 - Election dispute - Pradhan - when
there was no allegation with regard to
outside votes being included by the
counting
authorities
and
the
only
allegation was with regard to wrong
counting of votes cast in favour of the
petitioner then a re-count was the only
method
by
which
the
Prescribed
Authority could have found out as to
whether the counting was done properly.
(Para 17)

Election for the post of Pradhan - Election
petition dismissed - Revisional court remanded
the matter with a direction that a re-count be
done & findings be returned on two issue
whether 2238 or 2228 votes were cast &
whether the election petitioner had got 985
votes or more - Recount was done , petitioner
in the recount obtained 988 votes as against
981 votes which the respondent no. 1, the
earlier elected candidate had got - Held -
when the recounting had been done & it was
found that 988 votes were cast in favour of the
petitioner, which number was greater than the
votes which were cast in favour of the
respondent no. 4 then no further findings with
regard to the other issues were required as
were desired in the order of remand of the
Revisional Court.

Matter Under Article 227 allowed. (E-5)

List of cases cited: -

1. A. Neelalohithadasan Nadar vs. George
Mascrene & ors 1994 Supp (2) SCC 619

2. T.A. Ahammed Kabeer vs. A.A. Azeez & ors
2003 (6) AIC 601(S.C.)

3. Michael B. Fernandes vs. C.K. Jaffer Sharief
& ors 2002 (3) SCC 521

4. Jyoti Basu & ors v. Debi Ghosal & ors AIR
1982 SC 983

(Delivered by Hon'ble Sidhhartha Varma, J.)

1. Upon the declaration of the result
on 13.12.2015 of an election which was
held on 9.12.2015 for the post of Pradhan,
an Election Petition was filed by the
petitioner Irshad Fatma.

2. The Election Petition was initially
dismissed on 5.2.2018 and the Revision
thereafter filed by the petitioner was allowed
on 31.5.2018. The matter was remanded with a
direction that the Election Petition be decided
afresh. When the remand was made a direction
was issued by the Revisional Court itself that a
re-count be done and also findings regarding
two issues were asked to be returned. They
were:-

I. whether 2238 or 2228 votes
were cast?

II. And whether the election
petitioner had got 985 votes or more?

3. Before the Election Tribunal, even
before the order dated 5.2.2018 was passed,
another candidate who had contested the
election, namely, Sakeena had filed an
application for rejecting the Election Petition
filed by the petitioner stating that the same was
not maintainable as Assistant Election Officer
and the Election Officer were not made a party
in the petition. This application of Sakeena was
rejected by the Election Tribunal on 27.1.2016.
The Revision filed thereafter was dismissed on
10.8.2017 and Sakeena thereafter had filed a
writ petition being Writ-C No. 3430 of 2018 in
which the proceedings of the Election Petition
was initially stayed on 7.2.2018. But upon
coming to know that the Election Petition itself
had been decided on 5.2.2018 the writ petition
was dismissed as having become infructuous
on 20.12.2018.

4. Upon coming to know that on
31.5.2018, the Revisional Court had
remanded the matter, Smt. Sakina who had
526 INDIAN LAW REPORTS ALLAHABAD SERIES
got just one vote in the election once again
filed a Writ Petition in this Court being a
Matter Under Article 227 and was
numbered as Petition No. 292 of 2019.
This writ petition was disposed of on
24.1.2019 without much of interference as
the order impugned was an order by which
a remand had been ordered and the
election petitioner's counsel had stated that
he would implead the necessary parties in
the Election Petition as the petitioner in
the writ petition had desired.

5. A direction was further issued that
the Prescribed Authority/Election Tribunal
had to decide the Election Petition within a
period of six months from the date of
presentation of a certified copy of the
order dated 24.1.2019. On 6.2.2019, the
Prescribed Authority passed an order that
the recounting of votes as per the
Revisional Court's order dated 31.5.2018
had to be done on 12.2.2019. However, the
recount was done on 18.2.2019. Against
the order dated 6.2.2019 by which the
recount was ordered, the respondent no. 4
Smt. Zeenat Fatima filed a writ petition
being Writ C No. 5738 of 2019 wherein it
was ordered that the recount would go on
but the result would be kept in sealed
cover and shall not be declared. The order
dated 18.02.2019 passed by the learned
Single Judge in Writ-C No.5738 of 2019
was put to challenge in a Special Appeal
being Special Appeal No. 422 of 2019.
This
Special Appeal
was,
however,
dismissed on 5.4.2019. In the meantime,
the recount had been done and, therefore,
the Writ C No. 5738 of 2019 was
dismissed on 26.3.2019. On the basis of
the recounting which was done on
18.2.2019, the Prescribed Authority on
24.4.2019 decided the Election Petition
and allowed the same in favour of the
petitioner. The petitioner had in the
recount obtained 988 votes as against 981
votes which the respondent no. 1, the
earlier elected candidate had got.

6. This order 24.4.2019 was
challenged by the respondent no. 4 Zeenat
Fatma in Revision No. 1 of 2019. When
this revision was allowed on 23.10.2019,
the instant writ petition was filed.

7. The respondent no. 4 was
represented by Sri Syed Ahmed Faizan and
Sri S.F.A. Naqvi. Since for the decision of
the present petition under Article 227 of
the Constitution of India, the requirement
of counter affidavits from the other private
respondents was not required, the instant
writ petition was heard finally.

8. Learned counsel for the petitioner
has submitted that the grounds on the basis
of which the Revision was allowed were
not tenable. Learned counsel for the
petitioner has submitted that when the
recount was done on 18.2.2019 on the
basis of the remand order of the Revisional
Court dated 31.5.2018 then no further
findings were required as were desired in
the order of remand dated 31.5.2018 of the
Revisional Court.

9. Learned counsel for the petitioner
submits that it mattered little as to whether
2238 or 2228 votes were cast. Also learned
counsel for the petitioner submitted that a
decision as to whether the earlier counting
had gone wrong as four votes were mixed
in other bundles also lost its importance as
a complete re-count was done and,
therefore, nothing further was required to
be done.

10. Learned counsel for the petitioner
relying upon a decision of the Supreme
Court reported in 1994 Supp (2) SCC 619
1 All. Irshad Fatma Vs. State of U.P. & Ors.
527
(A. Neelalohithadasan Nadar vs. George
Mascrene and Others) submitted that
principles of secrecy of ballot box must
yield to the principle of purity of an
Election in larger public interest. Since
learned counsel for the petitioner read out
paragraphs no. 10, 11, 12, 13 and 14 of the
judgement, they are being reproduced here
as under:-

"10.
The
existence
of
the
principle of "secrecy of ballot" cannot be
denied. It undoubtedly is an indispensable
adjunct of free and fair elections. The Act
statutorily assures a voter that he would
not be compelled by any authority to
disclose as to for whom he has voted, so
that he may vote without fear or favour
and free from any apprehension of its
disclosure against his will from his own
lips. See in this connection Raghbir Singh
Gill v. Gurcharan Singh Tohral. But this
right of the voter is not absolute. It must
yield to the principle of "purity of
election" in larger public interest. The
exercise of extrication of void votes under
Section 62(4) of the Act would not in any
manner impinge on the secrecy of ballot
especially when void votes are those
which have to be treated as no votes at all.
"Secrecy of ballot" principle presupposes a
validly cast vote, the sanctity and
sacrosanctity of which must in all events
be preserved. When it is talked of ensuring
free and fair elections it is meant elections
held on the fundamental foundation of
purity and the "secrecy of ballot" as an
allied vital principle. It was observed by
this Court in Raghbir Singh case' as
follows (SCR p. 1320: SCC p. 68, para 23)

"Secrecy
of
ballot
though
undoubtedly a vital principle for ensuring
free and fair elections, it was enshrined in
law to subserve the larger public interest,
namely, purity of election for ensuring free
and fair election. The principle of secrecy
of ballot cannot stand aloof or in isolation
and in confrontation to the foundation of
free and fair elections, viz., purity of
election. They can coexist but as stated
earlier, where one is used to destroy the
other, the first one must yield to principle
of purity of election in larger public
interest. In fact secrecy of ballot, a
privilege of the voter, is not inviolable and
may be waived by him as a responsible
citizen of this country to ensure free and
fair election and to unravel foul play."

11. In view of the above it is the
settled position that out of the two
competing principles, the purity of election
principle must have its way. Section 94 of
the Act cannot be pressed into service to
suppress a wrong coming to light and to
protect a fraud on the election process.

12. That both the election
petition and recrimination petition were
dealt with on the principle of "purity of
election" is not in dispute. The approach of
the High Court on the subject on the
commonality of the attack also cannot be
questioned. But what was questioned by
Mr Prashant Bhushan, as reiterated in his
written submissions of 14-9- 1993, was
that the High Court was not correct in
allowing examination of marked copies of
electoral rolls and counterfoils without any
evidence or material in support of the plea
for inspection and that the High Court
allowed the inspection casually without
inviting a written application or even by a
written order. It was submitted that except
for pleadings in the election petition
regarding void voting, there was no cause
pleaded to permit the election papers to be
thrown open for inspection and this
exercise was termed by learned counsel as
'fishing or roving'. Rule 93 of the Conduct
of Election Rules, 1961, provides for
documents which shall not be 1 1980 Supp
528 INDIAN LAW REPORTS ALLAHABAD SERIES
SCC 53 :(1980) 3 SCR 1302 opened and
their Contents inspected by, or produced
before, any person or authority except
under the orders of a competent court. On
the basis thereof it was maintained that by
a string of judgments of this Court it has
been ruled that inspection could only be
allowed when two conditions are satisfied:

1. The material facts on the basis
of which inspection of documents is
sought, must be clearly and specifically
pleaded; and

2. The Court must be satisfied on
evidence, even if in the form of Support
for these principles was sought from Ram
Sewak Yadav v. Hussain Kamil Kidwai1,
Hariram v. Hira Singh2, R. Narayanan v.
S. Semmalai3, Jagjit Singh v. Giani Kartar
Singh4, Jitendra Bahadur Singh v. Krishna
Behari5 and other decisions of the like.

13. But by and large these are
cases where there was a claim for recount.
In contrast the instant case is of double
voting which has specifically been pleaded
in the election petition filed on 29-7-1991
supported by affidavit and the names of
the voters have been supplied in the lists
annexed thereto. The appellant had filed
recrimination petition pleading that there
were several other cases of double voting
and reception of invalid votes in favour of
the
election
petitioner.
This
written
statement-cum- recrimination petition was
filed on 10-9-1991. Issues were framed on
20-9-1991. The election petitioner on 269-1991 was allowed to amend the Election
Petition so as to include 10 more cases of
double
voting.
The
corresponding
amendment application filed by the
appellant for taking into account details of
double voting having taken place in
another neighbouring constituency was
rejected by the High Court for it was based
on a new charge. The second amendment
application of the election petitioner was
allowed on 7-10- 1991 so as to include 23
more cases of alleged double voting. It is
at that stage that is on 7-10-1991 that the
Court
permitted
inspection
of
the
counterfoils since several double voters
had been summoned for the following day
to appear on 8-10-1991 and subsequent
days, on the oral prayer/application of both
the election petitioner and the appellant.
The court apparently took into account that
since witnesses were to be examined on
the question of their double voting and
were expected to take a positive stand, it
would become necessary to corroborate or
confront them with the counterfoils of the
ballot papers issued to them which
purported to have been signed or not by
them,
in
order
to
save
time
lest
examination of the witnesses be time
consuming. The Court allowed inspection
of the roll and counterfoils in order to
facilitate evidence of the witnesses on the
date of their appearance, which was the
following day. The suggestion no doubt
was oral but the Court seemed to agree
with the suggestion and inspection was
permitted to both parties in the presence of
the Registrar. The commonality of the
approach of the parties on the question of
double voting must have clearly goaded
the Court to adopt such measure to
facilitate quick trial. It is the case of the
election petitioner that the counsel for both
the parties inspected the counterfoils on 710-1991 in the Registrar's room as also on
subsequent days, even though there was no
written application made and there was no
formal written order of the Court. Yet the
inspection was open to both the parties
without any objection having ever been
raised by the appellant. In the facts and
circumstances, we fail to see how the
principle of secrecy of ballot can be
imported to question the power of the
Court to orally allow inspection in its
1 All. Irshad Fatma Vs. State of U.P. & Ors.
529
endeavour to eliminate the impurity in
elections, the opportunity provided having
been availed of without demur by both
parties. In this situation, it is difficult for
us to digest the argument that here the
High Court proceeded to allow inspection
without being satisfied on evidence, even
in the form of affidavit, that it was
necessary to allow inspection in the
interest of justice. Since the names of the
voters who were alleged to have double
voted, had specifically been pleaded in the
election petition (as amended from time to
time) and the recrimination petition, it was
necessary to correlate their names with the
electoral rolls and the counterfoils of the
ballot papers so that in case of double
voting or impersonated voting, the impure
element in the election process could be
identified and retrieved from the election
package. The primary purpose thus was to
purify the electoral process and not to hunt
or hound the voter's choice, when
exercised validly and freely. It is for that
purpose that the Court, in the interest of
justice, to facilitate a quick trial permitted
the parties to inspect beforehand the
records but after the framing of the
requisite issues arising from the pleadings
of the parties and not earlier. This
approach
could
not
be
termed
as
permitting a 'roving or fishing' enquiry, as
it is sometimes described in cases of a
claim for re-count. We are thus of the view
that the High Court committed no error in
permitting such inspection in the facts and
circumstances. We must, however, hasten
to clarify that we should not be understood
to approve of the High Court giving oral
directions in such serious matters without
insisting on a formal application setting
out how a prima facie foundation was laid
for the grant of such relief.

14. Another argument put forth
by Mr Prashant Bhushan was that the
pleadings in the election petition were
insufficient to justify inspection inasmuch
as except for mentioning that there had
been double voting by 19 persons nothing
else was stated about the basis on which
the election petitioner came to the
conclusion that these names, which
apparently had appeared twice in the
electoral roll, belonged to one and the
same person and that those persons had in
fact voted twice. It was also commented
that no material facts, in the form of
affidavits by single persons or polling
agents alleging that they had seen and
heard about those persons having voted
twice. was filed in support of the petition.
It is maintained that in the absence of
evidence of these particulars being pleaded
as to the source of knowledge of double
voting it was dangerous to allow enquiring
into such an allegation on the bare
allegation of double registration of votes
and possible double voting. We have
pondered over this matter but regretfully
do not accept the argument of the learned
counsel. If a name has been registered
twice enabling a person to take the
advantage of voting in two different
polling stations, Section 62 mandates that
if he polls both these votes then both votes
are void. A void vote cast is a vote void ab
initio. In the nature of things the void taint
in the election would have to be traced to
the election papers for without that bare
oral evidence would be of no use, and at
best would be word against word, making
application of Section 62(4) welling
impossible. If the election petitioner on
some information, material or otherwise is
able to entertain the belief that a particular
voter, double registered, is known to have
voted twice, he can certainly plead to that
fact on his own entertained belief and need
not ordinarily resort to giving details of the
sources of his information or knowledge or
530 INDIAN LAW REPORTS ALLAHABAD SERIES
the entertainment of his belief because
registration of double vote is by itself the
starting point; the exercise of both votes
being the second. The election petitioner
had specifically mentioned and in clear-cut
terms that 19 persons had double voted.
The question was not resoluble merely on
oral evidence, whether they had or had
not, except to put those persons into the
witness box, hear their version and
confront them with the election papers.
The sphere of enquiry at that stage is to the
voting and not for discovering the name of
the person to whom the vote was cast.
That inevitably has to be found out after
double voting or impersonated voting has
been found out leading to the new step to
trace them and nullify them. On the
pleading of the parties as such, on both
sides, a case for inspection at the stage
when it was done had been made out. We
thus find no error committed in the
approach of the High Court. "

11. Learned counsel for the petitioner
also relied upon T.A. Ahammed Kabeer
vs. A.A. Azeez and Others reported in
2003 (6) AIC 601(S.C.) and since he
specially referred to the paragraphs no. 26,
27, 28 and 29 of the judgement, they are
being reproduced here as under:-

"26. The task before an Election
Judge is ticklish. It is often urged and also
held that the success of a winning
candidate should not be lightly set aside
and the secrecy of ballot must be zealously
guarded. On account of a rigid following
of these principles the election courts are
inclined to lean in favour of the returned
candidates and place the onus of proof on
the person challenging the result of
election, insisting on strict compliance
with the rules of pleadings and excluding
such evidence from consideration as is in
divergence with the pleadings. However,
what has so developed as a rule of practice
should not be unduly stretched; for the
purity of the election process needs to be
preserved unpolluted so as to achieve the
predominant goal of democracy that only
be should represent the constituency who
has been chosen by the majority of the
electors. This is the purpose and object of
the election law.

27. Though the inspection of
ballot papers is to be allowed sparingly
and the Court may refuse the prayer of the
defeated candidate for inspection if, in the
garb of seeking inspection, he was
indulging into a roving enquiry in order to
fish out materials to set aside the election,
or the allegations made in support of such
prayer were vague or too generalized to
deserve any cognizance. Nevertheless, the
power to direct inspection of ballot papers
is there and ought to be exercised if, based
on precise allegations of material facts,
also substantiated, a case for permitting
inspection is made out as is necessary to
determine the issue arising for decision in
the case and in the interest of justice. As
held by the Constitution Bench in Ram
Sewak Yadav v. Hussain Kamil Kidwai
and Ors., , an Election Tribunal has
undoubtedly the power to direct discovery
and inspection of documents within the
narrow limits of Order XI of Code of Civil
Procedure. Inspection of documents under
Rule 15 of Order XI of Code of Civil
Procedure may be ordered of documents
which are referred to in the pleadings or
particulars as disclosed in the affidavit of
documents of the other party, and under
Rule 18(2) of other documents in the
possession or power of the other party. The
returning officer is not a party to an
election
petition
and
an
order
for
production of the ballot papers cannot be
made under Order XI of Code of Civil
1 All. Irshad Fatma Vs. State of U.P. & Ors.
531
Procedure. But the Election Tribunal is not
on that account without authority in
respect of the ballot papers. In a proper
case where the interests of justice demand
it, the Tribunal may call upon the returning
officer to produce the ballot papers and
may permit inspection by the parties
before it of the ballot papers which power
is
clearly
implicit
in
Sections
100(1)(d)(iii), 101, 102 and Rule 93 of the
Conduct of Election Rules 1961. This
power to order inspection of the ballot
papers which is apart from Order XI Code
of Civil Procedure may be exercised,
subject to the statutory restrictions about
the secrecy of the ballot paper prescribed
by Sections 94 and 128(1). However, the
Constitution Bench has cautioned, by the
mere production of the sealed boxes of
ballot papers before the Election Tribunal
pursuant to its order the ballot papers do
not become part of the record and they are
not liable to be inspected unless the
Tribunal is satisfied that such inspection is
in the circumstances of the case necessary
in the interests of justice.

28. It is true that a recount is not
be ordered merely for the asking or merely
because the Court is inclined to hold a
recount. In order to protect the secrecy of
ballots the Court would permit a recount
only upon a clear case in that regard
having been made out. To permit or not to
permit a recount is a question involving
jurisdiction of the Court. Once a recount
has been allowed the Court cannot shut its
eyes on the result of recount on the ground
that the result of recount as found is at
variance with the pleadings. Once the
Court has permitted recount within the
well-settled
parameters
of
exercising
jurisdiction in this regard, it is the result of
the recount which has to be given effect to.

29. So also, once the Court
exercise its jurisdiction to enter into the
question of improper reception, refusal or
rejection of any vote, or the reception of
any vote which is void by reference to the
election result of the returned candidate
under Section 100(1)(d)(iii), as also as to
the result of the election of any other
candidate by reference to Section 97 of the
Act and enters into scrutiny of the votes
polled, followed by recount, consistently
with its findings on the validity or
invalidity of the votes, it cannot refuse to
give effect to the result of its findings as to
the validity or invalidity of the votes for
the purpose of finding out true result of
recount though the actual finding as to
validity or otherwise of the votes by
reference to number may be at variance
with the pleadings. In short, the pleadings
and proof in the matter of recount have
relevant for the purpose of determining the
question of jurisdiction to permit or not to
permit recount. Once the jurisdiction to
order recount is found to have been rightly
exercised, thereafter it is the truth as
revealed by the result of recounting that
has to be given effect to."

12. He, therefore, submitted that
when there was recounting done and that
too on the basis of a valid order of the
Revisional Court which had never been
put to challenge by the respondent no.4,
then the result of the recount alone should
prevail and no further findings on other
issues were required.

13. Learned counsel for the petitioner
further submitted that it mattered little that
as per the order dated 24.1.2019 of the
High Court, the Election Officer had not
been made a party as in Rule 3(2) of the
Uttar Pradesh Panchayat Raj (Settlement
of
Election
Disputes)
Rules,
1994
(hereinafter referred to as 'the 1994
Rules') only such persons whose election
532 INDIAN LAW REPORTS ALLAHABAD SERIES
had been questioned were to be impleaded
as parties. The unsuccessful candidates
had also to be arrayed as respondents in
the election petition. As learned counsel
for the petitioner heavily relied upon Rule
3(2) of the 1994 Rules, the same is being
reproduced here as under:-

3. Election Petition. - (2) The
person whose election is questioned and
where
the
petition
claims
that
the
petitioner or any other candidates shall be
declared elected in place of such person,
every unsuccessful candidate shall be
made a respondent to the application.

14. Learned counsel further relied
upon 2 decisions of the Supreme Court
reported in 2002 (3) SCC 521 (Michael B.
Fernandes vs. C.K. Jaffer Sharief and
Others) and AIR 1982 SC 983 (Jyoti
Basu and others v. Debi Ghosal and
others) and submitted that only relevant
parties had to be arrayed in the election
petition. Learned counsel for the petitioner
submitted that even though the nonimpleadment, despite an assurance in the
High Court, was something which had to
be decried, but on that basis the Revisional
Court
could
not
have
allowed
the
Revision.

15. Learned counsel appearing for
the respondent no. 4, however, submitted
that when there was a specific remand
made by the Revisional Court by its order
dated 31.5.2018 then the grounds on the
basis of which the remand was made ought
to have been addressed and the Prescribed
Authority could not have traveled beyond
the remand order.

16. Learned Standing Counsel
adopted the arguments made by the
counsel for the respondent no.4.

17. Having heard the learned counsel
for the petitioner, the learned counsel for
the respondent no. 4 and the learned
Standing Counsel, I am of the view that
when there was no allegation with regard
to outside votes being included by the
counting
authorities
and
the
only
allegation was with regard to wrong
counting of votes cast in favour of the
petitioner then a re-count was the only
method by which the Prescribed Authority
could have found out as to whether the
counting was done properly.

18. In the instance case, when the
recounting had been done and it was found
that 988 votes were cast in favour of the
petitioner, which number was greater than
the votes which were cast in favour of the
respondent no. 4 then no further findings
with regard to the other issues were
required. Finding with regard to votes
which had been cast in favour of the
petitioner had put to rest the controversy
and returning of findings with regard to
other controversies would have been an
exercise in futility.

19. So far as the question of
impleading the Election Officer was
concerned
I
hold
that
when
the
requirement of Rule 3(2) of the 1994
Rules was not there then it was not
essential to implead the Election Officer at
all. However, the petitioner in the writ
petition ought to have been more cautious
in giving statements before the High
Court. The practice of giving statements
before the High Court and not following
them is decried.

20. Under such circumstances, I find
that the Revisional Courts order dated
23.10.2019 passed by the Additional
District Judge Room No. 4, Amroha,
1 All. Smt. Rajani Bala Rastogi Vs. Sanjay Kumar Gupta
533
District - Amroha in Panchayat Raj
Revision No. 1 of 2019 (Zeenat Fatma vs.
Irshad Fatma and others) cannot be
sustained in the eyes of law and thus is set
aside. The writ petition is allowed.

21. The petitioner shall now, in view of
the order dated 24.4.2019 passed by the
Prescribed Authority in the Election Petition,
shall be treated as a Pradhan of Gram Panchayat
Fanderi, Tehsil Dhanaura, District- Amroha.
----------
(2020)1ILR 533

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.12.2019

BEFORE
THE HON'BLE NEERAJ TIWARI, J.

Matters Under Article 227 No. 8303 of 2019

Smt. Rajani Bala Rastogi ...Petitioner
Versus
Sanjay Kumar Gupta ...Respondent

Counsel for the Petitioner:
Sri Bhanu Bhushan Jauhari, Sri Rishi
Bhushan Jauhari

Counsel for the Respondent:
Sri Lallan Verma

A. Civil Procedure Code (5 of 1908), O.41,
R.27 - Additional evidence in Revision -
application under Order 41 Rule 27 for
bringing additional evidence should be
decided at the time of final hearing of
Revision
-
taking
a
view
on
the
application
before
hearing
of
the
Revision, inappropriate.

Petitioner-revisionist filed Application under
Order 41 Rule 27 of CPC for producing
additional evidence, which was decided prior to
finally deciding the Revision - Held - it should
have been heard and decided at the time of
final hearing of Revision (Para 10 & 11)
Matter Under Article 227 allowed. (E-5)

List of cases cited: -

1. St. of Raj Vs T.N. Sahani & Ors (2001) 10
SCC 619

2. Smt. Sandal (Deceased) & anr Vs. Smt.
Hamida & Ors 2018 (3) ADJ 415

3. Basayya I. Mathad Vs Rudrayya S. Mathad &
ors 2008 (71) ALR 178

(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Heard learned counsel for the
petitioner and Sri Lallan Verma, learned
counsel for the respondent.

2. By way of present petition,
petitioner is assailing the order dated
11.09.2019 passed in S.C.C. Revision No.
1 of 2018 (Smt. Rajani Bala Rastogi Vs.
Sanjay Kumar Gupta).

3. Learned counsel for the petitioner
submitted that petitioner has filed an
application under Order 41 Rule 27 of
CPC for production of additional evidence
in Appellate Court which was rejected by
the Revisional Court vide order dated
11.09.2019. Apart from many other
grounds, he has submitted that this
application can only be decided at the time
of final hearing of the Revision and not
before that by a separate order. In support
of his contention, he has placed reliance
upon the judgment of Apex Court passed
in the matter of State of Rajasthan Vs.
T.N. Sahani and others, (2001) 10 SCC
619 decided on 12.10.2000 and also
judgment of this Court passed in the
matter of Smt. Sandal (Deceased) and
another Vs. Smt. Hamida and others,
2018 (3) ADJ 415 decided on 04.09.2017
and submitted that in the light of