# Khursheed Ahmad v. Addl. District Judge, Court No. 1 Azamgarh & Ors

- **Citation:** (2023) 7 ILRA 200
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-06-06
- **Case number:** Writ C No. 17356 of 2023
- **Bench:** Saurabh Shyam Shamshery
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/khursheed-ahmad-v-addl-district-judge-court-no-1-azamgarh-ors-50404
- **Pages:** 7

## Headnote

A. Local Body Law - UP Panchayat
Raj Act, 1947 - Section 12-C -
Election of Pradhan - Recounting of
votes - Proforma Form 36 bearing
details of number of ballot paper and
votes cast, could not be placed -
Except an assertion and affidavits of
other
candidates,
the
electionpetitioner
could
not
place
any
material regarding his claim that
number of total votes cast were 1170
-
Effect
-
Held,
the
Revisional
Authority, without summoning record
or
taking
an
explanation
from
Election Officer, has rushed through
the
matter
and
without
any
reasonable basis or finding arrived to
a conclusion that there was an error
in number of valid votes and passed
order
for
recounting
-
Order
of
recounting
cannot
be
passed
on
assumption rather there must be a
ground
based
on
material
and
evidence that a case of recounting is
made out, however, such basis is
missing in the impugned order - Smt.
Sajida's case relied upon. (Para 18,
19 and 21)

Writ petition disposed of. (E-1)

List of Cases cited:

## Text

200 INDIAN LAW REPORTS ALLAHABAD SERIES
Consolidation Officer, who has prepared
the scheme or confirmed it or modified or
re-partition made and when it is objected to
by the affected party, has to consider the
objections and, as a part thereof by
necessary implication, has to assign reasons
and the record must contain reasons and he
is not free to take arbitrary decision and
assigning reasons are sine quo non for
application of the mind.

13. In view of above, and considering
the over all facts and circumstances of the
case,
the
impugned
orders
dated
09.01.2019 passed by the Settlement
Officer,
Consolidation,
Unnao
and
21.10.2019 passed by the Deputy Director
of Consolidation, Unnao are not sustainable
in the eyes of law and liable to be quashed
with a direction to reconsider the appeal
filed by the respondent no.3 and pass a
fresh order after affording opportunity to
the parties in accordance with law.

14. The writ petition is, partly
allowed. The impugned orders dated
09.01.2019 and 21.10.2019 are hereby
quashed. The matter is remitted back to the
Settlement Officer, Consolidation, Unnao
to decide the Appeal No.66 of 2019; Rama
Kant Vs. Tarawati and Others, a fresh after
affording opportunity to the parties in
accordance with law expeditiously. No
order as costs.
----------
(2023) 7 ILRA 200
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.06.2023

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Writ C No. 17356 of 2023
Khursheed Ahmad ...Petitioner
Versus
Addl. District Judge, Court No. 1 Azamgarh
& Ors. ...Respondents

Counsel for the Petitioner:
Sri Ashok Khare (Sr. Adv.), Sri Shantanu
Khare

Counsel for the Respondents:
Sri Anand Bhaskar Srivastava, Standing
Counsel, Sri Prabhakar Awasthi

A. Local Body Law - UP Panchayat
Raj Act, 1947 - Section 12-C -
Election of Pradhan - Recounting of
votes - Proforma Form 36 bearing
details of number of ballot paper and
votes cast, could not be placed -
Except an assertion and affidavits of
other
candidates,
the
electionpetitioner
could
not
place
any
material regarding his claim that
number of total votes cast were 1170
-
Effect
-
Held,
the
Revisional
Authority, without summoning record
or
taking
an
explanation
from
Election Officer, has rushed through
the
matter
and
without
any
reasonable basis or finding arrived to
a conclusion that there was an error
in number of valid votes and passed
order
for
recounting
-
Order
of
recounting
cannot
be
passed
on
assumption rather there must be a
ground
based
on
material
and
evidence that a case of recounting is
made out, however, such basis is
missing in the impugned order - Smt.
Sajida's case relied upon. (Para 18,
19 and 21)

Writ petition disposed of. (E-1)

List of Cases cited:

1. Ram Adhar Singh Vs District Judge, Ghazipur
& ors.; 1985 SCC OnLine All 246

2. Smt. Sajida Vs Sub-Divisional Magistrate,
Kairana & ors.; 2023 SCC OnLine All 11
7 All. Khursheed Ahmad Vs. Addl. District Judge, Court No. 1 Azamgarh & Ors.
201
(Delivered by Hon'ble Saurabh Shyam
Shamshery, J.)

CORAM : HON'BLE SAURABH
SHYAM SHAMSHERY,J.

1. The present case is arising out of an
election dispute with regard to an election
for the post of Pradhan of Gram Panchayat
Jogiyabeer, Kshetra Panchayat Azmatgarh,
Tehsil Sagri, District Azamgarh conducted
on 19.04.2021.

2. It is not in dispute that petitioner
before this Court is the returned candidate
whereas Respondent-3 remained runner up
in election and margin of victory was only
one vote. Remaining private respondents
have also participated in the election.

3. Respondent-3 (election-petitioner)
has approached the Prescribed Authority
under Section 12-C of U.P. Panchayat Raj
Act, 1947 (hereinafter referred to as "Act,
1947) by way of filing an Election Petition
No. 6727 of 2021 (Computerized Case No.
T202115060706727) with prayer for an
order for recounting and to declare election
petitioner
to
be
returned
candidate.
Paragraphs No. 3 and 4 of the election
petition, being relevant, are reproduced as
under:

"3- यह कक कदिांक 19.04.2021 को मतदाि
सम्पधि हुआ। मतदाि के समय प्रकतयाची प्रथम पक्ष के द्वािा मौके पि
ि िहिे वािे व्यकक्तयों एवं बाहि िहिे वािे व्यकक्त्यों के भी वोट डाि
कदया गया। चुिाव सम्पधि किािे के किये कुि तीि बूथ बिाये गये
थे, बूथ नं01 पर1 ता 4 वार्ड मे 313, बूथ नं० 2 पर 5 से 8
वार्ड में 376 एवं बूथ नं0 3 पर 9से 13 वार्ड में 481 मत
पर्े यानी कुल 1170 मत पडे।

4- यह कक किनांक 02.05.2021 को
मतगणना करायी गयी। मतगणना मे हम याची को 255,
प्रकतयाची प्रथम को 256, प्रकतयाची नं0 3 को 11 मत 9
को 113मत, 4 को 112 मत, 5 को 02, 6 को 51, 7 को
17, 8 को 001, 09 को 68, 10 को 137, 11 की 72
एवं 12 को 01 मत प्राप्त किखाया गया है। 71 मत अवैध
रहा। कुल 1167 मत मतगणना मे किखाये गये। 3 मतपत्र
गायब कर किया गया, जो मत पत्र गायब ककये गये थे हम
याची के पक्ष में थे यकि वे गायब नही ककये जाते तो कनकित ही
हम याची कनवाडकचत होते।"

(Emphasis supplied)

4. It is evident from above referred
averments that the dispute is, whether total
number of votes cast were 1167 or 1170?

5. Returned candidate has filed a
reply
to
election
petition
wherein
averments
made
in
election
petition
including the averments referred above
were denied and in Additional Statement it
was specifically stated that no ballot paper
was removed and entire counting was
undertaken in a peaceful and fair manner.

6. Prescribed Authority on the basis of
pleadings, framed following issues:

"1- क्या प्रस्तुत चुिाव याकचका की सुिवाई का
क्षेत्राकिकाि इस धयायािय को प्राप्त है?

2- क्या प्रस्तुत चुिाव याकचका में मतगर्िा के समक्ष
याची के पक्ष में 255 मत व कवपक्षी को 256 मतपत्र कमिे?

3- क्या मतगर्िा में कुि मतों की सं0 1170 थी।
जब कक मतगर्िा के समय चुिाव अकिकािी द्वािा 1167 मत पत्र
की गर्िा की गयी तथा तीि मत पत्रों की गर्िा िहीं की गयी। तो
याकचका में इसका प्रभाव?

4- क्या याची व उसके मतगर्िा एजेण्ट द्वािा
कशकायत की गयी िेककि उिकी बातों को अिसुिा कि कदया गया?

5- क्या पीठासीि अकिकािी चुिाव अकिकािी द्वािा
घोकित परिर्ाम में ओवि िाईकटंग कि 1168 के स्थाि पि 1167
मत पत्र कदखाया गया है?

6- क्या पीठासीि अकिकािी द्वािा तीि मत पत्रों को
वैि या अवैि घोकित ककया गया है?
202 INDIAN LAW REPORTS ALLAHABAD SERIES

7- क्या याची पुिः मतगर्िा किािे का अकिकािी
है?"

7. Prescribed Authority on basis of
evidence
of
parties
and
documents
provided by the office of Election Officer
decided relevant issue Nos. 3, 4, 5, 6 and 7
and rejected the Election Petition by order
dated 03.10.2022. Relevant part of the
order is reproduced as under:

"वाद कबधदु सं0 3, 4, 5, 6, 7, एक दूसिे से
सम्बकधित है। अतः इिका किस्तािर् एक साथ ककया जाता है। ग्राम
प्रिाि पद हेतु डािे गये मतपत्रों की सं0 1167 है। कजसमें
कवकिमाधय मतों की कुि सं0 1096 है। प्रकतक्षेकपत (खारिज / िद्द)
मतों की सं0 71 है। इस प्रकाि प्रकतयाची प्रथम पक्ष खुशीद अहमद
1 मत से कवजयी घोकित हुये। प्रिाि पद हेतु कुि 13 उम्मीदवाि थे
कजिके प्राप्त वैि मतो का योग 1096 होता है। याची व उसके
एजेण्ट द्वािा मतगर्िों के सम्बधि में कशकायत के बाबत कोई प्रमार्
पत्र प्रस्तुत िहीं ककया गया इसके कवपिीत उसका यह कथि कक
पुिमसतगर्िा की बात अिसुिी कि दी गयी, जो कक कवश्वसिीय िहीं
है। पीठासीि अकिकािी (चुिाव अकिकािी) द्वािा घोकित परिर्ाम के
बावत ओवििाइकटंग कििे के बावत कोई साक्ष्य िहीं प्रस्तुत ककया
गया। तीन मतों को अवैध या वैध घोकित करने के बारे में भी
कोई ठोस साक्ष्य नही प्रस्तुत ककया गया। याची द्वारा अपनी
याकचका में प्रधान पि हेतु सम्पन्न कनवाडचन को अवैध या
अकनयकमत घोकित कर पुनः चुनाव कराये जाने व पुनमडतगणना
कराने िोनो की मॉग की गयी है, याची की तरफ से कोई भी
कवश्वस्नीय अकभलेखीय साक्ष्य प्रस्तुत न ककये जाने की िशा में
याची के कथनों में बल प्रतीत नही होता है। पुनः मतगणना
कराने हेतु कोई औकचत्य प्रतीत नहीं होता है। अतः वाद कबधदु
सं0 3, 4, 5, 6, 7 िकािात्मक किकर्सत ककया जाता है।"

(Emphasis supplied)

8. Election petitioner being aggrieved
by aforesaid order preferred Revision
bearing No. 161 of 2022 and the same has
been allowed by impugned order dated
06.05.2023 whereby above referred order
dated 03.10.2022 was set aside and a
direction was passed for recounting of
votes within 30 days.

9. Sri Ashok Khare, learned Senior
Advocate assisted by Sri Shantanu Khare,
learned counsel for petitioner, submitted
that
order
of
recounting
passed
by
Revisional Authority was illegal being
passed without any legally sustainable
grounds. Learned Senior Advocate further
submitted that in case Revisional Authority
was not satisfied or has come to conclusion
that certain relevant material/ documents
were
not
considered
by
Prescribed
Authority, the correct approach was to
remand the matter to the Prescribed
Authority to decide afresh.

10. Learned Senior Advocate also
submitted that Revisional Authority has
passed impugned order mainly on two
grounds.
Firstly
that
State
Election
Commission has not provided proforma
Form '36' and secondly there was an
overwriting on number of proforma Form
'46' as well as on number of total votes
cast, i.e., '1167' and that there were
affidavits
filed
on
behalf
of
other
candidates that number of total votes cast
were 1170 and not 1167.

11. Learned Senior Advocate lastly
submitted that reasons given by Revisional
Authority to pass order for recounting are
not based on any material except that there
were overwriting. No specific finding was
given that total number of votes cast were
1170 and not 1167. The alleged overwriting
has not made any material effect on
election result since there is no dispute that
number '1167' is the correct number of
total votes cast in favour of candidates
including number of votes declared invalid
as mentioned in the said form. According to
Deputy
District
Election
Officer,
Azamgarh, Form 36 was not available,
therefore, it was not a case of withholding
any document and that said Form has
7 All. Khursheed Ahmad Vs. Addl. District Judge, Court No. 1 Azamgarh & Ors.
203
details of number of ballot papers only,
therefore, it has no bearing on merit of
election
dispute
since
other
relevant
proforma forms were available. He has
placed reliance on a Full Bench judgment
of this Court in Ram Adhar Singh vs.
District Judge, Ghazipur and others
1985 SCC OnLine All 246, Para 18 of
which is reproduced hereinafter:

"18. Applying the principle with
regard to inspection of ballot papers
enunciated by the Supreme Court in cases
arising under the Representation of the
People Act to an election petition dealt with
under the provisions of the U.P. Panchayat
Raj Act, there is no escape from the
conclusion that before an authority hearing
the election petition under the said Act can
be permitted to look into or to direct
inspection of the ballot papers, following
two conditions must co-exist:

(1) that the petition for setting
aside an election contains the grounds on
which the election of the respondent is
being questioned as also the summary of
the circumstances alleged to justify the
election being questioned on such ground;
and

(2) the authority is, prima facie,
satisfied on the basis of the materials
produced before it that there is ground for
believing the existence of such ground and
that making of such an inspection is
imperatively necessary for deciding the
dispute and for doing complete justice
between the parties."

12. Sri Prabhakar Awasthi, learned
counsel
appearing
for
Respondent-3
(Election-Petitioner),
has
vehemently
opposed
the
above
submissions.
He
submitted that Deputy District Election
Officer has not provided a copy of
proforma Form 36 and as such a material
document has been suppressed. This is the
document where details of number of votes
cast
are
mentioned.
The
Prescribed
Authority has not dealt with relevant issues
and material on record and has not taken
note of specific averment made in the
Election Petition, therefore, the Revisional
Authority was right in interfering with said
order and further on basis of reasons, as
referred earlier, the Revisional Authority
has rightly passed order for recounting and
there is no illegality in the impugned order.

13. Sri Anand Bhaskar Srivastava,
learned Standing Counsel appearing for
State-Respondents, has not denied that
copy of proforma Form 36 was not
provided to the Prescribed Authority since
it was not available on record and all other
relevant documents were provided.

14. Heard learned counsel for parties
and perused the material available on
record.

15. Before dealing with rival
submissions few paragraphs of a judgment
passed by this Court in Smt. Sajida vs.
Sub-Divisional
Magistrate,
Kairana
District Shamli and others, 2023 SCC
OnLine All
11
being
relevant
are
mentioned hereinafter:

"12. It is well settled that it is
important to maintain secrecy of ballot
which is sacrosanct and it should not be
allowed to be violated on frivolous, vague
and indefinite allegations and before
inspection is allowed, the allegations made
against elected candidate must be clear
and specific and must be supported by
adequate statements of material facts (See,
Bhabhi vs. Sheo Govind and others, AIR
1975 SC 2217 and Ram Sewak Yadav vs.
Hussain Kamil Kidwai and others, AIR
204 INDIAN LAW REPORTS ALLAHABAD SERIES
1964 SC 1249). The discretion conferred
on Courts should be not exercised in such
a way so as to enable election petitioner to
indulge in a roving enquiry in order to
fish out materials for declaring election to
be void.

13. Election petitioner has made
a assertion in election petition that vote
given in her favour were placed in the
bundle of votes given in favour of returned
candidate and during counting when
election petitioner came to know that
number of votes given in her favour are 990
and in favour of elected candidate are 993
and number of rejected votes are 157, she
raised an objection and prayed for
recounting but Election Officer has not
paid attention. A further assertion has been
made that bundle of 157 rejected votes
included some valid votes also."

"16. It is settled that order of
recounting cannot be passed only for the
sake of it and on the basis of vague
allegation
without
specifying
any
particular irregularity in counting as well
as how it would affect election result
materially. In the present case in the body
of election petition vague assertions have
been made regarding illegal rejection of
valid votes which are not substantiated
either in examination of election petitioner
or otherwise on the basis of record
available. Parties have to take proper
pleadings by adducing evidence that by
particular irregularity of illegality result
of election has been materially affected.
There is no dispute to the settled legal
proposition that as a rule relief not
founded in pleadings should not be
granted [See, Arikala Narasa Reddy
(supra)]." (Emphasis supplied)

16. In the factual background as
referred above, there is no dispute that
petitioner has won the election of Gram
Pradhan by only one vote. Election petitioner
has taken a ground in election petition that
total number of votes cast were 1170 and not
1167. It is also not in dispute that according
to proforma Form 46 number of total valid
votes were 1096 whereas number of rejected
votes were 71 which comes to total votes cast
to be 1167.

17. One of the grounds taken by
Revisional Authority that there was an
overwriting on number of proforma Form
'46' as well as an overwriting on number of
total votes cast, i.e., 1167, however both
overwriting would have no consequence,
since it is not in dispute that number of votes
mentioned in said proforma Form with
addition of number of votes rejected, would
come to 1167 and overwriting on number of
Form would also have no bearing since it was
not the case of election petitioner that
document was not genuine.

18. The issue which appears to be
disturbing is the letter dated 09.09.2022 from
the office of District Election Officer that
proforma Form 36, i.e., a document where
details of number of ballot paper and votes
cast, are mentioned was not available in the
office. This is the form where there are details
of number of ballot papers received by
Election Officer as well as number of ballot
papers remained unused or rejected due to
any reason and number of votes cast in ballot
box, were mentioned. Issue in the present
case, whether number of votes cast were
1170 or 1167 could be reverified by said
proforma Form 36, however, admittedly
Election Officer has not placed it on record
on the ground that it was not available. The
election petitioner has also not placed any
material regarding his claim that number of
total votes cast were 1170 except an assertion
and affidavits of other candidates, who have
participated in election.
7 All. Khursheed Ahmad Vs. Addl. District Judge, Court No. 1 Azamgarh & Ors.
205

19. In the present case both
authorities, i.e., Prescribed Authority and
Revisional Authority have rushed through
the
matter.
Prescribed Authority
has
summarily
rejected
election
petition
without taking note of relevant materials
and aspect of case, i.e., to verify from
records that the total number of votes cast
were 1170 or 1167, however, said exercise
was not undertaken or it appears that it
could not be undertaken since proforma
Form 36 was not available.

20. The Prescribed Authority was
within
its
jurisdiction
to
summon
Election Officer with record, however,
such
exercise
was
not
undertaken.
Similarly, Revisional Authority though
noted errors committed by Prescribed
Authority, i.e., it has not taken note of
allegation of difference of total number of
votes cast, however, it has erroneously
taken note of some aspects of the case
which may not be relevant such as
overwriting on proforma Form 46 or on
number of total votes cast. As already
referred above, there is no calculation
error, therefore, that overwriting may not
have any material impact on result of
election. However, a document which
definitely required to be placed on record
is proforma Form 36 of election in
question.

21.
 The
Revisional Authority
without summoning record or taking an
explanation from Election Officer has
rushed through the matter and without
any reasonable basis or finding arrived to
a conclusion that there was an error in
number of valid votes and passed order
for recounting. As held in Smt. Sajida
(supra) order of recounting cannot be
passed on assumption rather there must
be a ground based on material and
evidence that a case of recounting is
made out, however, such basis is missing
in the impugned order.

22.

The
outcome
of
above
discussion is that both authorities have
rushed through the matter and has taken a
decision without relevant document, i.e.,
proforma Form '36' being on record and
in these circumstances, the Revisional
Authority ought to have remanded the
election petition back to the Prescribed
Authority for fresh consideration with a
direction that records including proforma
Form 36 be summoned from the office of
District Election Officer, however, since
same has not been followed, therefore, an
error has been erupted in the impugned
order.

23. In view of above, direction
passed
in
impugned
order
dated
06.05.2023 for recounting is set aside and
operative part of order is modified to the
extent that order dated 03.10.2022 passed
by Prescribed Authority is set aside and
the election petition is remanded back to
the Prescribed Authority to decide afresh
with direction that Prescribed Authority
shall pass appropriate order to summon
records including copy of proforma Form
36 of election in question from the office
of District Election Officer, Azamgarh
and if necessary may summon concerned
officer to give evidence in terms of Rule
4 of U.P. Panchayat Raj (Settlement of
Election Disputes) Rules, 1994. The
Prescribed Authority shall pass afresh
order expeditiously, preferably within a
period of eight weeks from today in
accordance with law.

24. The writ petition is accordingly
disposed of with above observations and
directions.
----------
206 INDIAN LAW REPORTS ALLAHABAD SERIES
(2023) 7 ILRA 206
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.05.2023

BEFORE

THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Jail Appeal No. 86 of 2019

Arvind ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Rakesh Kumar Gupta (A/C)

Counsel for the Opposite Party:
A.G.A.

Criminal Law - U.P. Gangsters and AntiSocial Activities (Prevention) Act, 1986 -
Section 3(1) - Appeal against conviction -
Rigorous imprisonment - Code of Criminal
Procedure, 1973 - Section 313 - As per
prosecution story, on basis of information
of informant and approved gang chart, on
06.11.2014 F.I.R was lodged against
appellant
along
with
co-accused
-
Allegation that accused appellants have a
organized gang, for personal gain of gang,
extracts illegal money by committing
offences
like
gang
rape,
murder,
kidnapping and deletion of evidence of
offence - Trial court framed charges -
Contention by appellant that witnesses of
prosecution are police personnel, their
testimony was not reliable - No eyewitness in case - Sentence imposed was
harsh , deserved to be modified to period
already undergone. (Para 4, 12, 17)

Held, as per custody certificate, issued by
Jail Superintendent, appellant has actually
languishing in jail including remission for
period of 9 years, 4 months and 12 days,
about a decade on that date however, on
date of judgment he was in incarceration
about 9 years and 7 months - Appellant
was at verge of completing his term of
sentence - He was in jail for long period
but no adverse conduct reported - There
are fair chances of reformation of accused
and to join mainstream of social milieu
and to contribute towards developments
of
society
-
In
these
circumstance,
reduction of sentence to period of already
undergone, will serve ends of justice.
(Para 31)

Appeal partly allowed. (E-13)

List of Cases cited:

1. St. of Raj. Vs Banwari Lal & anr., Criminal
Appeal No. Nill of 2022 (SLP arising out of Diary
No. 21596 of 2020)

2. Satish Kumar Janyanti Lal Dabgar Vs St. of
Guj. (2015) 7 SCC 359

3. Alister Anthony Pareira Vs St. of Mah., (2012)
SCC 648

4. Mohd. Giasuddin Vs St. of A.P., AIR 1977 SC
1926

5. Deo Narain Mandal Vs St. of U.P., (2004) 7
SCC 257

6. Ravada Sasikala Vs St. of A.P., AIR 2017 SC
1166t

7. Jameel Vs St. of UP, (2010) 12 SCC 532

8. Guru Basavraj Vs St. of Karn., (2012) 8 SCC
734

9. Sumer Singh Vs Surajbhan Singh, (2014) 7
SCC 323

10. St. of Pun. Vs Bawa Singh, (2015) 3 SCC
441

11. Raj Bala Vs St. of Har., (2016) 1 SCC 463

(Delivered by Hon'ble Mohd. Azhar
Husain Idrisi, J.)

1. Heard Sri Rakesh Kumar Gupta,
learned Amicus Curiae for the appellant