# Rookame Alam v. State of U.P. & Ors

- **Citation:** (2023) 8 ILRA 1509
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-28
- **Case number:** Writ-C No. 20980 of 2023
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rookame-alam-v-state-of-u-p-ors-50554
- **Pages:** 8

## Headnote

Held - Order of recount of votes passed by the
Prescribed Authority/Sub-Divisional Magistrate
without recording evidence or deciding framed
issues - violates Rule 4 of U.P. Panchayat Raj
(Settlement of Election Disputes) Rules, 1994 -
Recounting cannot be ordered on vague and
bald allegations - Secrecy of ballot is sacrosanct
- Procedure akin to trial under CPC must be
followed - Impugned order quashed with
direction to decide the election petition afresh
within two months.

Key Case Laws Referred:

## Text

8 All. Rookame Alam Vs. State of U.P. & Ors.
1509
renewal,
to
examine
whether
the
amendments are such that renewal has to be
granted.

27.

From
the
above
judicial
precedents, it comes out that the Registrar
is not a silent spectator. At least he has to
see and examine as to whether the meeting
of the society had been validly held in
accordance with the provisions of the Act
and the rules of the Society. He shall see
that the meeting was validly convened, due
notice was given, quorum was completed
and the amendment was passed by the
required majority or not.

28. From the above discussion, it has
been established that the petitioner no.2 had
no right to sue. She had no right to
introduce an amendment in the bye-laws.
She is no longer Medical Superintendent of
the Hospital and she had been suspended
and terminated in accordance with law
which has been confirmed by this Court. If
it is accepted that she is a life member of
the society even then she had no right to
move
the
amendment
in
bye-laws,
therefore, the proposed amendment was
rightly declined by the Registrar. She has
no power or right to sue, institute and
maintain this petition.

29. On over all discussion, this Court
is of the view that the petition is totally
misconceived and is liable to be dismissed.

30. Accordingly, this writ petition is
dismissed with costs.
----------
(2023) 8 ILRA 1509
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.07.2023

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Writ-C No. 20980 of 2023

Rookame Alam ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Zafar Abbas, Sri Imtiaz Husain

Counsel for the Respondents:
C.S.C., Sri Pradeep Kumar Rai, Sri Prajyot
Rai, Sri Rakesh Kumar Verma

Held - Order of recount of votes passed by the
Prescribed Authority/Sub-Divisional Magistrate
without recording evidence or deciding framed
issues - violates Rule 4 of U.P. Panchayat Raj
(Settlement of Election Disputes) Rules, 1994 -
Recounting cannot be ordered on vague and
bald allegations - Secrecy of ballot is sacrosanct
- Procedure akin to trial under CPC must be
followed - Impugned order quashed with
direction to decide the election petition afresh
within two months.

Key Case Laws Referred:

1. Bhabhi Vs Sheo Govind AIR 1975 SC 2217

2. Ram Sewak Yadav Vs Hussain Kamil Kidwai
AIR 1964 SC 1249

3. Ram Adhar Singh Vs District Judge, Ghazipur
1985 UPLBEC 317

4. Dhani Prasad Vs SDO 1974 All LJ 371

5. Mohd. Mustafa Vs U.P. Ziladhikari 2007 (7)
ADJ 1

6. Abrar Vs St. of U.P. 2004 (5) AWC 4088

7. Dharmawati Vs St. of U.P. & ors. Writ-C No.
14662 of 2023

8. Smt. Maneeta Devi Vs St. of U.P. Writ-C No.
10442 of 2022
1510 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. Heard Mr. Zafar Abbas and Mr.
Imtiaz Husain, learned counsel for the
petitioner and Mr. Pradeep Kumar Rai,
learned counsel for the respondent no.3 and
Mr. Aseem Mukherjee, learned Standing
Counsel for the State-respondents.

2. This writ petition has been filed by
the petitioner with a prayer to quash the
order dated 20.06.2023 passed by the
Prescribed
Authority/Sub-Divisional
Magistrate, Bilari in Election Petition
No.T202113540205476 of 2021 (Javed vs.
Rookame Alam and others), under Sections
13-C of Panchayat Raj Act, 1947 whereby
it was ordered for recounting of votes in the
election held in the year 2021 of Gram
Panchayat in Gram Lalpur Gangwari,
Block Kundarki, Tehsil-Bilari, Moradabad
and further prayer to direct the respondent
no.2 not to take any further step for
recounting in pursuance of order dated
20.06.2023.

Brief facts;

3. Brief facts of the case are that:-

i) The petitioner and respondent
no.3; Javed contested the elections for the
post of Pradhan in gram panchayat Lalpur
Gangwari.
Polling
took
place
on
26.04.2021 whereby after counting, the
petitioner
was
declared
as
winning
candidate with the margin of 04 votes from
the runner up candidate; Javed.

ii) The respondent no.3, who was
defeated by margin of 04 votes, preferred
election petition under Section 12(c) of
Uttar Pradesh Panchayat Raj Act, 19471
(hereinafter referred to as ''the Act, 1947'')
on 01.07.2021 stating therein that at the
time of counting, Dr. Minzar s/o Abrar,
Bhura s/o Yusuf and Alam s/o Nanhe
colluded with the petitioner and seven
ballots votes cast in favour of respondent
no.3; Javed were declared invalid and one
vote was kept in other category. Despite
objection being raised by respondent no.3;
Javed
before
Assistant
Returning
Officer/Returning Officer, nothing was
done.

iii) In the aforesaid election
petition, the notices were issued to the
other parties and on 19.05.2023, the said
election
petition
was
dismissed
by
Prescribed
Authority/Sub
Divisional
Magistrate
for
want
of
prosecution.
Thereafter, on 26.05.2022, the respondent
no.3 filed recall application and by order
dated
01.07.2022,
the
order
dated
19.05.2022 was recalled and the matter was
fixed for 21.07.2022 directing the petitioner
(respondent in election petition) to file
written statement before the court below.

iv) The petitioner has filed his
written statement on 14.12.2022 to which
rejoinder has been filed on 06.02.2023 by
respondent no.3, thereafter, date was fixed
for framing of issues. On 31.05.2022, the
S.D.M. Bilari has framed nine issues and
closed the opportunity for producing the
evidence and fixed the matter for final
hearing on 07.06.2023.

v)
subsequently,
without
providing an opportunity to the parties to
appear
for
the
statement
and
cross
examination, the impugned order dated
20.06.2023 has been passed directing for
recounting of votes. Hence the present writ
petition has been filed.

Preliminary objection;
8 All. Rookame Alam Vs. State of U.P. & Ors.
1511

4. Learned counsel for the respondent
no.3
has
raised
preliminary
objection
regarding maintainability of writ petition on
the ground that against the order dated
20.06.2023 directing for recounting of votes,
the petitioner had statutory remedy of filing a
revision under Section 12-C (6) of the Act,
1947, therefore the writ petition is not
maintainable. In support of his contention, he
has relied upon the judgement of the Coordinate Bench of this Court in the case of
Smt. Maneeta Devi vs. State of U.P. and 8
others decided on 13.04.2022 passed in WritC No.10442 of 2022.

5.

Answering
the
aforesaid
preliminary objection, learned counsel for
the petitioner, placing reliance upon the
judgment of this Court in the case of Mohd.
Mustafa vs. U.P. Ziladhikari, Phoolpur,
Azamgarh and others reported in 2007 (7)
ADJ 1, submits that the writ petition
against the interlocutory order of recount of
votes passed by the Presiding Officer, is
maintainable.

6. Considering the preliminary
objection, this Court has carefully perused
the judgements of the Division Bench of
this Court in the cases of Mohd. Mustafa
vs. U.P. Ziladhikari, Phoolpur, Azamgarh
and others reported in 2007 (7) ADJ 1, and
Abrar vs. State of U.P. and others reported
in 2004 (5) AWC 4088 and found that the
facts of the present case are similar,
therefore, preliminary objection is refused
by holding that no revision lies against an
order of recount of votes passed by the
Prescribed Authority, therefore, the present
writ petition is maintainable.

Submission on merits;

7. Learned counsel for the petitioner
submits that the impugned order for
recounting has been challenged on the
ground that every election petition has to be
tried by the Sub Divisional Officer
following the procedure applicable under
the Code of Civil Procedure, 1908
(hereinafter referred as "C.P.C."2). The
Presiding Officer proceeded in a hurried
manner to decide the election petition
without adopting the legal procedure,
which has to be followed.

8. The Prescribed Authority has framed
nine issues, however, without taking any
evidence, has closed the opportunity of
providing evidence and fixed the case for
final hearing. Though issues have been
framed, but no findings with respect to the
same has been recorded and that to without
providing opportunity to the parties to appear
for the statements and cross-examinations,
which is against the provision of the C.P.C.,
which has to be followed while deciding the
election petition.

9. He further submits that though the
respondent no.3 has taken an objection with
respect to collusion of the counting agents,
declaring 7 ballot votes cast in favour of
the respondent no.3 as invalid, but no
findings in this regard has been recorded
while passing the impugned order. Only
vague and false allegation have been made
in the election petition, there being no
evidence of either oral or documentary in
support thereof.

10. The Prescribed Authority, on the
basis of complaint and evidence adduced
by the petitioner in the election petition
(respondent no.3 herein) has recorded that
there is difference of 4 votes between the
petitioner and respondent no.3 and has
passed the impugned order directing for
recounting, which cannot be sustained in
the eye of law.
1512 INDIAN LAW REPORTS ALLAHABAD SERIES

11. He further submits that impugned
order is ex facie illegal and arbitrary and
based on non-application of mind. SubDivisional
Magistrate
has
committed
manifest error of law by passing order of
recounting of votes particularly when no
details or any particular with regard to
allegations as levelled in plaint has been
provided
by
election
petitioner.
The
assertion made in election petition was
absolutely vague, baseless, bald and
scandalous and lacking material facts and
particulars which are essential for seeking
any relief in election petition. Placing
reliance on the Full Bench judgment of this
Court in the case of Ram Adhar Singh vs.
District Judge and others, reported in 1985
AWC 246, he submits that before an
authority hearing election petition under
Act, 1947 can be permitted to look into or
to direct inspection of ballot papers except
when following two conditions must coexist:-

"(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. Placing reliance upon the
judgment of this Court in the case of
Dharmawati vs. State of U.P. and 13
others decided on 01.05.2023 passed in
Writ-C No.14662 of 2023, learned counsel
for the petitioner submits that the secrecy
of ballot has to be maintained and order of
recount cannot be passed as a matter of
choice of the parties and it requires a very
critical analysis of the material placed and
in
accordance
with
the
procedure
prescribed for deciding election disputes.

13. Learned counsel for the petitioner
further submits that during the proceedings
of election petition filed by the respondent
no.3, nine issues were framed, however, the
order impugned has been passed without
deciding even a single issue. He further
submits that only the averments contained
in the election petition has been dealt with
and no finding has been recorded with
respect to specific averment made in para
8&9 of the election petition.

14. He further submits that there is no
written complaint before the Review
Officer
or
Assistant
Review
Officer
regarding allegation as made against the
recounting agents with respect to collusion
with the petitioner.

15. On the cumulative strength of the
aforesaid submissions, it is submitted by
learned counsel for the petitioner that the
impugned order dated 20.06.2023 for
recounting of votes may be quashed by this
Court.

Submission
on
behalf
of
the
respondents;

16. On the other hand, learned
Standing Counsel as well as learned
counsel for the respondent no.3 has
opposed the submission made by the
learned counsel for the petitioner and
submitted that nine issues have been
framed and after analysing the specific
8 All. Rookame Alam Vs. State of U.P. & Ors.
1513
averments made in para 9 & 10 of the
election petition wherein it was mentioned
that 7 valid votes cast in favour of the
petitioner
were
declared
invalid
in
collusion with the counting agents, i.e. Dr.
Minzar s/o Abrar, Bhura s/o Yusuf and
Alam s/o Nanhe, the impugned order of
recounting has been passed, hence there is
no illegality in the aforesaid order.

17. In support of his contention,
learned counsel for the respondent no.3 has
relied upon the judgments of the Apex
Court in the cases of Pawan Singh vs.
Presiding Officer/S.D.M., Kunda and
others; reported in 2014 SCC OnLine All
15946, Harmaya vs. State of U.P. and
others; reported in 2017 SCC Online All
3332, Athar Hussain vs. Razda Begum
and others; reported in 2017 SCC Online
All 3216 and Amar Chandra vs. State of
U.P. and others; reported in 2019 (1) ADJ
750.

18. He further submits that the
objection as raised by the respondent no.3
was not considered by the Prescribed
Officer and the same was ignored. On the
basis of pleadings and written statement,
five issues were framed on 31.05.2023.
Thus
after
considering
the
aforesaid
pleadings, the impugned order has been
passed. Therefore, no illegality, infirmity or
perversity is found in the impugned order,
hence no interference is required by this
Court.

Observation of the Court;

With the consent of learned
counsel for the parties, this writ petition is
being finally decided at this stage without
calling for a counter affidavit.

19. I have heard learned counsel for
the petitioner and learned Standing Counsel
and perused the records.

20. This Court finds that Rule 4 of the
U.P. Panchayat Raj Act (Settlement of
Election Disputes) Rules, 19943 clearly
provides that subject to the provisions of
the Act and these Rules, every election
petition shall be tried by the Sub Divisional
Officer, as nearly as may be, in accordance
with the procedure applicable under the
Code of Civil Procedure, 1908 for the trial
of suits.

21. In view of the above, the election
petition has to be tried in the same manner
as a civil suit is tried by the civil court, i.e.
to say that apart from the pleadings of the
parties,
issues
have
to
be
framed,
documentary evidence has to be laid,
statements of witnesses have to be
recorded, they have to be cross-examined,
and only thereafter, after recording findings
on all the issues, either separately or
jointly, the election petition can be decided.

22. In the present case, the procedure
prescribed in Rule 4 has been violated and
despite the fact that 9 issues were framed
during the course of the trial of election
petition, none of the said issues has been
decided and, directly, an order of recount of
votes has been passed.

23. It is well settled in catena of
decisions of this Court as well as the Apex
Court that the secrecy of ballot has to be
maintained and order of recount cannot be
passed as a matter of choice of the parties
and it requires a very critical analysis of the
material placed and in accordance with the
procedure prescribed for deciding election
disputes.
1514 INDIAN LAW REPORTS ALLAHABAD SERIES

24. In the judgment of Apex Court
in the case of Bhabhi vs. Sheo Govind
while considering the scope of Section
100 (1)(d), 101, 102, 92 and the conduct
of election Rules, 1963, the Apex Court
has laid down certain guidelines, which
were imperative:-

(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."

25. In the judgement of this Court in
the case of Dhani Prasad vs. SubDivisional Officer, reported in 1974 All LJ
371 while considering the question of
inspection an election petition; under
Section 12-C of the U.P. Panchayat Raj
Act, held that:-

"Once a ballot paper is accepted
by the Returning Officer containing the
valid, vote: in favour of the returned
candidate there is presumption that the
ballot paper contained valid vote. The
Election Tribunal is not entitled to interfere
with the decision of the Returning Officer
unless evidence is produced before it to
show that the Returning Officer failed to
comply with the provisions of Rule 21(m) of
the U.P. Panchayat Raj Act, presumption of
correctness of acceptance or rjection of
ballot paper by the Returning Officer
cannot be questioned unless evidence is
produced that the Tribunal is satisfied that
the Returning Officer failed to comply with,
the provisions of the Act and the Rules in
counting the ballot papers. The Election
Tribunal has no jurisdiction to order
recount or general secutiny of the entire
ballot papers on mere general allegations.
An election petitioner is required to make
out a prima facie case leading evidence
and the Tribunal has to satisfy itself on the
evidence produced before it that a prima
facie case is made out for inspection or
general scrutiny of the ballot papers. In the
absence
of
any
such
evidence
or
satisfaction by the Tribunal no order for
general inspection or scrutiny of the ballot
paper is permissible under law."

26. The Court has relied upon the
earlier decisions of the Supreme Court
reported in the case of AIR 1964 SC 1249:
1964 All LJ 569, Ram Sewak Yadav vs.
Hussain Kamil Kidwai, AIR 1966 SC 773,
8 All. Rookame Alam Vs. State of U.P. & Ors.
1515
Dr. Jagjit Singh vs. Giani Kartar Singh,
(1969) 2 SCC 433: AIR 1970 SC 276,
Jitendra Bahadur Singh vs. Krishna
Bihari, and (1973) 3 SCC 330 : AIR 1973
SC 215, Sumitra Devi v. Shri Sheo
Shanker Prasad Yadav.

27. This issue stands finally settled by
a judgment of Full Bench of this Court in
the case of Ram Adhar Singh vs. District
Judge,
Ghazipur,
reported
in
1985
UPLBEC 317 : 1985 All LJ 615, wherein it
has been held at page 326 of UPLBEC:-

"Before an authority hearing the
election under the said Act can be
permitted to look intoor to direct inspection
of
the
ballot
papers
following
two
conditions must co-exist;

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

(2) the authority is, prima facic,
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 for doing complete justice between
the parties."

28. 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 or 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. The judgments
relied upon by the learned counsel for the
petitioner are clearly distinguishable in the
facts of the present case.

29. To be more specific, this Court
feels, 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 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.

30. In the present case, the Prescribed
Authority/Sub-Divisional Magistrate has
exercised its jurisdiction of recounting only
on the basis of roving inquiry without
substantial ground or evidence on record.
Conclusions arrived by Sub-Divisional
Magistrate are based on vague submissions
and without any substantial material
produced
by
the
election
petitioner
(respondent no.3 herein), therefore, the
order impugned suffers from illegality and
liable to be set aside.
1516 INDIAN LAW REPORTS ALLAHABAD SERIES

31. In view of the above, the
impugned order dated 20.06.2023 passed
by Prescribed Authority is set aside.

32. However, it is directed that the
respondent
no.2,
i.e.
the
Prescribed
Authority may decide the election petition,
after hearing both the parties, in accordance
with the procedure as prescribed under the
relevant Act and Rules, within a period of
two months from the date of production of
certified copy of this order, without
granting unnecessary adjournment to either
of the party.

33. With the aforesaid observations/
directions, the present writ petition is,
accordingly, allowed.

34. Office is directed to give a copy
of this order to learned Chief Standing
Counsel, who shall communicate this order
forthwith to the respondent no.2, i.e.
Prescribed
Authority/
Sub-Divisional
Magistrate, Bilari for compliance.
----------
(2023) 8 ILRA 1516
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.07.2023

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

Writ-C No. 30049 of 2016
With
Writ C No. 30052 of 2016

Dinesh Pal Singh ...Petitioner
Versus
Presiding Officer, Industrial Tribunal, Agra
& Ors. ...Respondents

Counsel for the Petitioner:
Sri Vijay Krishna Agnihotri, Sri Shikhar
Kaushal

Counsel for the Respondents:
C.S.C., Sri Piyush Bhargava

Civil Law - Industrial Disputes Act, 1947 -
Section 4-K & 2-A - Reference -Powers of
Labour
Authorities
-
Held,
as
per
Notification dated 29.08.1990, only the
Deputy
Labour
Commissioner,
Agra
Region was competent to make reference
- Reference made by Assistant Labour
Commissioner
held
to
be
without
jurisdiction - Tribunal rightly dismissed
reference on that ground.
Unfair
Labour
Practices
-
Claim
of
continuous
short-term
engagement
intended to avoid status of permanent
workman - Such plea beyond scope of
reference which was confined to legality
of termination - No material to show
employment
of
multiple
workmen in
identical fashion to attract Entry No.10 of
5th Schedule - Appointment letters clearly
stipulated
automatic
termination
on
specific date - Held, mere temporary
employment
or
artificial
breaks
not
sufficient to prove 'unfair labour practice'
unless collective intent and continuity
established. Precedents - Bombay High
Court
judgment
in
Shankar
Bhimrao
Kadam & ors. Vs Tata Motors Ltd. not
applicable - Distinguished on facts - Also
not binding as Supreme Court dismissed
SLP
keeping
question
of
law
open.
Conclusion - Reference made without
jurisdiction - Even on merits, claim of
unfair labour practices not established -
Petition dismissed.

Held : The reference made under Section 4-K of
the U.P. Industrial Disputes Act, 1947 by the
Assistant Labour Commissioner, who was not
the competent authority as per the Notification
dated
29.08.1990
(only
Deputy
Labour
Commissioner was authorized), was without
jurisdiction
-
Tribunal
rightly
refused
to
adjudicate the dispute. The claim that fixedterm employment was a camouflage to deny
permanent status falls outside the scope of the
reference, which was limited to the legality of
termination. The Labour Court/Tribunal cannot
travel beyond the reference. There was no
sufficient material to prove that unfair labour