# Sabiha Khatoon v. Presiding Auth./Up- Ziladhikari, Sant Kabir Nagar & Ors

- **Citation:** (2024) 1 ILRA 850
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-11
- **Case number:** Writ-C No. 44323 of 2023
- **Bench:** Rohit Ranjan Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sabiha-khatoon-v-presiding-auth-up-ziladhikari-sant-kabir-nagar-ors-51386
- **Pages:** 11

## Headnote

Civil Law - U.P. Panchayat Raj Act,
1947 - Section 12-C - U.P. Panchayat
Raj (Settlement of Election Disputes)
Rules, 1994 - Rule 3 - Petitioner elected
Gram
Pradhan
on
21.04.2021,
result
declared on 02.05.2021, securing 524 votes
against respondent No.2 Ferzana's 522 -
Respondent
No.2
challenged
election
alleging that though 1868 votes polled, only
1819 counted, leaving 49 votes unaccounted
- Case set up by Returned Candidate is that
election petition lacks pleading to effect that
grounds to be taken in election petition
warranting interference by Election Tribunal
is not there, pleading in stricto sensu as to
non inclusion of 49 votes in counting would
materially
affect
result
of
Returned
Candidate
-
Emphasized
that
election
petition under Section 12-C of Act, 1947
must contain concise St.ment of material
facts, akin to Section 83 of Representation of
People Act - Issue is no more res integra,
settled by Full Bench in Ram Adhar Singh
(relying on Ram Sewak Yadav), holding that
inspection of ballot papers permissible only if
petition discloses specific grounds with
supporting
circumstances
and
authority
prima facie satisfied that such inspection
necessary to decide dispute - Petition
dismissed, directions accordingly. (Para 2, 3,
24, 25)

Writ petition dismissed. (E-13)

List of Cases cited:

## Text

850 INDIAN LAW REPORTS ALLAHABAD SERIES
accordance with law and proceed to decide
the application filed under Section 14 of the
SARFAESI Act,
without
taking
into
consideration any order passed by the
Court of Civil Judge, Senior Division,
Bulandshahar.

44. This writ petition is allowed in the
aforesaid terms. There shall be no order as
to the costs.

45. Urgent photostat-certified copy
of this order, if applied for, should be
readily made available to the parties
upon compliance with the requisite
formalities.
----------
(2024) 1 ILRA 850
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.01.2024

BEFORE

THE HON'BLE ROHIT RANJAN AGARWAL, J.

Writ-C No. 44323 of 2023

Sabiha Khatoon ...Petitioner
Versus
Presiding
Auth./Up-
Ziladhikari,
Sant
Kabir Nagar & Ors. ...Respondents

Counsel for the Petitioner:
Sri Pramod Kumar Singh, Sri K.R. Singh

Counsel for the Respondents:
C.S.C., Sri Akhtar Ali, Sri Prashant Gupta, Sri
Ravindra Prakash Srivastava, Sri V.K. Singh(Sr.
Advocate)

Civil Law - U.P. Panchayat Raj Act,
1947 - Section 12-C - U.P. Panchayat
Raj (Settlement of Election Disputes)
Rules, 1994 - Rule 3 - Petitioner elected
Gram
Pradhan
on
21.04.2021,
result
declared on 02.05.2021, securing 524 votes
against respondent No.2 Ferzana's 522 -
Respondent
No.2
challenged
election
alleging that though 1868 votes polled, only
1819 counted, leaving 49 votes unaccounted
- Case set up by Returned Candidate is that
election petition lacks pleading to effect that
grounds to be taken in election petition
warranting interference by Election Tribunal
is not there, pleading in stricto sensu as to
non inclusion of 49 votes in counting would
materially
affect
result
of
Returned
Candidate
-
Emphasized
that
election
petition under Section 12-C of Act, 1947
must contain concise St.ment of material
facts, akin to Section 83 of Representation of
People Act - Issue is no more res integra,
settled by Full Bench in Ram Adhar Singh
(relying on Ram Sewak Yadav), holding that
inspection of ballot papers permissible only if
petition discloses specific grounds with
supporting
circumstances
and
authority
prima facie satisfied that such inspection
necessary to decide dispute - Petition
dismissed, directions accordingly. (Para 2, 3,
24, 25)

Writ petition dismissed. (E-13)

List of Cases cited:

1. Ram Adhar Singh Vs The District Judge,
Ghazipur & ors. 1985 AWC 246 (FB), (Paras 17
to 19)

2. Ram Sewak Yadav Vs Hussain Kamil Kidwai,
AIR 1964 SC 1249, (Para 6 to 8)

3. Ram Abhilakh Tewari Vs Election Tribunal,
Gonda AIR 1958 Allahabad 663

4.
L.R.Shivaramagowda & ors. Vs T.M.
Chandrashekar (Dead) by Lrs. & ors. (1999) 1
SCC 666

5. Jyoti Basu & ors. Vs Debi Ghosal & ors. AIR
1982 SC 983, (Para 8)

6. Vijay Singh Vs Rajdeep Singh & anr., Writ-C
No.23105 of 2023, decided on 02.08.2023

7. Om Prakash Upadhyay Vs St. of U.P. & ors.
2008 (105) RD 58

8. Godawari Vs Zubaida & ors. 2020 (11) ADJ 233
1 All. Sabiha Khatoon Vs. Presiding Auth./Up- Ziladhikari, Sant Kabir Nagar & Ors.
851
(Delivered by Hon'ble Rohit Ranjan
Agarwal, J.)

1. This writ petition filed under
Article 226 of the Constitution of India
questions the order passed by Prescribed
Authority/Sub
Divisional
Officer,
Mehdawal, District Sant Kabir Nagar dated
16.12.2023 passed in Election Petition
No.02145 of 2021 directing for recounting
of votes.

2. The petitioner was elected Pradhan
of Gram Panchayat Mehdupar, Block
Satha, District Sant Kabir Nagar in the
election held on 21.04.2021 and result
being declared on 02.05.2021, securing 524
votes while respondent No.2 Ferzana lost
election securing 522 votes.

3. Respondent No.2 questioned the
election of the petitioner by moving
application under Section 12-C of U.P.
Panchayat Raj Act, 1947 (hereinafter called
as "Act of 1947") before respondent No.1
on the ground that total number of votes
polled was 1868 while counting had taken
place for only 1819 votes and 49 votes
were not counted.

4. In the election petition it was
averred that in Booth No.1, which consists
of Ward Nos.1, 2 and 3, total number of
votes polled were 384 while only 383 votes
have been counted. In Booth No.2, which
consists of Ward Nos.4, 5 and 6, total
number of votes polled were 429 and only
381 votes were counted. Similarly, in Booth
No.3, which consists of Ward Nos.7, 8 & 9,
total number of votes polled were 366 and
366 votes were counted while in Booth
No.4, which consists of Ward Nos.10, 11 &
12, total number of votes polled were 363
and the same number was counted, while
Booth No.5, which consisted of Ward
Nos.13, 14 & 15, total number of votes
polled were 326 and the same number was
counted.

5. The allegation is in regard to 49
votes, which remained uncounted, though
polled in two Booths being Booth Nos.1 &
2, for which prayer for recounting has been
made.

6. Paragraphs No.7, 8, 9 and 10 of the
application of the election petitioner spells
out the grounds for filing the same before
Prescribed
Authority.
The
Prescribed
Authority on 07.04.2022 framed following
issues :

"1. क्या िाद पत्र में िजणगि अधिकर्थनों के
आिार पर याची िाम पिंचायि / न्याय पिंचायि
मेंहदूपार विकास खडर् सािंर्था के िाम पिंचायि
मेंहदूपार
के
धनिागचन
पररणाम
कदनािंक
02.05.2021 को शून्य एििं अिैि मानकर याची को
यर्थाविधि धनिागधचि घोवषि होने का अधिकार है?

2. क्या िाद पत्र में िजणगि अधिकर्थनों के
आिार पर उपर िजणगि िाम पिंचायि का
पुनमगिर्णना करा पाने का अधिकारी है?

3. क्या िाद पत्र में िजणगि कर्थनों के आिार
पर याची ककसी अन्य अनुिोष को प्राि करने का
अधिकारी है?

4. क्या याधचका िाद आिश्यक शुलक 1994
के रूलस के अनुसार चुनाि याधचका में जमा
प्रधििूधि राधश कम ि अपयागि है?

5. क्या याधचका िाद पोषणीय है?

6. क्या याधचका िाद में पक्षकारों के
कुसिंयोजन का दोष है?

7. क्या याधचका िाद धनयमानुसार प्रमाजणि
है?

8. क्या याधचका िाद र्ाईम बार्ग है?
852 INDIAN LAW REPORTS ALLAHABAD SERIES

9. क्या दािा िादीर्ण अधिविलजम्बि है?

10. क्या िादीर्ण अन्य अनुिोष पाने का
अधिकारी है?"

7. The Prescribed Authority on
01.02.2023 directed for recounting of
votes. The said order was challenged before
this Court through Writ-C No.5784 of
2023, and the said order was set aside by
this Court on 21.02.2023 and the matter
was remitted back to pass order afresh. Post
remand, the Prescribed Authority had
proceeded to decide Issue Nos.2 to 10,
framed earlier. Issue No.2 is in regard to
whether any ground exist in the election
petition for recounting of votes.

8. By an interim order, the Prescribed
Authority on 16.12.2023 while deciding
issue No.2 with other issues except issue
No.1, directed for recounting of votes.
Aggrieved by the said order, the petitioner
(Returned Candidate) has filed the present
writ petition.

9. Sri K.R.Singh, learned counsel for
the petitioner submitted that election
petitioner had not made material disclosure
in the election petition alleging that those
49 votes, which were removed at the time
of counting were polled in her favour and
not counting them would materially affect
the result of the election. According to him,
Section 12-C(1)(b)(ii) of Act of 1947
would only be attracted once the pleadings
are clear in the election petition. According
to him, the election petitioner has not
alleged the number of valid votes she has
received. The only pleading made is that
the election petitioner has received majority
of valid votes. As the objections were
raised at the time of counting by election
petitioner, twice recounting was done but
the result remained the same.

10. He then contended that the
Prescribed Authority while deciding issue
No.2 failed to consider the allegations in
the election petition and the evidence led in
support of the petition. According to him,
once 49 ballot papers were removed from
counting, then those ballot papers could not
be recovered in recounting process. The
order passed for recounting, according to
him, is unsustainable in the eyes of law.

11. Learned counsel then submitted
that the procedure for filing election
petition under Section 12-C of Act of 1947
has been given in Rule 3 of U.P. Panchayat
Raj (Settlement of Election Disputes)
Rules, 1994 (hereinafter called as "Rules
of 1994"). According to him, Rule 3(1)
provides for filing of election petition
specifying the ground or grounds on which
election is questioned and shall contain a
summary of circumstances alleged to
justify the election being questioned on
such ground. According to him, Section 12C(1) of Act of 1947 has to be read with
Rule 3 of Rules of 1994 where a disclosure
as to the grounds on which the election
petition has been filed is to be made by the
election petitioner disclosing the material
facts containing summary of circumstances.

12. According to petitioner's counsel,
the provision and procedure for filing and
conducting election petition under Act of
1947 is the same as given under Section 83
of Representation of Peoples Act, 1951.
Reliance has been placed upon decision of
Full Bench of this Court rendered in Ram
Adhar Singh vs. The District Judge,
Ghazipur & others 1985 AWC 246 (FB).
Relevant paras 17, 18 and 19 of the
judgments are extracted hereasunder :

"17. Learned Counsel appearing for
the Petitioner submitted that whereas
1 All. Sabiha Khatoon Vs. Presiding Auth./Up- Ziladhikari, Sant Kabir Nagar & Ors.
853
Section 83 of the Representation of the
Peoples Act requires that the election
petition presented under that Act must give
out a concise statement of material facts on
which the Petitioner relies, the requirement
under Rub 24 of the Rules framed under the
U.P. Panchayat Kaj Act, in this regard is
that the election petition presented under
Section 12-C of the Act is merely to contain
the grounds together with the summary of
circumstances alleged to justify the election
being questioned on such grounds. He
urged that there is a substantial difference
between requiring a Petitioner to make a
concise statement of material facts on
which he seeks to rely and in requiring a
person to specify in the petition the
summary of circumstances providing a
justification for questioning the election on
a particular ground. Moreover, Section 12C(5) of the U.P. Panchayat Raj Act
countenances framing of a rule permitting
summary hearing and disposal of an
election petition under Section 12-C(1) of
the Act, the State Government has, vide
Clause (2) of proviso (1) to Rule 25(1)
stipulated that it shall not be necessary for
the Sub-Divisional Officer, (the authority
competent to deal with an election petition
under Section 12-C of the Act) to record the
evidence in full and that he may maintain
only a memorandum of evidence produced
by the parties before him. This, according
to the learned Counsel, indicates that the
requirement in the U.P. Panchayat Raj Act
with regard to contents of an election
petition and the procedure for its trial is
very much less formal and stringent than
the corresponding provision concerning
pleadings and procedure for trial of an
election petition under the Representation
of the Peoples Act, He, therefore, contends
that it would, under the circumstances, not
be apt to fetter the discretion of an
authority hearing an election petition under
the U.P. Panchayat Raj Act with regard to
perusal and inspection of ballot papers by
the same strict conditions for the purpose
laid down by the Supreme Court in relation
to cases arising under the Representation
of the People Act.

18. We are unable to accept the
submission made by the learned Counsel.
As already explained the Supreme Court
has,
in
cases
arising
under
the
Representation of the People Act, spelt out
the condition that all the courts dealing
with an election petition should not
exercise its discretion to permit inspection
of ballot papers unless the petition contains
an adequate statement of material facts on
which the Petitioner relies in support of his
case (viz. that the petition meets the
requirements of Section 83(1) of the
Representation of the People Act regarding
contents of an election petition) for the
reason that under the Act, it is a matter of
utmost importance to maintain the secrecy
of ballot which is sacrosanct and which
should not be lightly allowed to be violated
on vague and indefinite allegations. This
reason applies equally to an election held
under the U.P. Panchayat Raj Act which
too cherishes secrecy of ballot to the same
extent. Viewed from this angle, it becomes
evident that the amplitude and purpose of
the requirement of Section 83(1)(a) of the
Representation of the People Act that the
election petition must contain a concise
statements of material facts on which the
Petitioner relies and that of Rule 24 of the
Rules framed under the U.P. Panchayat Raj
Act to the effect that an application under
Section 12-C(1) of the Act must specify the
grounds on which the election of the
Respondent is being questioned as also a
summary of circumstances alleged to justify
the election being questioned on such
grounds, is the same, viz. that the court or
the authority dealing with an election
854 INDIAN LAW REPORTS ALLAHABAD SERIES
petition under the respective enactments,
should not countenance or proceed to
investigate into any ground taken in the
election petition unless the ground as well as
the material in support of such ground have
been adequately disclosed in the petition.
Neither of the two enactments countenances
the court or the authority to permit the
election Petitioner to make or indulge into
making of a roving enquiry with a view to fish
out material for declaring an election void;
and it is this weighty factor which impels the
court or the authority not to look into or
permit inspection of ballot papers unless the
foundation for the purpose has been properly
laid in the petition by specifying the ground
and the material or the circumstances in
support of such ground. Viewed in this light,
the provisions contained in the U.P.
Panchayat Raj Rules permitting the summary
hearing of an application under Section 12C(1) of the Act and authorising the SubDivisional Officer to, instead of recording
evidence
in
full,
merely
maintain
a
memorandum thereof, has no bearing on the
question regarding circumstances in which
the ballot papers can either be looked into or
permitted to be inspected in proceedings
under Section 12-C of the U.P. Panchayat Raj
Act.

19. 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.

It, therefore, follows that in the
absence of any specification with regard to
the ground on which the election of the
Respondent is being questioned together
with summary of the circumstances alleged
to justify the election being questioned on I
such ground, it is not open to the authority
dealing with an application under Section
12-C of the U.P. Panchayat Raj Act, either
to look into or direct inspection of ballot
papers merely on the ground that it feels
that it would be in the interest of justice to
look into or permit inspection of the ballot
papers. In the context, such satisfaction has
necessarily to be based on specific
averments made in and the materials
indicated in the election petition which
could, prima facie, satisfy the authority
about the existence of the ground on which
the election is sought, to be questioned."

13. Reliance has also been placed
upon decision of Constitution Bench of
Apex Court rendered in Ram Sewak
Yadav vs. Hussain Kamil Kidwai, AIR
1964 SC 1249. Relevant paras 6, 7 & 8 are
extracted hereasunder :

"6. An election petition must contain a
concise statement of the material facts on
which the petitioner relies in support of his
case. If such material facts are set out the
Tribunal has undoubtedly the power to
direct
discovery
and
inspection
of
1 All. Sabiha Khatoon Vs. Presiding Auth./Up- Ziladhikari, Sant Kabir Nagar & Ors.
855
documents with which a civil court is
invested under the Code of Civil Procedure
when trying a suit. But the power which the
civil court may exercise in the trial of suits
is confined to the narrow limits of O. 11,
Code of Civil Procedure. Inspection of
documents under O. 11, Code of Civil
Procedure may be ordered under rule 15, 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 O. 11 Code of Civil 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. That 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 O.
11 Code of Civil Procedure may be
exercised,
subject
to
the
statutory
restrictions about the secrecy of the ballot
paper prescribed by 94 and 128(1).

7. An order for inspection may not be
granted as a matter of course : having
regard to the insistence upon the secrecy of
the ballot papers, the Court would be
justified in granting an order for inspection
provided two conditions are fulfilled :

(i) that the petition for setting aside an
election contains an adequate statement of
the material facts on which the petitioner
relies in support of his case; and

(ii) the Tribunal is prima facie
satisfied that in order to decide the dispute
and to do complete justice between parties
inspection of the ballot papers is necessary.

But an order for inspection of ballot
papers cannot be granted to support vague
pleas made in the petition not supported by
material facts or to fish out evidence to
support such pleas. The case of the
petitioner must be set out with precision
supported by averments of material facts.
To establish a case so pleaded an order for
inspection may undoubtedly, if the interests
of justice require, be granted. But a more
allegation that the petitioner suspects or
believes that there has been an improper
reception, refusal or rejection of votes will
not be sufficient to support an order for
inspection.
8. It must be remembered that the rules
framed under the Representation of the
People Act, 1951, set up an elaborate
machinery relating to the stage of counting
of votes by the Returning Officer, and
provide ample opportunity to the candidate
who has contested the election or his
agents to remain present and to keep an eye
on any improper action which may be taken
by the Returning Officer. Rule 53 provides
for the admission only certain classes of
persons to the place fixed for counting and
amongst
such
persons
are
expressly
included candidates, their election agents
and counting agents, who may watch the
counting subject to the directions which the
returning officer may give. Rule 55 deals
with the procedure for scrutiny and opening
of ballot boxes. The Returning Officer has
to satisfy himself that "none of the ballot
boxes has in fact been tampered with" and
before any ballot box is opened at the
counting table, the counting agents present
at that table are allowed to inspect the seal
affixed thereon and to satisfy themselves
that it is intact. If the Returning Officer is
satisfied that any ballot box has in fact
been tampered with, he is prohibited from
856 INDIAN LAW REPORTS ALLAHABAD SERIES
counting the ballot papers contained in that
box and he has to follow the procedure
prescribed in that behalf in s. 58. Clause
(1) of rule 56 provides for the scrutiny and
rejection of ballot papers. Clause (2) sets
out detailed provisions relating to cases in
which the Returning Officer shall reject a
ballot paper. By clause (3) it is provided
that before rejecting any ballot paper under
sub-rule (2), the returning officer shall
allow each counting agent present a
reasonable opportunity to inspect such
ballot papers. The Returning Officer has
then to record on every ballot paper which
he rejects the grounds of rejection. All the
rejected ballot papers are required to be
put in one bundle. Rule 57 deals with the
counting of votes. Each ballot paper which
is not rejected is counted as one valid vote.
The Returning Officer has to make to
entries in a result sheet in Form 20 after
counting of the ballot papers contained in
all the ballot boxes used at the polling
stations. Clause (3) of rule 57 enacts an
elaborate set of rules about the entries to
be made in respect of the counting and
scrutiny of the ballot papers. By rule 60
counting has to be continuous, and rule
63(1) provides that after the completion of
the counting, the Returning Officer shall
record in the result sheet in Form 20 the
total number of votes polled by each
candidate and announce the result. By
clause (2) of rule 63 it is provided that after
such announcement is made, a candidate or
his election agent may apply in writing to
the Returning Officer for a re-count of all
or any of the ballot papers already counted
stating the grounds on which he demands
such re-count. The Returning Officer must
decide the application and record his
reasons in support of his decision and he
may allow the application in whole or in
part or may reject it if it appears to him to
be frivolous or unreasonable. After the total
number of votes polled by each candidate
has been announced, the Returning Officer
must complete and sign the result sheet in
Form 20 and after such form is completed
no application for re-count may be
entertained. Under rule 64 the declaration
of the result of the election is made by
declaring elected a candidate who has
secured the largest number of valid votes,
and the Returning Officer is required to
complete and certify the return of election."

14. Reliance has also been placed
upon Division Bench decision of this Court
in Ram Abhilakh Tewari vs. Election
Tribunal, Gonda AIR 1958 Allahabad
663 and decision of Apex Court rendered in
L.R.Shivaramagowda & Ors. vs. T.M.
Chandrashekar (Dead) by Lrs. & Ors.
(1999) 1 SCC 666 wherein the Court had
held that pleadings should be specific by
the election petitioner pleading that result
of election insofar as it concerned the
returned candidate had been materially
affected by the alleged non-compliance of
the provisions of the Act or Rules.

15. Reliance has also been placed
upon decision of Apex Court in case of
Jyoti Basu and others vs. Debi Ghosal
and others AIR 1982 SC 983. Relevant
para 8 of the judgment is extracted hereas
under :

"8. A right to elect, fundamental
though it is to democracy, is, anomalously
enough, neither a fundamental right nor a
Common Law Right. It is pure and simple,
a statutory right. So is the right to be
elected. So is the right to dispute an
election. Outside of statute, there is no right
to elect, no right to be elected and no right
to dispute an election. Statutory creations
they are, and therefore, subject to statutory
limitation. An Election petition is not an
1 All. Sabiha Khatoon Vs. Presiding Auth./Up- Ziladhikari, Sant Kabir Nagar & Ors.
857
action at Common Law, nor in equity. It is
a statutory proceeding to which neither the
Common Law nor the principles of Equity
apply but only those rules which the
statute makes and applies. It is a special
jurisdiction, and a special jurisdiction
has always to be exercised in accordance
With the statutory creating it. Concepts
familiar to Common Law and Equity must
remain strangers to Election Law unless
statutorily embodied. A Court has no
right to resort to them on considerations
of alleged policy because policy in such
matters as those, relating to the trial of
election disputes, is what the statute lays
down. In the trial of election disputes,
Court is put in a straight jacket. Thus the
entire election process commencing from
the issuance of the notification calling
upon a constituency to elect a member or
members right up to the final resolution
of the dispute, if any, concerning the
election
is
regulated
by
the
Representation of the People Act, 1951,
different stages of the process being dealt
with by different provisions of the Act.
There can be no election to Parliament or
the State Legislature except as provided
by the Representation of the People Act
1951 and again, no such election may be
questioned except in the manner provided
by the Representation of the People Act.
So the Representation of the People Act
has been held to be a complete and self
contained code within which must be
found any rights claimed in relation to an
election or an election dispute. We are
concerned with an election dispute. The
question is who are parties to an election
dispute and who may be impleaded as
parties to an election petition. We have
already referred to the Scheme of the Act.
We have noticed the necessity to rid
ourselves of notions based on Common
Law or Equity. We see that we must seek an
answer to the question within the four
corners of the statute. What does the Act
say ?"

16. Lastly counsel has placed reliance
upon decision of coordinate Bench of this
Court rendered in Writ-C No.23105 of
2023 (Vijay Singh vs. Rajdeep Singh &
Anr.) decided on 02.08.2023 wherein this
Court, relying upon earlier decisions, have
held that recounting should not be made
lightly or as a matter of course as the same
touches upon the secrecy of the ballot
papers and introduces the element of
uncertainties.

17. Replying to the arguments of the
petitioner's counsel, Sri V.K.Singh, Senior
Advocate, submitted that the pleadings of
election petitioner is specific and in para 7
it has been averred that in Booth No.1, out
of 384 votes polled, only 383 votes have
been counted, while in Booth No.2, out of
total 429 votes polled, only 381 votes have
been counted. Thus, 49 votes, which were
cast, have not been counted and the
Returned Candidate has been declared
winner by 2 (two) votes. He further
contended that in para 9, there is a specific
pleading that election petitioner had got
more than 522 votes but by not counting 49
votes, which were polled, the election
result have been declared which has
materially affected the result.

18. He further contended that the
grounds for filing the election petition has
been given in para 10 of the election
petition and concise summary as per Rule 3
of Rules of 1994 has been set out therein.
In sub-clause (vi) of para 10 of the election
petition, wherein it has been specifically
mentioned that out of total 1868 votes
polled, only 1819 votes have been counted.
858 INDIAN LAW REPORTS ALLAHABAD SERIES

19. He then contended that under
Right
to
Information
Act,
election
petitioner had gathered the information on
20.01.2022 in regard to total number of
votes polled and votes counted, which had
been the basis for filing of election petition
and the Prescribed Authority, relying upon
the documentary evidence, so submitted,
had proceeded to pass the order for
recounting, which needs no interference by
this Court.

20. Pursuant to the order dated
22.12.2023, learned Standing Counsel has
placed before the Court the records
received by him. According to the records,
Form 36, as maintained, disclosed that total
number of votes polled in Booth-1 are 384
while in Booth-2 are 429. Similarly total
number of votes polled in Booth Nos.3, 4
& 5 are 366, 363 and 326 respectively.

21. I have heard respective counsels
for the parties and perused the material on
record.

22. The Returned Candidate before
this Court had earlier questioned the
legality of the order passed by Prescribed
Authority deciding election petition of
Returned Candidate and directing for
recounting of votes on 01.02.2023, through
Writ-C No.5784 of 2023, which was
allowed on 21.02.2023 and the matter was
remitted to the Prescribed Authority for
deciding the matter afresh.

23. It is post-remand that the
Prescribed Authority proceeded to examine
the witnesses of the parties and considered
the documentary evidence on record and
decided issue Nos.2 to 10. Issue No.2 was
as to whether on the basis of pleading made
in the election petition and the ground
taken therein, recounting can be ordered?
The Prescribed Authority, relying upon the
documentary evidence, which was in the
form of information given to the election
petitioner under Right to Information Act
on 20.01.2022 that the Prescribed Authority
found that out of total 1868 votes polled,
only 1819 votes were counted and 49 votes
were left from the counting, which he
ordered for recounting.

24. The case set up by the Returned
Candidate is that election petition lacks
pleading to the effect that grounds to be
taken in the election petition warranting
interference by the Election Tribunal is not
there and the pleading in stricto sensu as to
the non inclusion of 49 votes in the
counting would materially affect the result
of the Returned Candidate.

25. Emphasis have been made to
show that election petition filed under
Section 12-C of the Act of 1947 should
contain the concise statement of material
facts on which the election petitioner relies
as
is
there
under
Section
83
of
Representation of Peoples Act. The matter
is no more res integra and the Full Bench of
this Court in Ram Adhar Singh (supra)
relying upon decision of Apex Court in
case of Ram Sewak Yadav (supra) had
clearly held that hearing an election
petition, the authority under the Act, can be
permitted to look into or to direct
inspection of ballot papers, two conditions
must co-exist;-

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

(ii) the authority is, prima facie,
satisfied on the basis of materials produced
1 All. Sabiha Khatoon Vs. Presiding Auth./Up- Ziladhikari, Sant Kabir Nagar & Ors.
859
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.

26. The decisions relied by Returned
Candidate in case of Ram Abhilakh
Tewari (supra), L.R. Shivaramagowda &
Ors. (supra) and Jyoti Basu & Ors.
(supra) only emphasises the fact that the
language used under the provisions of
Representation of Peoples Act and the rules
framed thereunder is that the election
petitioner has to plead that result of election
insofar as it concerned the returned
candidate had been materially affected by
alleged non-compliance of the provisions
of the Act or Rules.

27. Likewise, the decision of
coordinate Bench of this Court, which has
relied upon the various decisions of this
Court as well as the Apex Court, had found
that order of recounting should not be made
lightly or as a matter of course as the same
touches upon the secrecy of the ballot
papers and introduces the element of
uncertainties.

28. In the instant case, the election
petitioner had challenged the election of
Returned Candidate on the ground of non
inclusion of 49 votes, which were cast and
had remained uncounted. The information,
which had been sought by the election
petitioner under Right to Information Act
and placed as a documentary evidence
before
Prescribed
Authority
dated
20.01.2022 reveals that total number of
votes polled was 1868 and total number of
votes counted are only 1819. No reason has
been assigned as to why 49 votes remained
uncounted, which were cast.
29. This Court on 22.12.2023 had directed
the Sanding Counsel to place the entire
records before this Court pursuant to which
the records were placed at the time of
hearing on 08.01.2024. From perusal of the
records, it was clear that total number of
votes polled are 1868, which is reflected
from From 36. The break up of which are;
votes polled in Booth -1 are 384 and in
Booth -2 are 429. Similarly, votes polled in
Booths - 3, 4 & 5 are 366, 363 & 326
respectively. On adding the entire votes
polled in these five booths, it comes to
1868 votes while counting has been done of
only 1819 votes.

30. Perusal of paras 7, 8, 9 and 10 of
election
petition
clearly
reveals
that
election petitioner has questioned the
election of Returned Candidate disclosing
the entire factum of vote polled in each of
the booths and the vote counted. Moreover,
in para 9 of the election petition it has been
averred that election petitioner had got
more than 522 votes but without taking into
consideration 49 votes in counting, the
Returned Candidate had been declared
elected
by
two
votes. The
election
petitioner has set out the grounds and the
concise summary of facts as per Rule 3 of
Rules of 1994 read along with Section 12C(1) of Act of 1947 complying the
requirements of the election petition.

31. The co-ordinate Bench of this
Court in Om Prakash Upadhyay vs. State
of U.P. & others 2008 (105) RD 58 in
somewhat similar situation after taking note
of the judgment of Constitution Bench of
Apex Court rendered in Ram Sewak
Yadav (supra) proceeded to recounting of
votes.

32. In an identical situation, this
Court in Godawari vs. Zubaida and Ors.
860 INDIAN LAW REPORTS ALLAHABAD SERIES
2020 (11) ADJ 233 ordered for recounting
wherein total number of votes polled were
1139 while the counting was done of 1129
votes.

33. The argument raised by the
Returned Candidate as to the pleading of
material facts in the election petition, which
would materially affect the election of
Returned Candidate, finds place in paras 9
and 10 and reliance placed upon various
decisions does not help his cause as it is not
in dispute that 1868 votes were polled and
only 1819 votes were counted leaving 49
votes and the victory margin is of only 2
(two) votes. Neither the decision rendered
in Ram Sewak Yadav (supra) by the
Constitution Bench helps the case of the
petitioner (Returned Candidate) nor the
judgment rendered by the Full Bench in
case of Ram Adhar Singh (supra).

34. In fact, the Full Bench had laid
down the conditions, upon the satisfaction
of which the authority can proceed to grant
relief when the material is produced before
it and there is a ground for believing the
existence of such ground and for doing
complete justice between the parties.

35. In the instant case, total number of
votes polled are 1868 while votes counted
are only 1819. The pleadings are specific as
to the result of the election has been
materially affected by gross failure to
comply with the provisions of Act of 1947
and the rules framed thereunder.

36. Considering the facts and
circumstances of the case and perusing the
material on record as well as records
summoned by the Court, I find that no case
for interference is made out in the order
dated 16.12.2023 passed by respondent
No.1 directing for recounting of votes as
total number of votes polled are 1868 while
only 1819 votes have been counted.

37. Writ petition fails and is hereby
dismissed. Respondent No.1 is directed to
fix the date for recounting of votes within
one week from the date of production of a
certified copy of this order.
----------
(2024) 1 ILRA 860
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.01.2024

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ-C No. 1006638 of 2014

The Asst. G.M., Alld. Bank Zonal Office &
Anr. ...Petitioners
Versus
The Presiding Officer Central Govt. Indus.
Tribunal & Anr. ...Respondents

Counsel for the Petitioners:
Gopal Kumar Srivastava

Counsel for the Respondents:
akhil Pratap Singh, Anurag Srivastava

A. Labour Law - Validity of Undertaking in
Employment Transfer - Petitioner bank
challenged
the
Tribunal's
award
dated
19.06.2014 granting halting allowance to the
respondent-workman,
arguing
that
an
undertaking dated 22.01.2001 waived such
claims - Held, the undertaking, in which the
workman agreed not to claim halting allowance
while working at Gonda post-transfer to
Lucknow, remained valid despite his reversion
from Special Assistant to Clerk-cum-Cashier, as
the reversion did not materially alter the
undertaking's conditions, and the workman
never sought to withdraw it. (Paras 3, 7, 13, 14,
15)

B.
Halting
Allowance
-
Proof
of
Entitlement - Respondent-workman claimed
halting
allowance
for
the
period
from