# Sanju v. State of U.P. & Ors

- **Citation:** (2023) 12 ILRA 666
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-28
- **Case number:** Writ-C No. 15569 of 2023
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sanju-v-state-of-u-p-ors-49502
- **Pages:** 7

## Headnote

C.S.C., Sri Chandra Bhushan Yadav, Sri
Diwakar Singh

Election
Petition-Elections
of
Gram
Panchayat-petitioner
was
declared
electeddefeated candidate filed an election petition -
Presiding Officer directed recounting-impugnedthere are vague allegations not supported by
any evidence -once final electoral rolls are
published and elections are held -not open to be
challenged by anyone in an election petition on
the ground that the electoral roll was defective
as names of minors or dead persons have been
included-order of recounting cannot be passed
without specifying any particular irregularity in
counting -impugned dated 15.04.2023 illegal-
no justification nor prima facie satisfaction
recorded.

W.P. allowed. (E-9)

List of Cases cited:

## Text

666 INDIAN LAW REPORTS ALLAHABAD SERIES

24. The petition is, accordingly,
dismissed. No order as to costs.
----------
(2023) 12 ILRA 666
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.11.2023

BEFORE

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

Writ-C No. 15569 of 2023

Sanju ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Shailendra Singh, Sri Abhishek Singh

Counsel for the Respondents:
C.S.C., Sri Chandra Bhushan Yadav, Sri
Diwakar Singh

Election
Petition-Elections
of
Gram
Panchayat-petitioner
was
declared
electeddefeated candidate filed an election petition -
Presiding Officer directed recounting-impugnedthere are vague allegations not supported by
any evidence -once final electoral rolls are
published and elections are held -not open to be
challenged by anyone in an election petition on
the ground that the electoral roll was defective
as names of minors or dead persons have been
included-order of recounting cannot be passed
without specifying any particular irregularity in
counting -impugned dated 15.04.2023 illegal-
no justification nor prima facie satisfaction
recorded.

W.P. allowed. (E-9)

List of Cases cited:

1. Mahendra Pal Vs Shri Ram Dass Malanger &
ors., (2002) 3 SCC 457

2. Ram Adhar Singh Vs District Judge, Civil Misc.
Writ Petition No. 11079 of 1983
3. Surendra Singh Vs St. of U.P. & ors., Civil
Misc. Writ Petition No. 3701 of 2011

4. Ram Adhar Singh Vs District Judge, Ghazipur
& ors., 1986 (2) RD 151 (FB)

5. Bhabi Vs Sheo Govind & ors., AIR 1975 SC
2117

(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. List is revised. None appears on
behalf of respondent no. 4. As per office
report dated 25.10.2023, service upon
respondent nos. 5 & 6 is sufficient, but no
one has put in appearance on their behalf
even in the revised call, as also learned
counsel for the respondent no. 4 is not
present. Learned Standing Counsel for the
State is present.

2. On 16.05.2023 following order was
passed by this Court:

"Heard Sri Shailendra Singh
learned counsel for the petitioner and Sri
V.K.Singh, learned senior counsel assisted
by Sri Diwakar Singh, learned counsel for
respondent no.4 and the learned standing
counsel for the respondents.

Present writ petition has been
filed against the order dated 15.4.2023 by
which recounting of votes has been
ordered.

Learned counsel for the petitioner
submits that the petitioner was declared
winning candidate in the election of Gram
Panchayat, Amdariya therefore respondent
no.4 filed an election petition with a prayer
for recounting of votes which is covered
under section 12-C of U.P. Panchayat Raj
Act. In support thereof he relief upon
paragraph nos. 8,9 an 10 of the judgment of
12 All. Sanju Vs. State of U.P. & Ors.
667
this Court in Sushil Kumar vs. State of U.P.
(2019 (144) RD 737). He further submits
that winning of the petitioner by one vote is
not a good ground for passing the
impugned order for recounting.

Rebutting the said submission
learned counsel for the respondent no.4
submits
that
impugned
order
for
recounting has rightly been passed on
the grounds mentioned in paragraphs 10
and 11 of the election petition, which is
annexed as Annexure 1 to the writ
petition.

Matter requires consideration.

Issue notice.

Notices on behalf of respondent
nos. 1,2 and 3 have been accepted by the
office of the learned chief standing counsel.
Sri Diwakar Singh has accepted notice on
behalf of respondent no.4. Let notice be
issued to respondent nos 5 and 6 by
registered post returnable at an early date.
Steps be taken within two weeks.

The respondents are directed to
file counter affidavit within six weeks.
Rejoinder affidavit, if any, be filed within
two weeks thereafter.

List as fresh on 12.7.2023.

In the meantime recounting
may be done as directed by the
impugned order but result shall be kept
in
sealed
cover
with
the
District
Magistrate concerned. The result of the
recounting of votes shall not be declared
till the next date of listing."

3. On 26.10.2023 this Court passed
the following order:

"List revised. None appears on
behalf
of
learned
counsel
for
the
respondents. Learned Standing Counsel is
present.

By the order dated 16.05.2023,
recounting of votes was to be done,
however, the result of recounting of votes
was not to be declared till the next date of
listing.

Learned
Standing
Counsel
submits that recounting of votes has been
done.

Let the result of recounting of
votes, which is in "sealed envelope", be
placed before this Court by 06.11.2023.

Put up as fresh on 06.11.2023."

4. In compliance of the aforesaid
order dated 26.10.2023, a sealed envelop
has been placed and opened before the
Court. Keeping a photocopy of the same,
on the record, the envelop is returned to Sri
Shyam Singh, learned Standing Counsel.

5. Heard Sri Abhishek Singh, learned
Advocate holding brief of Sri Shailendra
Singh, learned counsel for the petitioner,
Sri Shyam Singh, learned Standing Counsel
for the State, and perused the record.

6. The instant writ petition has been
filed by the petitioner with a prayer to
quash an order dated 15.04.2023 passed by
respondent no. 3 vide which an order
directing recounting has been passed.

7. Brief facts of the case are that the
elections of Gram Panchayat Amdariya,
District Ballia were held on 02.05.2021,
wherein the petitioner was declared elected.
The defeated candidate, i.e., respondent no.
668 INDIAN LAW REPORTS ALLAHABAD SERIES
4, namely, Kalawati filed an election
petition mainly on the following grounds
which are in three folds:

(i) Two invalid votes of the
petitioner were treated as valid and,
therefore, she was shown to have secured
668 votes;

(ii) One valid vote of the election
petitioner, i.e., respondent no. 4, namely,
Kalawati was declared invalid and she was
shown to have secured 667 votes and,

(iii) The electoral list was said to
be defective as in the said list, 61 voters
were minor and some names of persons
who have already died, were shown.

8. A written statement was filed by
the petitioner rebutting all allegations as
made in the election petition. After
analysing case of the petitioner, averments
as made by the election petitioner and the
rebuttal as done by the petitioner by filing
written statement, the Presiding Officer
framed six issues and has decided to pass
the order dated 15.04.2023 directing for
recounting, which is under challenge in the
present writ petition.

9. Learned counsel for the petitioner
submits that the court would be justified in
ordering recounting of ballot papers only
where the election petition contains an
adequate statement of material facts on which
the allegations of irregularity or illegality in
counting are found, and if on the basis of
evidence adduced such allegations are prima
facie established, affording a good ground for
believing that there has been a mistake in
counting and if the court trying the petition is
prima facie satisfied then making of such an
order will imperatively be necessary to
decide the dispute and to do complete and
effectual justice between the parties. In
support of his submissions, learned counsel
for the petitioner has relied upon a judgement
of the Supreme Court in the case of
Mahendra Pal v. Shri Ram Dass Malanger
& Ors1.

10. Learned counsel for the petitioner
next contends that an order for inspection of
ballot papers cannot be granted to support
vague pleas, not supported by material facts
or to fish out evidence to support such pleas.
The case must be set out with some
provisions supported by averments of
material facts and mere allegation that there
has been an improper reception, refusal or
rejection of votes will not be sufficient to
support an order for inspection. Reference
has been made in this regard to a judgement
of Full Bench of this Court in the case of
Ram Adhar Singh v. District Judge2.

11. Learned counsel for the petitioner
further submits that allegations which have
been made, must not only be clearly made
but also be proved by cogent evidence and
the narrow margin of votes undoubtedly, is
an important factor to be considered, but the
same would not by itself vitiate the counting
or justify recounting. In support of his
submission, he has placed reliance on a
judgement of this Court in the case of
Surendra Singh v. State of U.P. and
others3.

12. Thus, such an election petition
with vague and indefinite allegations,
without there being any basis to prove the
aforesaid situation, cannot be entertained
and the order directing for recounting is
liable to be aside.

13. It is settled position of law that an
election petition cannot be filed on the
ground of defective electoral list as
12 All. Sanju Vs. State of U.P. & Ors.
669
finalized after the elections have already
been held on the basis of final electoral roll.

14.

Learned
counsel
for
the
respondents, on the other hand, submits
that the entire allegations as made in the
election petition were duly proved and
supported by evidence and the order of
Tribunal consequently does not suffer from
any error of law.

15. I have heard learned counsel for
the parties and perused the record.

16. The position of law regarding the
issue of recounting of votes has been
crystalized in a catena of cases by the
Supreme Court starting from Bhabi Vs.
Sheo Govind and others4, in which, the
Supreme Court held:

"(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 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."

17. A Full Bench of this Court in Ram
Adhar Singh v. District Judge, Ghazipur
and others5, has held that the authorities
while hearing the election petition under the
provision of U.P. Panchayat Raj Act, 1947
can be permitted to look into or can direct the
inspection of the ballot papers only upon the
existence of two conditions, namely;

"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."

18. In the case of Ram Sewak v. H.K.
Kidwai6, the Supreme Court held in
Paragraph No. 7 as follows:

"6. 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
670 INDIAN LAW REPORTS ALLAHABAD SERIES
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 the
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 mere
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."

19. Thus the proposition with respect
to inspection has been repeated in a
catena of decisions of this Court as well
as
Supreme
Court,
namely,
that
inspection
of
ballot
papers
and
counterfoil should be allowed very
sparingly and only when it is absolutely
essential to determine the issue and the
Court should not exercise the power of
directing for recounting in such a way so
as to enable the election petitioner to
indulge in a roving enquiry with a view to
fish out material for declaring the
election to be void.

20. In the present case there are vague
allegations with respect to invalid votes of
the petitioner being treated as valid as the
same has not been supported by any
evidence and there is no basis to show or
prove the aforesaid fact. The other ground
as taken in the present case by the election
petitioner is of one valid vote of election
petitioner being declared invalid which also
has no legs to stand.

21. As regards the third ground in the
election
petition
regarding
defective
electoral role, on the basis of which the
election should be declared void, the same
cannot be challenged in an election
petition.

22. In a Full Bench decision of
Allahabad High Court in the case of
Ghulam Mohiuddin v. Election Tribunal
for Town Area Sakit7, it has been held
that after the electoral rolls have been
finalized, the voting of a person whose
name is on the electoral list, cannot be
challenged as being void on the ground that
he is minor and the same cannot be tried as
an issue by an Election Tribunal in an
election petition. Thus, a person enrolled in
the
electoral
list
by
an
authority
empowered by law to prepare an electoral
list, to include the name, is entitled to cast a
vote unless he is disqualified and the
election petition cannot be entertained on
the ground of defective electoral roll as
taken by the petitioner in the present case.

23. In the case of
Kunwar
Nripendra Bahadur Singh v. Jai Ram
Verma and others8, it has been held that
finality of electoral roll can be challenged
in
the
election
petition,
if
certain
irregularities had taken place in preparation
of
electoral
roll
or
if
subsequent
disqualification had taken place and the
12 All. Sanju Vs. State of U.P. & Ors.
671
electoral roll had on that score not been
corrected before the last hours of making
nominations.

24. In the case of Chandrika Prasad
Yadav v. State of Bihar and others9, an
order of recounting of votes can be passed
when following conditions are fulfilled:

(i) a prima facie case;

(ii) pleading of material facts
stating irregularities in counting of votes;

(iii) a roving and fishing inquiry
shall not be made while directing recounting of votes; and

(iv) an objection to the said effect
has been taken recourse to.

25. In the case of Shyamdeo Pd.
Singh v. Nawal Koshore Yadav10, it has
been held that defective electoral list
cannot be a criteria for setting aside an
election of a returned candidate. The
similar view has been taken in the case of
Laxmi Kant Bajpai v. Haji and others11,
wherein the Apex Court has gone to the
extent of deciding the same that once the
final electoral rolls are published and
elections are held on the basis of such
electoral rolls, it is not open to anyone to
challenge
the
election
from
any
constituency on the ground that the
electoral rolls are defective.

26. In the case of Wapansao v. N.L.
Odyuo and others12, the Apex Court has
again held that the finality of electoral roll
cannot be challenged in the election
petition.

27. Thus, once final electoral rolls are
published and elections are held on the
basis of such electoral roll which is not
open to be challenged by anyone in an
election petition on the ground that the
electoral roll was defective as names of
minors or dead persons have been included
as in the present case. This precedent has
been held by the Apex Court in the case of
Indrajit Barua and others etc. v. Election
Commission of India and others13.

28. It is a settled law 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 difference of votes,
which are not substantiated by any means
or otherwise on the basis of record
available. Parties have to take proper
pleadings by adducing evidence that by this
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.

29. In the present case, the result of
recounting as directed by the interim order
of this Court (shown in the result produced
in a sealed envelop opened by this Court)
shows that the petitioner Sanju has secured
668 votes whereas Kalawati has secured
665 votes, therefore, as per the final result
declared the petitioner is a winning
candidate.

30. In view of the facts of the case in
hand and settled proposition of law, this
Court finds that the order impugned dated
15.04.2023 suffers from illegality as there
is neither any justification nor prima facie
satisfaction has been recorded by the
672 INDIAN LAW REPORTS ALLAHABAD SERIES
Presiding Officer prior to passing the order
directing for recounting of votes, thus,
impugned order cannot be sustained and is
hereby quashed. The election petition is
directed to be decided expeditiously,
preferably, within a period of three months
from the date of production of a certified
copy of this order.

31. The writ petition stands allowed
accordingly.

32. No order as to costs.
----------
(2023) 12 ILRA 672
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.11.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-C No. 19079 of 2022

Bhurangi & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Vineet Kumar Singh

Counsel for the Respondents:
C.S.C., Sri Avinash Chandra Srivastava, Sri
Pranjal Singh, Sri Rishabh Srivastava, Sri
Abhishek Shukla, Sri Ramendra Kumar
Yadav

Civil Law--The
Constitution of
India,
1950-Article 19(1) (e), 21 & 226 - The
Uttar Pradesh Zamindari Abolition and
Land Reform Rules, 1952-Rule 115L---
Writ petition instituted for writ of mandamus
commanding the respondents to restore the
petitioners' possession of plot of which they are
the lawful allottees vide an awasiya patta
granted
in
favour
of
the
petitioners'
predecessors-in-interest--- This is a case where,
admittedly,
the
petitioners
have
been
dispossessed by acknowledged blunder, if not
downright remissness and negligence by the
respondent-Authorities in the exercise of their
public
functions
have
employed
powers
available to them and the might of the St. to
unlawfully deprive the petitioners of their roof
and shelter, which they now admit before the
Court was on account of not noting earlier
orders passed by the Additional Collector and
the Additional Commissioner---The respondents
acknowledge that they constructed public toilets
over a part of the land in dispute, to which they
had no right, whatsoever, under the law. They
have also acknowledged that the petitioners'
right under the awasiya patta is a subsisting
right--- Petitioners entitled to restoration of their
residential plots after immediate demolition of
the public toilets and boundary walls put up on
their land--- Respondent Nos. 2, 4, 5 and 6 shall
pay costs in the sum of ₹2,00,000/-each to the
two petitioners.

Petition allowed. (E-15)

List of Cases cited:

1. Chameli Singh & ors.Vs St. of U.P. & anr.
(1996) 2 SCC 459

2. New Reviera Coop. Housing Society & anr. Vs
Special Land Acquisition Officer & ors.: (1996) 1
SCC 731

(Delivered by Hon'ble J.J. Munir, J.)

Heard Mr. Vineet Kumar Singh,
learned Counsel for the petitioners and Mr.
Abhishek
Shukla,
learned
Counsel
appearing on behalf of respondent Nos. 1 to
5. No one appears on behalf of respondent
No. 6. Mr. Ramendra Kumar Yadav,
Advocate holding brief of Mr. Rishabh
Srivastava, learned Counsel for respondent
No. 7, is present.

2. This writ petition has been
instituted, praying that a writ of mandamus
be issued, commanding the respondents to
restore the petitioners' possession in Plot
No. 53, admeasuring 100 square yards