# Sarita Yadav v. Saroj Devi & Ors

- **Citation:** (2023) 9 ILRA 866
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-09
- **Case number:** Writ-C No. 21891 of 2023
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sarita-yadav-v-saroj-devi-ors-50781
- **Pages:** 19

## Headnote

Civil Law - U.P. Panchayat Raj Act, 1947 -
Section
12-C
-
U.P.
Panchayat
Raj
(Election of Members, Pradhans and UpPradhans), Rules, 1994 - Rules 96, 106,
9 All. Sarita Yadav Vs. Saroj Devi & Ors.
867
107, 112 - Settlement of Election Disputes
Rules, 1994 - Rules - 3 - Code of Civil
Procedure, 1908 - Rule 4 - Petitioner
contested for post of Pradhan, reserved
for OBC candidates - Polling was held on
26.04.2021, counting on 02.05.2021 -
Petitioner, secured 471 votes, declared
elected, defeating respondent by 23 votes
-
Respondent
filed
election
petition,
Prescribed Authority, passed order for
recounting - Impugned order - Held,
election petitioner, apart from quoting
unverified figures, failed to disclose their
basis - His claim of receiving them from
agents
lacks
evidentiary
value
-
Allegations
of
improper
rejection,
counting of votes are vague and general -
Election petitioner had opportunity to
seek ballot paper account under Rules,
1994 but neither did so nor raised written
objections regarding alleged manipulation
- No plea was made alleging violation of
Rule 104 during counting of votes - No
prior written objection made regarding
alleged cutting or overwriting in Prapatra
- Records do not reflect such tampering -
Tribunal should examined Prapatra - 45 &
46 before ordering recount - Allegations
are baseless, as Prapatra is shown to
polling agents post-counting, no objection
raised then - Polling agent's evidence does
not support claims of vote rejection,
invalid vote acceptance, or vote mixing -
No finding of irregularity by Election
Officer - Recount order set aside. (Para 2,
11, 48, 49, 54, 64, 67)

Writ Petition allowed. (E-13)

List of Cases cited:

## Text

_Characters 0–39,800 of 62,548. This is a partial read: ask again with offset=39800 for what follows._

866 INDIAN LAW REPORTS ALLAHABAD SERIES
the State. There is hardly any doubt that it
is the Collector who is the designated
officer in the District as State and all the
performance
commenced
under
the
category and nomenclature of the State
empowered
the
District
Magistrate/Collector to act accordingly and
as such if the power and the property or any
embodied adjudication carry the word State
that directly demonstrate in the individual
manner is the Collector inside the District.
Once the property which has been declared
by the Sub-Divisional Officer as void shall
be vested with the State it is only the
Collector who will take the possession of
the same as under the capacity of the State
itself and the same shall be further handed
over in favour of the Gaon Sabha by the
State that is by the Collector himself and as
such the ground taken up by learned
Standing counsel is hereby clarified that it
is not the execution it is only the vesting
the power of State into the Collector for
receiving the property which has been
declared during transfer as void and the
same has been provided under Rule 103(6)
of the U.P. Revenue Code Rules of 2016.

(21) In view of the aforementioned
facts and circumstances, and the substantial
arguments extended by all the three learned
Advocates which provided the space to the
Court and sufficient assistance to arrive
over the conclusion which is as under:

(i) order dated 23.06.2022 is
hereby
set
aside
being
passed
and
adjudicated contrary to the proceedings
initiated under Section 104/105 of U.P.
Revenue Code 2006 by the respondent no.
2 being not competent under the provisions
mentioned under the Code of 2006 and the
impact and effect of the adjudication drawn
by respondent no. 2 shall also have no
bearing for any purpose whatsoever.

(22)

Before
parting
with
the
conclusion
drawn
by
this
Court,
I
personally express my gratitude to Sri
Adya Prasad Tewari, learned counsel for
petitioner and Sri Pankaj Kumar Gupta,
learned counsel who appears on behalf of
Gaon Sabha but in the instant matter he has
been especially called for assistance to the
Court being the expert in the matters
pertaining to revenue and civil jurisdiction
at the same time Sri Dhananjai Singh,
learned Standing counsel also extended his
able assistance for supporting the stand
taken up by the State authorities which was
helpful for ultimately deciding the instant
petition.

(23) Writ petition stands allowed
accordingly.
----------
(2023) 9 ILRA 866
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.08.2023

BEFORE

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

Writ-C No. 21891 of 2023

Sarita Yadav ...Petitioner
Versus
Saroj Devi & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ram Pravesh Pandey

Counsel for the Respondents:
C.S.C., Sri Raj Karan Yadav, Sri Vidya Dhar
Yadav, Sri Yadvendra Kumar Yadav, Sri
C.B. Yadav (Sr. Adv.), Sri Anand Upadhyay

Civil Law - U.P. Panchayat Raj Act, 1947 -
Section
12-C
-
U.P.
Panchayat
Raj
(Election of Members, Pradhans and UpPradhans), Rules, 1994 - Rules 96, 106,
9 All. Sarita Yadav Vs. Saroj Devi & Ors.
867
107, 112 - Settlement of Election Disputes
Rules, 1994 - Rules - 3 - Code of Civil
Procedure, 1908 - Rule 4 - Petitioner
contested for post of Pradhan, reserved
for OBC candidates - Polling was held on
26.04.2021, counting on 02.05.2021 -
Petitioner, secured 471 votes, declared
elected, defeating respondent by 23 votes
-
Respondent
filed
election
petition,
Prescribed Authority, passed order for
recounting - Impugned order - Held,
election petitioner, apart from quoting
unverified figures, failed to disclose their
basis - His claim of receiving them from
agents
lacks
evidentiary
value
-
Allegations
of
improper
rejection,
counting of votes are vague and general -
Election petitioner had opportunity to
seek ballot paper account under Rules,
1994 but neither did so nor raised written
objections regarding alleged manipulation
- No plea was made alleging violation of
Rule 104 during counting of votes - No
prior written objection made regarding
alleged cutting or overwriting in Prapatra
- Records do not reflect such tampering -
Tribunal should examined Prapatra - 45 &
46 before ordering recount - Allegations
are baseless, as Prapatra is shown to
polling agents post-counting, no objection
raised then - Polling agent's evidence does
not support claims of vote rejection,
invalid vote acceptance, or vote mixing -
No finding of irregularity by Election
Officer - Recount order set aside. (Para 2,
11, 48, 49, 54, 64, 67)

Writ Petition allowed. (E-13)

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. R. Narayanan Vs S. Semmalai & ors., 1980
AIR 206 : 1980 SCR (1) 571

4. Surendra Singh Vs St. of U.P. & ors., Civil
Misc. Writ Petition No. 3701 of 2011, Decided on
24.01.2011
5. Smt. Harmaya Vs St. of U.P. ors., Writ-C No.
18599 of 2017, decided on 03.05.2017

6. Om Prakash Upadhyay Vs St. of U.P. & ors.,
2008 (5) ADJ 454

7. Smt. Usha Devi Vs Smt. Chandrakanta & ors.,
(2018) 4 UPLBEC 2706

8. F.A. Sapa etc. Vs Singora & ors., 1991 (2) JT
503

9.
Mr.
V.
Narayanaswamy
Vs
Mr.
C.P.
Thirunavukkarasu, (2000) 2 SCC 294 (Para 23)

10. SabarunnishaVs Tahira & ors., 2013 (0)
Supreme (Allahabad) 2251

11. Ram Sewak Yadav Vs Hussain Kamil Kidwai
& ors., AIR 1964 SC 1249, (Para 8)

12. Bhabhi Vs Sheo Govind & ors., AIR 1975 SC
2117

13. Jitendra Bahadur Singh Vs Krishna Behari,
AIR 1970 SC 276, (Para 8)

14. N. Narayanan Vs S. Semmalai, AIR 1980 SC
206

15. Dr. Jagjit Singh Vs Giani Kartar Singh & ors.,
AIR 1966 SC 773

16. Ram Singh Vs Kazi Mohiuddin & ors., AIR
1988 Allahabad 210

17. Markio Tado Vs Takam Sorang, AIR 2012 SC 993

18. S. Raghbir Singh Gill Vs S. Gurcharan Singh
Tohra& ors., AIR 1980 SC 1362, (Para 22, 23)

19. Km. Shradha Devi Vs Krishna Chandra Pant
& ors., AIR 1982 SC 1569 : (1982) 3 SCC 389.2

20. Suresh Prasad Yadav Vs Jai Prakash Mishra
& ors., AIR 1975 SC 376, (Para 5, 6)

21.
M.R.
Gopalkrishnan
Vs
Thachady
Prabhakaran & ors., 1995 Supp (2) SCC 101,
(Para 16)

22. Chandrika Prasad Yadav Vs St. of Bihar &
ors., (2004) 6 SCC 331
868 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. This writ petition has been filed by
the petitioner with a prayer to quash an
order dated 03.07.2023 passed by SubDivisional Officer/ Prescribed Authority,
Mirzapur in Election Petition No. 7687 of
20211, whereby an order directing for
recounting of votes has been passed.

2. Brief facts of the case are that
elections of Panchayat in Uttar Pradesh
were held in the year 2021, the petitioner
was one of the candidates for the post of
Pradhan of Gram Panchayat Kolahi,
Development Block - Chhanbe, Tehsil
Sadar, District Mirzapur2. The Gram
Panchayat was reserved for 'OBC Category
Candidate'. The petitioner, being eligible,
contested the aforesaid election, having
been allotted 'Car' as election symbol. The
polling was conducted on 26.04.2021 and
counting
took
place
on
02.05.2021.
Petitioner secured 471 votes and was
declared elected as Pradhan of the said
Gram Panchayat. The respondent3 no. 1,
namely, Saroja Devi secured 448 votes and
thus the petitioner was declared elected by
a margin of 23 votes.

3. Challenging the aforesaid election
on several grounds, stating that election
was not conducted in free and fair manner,
respondent no.1 - the defeated candidate
filed an election petition under Section 12C of the U.P. Panchayat Raj Act, 19474
inter alia on the following grounds:

3.1 Valid votes cast in favour of
Saroja Devi - respondent no. 1 herein,
(election petitioner), were declared invalid;

3.2 Valid votes cast in favour of
respondent no. 1 - Saroja Devi were mixed
in bundles of petitioner Sarita Yadav
(opposite party5 no. 1 in election petition)
and respondent no. 7 - Neelam (opposite
party no. 2 in election petition);

3.3 Number of votes, which were
declared invalid, were mixed in the bundle
of petitioner and were counted in her
favour;

3.4 Number of votes cast in
favour of the petitioner which were
declared invalid were counted as valid
votes in her favour.

4. The aforesaid fact regarding
illegalities as done in counting was pointed
out by husband of respondent no. 1 -
Saroja Devi, who was present as her agent,
raising objections in this regard before
Counting
Supervisor
-
Paryavekshak
(i;Zos{kd)
and
counting
agents
(x.kukdehZ) but no attention was paid. It
has also been alleged in the election
petition that, after completion of counting,
respondent no. 1 having election symbol
'Kitab' (fdrkc), the bundle of valid papers
of respondent no. 1 were more than that of
the
petitioner.
It
was
informed
by
Paryavekshak and Gadnakarmi to the
counting agent, present on behalf of
respondent no. 1/ election petitioner
that she had secured 448 votes whereas
the petitioner herein (opposite party no.
1 in election petition) having symbol
'Car' had secured 413 votes, whereas
opposite party no. 2 in election petition
- Neelam Devi having election symbol
'Imli' (beyh) had secured 60 votes,
opposite party no. 3, namely, Anita
Devi having symbol 'Anaj Osata Kisan'
(vukt vkslkrk fdlku) got 2 votes,
opposite party no. 4 having symbol
'Kanni' (dUuh) secured 1 vote and total
80 votes were rejected.
9 All. Sarita Yadav Vs. Saroj Devi & Ors.
869

5.

After
giving
the
aforesaid
information,
Paryavekshak
and
Gadnakarmi asked husband of respondent
no. 1, who was present as counting agent
on her behalf, to call respondent no. 1, so
that certificate in this respect could be
given to her. It has also been alleged in
paragraph-6 of the election petition that
Paryavekshak and Gadnakarmi had made a
chart accordingly. Receiving the aforesaid
information, the counting agent left the
counting hall in order to call his wife /
respondent no. 1. He, standing at the door
of counting centre Kanya Inter College,
asked his wife to come inside the centre.

6. In paragraph-7 of the election
petition, it has been alleged that as soon as
the counting agent entered the aforesaid
counting centre along with his wife,
namely, Saroja Devi / respondent no. 1,
they saw that the Paryavekshak and
Gadnakarmi,
without
preparing
the
counting chart, had opened the bundle of
booth nos. 158 and 159, to manipulate / do
Herapheri, do some bungling which was
objected by the election petitioner, but no
attention was paid, ignoring the objection,
they forcefully, as per their convenience
made the bundle and started preparing
counting chart / Parishisht. After the
aforesaid, the respondent no. 1 was shown
to have obtained 448 votes whereas the
petitioner had secured 471 votes declaring
her as winning candidate by 23 votes.

7. It has also been alleged that only 44
votes were declared invalid in place of 80
votes. The certificate was also issued to the
petitioner
in
a
hurried
manner.
In
paragraph-8 of the election petition, it has
been alleged that the voter list indicated
total 1354 voters, out of which 1004 votes
were cast for the election of Pradhan,
Member Kshetra Panchayat, Member Zila
Panchayat but proceeding in unfair manner,
manipulated, and in Prapatra, 22 extra
votes have been shown. 80 invalid votes
have been shown only in place of 44, rest
36 have been counted in favour of the
petitioner by putting the invalid votes in her
bundle and showing 471 votes on top of the
petitioner's bundle.

8. Specifying the aforesaid aspect, it
has been alleged in paragraph-9 of the
election petition that in polling booth 158,
total 573 votes were cast; whereas in
polling booth no. 159, 431 votes were cast
thus total 1004 votes were cast, but, 36
invalid votes were placed in the bundle of
petitioner and from 413 votes which were
counted earlier, 471 votes have been shown
in her favour, accordingly, making Prapatra
and declaring the petitioner to have won by
the margin of 23 votes.

9. Emphasizing upon the bungling/
manipulation, which has been done in the
elections of Pradhan, it has been alleged in
paragraph-11 of the election petition that in
Matgadna Chart, Gadna Parchi, Parishishth
5 Prapatra 43 and Parishisht 7 Prapatra 45,
Parishisht 8 Prapatra 46, wrong entries
have
been
made
after
cutting
and
accordingly, the result has been declared,
which is illegal.

10. An affidavit of husband of
respondent no. 1, who was her agent at the
time of counting of votes, was submitted as
an evidence to prove the allegations as
made in the election petition. The petitioner
cross-examined the witness produced by
respondent no. 1.

11.

The
Prescribed
Authority
summoned the record of election like the
counterfoil of ballot paper and also the
voter list, on the basis of which the order
870 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 03.07.2023 directing for recounting
of votes has been passed, thus the present
writ petition challenging the aforesaid order
has been filed.

12. Sri R.P. Pandey, learned counsel
appeared for the petitioner, Sri Vijay
Prakash Mishra, learned Standing Counsel
for the State, and Sri C.B. Yadav, learned
Senior Advocate, assisted by Sri V.D.
Yadav,
learned
counsel
for
private
respondents.

13. Learned counsel for the petitioner,
while challenging the impugned order
whereby recounting of votes has been
ordered, submits that, the election petition
has been filed on the following grounds:

13.1 Improper rejection of valid
votes;

13.2 Improper acceptance of
invalid ballot papers, and counting the
same as valid votes in favour of writ
petitioner;

13.3
Gross
irregularities
/
mistakes committed during the course of
counting ballot papers;

13.4 Making wrong entries in
total number of votes by cutting and
overwriting in Prapatra;

13.5 Lastly, disputing the total
number of votes cast on the said date for
the post of Pradhan being 1004 in place of
1026.

14. 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 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, as also, if the
court trying the petition is prima facie
satisfied that the making of such an order is
imperatively 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 & Ors.6.

15. 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 provision 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 Judge7.

16. Placing reliance upon a judgement
of the Supreme Court in the case of R.
Narayanan v. S. Semmalai And Ors.8,
learned counsel for the petitioner submits
that
law
on
the
subject
regarding
circumstances under which recount could
be ordered has been summarized as
follows:

"The Court would be justified in
ordering a recount of the ballot papers only
where:
9 All. Sarita Yadav Vs. Saroj Devi & Ors.
871

(1) The election petition contains
an adequate statement of all the material
facts
on
which
the
allegations
of
irregularity or illegality in counting are
founded;

(2) 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

(3) The court trying the petition is
prima facie satisfied that the making of
such an order is imperatively necessary to
decide the dispute and to do complete and
effectual justice between the parties."

17. 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 of this Court in the case of
Surendra Singh v. State of U.P. and
others9.

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

19. Learned counsel for the respondent
submits that there is no illegality in the
order impugned, vide which recounting of
votes has been directed. He submits that
there is specific allegation with respect to
valid votes in favour of election petitioner
being declared invalid, valid votes cast in
favour of election petitioner being mixed in
bundles of the petitioner Sarita Yadav and
one Neelam, and invalid votes being mixed
in bundle of petitioner and counted in her
favour as well as invalid votes of the
petitioner being counted as valid votes in
her favour. The same being supported by
statement of election agent, namely,
Suryamani Yadav - husband of the
defeated candidate. There is also a definite
allegation with respect to total number of
votes
cast
i.e.
1004,
which
were
manipulated and total votes cast were
shown 1026.

20.

Learned
counsel
for
the
respondent
further
submits
that
the
respondent
-
election
petitioner
has
specifically made allegations regarding the
aforesaid irregularities and has proved the
same on the basis of statement of counting
agent, thus to maintain purity of elections,
the order of recounting should be passed
where it has materially affected the result
of election, whereby the defeated candidate
is seriously prejudiced in order to do justice
between the parties. In support of his
submissions,
he
has
relied
upon
a
judgement of this Court in the case of Smt.
Harmaya v. State of U.P. And 5
Others10.

21. Learned counsel arguing on behalf
of respondent next submits that sufficient
material was there in the form of statement
of counting agent to clearly make out a
prima facie case for the unexplained
discrepancy in the number of votes cast as
well as other allegations with respect to
valid votes being declared invalid and votes
in favour of the defeated candidate being
counted in favour of the petitioner,
therefore, there is no illegality in the order
directing for recounting and objection was
also raised by the defeated candidate for the
872 INDIAN LAW REPORTS ALLAHABAD SERIES
aforesaid, but the same has not been
considered. He has relied upon a judgement
of this Court in the case of Om Prakash
Upadhyay v. State of U.P. and others11,
wherein, it is stated in relevant paragraphs
of the election petition that, at the time of
counting, on the influence of certain
persons, undue pressure was exercised and
void votes cast in favour of the defeated
candidate were added in the bundle of
winning candidate, wherein objection was
made against the illegalities, the order
directing for recount for the unexplained
discrepancy in the total number of votes is
not bad.

22. Learned Senior Counsel for the
respondent also contends that the election
petition contains an adequate statement of
all facts on which allegations of irregularity
or illegality, are found, there being specific
averments made in relevant paragraphs of
the election petition and the same have not
been specifically denied by the petitioner,
evidence being adduced in support of the
same by the counting agent of respondents
in support of the averments made in the
election petition, prima facie establish a
good ground to believe that there has been
illegality and irregularity in counting,
therefore, to decide the dispute and do
complete and effectual justice between the
parties, the order of recounting by the
election tribunal on its prima facie
satisfaction cannot be said to suffer from
any irregularity as in the present case. In
support of his submission, he has relied
upon a judgement of this Court in the case
of Smt. Usha Devi v. Smt. Chandrakanta
and Others12.

23. Mr. Yadav has also placed the
provisions of U.P. Panchayat Raj (Election
of Members, Pradhans and Up-Pradhans),
Rules, 199413, wherein provisions of from
Rules 76 to 96 indicate that the returning
officer shall, at close of polling, prepare
ballot papers in specified form and if the
aforesaid papers are counted, the polling
agents have every right to know about the
actual votes cast in the polling, therefore,
the aforesaid fact that the polling agents
were not aware of the number of votes cast
and after manipulation, Prapatra was
prepared by cutting and overwriting, such
allegation being fair and proper can be
looked into only after directing for recount
of votes, thus to know about the aforesaid
as to how many votes were cast, whether
1004 or 1026, the Tribunal has rightly
called for the voter list and counterfoil and
seeing discrepancy in the same, the order
impugned has been passed, which is not
illegal,
therefore,
no
interference
is
required and the writ petition is liable to be
dismissed.

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

25. With the consent of learned
counsel appearing for the parties, the writ
petition is being heard finally, without
calling counter affidavit, at this stage, in
terms of Rules of the Court.

26. The only question which falls to
be determined in this regard is whether the
order directing for recount is justified in the
facts of the present case. In considering this
question, material provisions of the U.P.
Panchayat Raj Act, 1947 read with Uttar
Pradesh Panchayat Raj (Settlement of
Election Disputes) Rules, 199414 may first
be noticed.

27. It would be apt to mention
relevant part of Section 12-C of the Uttar
Pradesh Panchayat Raj Act, 1947, which is
as under:
9 All. Sarita Yadav Vs. Saroj Devi & Ors.
873

"12-C.
Application
for
questioning the elections.-(1) The election
of a person as Pradhan15[* * *] or as
member of a Gram Panchayat [x x x ]16
shall not be called in question except by an
application presented to such authority
within such time and in such manner as
may be prescribed on the ground that-

(a) the election has not been a
free election by reason that the corrupt
practice of bribery or undue influence has
extensively prevailed at the election, or

(b) that the result of the election
has been materially affected-

(i) by the improper acceptance or
rejection of any nomination; or

(ii) by gross failure to comply
with the provisions of this Act or the rules
framed thereunder."

28. From the aforesaid it is clear
that the election petition should contain a
concise statement of material fact, on
which the petitioner relies, and material
supporting
the
allegations
made
thereunder. It also reveals that the ground
on which the election of Gram Pradhan
and its members can be challenged are (a)
the election has not been a free election
by reason that the corrupt practice of
bribery
or
undue
influence
has
extensively prevailed at the election, or
(b) that the result of the election has been
materially affected.

29. Sub-section (3) of Section 12-C of
the Act, 1947 provides the procedure for
filing application under sub-section (1) of
which hereinafter shall be referred to as
'election petition'. The Statute says that
election
petition
shall
contain
such
particulars as may be prescribed.

30. In respect to further procedure, the
Statute contemplates its prescription by
Settlement of Election Disputes Rules,
1994. Rule-3 of the said Rules, 1994 is
relevant to be reproduced hereunder:

"3. Election Petition.-(1) An
application under sub-section (1) of Section
12-C of the Act shall be presented before
the Sub-Divisional Officer, within whose
jurisdiction the concerned Gram Panchayat
lies, within ninety days after the day on
which the result of the election questioned
is announced and shall specify the ground
or grounds on which the election of the
respon- dent is questioned and contain a
summary of the circumstances alleged to
justify the election being questioned on
such ground."

31. Rule-4 of the Settlement of
Disputes
Rules,
1994
prescribes
a
procedure to be followed by the Tribunal
while hearing the petition. It provides that
subject to provisions of the Act and these
Rules, every election petition shall be tried
by a Sub-Divisional Officer as nearly as
may be, in accordance with the procedure
applicable under the Code of Civil
Procedure, 1908. Rule-4 is quoted hereinbelow:

"4. Hearing of the petition.-(1)
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."

32. The procedure for holding
election has been prescribed under the U.P.
Panchayat Raj (Election of Members,
Pradhans and Up-Pradhans), Rules, 1994.
874 INDIAN LAW REPORTS ALLAHABAD SERIES
Rules 96, 104 & 112 are necessary to be
mentioned below:

96. Account of ballot papers.---
The Matdan Adhyaksh shall at the close of
the poll prepare a ballot paper account in
the specified form.

*** *** ***

104. Procedure at the counting.-
--On the date and at the time and place
appointed under Rule 101, the Nirvachan
Adhikari shall proceed as follows:

(a) The Nirvachan Adhikari shall
satisfy himself that all the ballot boxes used
at the poll and which are to be counted at
that
place
have
been
received
and
accounted for;

(b) The Nirvachan Adhikari shall
then allow the candidates and their
Nirvachan
Abhikartas
and
Ganana
Abhikartas present at the counting an
opportunity to inspect the ballot boxes and
their seals for satisfying themselves that
they are in order;

(c) The Nirvachan Adhikari shall
also satisfy himself that none of the boxes
has in fact been tampered with. If any
ballot box is found by him to have been
tampered with or destroyed or lost, the
Nirvachan Adhikari shall not proceed with
the counting of votes and the provisions of
Rule 100 shall apply.

(d) If the Nirvachan Adhikari is
satisfied that all such ballot boxes which
are to be counted at such place have been
received and are in order, he shall take up
the counting of ballot papers contained in
the ballot boxes. All the ballot boxes used
at a polling place shall be opened, and the
counting of the ballot papers found in those
boxes proceeded with, in accordance with
the instructions of the State Election
Commission, at the same time;

(e) An account of the ballot
papers found in the boxes of the polling
place shall be recorded in a statement in the
form specified by the State Election
Commission;

(f) The Nirvachan Adhikari shall
allow the candidates, their Nirvachan
Abhikartas and Ganana Abhikartas, who
may be present, reasonable opportunity to
inspect all ballot papers which in the
opinion of the Nirvachan Adhikari are
liable to be rejected, but shall not allow
them to handle those or any other ballot
papers. The Nirvachan Adhikari shall on
every ballot paper, which is rejected,
endorse rejection thereon in Hindi. If any
candidate or his Nirvachan Abhikarta
questions the correctness of the rejection of
any ballot paper, the Nirvachan Adhikari
shall also record briefly on such ballot
paper grounds for his rejection;

(g) After the counting of all ballot
papers contained in the ballot boxes of the
polling place has been completed the
Nirvachan Adhikari shall cause all such
ballot papers to be kept in a separate packet
on which shall be indicated such particulars
as will identify the name of the Gram
Panchayat to which the ballot papers relate.

*** *** ***

112. Production and inspection
of election papers.---(1) While in the
custody of the Assistant District Election
Officer (Panchayat and Local Bodies) the
packets of ballot papers whether valid,
rejected or tendered, and of the marked
9 All. Sarita Yadav Vs. Saroj Devi & Ors.
875
copy of the electoral roll shall not be
inspected by or produced before any person
or authority except under the order of a
competent Court or of an authority hearing
an election petition.

(2) Copies of the election return
forwarded by the Nirvachan Adhikari under
sub-rule (1) of Rule 111 shall be furnished
by the Assistant District Election Officer
(Panchayat and Local Bodies) on payment
of a fee of rupees twelve for each copy.

(3) All other papers relating to the
election
shall
be
opened
to
public
inspection subject to such condition and
subject to the payment of such fees as may
be
specified
by
the
State
Election
Commission."

33. Rule-95 of the Rules, 1994 speaks
about sealing of ballot boxes, etc., after
poll; Rule-96 of the Rules, 1994 deals with
account of ballot papers in specified form;
Rule-97 says about transmission of ballot
boxes, etc., to the Election Officer; Rule103 is about person who may be present at
the
counting;
Rule-106
envisages
verification of accounts submitted by the
Matdan Adhyaksh; Rule 107 enumerates
election return by the Election Officer.
Other
provisions
with
respect
to
appointment of time, place and date for
counting, Ganana Adhikari, procedure of
counting, grounds for rejection of ballot
papers, equality of votes, declaration of
result are provided between Rules 101 to
109.

34. While deciding the election petition,
it has to be kept in mind and as is well settled,
that a right to elect is fundamental though it is
to democracy, is, anomalously enough,
neither a fundamental right nor a common
law right. To be more specific, right to elect,
right to be elected and right to dispute an
election are statutory creations, therefore, are
subject to statutory limitation. An election
petition is not an action at common law, nor
in equity. It is a statutory proceeding to which
neither the common law nor principles of
equity applies but only those Rules apply,
which the Statute makes. It is a special
jurisdiction and special jurisdiction has
always to be exercised in accordance with the
Statute creating it. Meaning thereby that in
the trial of election disputes, court is put in
straitjacket.

35. In the case of F.A. Sapa etc. v.
Singora and others17, the Court said, "it is
fairly well settled that "our election law being
statutory in character must be strictly
complied with since an election petition is not
guided by ever changing common law
principles of justice and notions of equity.
Being statutory in character, it is essential that
it must conform to the requirements of our
election law. But, at the same time, the purity
of election process must be maintained at all
costs and those who violate the statutory
norms must suffer for such violation".

36. In another case of Mr. V.
Narayanaswamy
v.
Mr.
C.P.
Thirunavukkarasu18, in paragraph-23 the
Court observed "an election petition is based
on the rights, which are purely the creature of
statute, and if the statute renders any
particular requirement mandatory, the court
cannot exercise dispensing powers to waive
non-compliance".

37. From the above discussion, it is
clear that the provisions, as narrated above,
have to be kept in mind while deciding an
election petition.

38. It has been held in a catena of
decisions that secrecy of ballot papers is
876 INDIAN LAW REPORTS ALLAHABAD SERIES
sacrosanct and is required to be maintained
at all costs and that recounting should not
be allowed to be ordered on frivolous, fake
and indefinite allegations. Thus, the right of
defeated candidate to assail the validity of
an election result and seek recounting of
votes is subject to basic principle that the
secrecy of ballot paper is sacrosanct and
that a recount can be done only when a
prima facie case is made out. Reference
may be made to the judgement in the case
of Sabarunnisha v. Tahira and others19.

39. Starting from the case of Ram
Sewak Yadav v. Hussain Kamil Kidwai
and others20 to the case of Bhabhi v.
Sheo Govind and others21, and several
other cases it has been held that an order of
inspection / recounting may not be granted
as a matter of course, having regard to the
insistence upon secrecy of ballot papers,
the Court would be justified in granting an
order of inspection / recounting provided
two conditions are fulfilled: (i) that the
petition for setting aside an election
contains an adequate statement of 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 ballot
papers is necessary.

40. From the aforesaid, it is clear that
an order for inspection of ballot papers
cannot be granted to support vague pleas as
made in the writ petition, not supported by
material evidence or to fish out evidence to
support such pleas. The case of the election
petitioner must be set out with precision
supported by averments on material facts.
To establish a case so pleaded an order of
inspection may undoubtedly, if the interest
of justice requires, be granted. But a mere
allegation that the election 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/ recounting.

41. Thus, the question which arises is,
as to what will be the material facts in the
petition seeking recount. This point is not
res integra, as it came up several times
before the Hon'ble Supreme Court for
decision.
The
consensus
of
all
the
decisions, is, that since an order for a
recount touches upon the secrecy of ballot,
it should not be made lightly or as a matter
of course. In the case of Ram Sewak
Yadav (supra), which is a leading case on
the point of recount, the Supreme Court
observed as:

"8. There can therefore be no
doubt that at every stage in the process of
scrutiny
and
counting of
votes
the
candidate or his agents have an opportunity
of remaining present at the counting of
votes, watching the proceedings of the
returning officer, inspecting any rejected
votes, and to demand a re-count. Therefore
a candidate who seeks to challenge an
election on the ground that there has been
improper reception, refusal or rejection of
votes at the time of counting, has ample
opportunity of acquainting himself with the
manner in which the ballot boxes were
scrutinized and opened, and the votes were
counted. He has also opportunity of
inspecting rejected ballot papers, and of
demanding a re-count. It is in the light of
the provisions of Section 83(1) which
require a concise statement of material
facts on which the petitioner relies and to
the opportunity which a defeated candidate
had at the time of counting, of watching
and of claiming a re-count that the
application
for
inspection
must
be
considered."
9 All. Sarita Yadav Vs. Saroj Devi & Ors.
877

42. From the aforesaid discussion, it
is manifest that every candidate and his
agents having had sufficient opportunity to
watch proceedings of counting, it must be
clearly stated in the petition as, how, in
whose presence and in which round of
counting, the irregularity took place and
how that irregularity was objected to at the
time of counting. In facts of the present
case, the allegations are with respect to
improper rejection of valid votes, improper
acceptance of invalid ballot papers and the
dispute with respect to total number of
votes cast being 1004 in place of 1026. The
allegations, as made in various paragraphs
of the election petition are not specific and
are supported by the statement of polling
agents wherein no dispute has been raised
regarding irregularities at the time of
polling. Making it more specific the
allegations in the writ petition are not with
respect to any irregularity at the time of
polling till reaching of the ballot boxes to
the place of counting. In none of the
paragraphs in election, such stand has been
taken that there was any manipulation at
the time of polling, therefore, no question
of difference of number of ballot papers
could arise at the time of counting, when
after the close of poll, as provided under
Rule-95 of the Rules, 1994, the Matdan
Adhyaksh has to close the slit of each
ballot box and seal up the slit in presence of
the contesting candidate or his Abhikarta
(agent), who may be present to seal of the
same. The aforesaid fact is also evident
from the statement of polling agent, which
is as follows:

"tks ernku ds i'pkr tks ckDl lhy
fd;s Fks lHkh ,tsUV ekStwn Fks ernku esa fdlh izdkj
dh /kka/kyh ugha gqbZ Fkh bldh tkudkjh FkhA"

43. Rule-106 provides that Election
Officer shall verify the statement submitted
by Polling Officer under Rule-96 by
comparing it with a number of counted
votes and rejected ballot papers with the
unused or spoilt ballot papers in his
possession and the tendered votes list. He
shall re-close and re-seal each packet which
has been opened by him and shall record on
each packet a description of its contents,
the name of the Gram Panchayat, the date
of the election to which it refers. As per
Rule-107 of the Rules, 1994, Nirvachan
Adhikari shall prepare and certify an
election return in the specified form setting
forth-

"(a) the names of the candidates
for whom valid votes have been given;

(b) the number of valid votes
given for each candidate;

(c) the total number of valid
ballot papers;

(d) the number of rejected ballot
papers;

(e) the number of tendered ballot
papers; and

(f) the name of the candidate
elected.

He
shall
also
permit
any
contesting candidate or his Nirvachan
Abhikarta or Ganana Abhikarta to take a
copy of or an extract from such return"

44. Thus, as per provisions of Rule107 of the Rules, 1994, a copy of election
return as prepared by Nirvachan Adhikari
is also given to the contesting candidate, or
Nirvachan Abhikarta or Ganana Abhikarta /
polling agent, but there is no averment in
this regard as to whether there was any
878 INDIAN LAW REPORTS ALLAHABAD SERIES
difference in the number of votes as
mentioned in the election return and no
specific averment is there in the election
petition nor any reference of same in
statement of polling agent, given in support
of election petition, referred about it.
Therefore, the allegations as made in the
election petition are not definite, precise,
therefore, no such order, directing for
recounting, could have been passed in such
circumstances.

45. It would also be apposite to refer
the judgement of the Supreme Court in the
case of Jitendra Bahadur Singh v.
Krishna Behari22, wherein the Apex
Court has observed thus:

"8. ...In the instant case apart
from giving certain figures whether true or
imaginary, the petitioner has not disclosed
in the petition the basis on which he arrived
at those figures. His bald assertion that he
got those figures from the counting agents
of the Congress nominee cannot afford the
necessary basis.