# Smt. Lali Devi v. State of U.P. & Ors

- **Citation:** (2023) 2 ILRA 149
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-02
- **Case number:** Writ C No. 900 of 2023
- **Bench:** Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-lali-devi-v-state-of-u-p-ors-49633
- **Pages:** 12

## Headnote

C.S.C., Anilesh Tewari, Bina Kishore, Uma
Shankar Sahai

(A)
Election
-
The
Uttar
Pradesh
Panchayat Raj Act, 1947 - Sections 12-C
& 12 C (6) - Application for questioning
the
elections
-
The
Uttar
Pradesh
Panchayat Raj (Election of Members,
Pradhan and Up-Pradhans Rules, 1994 -
Rule 4 - Nirvachan Adhikari (Returning
Officer) - it is the Returning Officer who is
appointed by the District Magistrate for
every election to perform the function
required to be performed under Chapter II
of the Rules, 1997 - to do all acts and
things as may be necessary for effectually
conducting the election in the manner
provided in the act and the rules.(Para -
27)

Election for post of Gram Pradhan - in question -
challenged by petitioner on various grounds -
Matgarna Paryavekshak only recounted two
bundles of votes - against direction issued by
the Returning Officer - Election Tribunal directed
for recounting of votes - disposed of election
petition - petitioner filed a writ petition - Court
relegated him to remedy of revision - revisional
Court allowed revision - set aside order of
Election Tribunal - restoring election petition to
its original number - disposing of it in
accordance with law. (Para -18)

(B) Election - Rule 4 of the Rules 1994 -
under control of Returning Officer - duty
of Matgarna Paryavekshak to do all acts
and things for effectual conduct of the
election - on direction of Returning Officer
- Matgarna Paryavekshak was required to carry
out directions of Returning Officer - all votes
should have been counted as per directions of
Returning Officer - same not having been done -
specific ground taken in election petition -
Election Tribunal was correct in directing for recounting of all votes by means of the impugned
orders.(Para -28)

HELD:-No illegality or infirmity with the reasons
recorded by Election Tribunal or the revisional
Court while directing for a re-counting. Grounds
taken by the petitioner rejected. No case for
interference made out. (Para - 34,35)

Writ Petition dismissed. (E-7)

List of Cases cited:-

## Text

_Characters 0–39,829 of 40,769. This is a partial read: ask again with offset=39829 for what follows._

2 All. Smt. Lali Devi Vs. State of U.P. & Ors.
149
year 1988. However, in the interest of
justice, the petitioner may be compensated
by awarding amount of investment along
with interest @ 9% as contemplated under
section 73 of the Act of 2013.

25. In view of the facts stated above,
the writ petition is finally disposed off with
a direction to the respondent no. 1 to pay
consideration of ₹4,50,000/+ stamp duty of
₹31,850/- along with interest from the date
of sale deed, i.e., on 16.8.2010 till the date
the payment is made and the petitioner is
directed to execute sale deed on receipt of
aforesaid
amount
in
favour
of
the
respondent no.1.
----------
(2023) 2 ILRA 149
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.02.2023

BEFORE

THE HON'BLE ABDUL MOIN, J.

Writ C No. 900 of 2023

Smt. Lali Devi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Dinesh Kumar Mishra

Counsel for the Respondents:
C.S.C., Anilesh Tewari, Bina Kishore, Uma
Shankar Sahai

(A)
Election
-
The
Uttar
Pradesh
Panchayat Raj Act, 1947 - Sections 12-C
& 12 C (6) - Application for questioning
the
elections
-
The
Uttar
Pradesh
Panchayat Raj (Election of Members,
Pradhan and Up-Pradhans Rules, 1994 -
Rule 4 - Nirvachan Adhikari (Returning
Officer) - it is the Returning Officer who is
appointed by the District Magistrate for
every election to perform the function
required to be performed under Chapter II
of the Rules, 1997 - to do all acts and
things as may be necessary for effectually
conducting the election in the manner
provided in the act and the rules.(Para -
27)

Election for post of Gram Pradhan - in question -
challenged by petitioner on various grounds -
Matgarna Paryavekshak only recounted two
bundles of votes - against direction issued by
the Returning Officer - Election Tribunal directed
for recounting of votes - disposed of election
petition - petitioner filed a writ petition - Court
relegated him to remedy of revision - revisional
Court allowed revision - set aside order of
Election Tribunal - restoring election petition to
its original number - disposing of it in
accordance with law. (Para -18)

(B) Election - Rule 4 of the Rules 1994 -
under control of Returning Officer - duty
of Matgarna Paryavekshak to do all acts
and things for effectual conduct of the
election - on direction of Returning Officer
- Matgarna Paryavekshak was required to carry
out directions of Returning Officer - all votes
should have been counted as per directions of
Returning Officer - same not having been done -
specific ground taken in election petition -
Election Tribunal was correct in directing for recounting of all votes by means of the impugned
orders.(Para -28)

HELD:-No illegality or infirmity with the reasons
recorded by Election Tribunal or the revisional
Court while directing for a re-counting. Grounds
taken by the petitioner rejected. No case for
interference made out. (Para - 34,35)

Writ Petition dismissed. (E-7)

List of Cases cited:-

1. Uday Chand Vs Surat Singh & anr. , (2009)
10 SCC 170,

2. Arikala Narasa Reddy Vs Venkata Ram Reddy
Reddygari & anr. , (2014) 5 SCC 312

3. Amit Narain Rai Vs St. of U.P & ors. , Writ-C
No. 63380 of 2011
150 INDIAN LAW REPORTS ALLAHABAD SERIES
4. Ram Adhar Singh Vs D.J., Ghazipur & ors. ,
1985 SCC OnLine All 246

5. Prem Sheela Vs P.A./S.D.M. & ors , 2019 SCC
OnLine All 5564

(Delivered by Hon'ble Abdul Moin, J.)

1. Heard Sri H.G.S.Parihar, learned
Senior Advocate assisted by Sri Dinesh
Kumar Mishra, learned counsel appearing
for the petitioner, Dr. Udai Veer Singh,
learned Additional Chief Standing counsel
appearing for the respondents no. 1 to 3 and
Sri U.S.Sahai, learned counsel appearing
for the respondent no. 5.

2. Instant writ petition has been filed
praying for the following main reliefs:-

(i) Issue a writ order or direction
in the nature of certiorari quashing the
order dated 03.01.2023 passed by the
learned Additional District Judge Court
No. 2/Special Judge E.C.Act, Sitapur in
Civil Revision No. 47 of 2022 Smt. Lali
Devi Vs. S.D.:M.Maholi and Ors contained
as Annexure No. 1 only to the extent denial
of quashing the order of the re-counting to
this petition in the interest of justice.

(ii) Issue a writ order or direction
in the nature of certiorari quashing the
order dated 02.09.2022 passed by the Sub
Divisional Magistrate Maholi/ Prescribed
Authority District Sitapur in Case No.
1678/2021 (Election Petition No. 19/23)
Mahaveer Vs. Smt. Lali Devi and Ors U/S
12 (C) of the Uttar Pradesh Panchayat Raj
Act, 1947 contained as Annexure No. 2 to
this petition in the interest of justice.

(iii) Issue a writ order or
direction in the nature of certiorari
quashing the order dated 23.01.2022-23 by
means which again the order of the recounting has been passed by the prescribe
authority contained as Annexure No. 3 to
this petition in the interest of justice.

3. The case set forth by the petitioner
is that an election of Gram Pradhan took
place in the year 2021. The petitioner was
declared elected as Gram Pradhan of
Village Peerpur, Gram Panchayat Dadabad,
Post
Office-
Hathiya
Kasimpur,
Nyaypanchayat Urdauli, Vikash Khand
Maholi, Tehsil- Maholi District- Sitapur.
The respondent no. 5 herein namely Sri
Mahaveer filed an election petition under
Section
12-C
of
the
Uttar
Pradesh
Panchayat Raj Act, 1947 (hereinafter
referred to as "Act, 1947") before the
learned Election Tribunal challenging the
election of the petition. A copy of the
election petition has been filed as annexure
4 to the writ petition. The learned Election
Tribunal vide order dated 02.09.2022, a
copy of which is annexure 2 to the petition
after framing various issues directed for recounting of the votes and disposed of the
election petition.

4. Being aggrieved, the petitioner
filed a writ petition namely Writ-C No.
6140 of 2022 Inre; Smt. Lali Devi Vs. State
of U.P and Ors and this Court vide order
dated 08.09.2022, a copy of which is
annexure 6 to the writ petition disposed of
the writ petition with liberty to the
petitioner to approach the statutory forum
by filing of a revision under the provisions
of Section 12-C (6) of the Act, 1947.

5. In pursuance thereof, the petitioner
filed a revision bearing Revision No. 47 of
2022 Inre; Lali Devi Vs. S.D.M Maholi and
ors before the Court of the learned
Additional District Judge/Special Judge,
Sitapur. The revisional Court vide order
dated 22.09.2022, a copy of which is
2 All. Smt. Lali Devi Vs. State of U.P. & Ors.
151
annexure 8 to the writ petition dismissed
the revision.

6. The petitioner being aggrieved filed
a writ petition bearing Writ-C No. 7328 of
2022 Inre; Lali Devi Vs. State of U.P and
Ors and this Court vide order judgment and
order dated 22.10.2022, a copy of which is
annexure 9 to the writ petition set aside the
order passed by the revisional Court dated
22.09.2022 and required the revisional
Court to decide the matter expeditiously.

7. In pursuance thereof, the revisional
Court
vide
order
impugned
dated
03.01.2023, a copy of which is annexure 1
to the writ petition has partly allowed the
revision filed by petitioner and has set aside
the order of the learned Election Tribunal
so far as it had directed that the records of
election petition be consigned to record.
Further, the revisional Court has restored
the election petition to its original number
and has directed the learned Election
Tribunal to dispose of the election petition
as per law expeditiously.

8. Subsequently, the learned Election
Tribunal vide order dated 23.01.2023
(wrongly typed as 23.01.2022), a copy of
which is annexure 3 to the writ petition has
directed for a re-counting to be held on
07.02.2023 for which purpose adequate
security etc has also been required. The
order dated 23.01.2023 has also been
directed to form part of the earlier order
dated 02.09.2022.

9. Being aggrieved with the orders
dated
23.01.2023,
22.09.2022
and
03.01.2023, the instant writ petition has
been filed.

10. Raising challenge to the aforesaid
orders,
learned
Senior Advocate
has
primarily raised the following grounds
namely (a) no reasons have been recorded
by the learned Election Tribunal as to why
re-counting has been directed (b) in the
order dated 23.01.2023, the earlier order
dated 02.09.2022 has been indicated to
form part of the order. It is contended that
doctrine of merger would be applicable and
as such, once the revisional Court vide
order dated 03.01.2023 had partly allowed
the revision consequently, the order dated
02.09.2022 stood merged with the order of
the revisional Court dated 03.01.2023 and
consequently, there cannot be any occasion
for the learned Election Tribunal to have
directed in the order impugned dated
23.01.2023 that the order dated 02.09.2022
shall form part of the order (c) for the
purpose of re-counting which has been
directed by the learned Election Tribunal,
the pleadings should have been made by
the
persons
challenging
the
election
indicating the irregularities while filing the
petition under Section 12-C of the Act,
1947 and in the absence of pleadings such a
casual order could not have been passed by
the learned Election Tribunal and partly
upheld by the revisional Court. In this
regard, reliance has been placed on the
judgments of the Apex Court in the case of
Uday Chand Vs. Surat Singh and Anr
reported in (2009) 10 SCC 170, Arikala
Narasa Reddy Vs. Venkata Ram Reddy
Reddygari and Anr reported in (2014) 5
SCC 312 as well as the judgment of this
Court in the case of Amit Narain Rai Vs.
State of U.P and Ors passed in Writ-C
No. 63380 of 2011 decided on 09.04.2012
(d) the revisional Court in one part of the
order impugned dated 03.01.2023 has
recorded that the revision against the order
dated 02.09.2022 is not maintainable it
being an interlocutory order and in the
other part of the order, it has been indicated
that the revision would be maintainable
152 INDIAN LAW REPORTS ALLAHABAD SERIES
which thus indicates that the revisional
Court was itself not sure as to whether the
revision was maintainable or not (e) none
of the grounds in the memo of the revision
have been considered by the revisional
Court while deciding the revision and (f)
the judgments which were indicated in the
written argument have also not been
considered by the revisional Court.

11. No other ground has been urged.

12. On the other hand, Sri U.S.Sahai,
learned
counsel
appearing
for
the
respondent no. 5 argues that after the
election had taken place and the counting
was done, it was noticed that there were
certain irregularities in the counting which
compelled the respondent no. 5 herein to
move an application for the purpose of recounting. The application for re-counting
was allowed by the Returning Officer yet
the Matgarna Paryavekshak only recounted two bundles of votes and not the
other votes. Thus once it is the Returning
Officer who is the overall In-charge and
was required to pass the order on the
application of the respondent no. 5 and in
fact did pass an order for the purpose of recounting
as
such,
the
Matgarna
Paryavekshak
patently
exceeded
his
jurisdiction in only re-counting two bundles
of votes instead of the entire votes that had
been cast. It is also contended that no
objection was raised to the application filed
by the respondent no. 5 for the purpose of
re-counting of the votes by the petitioner
herein.

13. As the re-counting was only done
with respect to two bundles consequently,
the petitioner was declared elected as a
Gram Pradhan on the basis of one vote.
Considering the aforesaid application that
had been moved by the respondent no. 5 for
the purpose of re-counting and which in
fact has been allowed by the Returning
Officer but not fully implemented by the
Matgarna Paryavekshak consequently, this
compelled the respondent no. 5 to file an
election petition before the learned Election
Tribunal. Placing reliance on paragraphs 5
& 6 of the aforesaid petition it is contended
that this ground was specifically taken in
the election petition which had been filed
by the respondent no. 5 and which found
favour with the learned Election Tribunal
which has directed for re-counting of all
votes.

14. On the ground urged by the
learned counsel for the petitioner that the
counting of votes should not be done
casually reliance has been placed on a Full
Bench judgment of this Court in the case of
Ram Adhar Singh Vs. District Judge,
Ghazipur and Ors reported in 1985 SCC
OnLine All 246 as well as the judgment of
this Court in the case of Prem Sheela Vs.
Prescribed
Authority/Sub
Divisional
Magistrate and ors reported in 2019 SCC
OnLine All 5564 to contend that the
situation in which re-counting can be
directed, has been considered threadbare by
the Full Bench of this Court after placing
reliance on various judgments of the Apex
Court and it has been held that where the
Court trying the election 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, then
the re-counting can be directed.

15. So far as the argument of the
learned counsel for the petitioner that the
revisional Court has not considered the
grounds as were raised in the revision and
that in one part of the order passed by the
revisional Court it has been indicated that
2 All. Smt. Lali Devi Vs. State of U.P. & Ors.
153
the revision is not maintainable while in the
other part of the order it has been indicated
that the revision is maintainable, it is
submitted that where the issue was
indicated by the revisional Court as to
whether the revision is maintainable or not,
the revisional Court has categorically come
to the finding that the revision in fact is
maintainable and has thereafter proceeded
to partially allowed the revision and thus
mere fact that while considering the ground
(b) that had been taken in the revision that
the Court may have cursorily observed that
that the revision is not maintainable will
not take away the jurisdiction of the
revisional Court to have entertained and
decided the issue.

16. So far as the ground of merger is
concerned, it is
contended that the
revisional Court has only partly allowed the
revision filed by the revisionist and only set
aside the part of the order dated 02.09.2022
whereby the election petition had been
finally disposed of/consigned to records
meaning thereby that the rest of the order is
still intact which has correctly been
required to be part of the order dated
23.01.2023
by
the
learned
Election
Tribunal. Hence, there is no illegality or
infirmity in the orders impugned and the
writ petition deserves to be dismissed.

17. Heard the learned counsel
appearing for the contesting parties and
perused the records.

18. From the arguments as raised by
the learned counsels appearing for the
contesting parties and from a perusal of
records, it emerges that an election for the
post of Gram Pradhan had taken place in
the village in question. After the counting
of votes had taken place, respondent no. 5
gave an application to the Returning
Officer for re-counting of votes indicating
certain irregularities in the counting of
votes. Admittedly, no objections to the said
application were given by the petitioner.
The
Returning
Officer
directed
for
recounting of the votes that had been
polled.
The
Matgarna
Paryavekshak,
however, only counted two bundles of
votes. Subsequent thereto, the petitioner
was declared as elected to the post of Gram
Pradhan. The respondent no. 5 filed an
election petition challenging the election of
the petitioner on various grounds including
the ground as finds place in the election
petition that when the Returning Officer
had directed for recounting of votes, the
Matgarna Paryavekshak only recounted
two bundles which was against the
direction issued by the Returning Officer
and thus, the recounting of votes was
vitiated on this ground alone. Interpolation
in records has also been observed. The said
ground found favour with the learned
Election Tribunal who vide order dated
02.9.2022 directed for recounting of votes
and disposed of the election petition. Being
aggrieved, the petitioner filed a writ
petition but this Court vide order dated
8.9.2022 relegated the petitioner to the
remedy of revision as available under the
provisions of the Act, 1947. The petitioner
filed a revision and the revisional Court
vide order dated 22.9.2022 dismissed the
revision which entailed the petitioner to file
another writ petition before this Court and
this Court vide judgment and order dated
22.10.2022 set aside the order passed by
the revisional Court and required the
revisional Court to decide the matter a fresh
expeditiously. In pursuance thereof, the
revisional Court vide order impugned dated
3.1.2023 partly allowed the revision filed
by the petitioner and set aside the order of
the learned Election Tribunal so far as it
directed that the records of the election
154 INDIAN LAW REPORTS ALLAHABAD SERIES
petition be consigned to records. The
revisional Court also restored the election
petition to its original number and the
revisional Court has further been directed
to dispose of the election petition in
accordance with law. In pursuance thereof,
the learned Election Tribunal vide order
impugned dated 23.01.2023 has directed
for re-counting to be held on 07.02.2023
and the order dated 02.09.2022 has also
been directed to form part of the order
dated 23.01.2023.

19. The challenge to the orders
impugned have been raised on various
grounds as have been indicated above.

20. The first ground of challenge is
that no reasons have been recorded by the
learned Election Tribunal as to why the recounting has been directed.

21. The said ground is patently
fallacious inasmuch as a perusal of the
orders impugned dated 22.09.2022 and
23.01.2023 would indicate that the learned
Election Tribunal has considered the fact
that
the
application
moved
by
the
respondent no. 5 for the purpose of recounting of votes had found favour with the
Election Officer upon no objection being
filed by the petitioner and thereafter
directed for a re-counting of votes. The
Matgarna Paryavekshak being bound by the
order passed by the Returning Officer and
for re-counting of votes, only restricted
himself to counting of two bundles of votes
which thus entailed the petitioner being
declared as Gram Pradhan. The reasons
which have prevailed on the learned
Election Tribunal for directing of recounting of votes is that when the order of
the Returning Officer was for re-counting
of the votes as such, the Matgarna
Paryavekshak could not have confined
himself to counting of only two bundles of
votes rather all the votes should have been
counted
more
particularly
when
no
objections were filed by the petitioner to
the said application filed by the respondent
no. 5. In this view of the matter, this Court
does not find the ground of challenge to be
valid and accordingly the said ground is
rejected.

22. The next ground of challenge is
that the doctrine of merger would be
applicable and when the revisional Court
vide order dated 03.01.2023 had partly
allowed the revision consequently, the
order dated 02.09.2022 stood merged with
the order of the revisional Court dated
03.01.2023 and there would not be any
occasion for the learned Election Tribunal
to have directed in the order impugned
dated 23.01.2023 that the order dated
02.09.2022 shall form part of the order
dated 23.01.2023.

23. In this regard, a perusal of the
order passed by the revisional Court dated
23.01.2023
would
indicate
that
the
revisional Court has not set aside the entire
order passed by the learned Election
Tribunal dated 02.09.2022 rather only the
order by which the learned Election
Tribunal had consigned the matter to
records had been set aside meaning thereby
that it is only part of the order which was
set aside and the rest of the order was
affirmed. Thus, the doctrine of merger
would not be applicable to the entire order
of
learned
Election
Tribunal
dated
02.09.2022. Accordingly, this ground as
raised by the learned counsel for the
petitioner is also rejected.

24. Next ground for raising challenge
to the orders impugned is that the pleadings
in the election petition were casual
2 All. Smt. Lali Devi Vs. State of U.P. & Ors.
155
pertaining to re-counting and on the basis
of such casual pleadings, the order of recounting could not have been passed.

25. A perusal of the election petition
that had been filed by the respondent no. 5
would indicate that the specific ground had
been taken by the respondent no. 5 as to
why the re-counting was required inasmuch
as it was specifically averred that the
Returning Officer upon the application
filed by the respondent no. 5 had allowed
the said application for re-counting but the
Matgarna Paryavekshak had only confined
himself to re-counting of two bundles of
votes. As already indicated above, the
Matgarna Paryavekshak was bound by the
orders of Returning Officer keeping in view
Rule 4 of the Uttar Pradesh Panchayat Raj
(Election of Members, Pradhan and UpPradhans Rules, 1994 (hereinafter referred
to as "Rules, 1994). In this, regard Rule 4
of the Rules, 1994 would be relevant to be
considered regarding the powers of the
Returning Officer.

26. For the sake of convenience, Rule
4 of the Rules, 1994 is reproduced as
under:-

"4. Nirvachan Adhikari- (1) For
every Panchayat area, for every election to
fill a seat or seats in the Gram Panchayat
the District Magistrate shall appoint a
Nirvachan Adhikari (Returning Officer)
who shall be an officer of the State
Government.

Provided that nothing in this rule
shall prevent the District Magistrate from
appointing the same person to be the
Nirvachan Adhikari for more than one
Panchayat area.

(2) The Nirvachan Adhikari
shall perform the functions required to be
performed under this Chapter and it shall
be his general duty at any election to do
all such acts and things as may be
necessary for effectually conducting the
election in the manner provided by the
Act and these rules.

(3) Without prejudice to the
generality of the provisions of sub- rule
(2) the State Election Commission may if
it so considers expedient, by order direct
that such of the powers, duties and
functions of the Nirvachan Adhikari
under these rules as may be specified by
it in general instructions shall be
exercised or discharged by the Matdan
Adhyaksh at the polling place subject to
such restrictions and conditions as may
be specified in the order."

27. Considering Rule 4 of the Rules,
1994 it is apparent that it is the Returning
Officer who is appointed by the District
Magistrate for every election to perform
the function required to be performed
under Chapter II of the Rules, 1997 and
to do all acts and things as may be
necessary for effectually conducting the
election in the manner provided in the act
and the rules.

28. Keeping in view Rule 4 of the
Rules 1994, it is thus apparent that being
under the control of the Returning Officer it
was the duty of the Matgarna Paryavekshak
to do all acts and things for effectual
conduct of the election as was directed by
the Returning Officer and as such, the
Matgarna Paryavekshak was required to
carry out the directions of the Returning
Officer and thus all votes should have been
counted as per the directions of the
Returning Officer and the same not having
been done and a specific ground having
been taken in the election petition as such,
the learned Election Tribunal was perfectly
correct in the eyes of law for having
156 INDIAN LAW REPORTS ALLAHABAD SERIES
directed for re-counting of all votes by
means of the impugned orders.

29. In this regard, the judgments of
the Uday Chand (supra), Arikala Narasa
Reddy (supra) & Amit Narain Rai
(supra) over which reliance have been
placed by the learned counsel for the
petitioner all indicate that a direction for recounting of votes can be done and the
Court would be justified in ordering a recount of the ballot papers where 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.

30. In this regard, it would be apt to
reproduce as to what has been held by the
Apex Court in the case of Uday Chand
(supra) :-

11. Before adverting to the merits
of the issue raised by the parties with
reference to the statutory provisions, it would
be appropriate to bear in mind the salutary
principle laid down in the election law that
since an order for inspection and re-count of
the ballot papers affects the secrecy of ballot,
such an order cannot be made as a matter of
course. Undoubtedly, in the entire election
process, the secrecy of ballot is sacrosanct
and inviolable except where strong prima
facie circumstances to suspect the purity,
propriety and legality in the counting are
made out.

12. The importance of maintenance
of secrecy of ballot papers and the
circumstances under which that secrecy can
be breached, has been considered by this
Court in several cases. It would be trite to
state that before an Election Tribunal can
permit scrutiny of ballot papers and order
re-count, two basic requirements viz.

(i) the election petition seeking
re-count of the ballot papers must contain
an adequate statement of all the material
facts
on
which
the
allegations
of
irregularity or illegality in counting are
founded, and

ii) on the basis of evidence
adduced in support of the allegations, the
Tribunal must be prima facie satisfied that
in order to decide the dispute and to do
complete and effectual justice between the
parties, making of such an order is
imperatively necessary, are satisfied.

 (Emphasis by the Court)

31. Likewise, the Apex Court in the
case of Arikala Narasa Reddy (supra)
has held as under:-

13.
It
is
a
settled
legal
proposition that the statutory requirements
relating to election law have to be strictly
adhered to for the reason that an election
dispute is a statutory proceeding unknown
to the common law and thus, the doctrine of
equity, etc. does not apply in such dispute.
All the technicalities prescribed/mandated
in election law have been provided to
safeguard the purity of the election process
and courts have a duty to enforce the same
with all rigours and not to minimize their
operation. A right to be elected is neither a
fundamental right nor a common law right,
though it may be very fundamental to a
democratic
set-up
of
governance.
Therefore, answer to every question raised
in election dispute is to be solved within the
four corners of the statute. The result
announced by the Returning Officer leads
to formation of a government which
requires the stability and continuity as an
essential feature in election process and
therefore, the counting of ballots is not to
be interfered with frequently. More so,
secrecy of ballot which is sacrosanct gets
2 All. Smt. Lali Devi Vs. State of U.P. & Ors.
157
exposed if recounting of votes is made easy.
The court has to be more careful when the
margin between the contesting candidates
is very narrow. "Looking for numerical
good fortune or windfall of chance
discovery of illegal rejection or reception of
ballots must be avoided, as it may tend to a
dangerous disorientation which invades the
democratic order by providing scope for
reopening of declared results". However, a
genuine apprehension of mis- count or
illegality and other compulsions of justice
may require the recourse to a drastic step.

14. Before the court permits the
recounting, the following conditions must
be satisfied:

(i) The court must be satisfied
that a prima facie case is established;

(ii) The material facts and full
particulars have been pleaded stating the
irregularities in counting of votes;

(iii) A roving and fishing inquiry
should not be directed by way of an order
to re-count the votes;

(iv) An opportunity should be
given to file objection; and

(v) Secrecy of the ballot should be
guarded."

 (Emphasis by the Court)

32. The Full Bench of this Court in
the case of Ram Adhar Singh (supra) has
held as under:-

"11. In the case of Ram Sewak
Yudav v. Hussain Kamil Kidwai AIR 1964
SC 1249, the Supreme Court while dealing
with a similar question arising under the
Representation of the People Act held that
before an authority or court dealing with
an election petition is not to look into or
direct inspection of ballot papers unless
following two conditions co- exist:

(i) that the petition for setting
aside an election contains an adequate
statement of the material facts on which the
Petitioner relied in support of his case (the
petition meets the requirement of Section
83(1) of the Representation of the People
Act regarding contents of the election
petition), 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."

12.
In
this
connection,
the
learned Judges of the Supreme Court went
on to observe thus:

"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
provision supported by averments of
material facts. To establish a case so
pleaded an order for inspection may
undoubtedly, if the interest of justice
require, be granted. But a mere allegation
that the Petitioner suspects or believes that
there has been an Jim proper reception,
refusal or rejection of votes will not be
sufficient
to
support
an
order
for
inspection."

13. In the case of Bhabhi v. Sheo
Govind AIR 1975 SC 2117, the Supreme
Court
approved
the
principles
for
inspection of ballot papers laid down in
Ram Sewak's case (supra) and after
noticing its decisions in the cases of Dr.
Jagjit Singh v. Giani Kartar Singh : AIR
1966 SC 773, Jitendra Bahadur Singh v.
Krishna Behari AIR 1970 SC 276, Shashi
Bhusan v. Prof. Balraj Madhok: AIR 1972
SC 1251, Sumitra Devi v. Shri Sheo
Shanker Prasad Yadav AIR 1973 SC 215,
Beliram Bhalaik v. Jai Behari Lal Kachi
AIR SC 283, Baldeo Singh v. Teja Singh :
AIR 1975 SC 693 and Suresh Prasad Yedav
158 INDIAN LAW REPORTS ALLAHABAD SERIES
v. Jai Prakash Misra : AIR 1975 SC 376,
the Court observed thus:

Thus on a close and careful
consideration of the various authorities of
this Court from time to time it is manifest
that the following conditions are imperative
before a Court can grant inspection, or for
that matter sample inspection, of the ballot
papers;

(1) That it is important to
maintain the secrecy of the ballot which is
sacrosanct and should not be allowed to be
violated on frivolous, vague and indefinite
allegations;

(2) That before inspection is
allowed, the allegations made against the
elected candidate must be clear and
specific and must be supported by adequate
statements of material facts;

(3) The Court must be prima facie
satisfied on the materials produced before
the Court regarding the truth of the
allegations made for a recount;

(4) That the Court must come to
the conclusion that in order to grant prayer
for
inspection
it
is
necessary
and
imperative to do full justice between the
parties;

(5) That the discretion conferred
on the Court should not be exercised in
such a way so as to enable the applicant to
indulge in a roving inquiry with a view to
fish materials for declaring the election to
be void; and

(6) That on the special facts of a
given case sample inspection may be
ordered to lend further assurance to the
prima facie satis action of the Court
regarding the truth of the allegations made
for a re-count, and not for the purpose of
fishing out materials.

14. The principles laid down in
Bhabhi's case (supra) have again been
applied and followed by that Court in the
case of N. Narayanan v. S. Semalai : AIR
1980 SC 206 wherein it observed thus:

Finally, the entire case law on the
subject regarding the circumstances under
which recount could be ordered was fully
summarised and catelogued by this Court
in the case of Bhabhi v. Sheo Govind : 1975
SCR 202 to which one of us (Fazal Ali, J.)
was a party and which may be extracted
thus:

The Court would be justified in
ordering a recount of the ballot papers only
where;

(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.

15. This Court has consistently
applied
aforementioned
principles
enunciated by the Supreme Court, for
looking into and permitting inspection of
ballot papers in cases arising under the
Representation of the Peoples Act, to
similar cases arising under the U.P.
Panchyayat Raj Act as well. See Dhanai
Prasad
v.
Sub-Divisional
Magistrate,
Chunar, District Mirzapur 1974 ALJ 371,
Charon Singh v. Sub-Divisional Officer
1974 ALJ 748, Kali Prasad v. Prescribed
Authority (SDO), Pratapgarh 1980 ALJ
378 and Mohammad Husain v. S.D.O.
Shahabad 1983 AWC 430.

16...................
2 All. Smt. Lali Devi Vs. State of U.P. & Ors.
159

17...................

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

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

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

33. As regards the ground that the
revisional Court in one part of the order
impugned dated 03.01.2023 has recorded
that the revision against the order dated
02.09.2022 is maintainable and in the other
part of the order it has been indicated that it
is not maintainable, suffice it to say that a
perusal of the order passed by the
revisional Court would indicate that three
points of determination arose before the
revisional Court of which ground (a) was
that as to whether a revision was
maintainable. The finding of this ground
has explicitly been given by the revisional
Court
that
the
revision
against
the
impugned order was maintainable. The
revisional Court while considering the
second point for consideration namely the
reasonablity of the order of re-counting and
as to whether the same could be looked into
in the revision only recorded for the
purpose of argument that in case the said
argument is accepted, the same would
tantamount to colourable exercise of
revisional jurisdiction which the revisional
Court was not vested with. The fact of the
matter remains that the revisional Court has
held that the revision against the order of
the
learned
Election
Tribunal
dated
02.09.2022 was maintainable. Accordingly,
the said ground is also rejected.

34. So far as the grounds (e) and (f)
that the ground in the memo of revision and
the judgments which were indicated in the
written statement have not been considered
by the revisional Court, suffice to say that
the issue before the revisional Court was as
to whether the ground raised in the election
petition made out a case for re-counting of
votes as has been directed by the learned
Election
Tribunal
vide
order
dated
02.09.2022. The grounds as raised in the
petition have specifically been considered
by the revisional Court as would be
apparent from the points of determination
framed by it. Thereafter, the revisional
Court concluded that the re-counting of
votes are means to arrive at the just and
proper decision for disposal of election
petition on merit. The grounds taken by the
learned Election Tribunal in its order
impugned for directing for re-counting of
votes found favour with the revisional
Court. Moreover, the point in issue before
the revisional Court was only a short point
which already stands settled by the
decisions as have been cited above.
Sufficient reasons emerge from the order
passed by the learned Election Tribunal in
the orders dated 02.09.2022 & 23.01.2023
160 INDIAN LAW REPORTS ALLAHABAD SERIES
as to why the re-counting has been
directed. Thus, this Court does not find any
illegality or infirmity with the reasons
recorded by the learned Election Tribunal
or the revisional Court while directing for a
re-counting. Accordingly, the said grounds
as taken by the petitioner are also rejected.

35. Keeping in view the aforesaid
discussion, no case for interference is made
out. The writ petition is dismissed.

36. Learned Standing counsel shall
inform about this order to the authorities
without waiting for a certified copy of this
order.
----------
(2023) 2 ILRA 160
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.01.2023

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.
THE HON'BLE MANISH KUMAR, J.

Writ C No. 6210 of 2022
along with
Writ C No. 6534 of 2022

M/S Rhetoric Technologies Pvt. Ltd. & Anr.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Aakash Prasad, Amitav Singh

Counsel for the Respondents:
C.S.C., Ajai Kumar, Ayush Chaudhary,
Rakesh Kumar Chaudhary, Vivek Kumar Rai

(A) Constitution of India - Article 226 -
Scope of judicial review in contractual
matters - process of interpretation of
tender document - State government
tender - R.F.B. (Request for bid) - clause
13 and 15 of Section 2 - Instructions to
bidders, Section 12 - General Conditions
of Contract , Section 12(1)(iii) - R.F.B.
to be filed along with other technical
documents specified in the technical
conditions of the Contract , clause-iii -
"Bidders Document" , clause 2 (f) - bid
document had to be stamped and signed
by person duly authorized by Company
through its Board resolution - Clause 23
- representation and warranties of the
bidders - Clause 8 (f) - documents that
have
to
be
submitted
along
with
Technical bid of bidder.

(B)
Scope
of
judicial
review
in
Government tenders - limited - authority
which floats the contract or tender and
has authored the tender documents is
the best judge as to how the documents
have
to
be
interpreted
-
If
two
interpretations are possible then the
interpretation of the author must be
accepted - Principles of equity and
natural justice stay at a distance -
interpretation should not be second
guessed by a Court in judicial review
proceedings
-
Interference