# Smt. Sajida v. S.D.M., Kairana, Shamli & Ors

- **Citation:** (2023) 1 ILRA 406
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-11
- **Case number:** Writ-C No. 294 of 2023
- **Bench:** Saurabh Shyam Shamshery
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-sajida-v-s-d-m-kairana-shamli-ors-49626
- **Pages:** 6

## Headnote

(A) Civil Law - Election - U.P. Panchayat
Raj
Act,
1947
-
Section
12
(C)
-
Application for questioning the elections,
Section 12-C(6) - revision , 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 - As a rule relief not founded in
pleadings should not be granted.(Para -
16,)

In body of election petition - vague assertions
made - regarding illegal rejection of valid votes
- not substantiated - either in examination of
election petitioner or otherwise on the basis of
record available - Parties to take proper
1 All. Smt. Sajida Vs. S.D.M., Kairana, Shamli & Ors.
407
pleadings by adducing evidence - by particular
irregularity of illegality result of election has
been materially affected.(Para -16 )

HELD:-Sub-Divisional Magistrate exercised its
jurisdiction of recounting only on basis of roving
inquiry without substantial ground or evidence
on record. Conclusions arrived by Sub-Divisional
Magistrate are based on vague submissions and
without any substantial material produced by
the election petitioner. Impugned order suffers
from illegality. Order Quashed.(Para - 17,18)

Petition Allowed. (E-7)

List of Cases cited:

## Text

406 INDIAN LAW REPORTS ALLAHABAD SERIES
Commanding-in-Chief
vs.
Subhash
Chandra Yadav and another, (1988) 2
SCC 351, Additional District Magistrate
(Rev.) Delhi Administration vs. Siri
Ram, (2000) 5 SCC 451, Sukhdev Singh
and others vs. Bhagatram Sardar Singh
Raghuvanshi and another, (1975) 1 SCC
421, State of Karnataka and another vs.
H. Ganesh Kamath and others, (1983) 2
SCC 402, Kunj Behari Lal Butail and
others vs. State of H.P. and others,
(2000) 3 SCC 40, Union of India vs. M/s
G.S. Chatha Rice Mill, (2021) 2 SCC 209
and judgment dated 16.12.2022 in Civil
Appeal Nos.9252-9253 of 2022 (Kerala
State Electricity Board and others vs.
Thomas Joseph @ Thomas M.J. and
others). In the present set of facts, we have
found that the State Government has not
transgressed the power in framing the
impugned Rules. The impugned Rules are
well in terms with the Executive Orders of
Government of India issued under Article
73 of the Constitution of India.

49. In view of the settled principles of
law and discussion made above with regard
to the U.P. Service Rules, 2016, we hold
that the impugned Rules 9(B), 15(3) and
17(3) of U.P. Government Industrial
Training Institute (Instructors) Service
Rule, 2014 neither suffer from lack of
legislative competence nor it is violative of
Articles 14, 16 or 21 of the Constitution of
India nor it suffers from any invalidity.
These provisions are wholly valid. The
impugned advertisement is also wholly
valid.

50. It has been stated on behalf of the
selected candidates before us that all the
appointed
Instructors
were
either
possessing CITS certificates prior to their
selection/appointment OR have completed
CITS subsequently during the period
provided under the U.P. Service Rules,
2014 and subsequent executive orders.

51. For all the reasons aforestated we
hold that the impugned Advertisement No.
2 of 2014 dated 07.11.2014 and the
impugned Rule 9(B), 15(3) and 17(3) are
valid. All the writ petitions lack merit and
are, hereby, dismissed.
----------
(2023) 1 ILRA 406
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.01.2023

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Writ-C No. 294 of 2023

Smt. Sajida ...Petitioner
Versus
S.D.M., Kairana, Shamli & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Nipun Singh, Sri Sumit Suri

Counsel for the Respondents:
C.S.C., Sri Vineet Singh Parmar

(A) Civil Law - Election - U.P. Panchayat
Raj
Act,
1947
-
Section
12
(C)
-
Application for questioning the elections,
Section 12-C(6) - revision , 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 - As a rule relief not founded in
pleadings should not be granted.(Para -
16,)

In body of election petition - vague assertions
made - regarding illegal rejection of valid votes
- not substantiated - either in examination of
election petitioner or otherwise on the basis of
record available - Parties to take proper
1 All. Smt. Sajida Vs. S.D.M., Kairana, Shamli & Ors.
407
pleadings by adducing evidence - by particular
irregularity of illegality result of election has
been materially affected.(Para -16 )

HELD:-Sub-Divisional Magistrate exercised its
jurisdiction of recounting only on basis of roving
inquiry without substantial ground or evidence
on record. Conclusions arrived by Sub-Divisional
Magistrate are based on vague submissions and
without any substantial material produced by
the election petitioner. Impugned order suffers
from illegality. Order Quashed.(Para - 17,18)

Petition Allowed. (E-7)

List of Cases cited:

1. Hari Vishnu Kamath Vs Ahmad Ishaque , AIR
1955 SC 233

2. Mohd. Mustafa Vs U.P. Ziladhikari, Phoolpur,
Azamgarh & ors. , 2007(7) ADJ 1 (DB)

3. Abrar Vs St. of U.P. & ors. , 2004(5) AWC
4088

4. Ram Adhar Singh Vs D.J. & ors. , 1985 AWC
246

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

6. T.A. Ahammed Kabeer Vs A.A. Azeez , (2003)
5 SCC 650

7. Satyanarain Dudhani Vs Uday Kumar Singh &
ors. , 1993 Supp. (2) SCC 82

8.
M.R.
Gopalalkrishnan
Vs
Thachady
Prabhakaran & ors. , 1995 Supp (2) SCC 101

9. Bhabhi Vs Sheo Govind & ors., AIR 1975 SC
2217

10. Ram Sewak Yadav Vs Hussain Kamil Kidwai
& ors. , AIR 1964 SC 1249

(Delivered by Hon'ble Saurabh Shyam
Shamshery, J.)

1. Petitioner before this Court is a
returned candidate (Village Pradhan of
Village Panchayat Pawatikalan, Kairana,
District
Shamli)
whereas
contesting
Respondent-2/ Election Petitioner (Smt.
Anita) is runner up candidate and the
margin of victory was only three votes.

2.

The
election
petitioner
(Respondent-2) filed an election petition
under Section 12-C of U.P. Panchayat Raj
Act, 1947 (hereinafter referred to as "Act,
1947") wherein after exchange of pleadings
following five issues were framed:

"1. क्या पेट्ीशनर व अन्य प्रग्रतवादीगण ने
िाम पावट्ीकलाों से प्रिान पद हेतु ग्रवग्रि अनुसार
आवेदन प्रस्तुत ग्रकया था यग्रद ना त प्रभाव क्या?

2. मतगणना के दौरान वादी के एजेन् ों
द्वारा क्या-2 आपग्रि उठायी गयी। क्या इन्हे
प्रग्रतवादी सों. 15 व 16 द्वारा अस्वीकार ग्रकया
गया यग्रद हााँ त प्रभाव?
\
3. उक्त याग्रिका में ग्रकये गये कथन ों के
अनुसार मतगणना ग्रवग्रि व ग्रनयम के अनुसार
नहीों की गयी यग्रद हाों त प्रभाव?

4. क्या याग्रिका में ग्रकये गये कथन के
अनुसार पुन: मतगणना ग्रकया जाना है?

5. क्या वादी अन्य क ई अनुत ष पाने का
हकदार है यग्रद हाों त क्या?"

3. Sub-Divisional Magistrate, Kairana
after considering material on record by
impugned order dated 23.12.2022 accepted
election petition and disposed of same with
direction of recounting. Petitioner has
approached this Court directly without
availing alternative remedy provided under
Section 12-C(6) of Act, 1947.

4. A preliminary objection was raised
by
Sri
Bhupendra
Kumar
Tripathi,
Advocate holding brief of Sri Vineet Singh
Parmar, learned counsel appearing for
Respondent-2,
with
regard
to
maintainability of writ petition and he
408 INDIAN LAW REPORTS ALLAHABAD SERIES
placed reliance on a Constitution Bench
decision of Supreme Court in Hari Vishnu
Kamath vs. Ahmad Ishaque, AIR 1955
SC 233 and relevant para 23 is reproduced
as under:

"23. It may therefore be taken as
settled that a writ of certiorari could be
issued to correct an error of law. But it is
essential that it should be something more
than a mere error; it must be one which
must be manifest on the face of the record.
The real difficulty with reference to this
matter, however, is not so much in the
statement of the principle as in its
application to the facts of a particular case.
When does an error cease to be mere error,
and become an error apparent on the face
of the record? Learned Counsel on either
side were unable to suggest any clear-cut
rule by which, the boundary between the
two
classes
of
errors
could
be
demarcated."

5. In reply to preliminary objection
Sri
Anurag
Khanna,
learned
Senior
Advocate assisted by Sri Nipun Singh and
Sri Raghav Dev Garg, learned counsel for
petitioner, placed reliance on a judgment
passed by Division Bench of this Court in
Mohd. Mustafa vs. U.P. Ziladhikari,
Phoolpur, Azamgarh and others, 2007(7)
ADJ 1 (DB) and he referred the answers to
the question referred by learned Single
Judge. Relevant para 27 is mentioned
hereinafter:

27. We answer the questions referred
to by the learned Single Judge as follows:

(I) A revision under Section 12-C(6)
of the Act shall lie only against a final
order passed by the Prescribed Authority
deciding
the
election
application
preferred under Section 12-C(1) and not
against any interlocutory order or order
of recount of votes by the Prescribed
Authority.

(II) The judgment of the learned
Single Judge in the case of Abrar v. State
of U.P. and Ors. (2004) 5 AWC 4088
does not lay down the law correctly and
is, therefore, overruled to the extent of
the question of maintainability of a
revision
petition,
as
indicated
hereinabove.

(III) As a natural corollary to the
above, we also hold that a writ petition
would be maintainable against an order
of recount passed by the Prescribed
Authority while proceeding in an election
application under Section 12-C of the
U.P. Panchayat Raj Act, 1947."

6. Learned Senior Advocate also
referred that facts of the matter under
reference are similar to present case
wherein election petition was finally
disposed of with direction of recounting
of votes and as such writ petition is
maintainable against order of recounting
passed by Sub-Divisional Magistrate,
Kairana.

7. In order to consider the
preliminary objection, I have carefully
perused the judgment passed by Division
Bench in Mohd. Mustafa (supra) as well
as Abrar vs. State of U.P. and others,
2004(5) AWC 4088 and found that facts
of present case are similar, therefore,
preliminary objection is rejected by
holding that present writ petition is
maintainable.

8. Sri Anurag Khanna, learned Senior
Advocate further submits that impugned
order is ex facie illegal and arbitrary and
based on non-application of mind. SubDivisional
Magistrate
has
committed
manifest error of law by passing order of
1 All. Smt. Sajida Vs. S.D.M., Kairana, Shamli & Ors.
409
recounting of votes particularly when no
details or any particular with regard to
allegations as levelled in plaint has been
provided
by
election
petitioner.
The
assertion made in election petition was
absolutely vague, baseless, bald and
scandalous and lacking material facts and
particulars which are essential for seeking
any relief in election petition. Learned
Senior Advocate placed reliance on Full
Bench judgment of this Court in Ram
Adhar Singh vs. District Judge and
others, 1985 AWC 246 that before an
authority hearing election petition under
Act, 1947 can be permitted to look into or
to direct inspection of ballot papers except
when following two conditions must coexist:

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

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

9. Learned Senior Advocate also placed
reliance on Supreme Court's judgment in
Arikala Narasa Reddy vs. Venkata Ram
Reddy Reddygari and another (2014) 5
SCC 312; T.A. Ahammed Kabeer vs. A.A.
Azeez (2003) 5 SCC 650; Satyanarain
Dudhani vs. Uday Kumar Singh and
others 1993 Supp. (2) SCC 82; and, M.R.
Gopalalkrishnan
vs.
Thachady
Prabhakaran and others, 1995 Supp (2)
SCC 101.

10. Per contra, learned counsel
appearing for Respondent-2 has referred
the findings on Issues No. 1, 2, 3, 4 and 5
that election petitioner has raised objection
at the time of counting, however, she was
ignored and during hearing of election
petition Government Respondents have not
come up with any explanation, why
complaints made by election petitioner
were rejected. Learned counsel further
submits that returned candidate has made
an assertion on affidavit that she has no
objection for recounting.

11. I have heard learned counsel for
parties and perused the material available
on record as well as the judgments cited at
Bar.

12. It is well settled that it is
important to maintain secrecy of ballot
which is sacrosanct and it should not be
allowed to be violated on frivolous, vague
and indefinite allegations and before
inspection is allowed, the allegations made
against elected candidate must be clear and
specific and must be supported by adequate
statements of material facts (See, Bhabhi
vs. Sheo Govind and others, AIR 1975
SC 2217 and Ram Sewak Yadav vs.
Hussain Kamil Kidwai and others, AIR
1964 SC 1249). The discretion conferred
on Courts should be not exercised in such a
way so as to enable election petitioner to
indulge in a roving enquiry in order to fish
out materials for declaring election to be
void.

13. Election petitioner has made a
assertion in election petition that vote given
in her favour were placed in the bundle of
votes given in favour of returned candidate
and
during
counting
when
election
petitioner came to know that number of
votes given in her favour are 990 and in
410 INDIAN LAW REPORTS ALLAHABAD SERIES
favour of elected candidate are 993 and
number of rejected votes are 157, she
raised
an
objection
and prayed
for
recounting but Election Officer has not
paid attention. A further assertion has been
made that bundle of 157 rejected votes
included some valid votes also.

14. As referred above, the SubDivisional Magistrate framed five issues.
During proceedings witnesses appears and
they were cross-examined also. SubDivisional Magistrate while considering
Issues No. 2 and 3 has accepted version of
election petitioner that counting was not
done properly as well as that no proper
explanation was afforded by Election
Officer, why request of recounting was
denied. However, in the impugned order
there is no evidence that there are a good
ground for believing that there is mistake in
counting. Sub-Divisional Magistrate has
accepted
bald
statement
of
election
petitioner which was not supported by any
material or evidence and for reference
relevant
part
of
impugned order
is
mentioned hereinafter:

"इस कथन से यह स्पष्ट ह ता है ग्रक
याग्रिकाकताि व ग्रवपक्षी नों. 1 ज 3 व ट् से
ग्रनवािग्रित घ ग्रषत हुई सन्तुष्ट नहीों है तथा
जवाबदावा के पैरा नों. 19 में मतगणना की
समस्त प्रग्रिया ग्रनयमानुसार पूरी कराकर
पररणाम घ ग्रषत ग्रकया। इस प्रकार प्रग्रतवादी नों.
1 का कथन स्वयों ग्रवर िाभाषी है। एक तरफ
मतगणना ग्रनयमानुसार न ग्रकये जाने का कथन
ग्रकया है तथा दूसरी तरफ मतगणना सही ह ना
बताया इसग्रलये प्रग्रतवादी नों. 1 का कथन
ग्रवर िाभाषी व सोंग्रदग्ध है तथा ग्रवपक्षी नों. 15 ज
ग्रनवािन अग्रिकारी था उसने अपने ग्रलखित
उिर में मतगणना सही ह ना बताया तथा
पररणाम सही घ ग्रषत करने का कथन ग्रकया।
ग्रकसी के द्वारा पुनः मतगणना के ग्रलए क ई
प्राथिना पत्र नहीों ग्रदया गया। पुनः मतगणना ग्रकये
जाने हेतु प्राथिना पत्र देने का कथन अस्वीकार
ग्रकया गया है। लेग्रकन ग्रवपक्षी नों. 15 ने अपने
जवाबदावे में ग्रकये गये कथन की पुग्रष्ट न्यायालय
में उपखथथत ह कर नहीों की है जबग्रक ग्रवपक्षी नों.
15 क साक्ष्य देने का अवसर ग्रदया गया इसग्रलये
ग्रवपक्षी नों. 1 के द्वारा ग्रदये गये ग्रलखित कथन की
पुग्रष्ट न ह ने के कारण कथन सही मानने का
आिार पयािप्त नहीों है।

ग्रवपक्षी नों 1 ने साक्ष्य में शपथ पत्र ग्रदया तथा
यह कथन ग्रकया ग्रक मतगणना के समय वह
उपखथथत नहीों थी उसका अग्रभकताि उसका पग्रत
डी0डब्लू0 2 उपखथथत था तथा ग्रवपक्षी नों. 1 ने
अपनी ग्रजरह में यह भी कथन ग्रकया ग्रक पुनः
मतगणना ग्रकये जाने में मुझे क ई आपग्रि नहीों
है।"

15. I have carefully perused the
statements of witnesses recorded before
Sub-Divisional Magistrate. Petitioner has
not mentioned in categorical terms that she
raised any objection during counting
including the prayer to recount on specific
ground and that her husband was not
present at counting centre though in later
part of cross-examination she referred
about complaint that her polling agent has
communicated her that some votes were
wrongly rejected. Therefore, there is no
specific averment with regard to number of
votes which have been declared wrongly
invalid and could materially affected the
election. In this regard following paragraph
of judgment passed by Supreme Court in
M.R. Gopalalkrishnan (supra) would be
relevant:

"20. We now come to the third ground
advanced by the learned counsel for the
appellant that invalid votes were counted in
favour of the returned candidate respondent
No. 1 and that out of the total rejected votes of
1375, quite a large number of valid votes in
1 All. HDFC Standard Life Insurance Co. Ltd. Vs. Permanent Lok Adalat Moradabad & Anr.
411
favour of the appellant were rejected, which
materially affected the result of the election.
Learned counsel for the respondent submitted
that the appellant has not set forth the concise
statement of material fact with regard to the
allegation of counting invalid votes in favour of
the respondent No. 1 nor has given any
particulars of such invalid votes which are
alleged to have been counted in favour of
respondent No. 1 He also submitted that
similarly there are no particulars with regard to
the rejection of valid votes in favour of the
appellant nor number of such votes in order to
support the allegation that such rejection of
valid votes in favour of the appellant materially
affected the result of the election. In our opinion
there is no substance in these submissions made
by the learned counsel for the appellant. In fact
the appellant has neither pleaded the details
and the number of such invalid votes which
were counted in favour of respondent No. 1 nor
has given the particulars of the number of such
valid votes in favour of die, appellant which
were wrongfully rejected during the course of
counting. This apart, the Returning Officer,
Supervisors and other officials were also
present in the counting hall throughout the
process of counting and the observers also
visited the counting hall, but neither the
appellant nor any of his counting agents
pointed out or objected either orally or in
writing that invalid votes were counted in
favour of the respondent No. 1 or valid votes in
favour of the appellant were rejected. The
evidence of the Returning Officer, PW 16
clearly goes to show that no such complaint
was made by any one during the course of
counting. In these facts and circumstances it is
difficult to accept the allegations made by the
appellant which seem to be only an after
thought and without any evidence or material to
support the same."

16. It is settled that order of recounting
cannot be passed only for the sake of it and on
the basis of vague allegation without specifying
any particular irregularity in counting as well as
how it would affect election result materially. In
the present case in the body of election petition
vague assertions have been made regarding
illegal rejection of valid votes which are not
substantiated either in examination of election
petitioner or otherwise on the basis of record
available. Parties have to take proper pleadings
by adducing evidence that by particular
irregularity of 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
[See, Arikala Narasa Reddy (supra)].

17. In the present case, Sub-Divisional
Magistrate has exercised its jurisdiction of
recounting only on the basis of roving inquiry
without substantial ground or evidence on
record. Conclusions arrived by Sub-Divisional
Magistrate are based on vague submissions and
without any substantial material produced by the
election petitioner, therefore, the order impugned
suffers from illegality and liable to be set aside.

18. In the result, writ petition is allowed.
Impugned order dated 23.12.2022 passed by
Sub-Divisional Magistrate, Kairana, District
Shamli, is hereby quashed.
----------
(2023) 1 ILRA 411
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.11.2022

BEFORE

THE HON'BLE PRAKASH PADIA, J.

Writ-C No. 27289 of 2022

HDFC Standard Life Insurance Co. Ltd.
 ...Petitioner
Versus
Permanent Lok Adalat Moradabad & Anr.
 ...Respondents