Kulsum Vs. State Of U.P. And 24 Others
Allahabad High Court (Single Judge)
WRIT - C, 8132 of 2018, Judgment Date: Apr 20, 2018
AFR
Court No. - 6 RESERVED
Case :- WRIT - C No. - 8132 of 2018
Petitioner :- Kulsum
Respondent :- State Of U.P. And 24 Others
Counsel for Petitioner :- Jitendra Kumar Nayak,Rakesh Pande
Counsel for Respondent :- C.S.C.,Adil Jamal
Hon'ble B. Amit Sthalekar,J.
Heard Sri Rakesh Pande, learned counsel for the petitioner, Sri Ajay Shankar, learned counsel for the respondent no. 5 and the learned Standing Counsel for the State-respondents.
Sri Ajay Shankar states that he does not want to file any counter affidavit.
The petitioner in the writ petition is seeking quashing of the order dated 15.2.2018 passed by the Sub Divisional Magistrate, Baberu, District Banda whereby he has ordered recounting of votes.
Briefly stated the facts of the case are that the elections were notified of the Gram Panchayat-Bagehta, Block and Tehsil Baberu, District Banda for the post of Gram Pradhan and elections were held on 9.12.2015. The result was declared on 13.12.2015. The petitioner was declared elected as Gram Pradhan. The respondent no.5 along with respondent no.6 to 25 were also candidates for the post of Pradhan of the said election but they lost the election. The respondent no.5-Smt. Jurun Nisha challenged the election result by filing Election Petition no. 488 of 2015 (Smt. Jurun Nisha Vs District Magistrate, Banda and 20 others) on 25.01.2016 and prayed that recounting of the votes be done and the election of the petitioner be set aside. The allegation in the election petition was that certain persons who had died, their names were also shown in the electoral list and on their names votes were cast. The petitioner contested the election petition and filed her written statement denying the allegations in the election petition. The prescribed authority, however, by the impugned order dated 15.2.2018 has ordered recounting of the votes.
The submission of the learned counsel for the petitioner is that before passing the impugned order no issues were framed by the prescribed authority and, therefore, the petitioner did not know what was exactly being decided by the prescribed authority and what points were to be decided by the prescribed authority on which she might have led evidence. It is stated that in the election petition, the allegation of the respondent no. 5 was that the total electorate was 2905 out of which 1902 cast their votes, 1861 votes were declared to be valid and 41 votes were declared to be invalid. The respondent no. 5 received 296 votes whereas the petitioner herein received 297 votes. It was also alleged in the election petition that at the election center at the the time of recounting, Akbar Husain, husband of the election petitioner was present and one vote bearing number 786 was cast in favour of the respondent no. 5 but in recounting it was not shown cast in her favour against which she also protested but the result was declared and she lost the election by just one vote. The petitioner in her written statement denied the allegations of the election petitioner and also denied that there was any fraud or misrepresentation during recounting.
The submission of Sri Rakesh Pande on behalf of the petitioner is that the prescribed authority did not frame any issues and without the parties leading any evidence straightaway ordered recounting of the votes. He further submitted that Rule 4 (1) of Uttar Pradesh Panchayat Raj (Settlement of Election Disputes) Rules, 1994 (hereinafter referred to as the Rules, 1994) clearly provides that 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.
Rule 4 Clause (1) and the proviso thereto of the Rules, 1994 read as under:-
"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 :
Provided that-
(i) the Sub-Divisional Officer may hear the petitioner or his counsel and if he finds that the petition has no substance, reject the same without the issue of any notice to the opposite parties;
(ii) it shall not be necessary for the Sub-Divisional Officer to record the evidence in full and he may maintain only a memorandum of evidence produced by the parties before him;
(iii) if there is a sole petitioner and he dies, or there is a sole respondent and he dies, the petition shall abate;
(iv) the Sub-Divisional Officer may allow only such evidence to be produced as he deems relevant for the purpose of deciding the petition;
(v) the District Magistrate may at any stage, on sufficient cause being shown, transfer an application made under sub-section (1) of Section 12-C for hearing to another Sub-Divisional Officer;
(vi) an application not presented within time or unaccompanied by a treasure challan as required under sub-rule (1) of Rule 3 may at any time be dismissed by the Sub-Divisional Officer; and
(vii) the Sub-Divisional Officer may, on an application of either party made within five days after the date of his decision, review his order."
The submission, therefore, is that framing of issues was absolutely necessary otherwise, the parties would not know which points are going to be decided and on which points they have to lead evidence. He further submitted that if issues had been framed he would have been able to show that before declaration of result the election petitioner-respondent no. 5 herein had never raised any objection in writing or submitted any application for recounting of votes but this opportunity was denied to the petitioner. He further submitted that the impugned order was passed on a date when the petitioner's counsel was not present.
Sri Ajay Shankar, learned counsel for the respondent on the other hand submitted that Rule 4 of the Rules, 1994 only provides that election petition shall be tried by the Sub-Divisional Officer, as far as my be in accordance with the procedure applicable under the Code of Civil Procedure, 1908. This in itself, he submits, does not carry an implication that the strict rules of Code of Civil Procedure for framing of issues is to be followed, namely, the procedure provided under Order XIV Rule 1 CPC. Learned counsel for the respondents further submitted that the petitioner has filed a revision before the District Judge under Section 12-C (6) of the Uttar Pradesh Panchayat Raj Act, 1947 on 20.2.2018 and, therefore, she should contest the revision and she cannot pursue two remedies of writ and revision at the same time.
Learned counsel for the petitioner, however, has referred to a Division Bench judgement of this court in the case of Mohd. Mustafa Vs U.P. Ziladhikari, Phoolpur, Azamgarh and others, 2007 (7) ADJ 1 (DB) wherein the Division Bench has held that against an order passed by the prescribed authority for recounting of votes revision is not maintainable.
Paragraph 25 of the judgment reads as under:-
"25. It is evident from the order impugned that only the order of recount has been passed. However, the other issues are yet to be decided after recount of ballot papers as to whether the election had been held in accordance with law and as to whether the votes cast in favour of the contesting respondent has been mixed up with the votes of the returned candidates and on the basis of which the petitioner has been declared elected. It is further to be decided as to whether the election application is to be allowed or dismissed. Therefore, by no stretch of imagination, it can be held that the order of recount of votes has finally disposed of the election application."
In this view of the matter, the question of relegating the petitioner to avail the remedy of revision before the District Judge does not arise as any such revision would not be maintainable and even if such a revision has been filed, the District Judge has no jurisdiction to decide the same and it is always open for the respondent herein to raise this objection before the District Judge in the pending revision no. 1 of 2018 (Smt. Kulsum Vs Smt Jurun Nisha).
The leaned counsel for the respondent has also relied upon a judgment of learned Single Judge of this court passed in Writ petition no. 67589 of 2011 (Sudha Devi Vs State of Uttar Pradesh) wherein the learned Single Judge has held that the strict rules of CPC have no application to an election petition and that an election petition has to be decided strictly according to the Rules framed for the purpose as the Rules framed in that regard are a comprehensive code.
In the case of Sudha Devi (supra), the question before the court was as to whether the election petition would be bad for non-joinder of necessary parties since the election officer, namely, the Returning Officer/Assistant Returning Officer had not been impleaded in the election petition and the prescribed authority had held the petition to be bad for non-joinder of necessary parties and had directed the election petitioner to implead the Returning Officer/Assistant Returning Officer.
In my opinion, the said judgment has absolutely no application to the facts of the present case. In the present case, the core issue for consideration is, as to whether an election petition challenging an election of a Gram Pradan can be decided without framing of issues or without drawing up the points of determination.
The Supreme Court in the case of Uttamrao Shivdas Jankar Vs Ranjitsinh Vijaysinh Mohite Patil, (2009) 13 SCC 131, in paragraphs 48 and 49 has held as under:-
"48. In an election petition, the High Court acts as a Court of original jurisdiction and the election petition is a civil trial and the jurisdiction in such a trial, stricto sensu cannot be said to be appellate in nature. Clearly, the High Court acted illegally in treating its power only as an appellate authority and not as an original authority for it only proceeded to try and determine as to whether or not the decision making process is legal. That approach of the High court in our considered opinion was illegal and unjustified.
49. The High court was duty bound to treat the matter on merits by framing issues and thereafter calling for production of evidence in support of their respective cases. The High court should have examined the veracity of the rival claims based on the evidence produced by the parties and should have tested the correctness of the affidavits. The opinion of the hand writing expert in that regard would have been sufficient and on the basis of the same it could be possible for the High court to decide the entire lis between the parties. The High Court despite being the Court of original jurisdiction acted as a court of appellate jurisdiction and dismissed the petition without allowing the parties to produce evidence in support of their contention."
In the case of Makhan Lal Bangal Vs Manas Bhunia and others, (2001) 2 SCC 652, the Supreme Court in paragraph 19 has held as under:-
"19. An election petition is like a civil trial. The stage of framing the issues is an important one inasmuch as on that day the scope of the trial is determined by laying the path on which the trial shall proceed excluding diversions and departures therefrom. The date fixed for settlement of issues is, therefore, a date fixed for hearing. The real dispute between the parties is determined, the area of conflict is narrowed and the concave mirror held by the court reflecting the pleadings of the parties pinpoints into issues the disputes on which the 'two sides differ. The correct decision of civil lis largely depends on correct framing of issues, correctly determining the real points in controversy which need to be decided. The scheme of order XIV of the Code of Civil Procedure dealing with settlement of issues shows that an issue arises when a material proposition of fact or law is affirmed by one party and denied by the other. Each material proposition affirmed by one party and denied by o(her should form the subject of distinct issue. An obligation is cast on the court to read the plaint/petition and the written statement/counter, if any, and then determine with the assistance of the learned counsel for the parties, the material propositions of fact or of law on which the parties are at variance. The issues shall be framed and recorded on which the decision of the case shall depend. The parties and their counsel are bound to assist the court in the process of framing of issues. Duty of the counsel does not belittle the primary obligation cast on the court. It is for the Presiding Judge to exert himself so as to frame sufficiently expressive issues. An omission to frame proper issues may be a ground for remanding the case for retrial subject to prejudice having been shown to have resulted by the omission. The petition may be disposed of at the first hearing if it appears that the parties are not at issue on any material question of law or of fact and the court may at once pronounce the judgment. If the parties are at issue on some questions of law or of fact, the suit or petition shall be fixed for trial calling upon the parties to adduce evidence on issues of fact. The evidence shall be confined to issues and the pleadings. No evidence on controversies not covered by issues and the pleadings, shall normally be admitted, for each party leads evidence in support of issues the burden of proving which lies on him. The object of an issue is to tie down the evidence and arguments and decision to a particular question so that there may be no doubt on what the dispute is. The judgment, then proceeding issue-wise would be able to tell precisely how the dispute was decided."
Therefore, in view of the law laid down by the Supreme Court in the case of Uttamrao Shivdas Jankar (supra) and Makhan Lal Bangal (supra), in my opinion, the order of the prescribed authority directing the recounting of votes without first framing of issues is wholly illegal and unsustainable in law and is accordingly, set aside.
The writ petition is allowed.
Order Date :- 20th April, 2018
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