ORDER
1. In the last elections for the office of the Pradhan of Gaon Sabha Khagiya, Block Development Block Ghorawal, District Sonbhadra (for brevity, hereinafter re-ferred, to as 'the Gaon Sabha'), the petitioner was elected as Pradhan defeating his, only rival, Kamta Prasad, whose election was challenged on 17-2-1989 by means of an election petition under Section 12C of the U.P. Panchayat Raj Act, 1947, for brevity, (hereinafter to be referred to as 'the P. R. Act,) numbered as Election Petition No. 35 of 1989, before the Sub-Divisional Officer, Robertsganj (for brevity, hereinafter referred to as 'the Tribunal), see king relief for declaration of his election as illegal after recount of ballot papers on taking evidence and declaring him (the election petitioner as elected pradhan of the Gaon Sabha. The Tribunal after filing of the written statement, it appears, framed issues, but, without taking any evidence, relying on the affidavit of the election petitioner filed along with the application for recount, which contained statement to the effect that during counting his valid votes were wrongly rejected and many invalid votes of the respondent in the election petition were wrongly accepted the prayer and passed the following order on 17-5-1989:--
In pursuance of this order, the Tehsildar proceeded for counting the ballot papers and completed the same. On 1-6-1989, the Tribunal, consequent upon the recounting'made by the Tehsildar and the result declared by him, passed a formal order saying that Sri Kamta Prasad is declared as pradhan and accordingly the election petition was disposed of.
2. This order was challenged by way of revision before the District Judge'sub-s. (6) of Section 12C of the P. R. Act by the present petitioner which was decided on 19-2-1990 by the IV Additional District and Sessions Judge, Mirzapur, maintaining the order of the Tribunal.
3. The petitioner, by means of ihe present petition under Article 226 of the Constitution of India, has given challenge to the aforesaid three orders seeking relief in main, for issuance of a writ of certiorari quashing the same.
4. Counter and rejoinder affidavits between the contesting parties were exchanged and the matter relating to the vacation of the interim order was posted for consideration before the Court, but at the request of the counsel for both the sides, the petition was heard on merits for being decided finally.
5. Learned counsel for the petitioner, Sri S. K. Singh, and learned counsel for the respondent. Sri V. Singh, were heard ad longum. The Standing Counsel apparently having no interest in the matter, did not address the Court.
6. Learned counsel for the petitioner made the following two fold submissions:--
(i) that the recounting was illegally done as there was no material before the Tribunal except the election petition, which even did not contain the summary of circumstances to jusjify the questioning of the election of the petitioner, on the ground which was vague and general that there has been wrong rejection of valid votes of the election petitioner and wrong reception of invalid votes in favour of the respondent in the election petition, and the affidavit filed in the election petitionalong with the application for recount also contained vague and general averments that valid votes of the election petitioner were wrongly rejected and invalid votes of the respondents were wrongly recepted by the Returning Officer who even refused the prayer of recount of ballot papers:--
(ii) that under Section 12C of the P. R. Act improper reception, refusal or rejection of any vote, which is void, is not an independent ground for giving challenge to the election of successful candidate, like the one as provided under Section 110 of the Representation of the People Act, 1951 (for brevity, hereinafter referred to as 'R. P. Act'), and the person giving challenge to the election of the returned candidate can succeed only on evidence that the election of the candidate has been materially affected by gross violation to comply with the procedure of the P. R. Act and the rules framed thereunder.
7. Learned counsel for the petitioner, in support of his first submission, submitted that Rule 24 of the U. P. Panchayat Raj Rules, 1947 (for brevity, hereinafter referred to as 'the Rules'), which is extracted below, requires the election petitioner to specify the ground or grounds, in the election petition, on which the election of the successful candidate is questioned and the same to contain a summary of circumstances justifying the questioning of election on such grounds:--
'Rule 24. Form and presentation of application. (1) An application under sub-section (1) of Section 12C of the Act shall be presented before the Sub-Divisional Officer within whose jurisdiction the Sabha concerned lies within ninety days after the day on which the result of the election questioned is announced under the provisions of Chapter I-D or I. E. as the case may be and shall specify the ground or grounds on which the election of the respondent is questioned and contain a summary of the circumstances alleged to justify the election being questioned on such grounds:
Provided that no such applicalion shall be entertained unless it is accompanied by a treasury challan to show that the amount ofRs. 5 has been deposited in the personal Ledger Account of the Sabha concerned as security. (2) The person whose election is questioned and where the petition claims that the petitioner or any other candidate shall be declared elected in the room and place of such person, every unsuccessful candidate shall be made a respondent to the application.
(3) Every respondent may give evidence to prove that any person in respect of whom a claim is made that such person be declared elected, should not be declared so elected on the same ground, or grounds on which his election could have been questioned if he had been elected.'
8. Learned counsel for the petitioner submitted that it is a well established principle that the Tribunal dealing with the election petition should not countenance or proceed to investigate into any ground taken in the election petition unless the ground as well as the material in support of such ground has been adequately disclosed in the petition. In the present case, no material has been disclosed and, as required under the aforesaid rule, even the summary of circumstances justifying the questioning of the election On the alleged ground has not been given and further it has not been disclosed as to how and which of the provisions of the P. R. Act or the Rules have resulted in its gross failure. A copy of the petition is on the record of this Court which justifies the submission, of the learned counsel for the petitioner that if did not contain the summary of the circumstances justifying the questioning of elections on the ground as has been stated therein and did not specify as to how there has been a gross failure in compliance of the provisions of the P. R. Act and the Rules.
9. The learned counsel for the respondent submitted that so far as the principle of law, as stated by the learned counsel for the petitioner is concerned, it is not attracted in the case of election petition under the P. R. Act and the same is attracted in the case of election petition under the P. R. Act. Thissubmission of the learned counsel for the respondent has no substance. The matter came up for consideration before a Full Bench of this Court in Ram Adhar Singh v. The District Judge, Ghazipur, 1985 All WC 246 : (1985 All U 615). In para 8, the Full Bench observed as under:--
'8. As already stated, Rule 24 makes it obligatory on a person questioning, by means of an application under Section 12C(1) of the U.P. Panchayat Raj Act, the election of a Pradhan, to specify not only the grounds on which the petitioner seeks to challenge the election but also a summary of circumstances which provide a justification for questioning the election on such ground. Where an application for questioning the election has been presented before a competent authority in accordance with the provisions, contained in Rule 24, the authority undoubtedly gets, in appropriate cases and where the 'interest of justice so requires, a jurisdiction to permit inspection of ballot papers and marked copy of electroral roll. As a matter of fact such power is implicit in Rule 24-T, but in the context such power has necessarily to be exercised keeping in view the statutory provisions relating to the insistence on secrecy of ballot, it would not be apt for the concerned authority either to look into or permit inspection of, ballot papers, as of course.'
10. It is clear from the election petition that it contains no summary of the circumstances, as required under Rule 24 of the Rules, giving the details of as to who received how much votes and as to what was the nature of the votes, of the election petitioner which were wrongly rejected and what was the nature of the votes of the respondent in the election petition, which were wrongly recounted and how there has been gross failure in the compliance of the P. R. Act and the rules. It only contained Hie grounds, which were vague and of general nature. The Full Bench (1985 All LJ 615) (supra) held in para 18 (of All WC): (Para 17 of All LJ) as under:--
'Viewed from this angle, it becomes evident that the amplitude and purpose of the requirement of Section 83(1)(a) of the Representation of the People Act that theelection petition must contain a concise statements of material facts on which the petitioner relies and that of Rule 24 of the Rules framed under, the U. P. Panchayat Raj Act to the effect that an application under Section 12C(1) of the Act must specify the grounds on which the election of the respondent is being questioned on such grounds is the same, viz, that the Court or the authority dealing with an election petition under the respective enactments, should not con-tenance or proceed to investigate into any ground taken in the election petition unless the ground as well as the material in support of such ground have been adequately disclosed in the petition. Neither of the two enactments countenances the Court or the authority to permit the election petitioner to make or indulge into making of a roving enquiry with a view to fish out material for declaring an election void; and it is this weighty factor which impels the Court or the authority not to look into or permit inspection of ballot papers unless the foundation for the purpose has been properly laid in the petition by specifying the ground and the material or the circumstances in support of such ground.'
In the present case, there is no foundation in the petition regarding the material or the circumstances to support the grounds pleaded for questioning the election of the petitioner. The Full Bench (supra) has also taken the view that the requirement of Section 83(1)(a) of the P. R. Act that the election petition must contain a concise statement of material facts on which the petitioner relies and that of Rule 24 of the Rules to the effect that the application under Section 12C(1) of the P. R. Act must specify the grounds on which the election of the petitioner is being questioned, and also the summary of circumstances 10 justify the election being questioned on such ground is the same.
11. Learned counsel for the respondent submitted that the affidavit, filed before the Tribunal relying upon which the Tribunal passed the order for recounting the ballot papers contained the foundation. This submission is devoid of substance. As alreadystated above, even the affidavit did not contain any material circumstance relating to the ground taken for challenge of the election. It is well settled principle that inspection of ballot papers is not to be made as a matter of routine unless there is sufficienl material justifying the same and the Tribunal is satisfied that recounting is necessary in the interest of justice, as in the Election Laws paramount importance is given to the secrecy of the ballot papers. In this connection, the views, as expressed, by this Court as well as the Supreme Court, in various cases, as given hereunder;--
(a) In the Full Bench (1985 All LJ 615) (supra) the Court considered the matter relating to election of a Pradhan of a Gaon Sabha and took the view as extracted in para 18, which is extracted hereinbefore.
(b) In Chanda Singh v. Ch. Shiv Ram Verma, AIR 1975 SC403, the Supreme Court observed that (at p. 406 of AIR):
'A democracy runs smooth on the wheels of periodic and pure elections. The verdict at the polls announced by the Returning Officers leads to the formation of Governments. A certain amount of stability in the election process is essential. If the counting of the ballots are interfered with by too frequent and flippant recounts by Courts a new threat to the certainty of the poll system is introduced through the judicial instrument. Moreover, the secrecy of the ballot, which is sacrosanct becomes exposed to deleterious praying if recount of votes is made easy. The general reaction, if there is judicial relaxation on this issue may well be a fresh pressure on luckless candidates, particularly when the winning margin is only of a few hundred votes as here, to ask for a recount Micawberishly looking for numerical good fortune or windfall of chance discovery of illegal rejection or reception of ballots. This may tend to a dangerous disorientation which invades the democratic order by injecting widespread scope for reopening of declared returns, unless the Court restricts recourse to .recount to cases of genuine apprehension of miscount or ille-gailty or other compulsions of justice necessitating such a drastic step.' (c)In Halsbury's Laws of England, Vol. 17, IV Edition, it has been observed as under:--
Recount is not granted as of right but on evidence of good grounds for believing that there has been a mistake on the part of the Returning Officer.' In the present case, no mistake on the part of the Returning Officer has been disclosed. Learned counsel for the respondent has placed reliance on the following observations of Fraser, Indian Law on Parliamentary Election and Election Petition contained at page 222:--
A strong case must be made out on affidavit before an order can be obtained for inspect ion of ballot papers or counterfoils.' He submitted that the case was made out fox, inspection and recount of ballot papers on the, basis of affidavit in the petition and the same : was also made the basis of the order by the : Tribunal. As has already been deall with earlier that -the affidavit as relied by the learned counsel for the respondent did not lay down any foundation specifying the material or circumstances in support of the ground of wrong rejection and reception of ballot papers and to show that how there has been cross failure in compliance of the provisions of the P. R. Act and the Rules. The petitioner, what to say of a strong case, has not at all made out any case for recount even has not at all made out any case for recount even on the allegations contained in the affidavit as relied on, which were vague and of general nature. The submission, thus, has no force.
(d) In the case of Beliram Bhalaik v. Jai. Behari Lal Khachi, (1975) 4 SCC 41 : (AIR 1975 SC 283), the Supreme Court observed in. following words (at pp. 289-90 of AIR):--
'A whimsical and bald statement of candidate that he is not satisfied with the counting, is not lentamount to a statement of the 'grounds' within the contemplation of Rule 63(2). The application was-thus not a proper application in the eye of law. It was not supplemented even by an antecedent or contemporaneous oral statement of the author or any of his agents with regard to anyirregularities in the counting. It was liable to be rejected summarily under sub-rule (3) of Rule 63, also. '.......' Although nobcasliron rule of universal application can be or has been laid down, yet from a beadroll of the decisions of the Supreme Court, two broad guidelines are discernible: that the Court would be justified in ordering a recount or permitting inspection of the ballot papers only where (i) all the material facts on which the allegations of irregularity or illegality in counting are founded are pleaded adequately in the election petition, and (ii) the Court/ Tribunal 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.' The principle deduced by the Supreme Court in various cases is the same, and the same holds the field of binding, precedent. In the present case, no foundation whatsoever was laid down so to justify the passing of the order for recount. When the facts were not there, then how the Tribunal can come to the conclusion on prima facie satisfaction that making of such an order for recount is imperatively necessary to do complete and effective justice between the parties. In the present case, even no oral evidence was led. The impeached order of the Tribunal thus, cannot be justified.
(e) In para 13 of P. K. K. Shamsudeen v.K, A. M. M. Mohindeen, AIR 1989 SC 640,which is extracted below, the Supreme Courtmaintained the importance of secrecy assacrosant resting the burden on the candidatechallenging election to allege and substantiatein accpetable measure by means of evidencethat a prima facie case of a high degree ofprobability existed for recount: '13. Thus the settled position of law is that the justification for an order for examination of ballot papers and recount of votes is not to be derived from hind sight and by the result of the recount of votes. On the contrary, the justification for an order of recount of votes should be provided by the material placed by an election petitioner on the threshold before an order for recount of votes is actually made.The reason for this salutary rule is that the preservation of the secrecy of the ballot is a sacrosanct principle which cannot be lightly or hastily broken unless there is prima facie genuine need for it.' The right of a defeated candidate to assail recounting of votes has to be subject to the basic principle that the secrecy of the ballot is sacrosanct in a democracy and hence unless the affected candidate is able to allege and substantiate in acceptable measure by means of evidence that a prima facie case of a high degree of probability existed for the recount of votes being ordered by the Election Tribunal in the interests of justice, a Tribunal or Court should not order the recount of votes.'
12. Viewed in the light of the principle as deduced here to before and the facts concerning the election petition in the present case I am of the view that the petitioner neither gave the summary of circumstances as required under Rule 24 of the Rules in the election petition filed before the Tribunal nor stated the same in the affidavit filed in support of the application for recount, and did not state the material facts as to how there has been gross failure in compliance with the provisions of the P. R. Act and the Rules, and apart from this, no evidence was led. The petition itself was incompetent and there existed no material for allowing the relief of recount.
13. Learned counsel for the respondent submitted that the respondent in the election petition did not file any counter-affidavit rebutting the statement made in the affidavit of the election petitioner, and as such the unrebutted statement was rightly accepted by the Tribunal. In the written statement, the petitioner clearly denied what was stated in the grounds and the affidavit did not contain any summary of circumstances or the material fact justifying the questioning of the election on the grounds as raised and did not contain the material as to how there has been a gross failure in compliance with the Act and the Rules and what was alleged was only that the valid votes of the election petitioner were wrongly rejected and invalid votes of the respondent were wrongly received, which wasa vague and general allegation requiring no denial. The burden was on the election petitioner to lay the foundation about his case, which he miserably failed. As such it makes no difference whether the facts in the affidavit have been rebutted or not.
14. Learned counsel for the petitioner submitted relying on a decision of this Court in the case of Smt. Anjula v. Milan Kumar, 1981 All WC 107: (AIR 1981 All 178) that the affidavit cannot be evidence unless permitted by the Tribunal under Order IX, Rule 6, C.P.C. Since the affidavit filed in the election petition is held to have contained no material or summary of circumstances laying down the foundation so as to justify the recount, it is not necessary to dilate on this aspect.
15. Learned counsel for the respondent next submitted about the refusal of his prayer by the Returning Officer for recount, which fact he has stated in the election petition, was illegal. In the election petition, no fact has been stated, only the grounds have been stated. As has already been observed, the grounds could not be sufficient foundation for accepting his version, as the same was denied in the written statement. The election petitioner did not file the copy of the application for recount moved by him before the Returning Officer and did not state that the same was received by him. Not only this, he did not even lead any evidence about it.
16. It may be noticed that even the Court below did not deal with the points as raised by the petitioner in a proper way. Even the Tribunal did not act properly inasmuch as it acted illegally in delegating the power of recount and declaration of result to the Tehsildar for the reason that the Tribunal was acting in quasi judicial capacity and it had no power to delegate. Apart from this, the Tribunal is described as Sub-Divisional Magistrate. The law provides the Sub-Divisional Officer as the authority to constitute the . Tribunal. Though both the powers are confined in one person, but he is supposed to disclose its capacity under which he was acting in a particular matter. In the present case, he has described himself as Sub-Divisional Magistrate and not as Sub-Divisionalofficer. The authority is supposed to take care of the matter while exercising power under a statute regarding its capacity.
17. It appears from the decision of the revisional Court that the issue was whether the respondent in the election petition by influencing the counting personnel got the ballot papers rejected and got counted in his favour the invalid ballot papers? If so, what was the effect? In the present case, no evidence was led on the issue as aforesaid regarding influencing; the counting staff by the respondent in the election petition and also regarding wrong reception of the ballot papers in favour of the respondent and wrong rejection of the ballot papers, of the election petitioner and also about the gross failure of the compliance of the provisions of the Act and the Rules. This issue was not covered by clause (a) of sub-section (1) of Section 12C of the P. R. Act, which relate to the stage of polling and not of the counting: The election petitioner should have laid the foundation in the petition and should have established his case under clause (b) of sub-clause (ii) of subsection (1) of Section 12C of the P. R. Act but it was not done.
18. The next submission of the learned counsel for the petitioner that under Section 12Cof the P. R. Act improper reception, refusal or rejection of any vote or reception of vote, which is void, is not an independent ground for challenging the election of a successful candidate, like the one under the P. R. Act and the unsuccessful candidate cansucceed only if after laying the foundation in the election petition he establishes by evidence that the result of the election has been materially affected by the gross failure in'compliance of the P. R. Act and the Rules, has got substance. The submission may be analysed by comparing the relevant provisions of the two Acts, which are as extracted below:--
'Section 12C P. R. Act application for questioning the elections.
(1) The election of a person as Pradhan of a Gaon Sabha or as member of a Gaon Panchayat including the election of a personappointed as a ranch ot a Nyaya Panchayat under Section 43 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.'
Section 100. R. P. Act. Grounds for declaring election, to be void.
(1) Subject to the provisions of sub-section (2) of the High Court is of opinion-
(a) to (c) ...
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected-
(i) by the improper acceptance of anynomination, or
(ii) by any corrupt practice committed in the interests of the returned candidate by an agent than his election agent or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act,
the High Court shall declare the election of the returned candidate to be void.'
Under Section 100 of the R. P. Act, result of the election, in so far as it concerns the returned candidate, has been materially affected by improper reception, refusal or rejection of any vote or by reception of any vote, which is void, is an independent groundand that the result of the election in so far as the returned candidate is concerned, has been materially affected by any non-compliance of the provisions of the Constitution or of the R. P. Act or of any rules or orders made thereunder, is a separate ground. In the P. R. Act, there is no such ground that the result of the election, in so far as it concerns the returned candidate, has been materially affected by improper reception, refusal or rejection or the reception of any vote, which is void. So the unsuccessful candidate while challenging the election of the successful candidate under Section 12C of the P. R. Act has to establish by laying the foundation in the election petition that the result of the election has been materially affected by gross failure to comply . with the provisions of this Act or the rules framed thereunder and in this connection, the unsuccessful candidate has to disclose that which of the provisions of the P. R. Act or the Rules was not complied with and how there was gross failure, which means he has to disclose the particular ground for wrong rejection or wrong reception of ballot papers.
19. Learned counsel for the respondent also contended that the purpose and object of the election laws is to ensure that only thatperson should represent the constituency who is chosen by the majority of the electors and that is the essence of the democratic process. In the present case, after the recount, it is established that three ballot papers, which bore double marking, were accepted in favour of the elected candidate, and he relied on the decision of the Supreme Court in this connection in the case of N. Gopal Reddy v. Bonala Krishnamurty, AIR 1987 SC 831 and on this basis it was stated that it would be travesty of justice and opposed to all democratic canons to allow the respondent in the election petition to continue to hold the office of Pradhan of Gaon Sabha when the recount discloses that he received number of votes than the election petitioner. The Supreme Court considered this argument in P. K. K. Shamsudeen's case (AIR 1989 SC 640) (supra) in para 15 and answered as follows:
'15. Mr. Padamanabhan also contended that the purpose and object of the election lawis to ensure that only that person should represent the constituency who is chosen by the majority of the electors and that is the essence of democratic process, and this position has been observed by a Bench of this Court in their order of reference of the case of N. Gopal Reddy v. Bonala Krishnamurthy C. A. No. 3730 (NCE) of 1986 reported in 1987 JT 406 : AIR 1987 SC 831 and hence it would be a travesty of justice and opposed to all democratic canons to allow the first respondent to continue to hold the post of the President of the panchayat when the recount disclosed that he had secured 28 votes less than the petitioner. We are unable to sustain this contention because as we have stated earlier an order of recount of votes must stand or fall on the nature of the averments made and the evidence adduced before the order of recount is made and not from the results emanating from the recount of votes.'
In this view of the matter, the submission of the learned counsel for the respondent is liable to be rejected.
20. In the light of what has been discussed above and the conclusion arrived at, the petition deserves to succeed.
21. The writ petition is accordingly allowed. The impeached orders dated 19-2-1990, 1-6-1989 and 17-5-1989(Annexures3,2 and 1 respectively to the writ petition) are hereby quashed. The declaration of the petitioner as Pradhan of Gaon Sabha Khagiya made by the Returning Officer is maintained. In the circumstances of the case, the parties shall bear their own costs.
22. Petition allowed.