Judgment:
Vineet Saran, J.
1. Considering the urgency in the matter as the recounting of votes has been ordered to be conducted today, which is by the impugned order dated 23.3.2009 passed by the respondent No. 1, the Sub-Divisional Magistrate, this case has been taken up on board today in the presence of the learned Counsel for the parties.
2. Heard learned Counsel for the petitioner as well as learned standing counsel appearing for the respondents No. 1, 6 and 7 and Sri Vishal Tandon for the contesting respondent No. 2, Smt. Sobha Devi. With consent of learned Counsel for the parties, this writ petition is being disposed of finally at this stage without calling for a counter-affidavit.
3. The brief facts of the present case are that in an election of Gram Pradhan held in the year 2005, the petitioner was declared elected as 'Gram Pradhan. Challenging the said election, the respondent No. 2, Smt. Sobha Devi filed an election petition bearing Election Petition No. 3 of 2005 with the prayer of recounting of votes. By means of the impugned order dated 23.3.2009 passed by the respondent No. 1, the Sub-Divisional Magistrate, the prayer of recounting of votes has been granted. Challenging the said order, this writ petition has been filed.
4. The submission of learned Counsel for the petitioner is that the impugned order has been passed without deciding the issues involved in the case and without assigning any reasons for directing recounting of votes.
5. From perusal of the record, it is clear that the ten issues have been framed and the same have been decided in one paragraph in the end without considering the evidence adduced by the parties and without deciding each issue individually. All that has been stated in the impugned order is that all the issues are decided accordingly.
6. If the issues are framed in a case, then the same should be decided either individually or two or more may be grouped, if they are inter related. In the present case, all the ten issues have been decided merely in one stroke without discussing the evidence of the parties. The same appears to be totally unjustified. An election petition is to be decided strictly in terms of the rules and even though there may be difference of one vote and the order of recounting has been passed only on the basis of evidence adduced and by a reasoned order, when a case of irregularity in recounting of votes has been made out.
7. Sri Vishal Tandon, learned Counsel appearing for the respondent No. 2, Smt. Sobha Devi, has, however, not been able to justify the order and has also not been able to point out the grounds and reasons on the basis of which the same has been passed. He has, however, submitted that since there was difference of only one vote, it was perfectly justified for the prescribed authority to have directed for recounting of votes.
8. A Full Bench of this Court, in the case of Ram Adhar Singh v. District Judge, Ghazipur 1985 UPLBEC 317, has held in paragraph 19 as follows:
19. Applying the principle with regard to inspection of ballot paper enunciated by the Supreme Court in cases arising under the Representation of 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 under the said Act can be permitted to look into or to direct inspection of the ballot papers, 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 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 for doing complete justice between the parties.
It therefore, follows that in the absence of any specification with regard to the ground on which the election of the respondent is being questioned together with summary of the circumstances alleged to justify the election being questioned on such ground, it is not open to the authority dealing with an application under Section 12C of the U. P. Panchayat Raj Act, either to look into or direct inspection of ballot papers merely on the ground that it feels that it would be in the interest of justics to look into or permit inspection of the ballot papers. In the context, such satisfaction has necessarily to be based on specific averments made in and the materials indicated in the election petition which could, prima facie, satisfy the authority about the existence of the ground on which the election is sought to be questioned.
9. In such view of the matter, since no reasons have been recorded for directing the recounting of votes and the issues framed by the prescribed authority have not been decided properly and all the ten issues have been decided together, in my view, the impugned order dated 23.3.2009 passed by the respondent No. 1 cannot be justified under law.
10. Accordingly, this writ petition stands allowed. The order dated 23.3.2009 passed by the respondent No. 1 is quashed. The prescribed authority is directed to decide the matter afresh, after giving an opportunity of hearing to the parties and pass a reasoned speaking order after considering the evidence adduced by the parties. Since more than three and half years have passed after filing the election petition, it is further directed that the matter may be decided expeditiously, preferably within a period of four months from the date of filing of a certified copy of this order, without granting any unnecessary adjournment to either of the parties.
There shall be no order as to costs.