Judgment:
V.K. Gupta, C.J.
1. It is a very peculiar case where the Returning Officer has caused incalculable damage to respondent No. 1 by grossly misusing his official position and by indulging in an act, which was not at all warranted or permissible.
2. The facts in brief:
Election was held for the membership of Kshetra Panchayat Kharsar, Development Block : Narendra Nagar. Respondent No. 1 Diwan Singh and writ petitioner Kalyan Singh were the contesting candidates in this Election. The polling took place on 10th September, 2008. The counting of ballots was held on 13th September, 2008 and at about 7 p.m., the Returning Officer declared the result. As per the declaration of result by the Returning Officer, respondent No. 1 Diwan Singh secured 485 votes as against 443 votes secured by the writ petitioner. 53 Votes were declared as invalid. The Returning Officer, Sri G.S. Rawat, respondent No. 2 herein, after declaration of the result issued a certificate in favour of respondent No. 1 and as per the averments made everywhere, respondent No. 1, after obtaining the certificate, left the place of counting and went to his village. What happened thereafter is unknown to law as well as it is shocking. As per clear and unequivocal admission made by respondent No. 2 in the counter affidavit filed by him in this Court on 11th December, 2008 (affirmed on 10th December, 2008) and as per the contents of the impugned judgment dated 4th October, 2008 passed by the learned District Judge, Tehri Garhwal in Election Petition No. 26 of 2008 as well as as per the averments contained in the writ petition and the counter affidavit of respondent No. 1, after declaration of the result and the issuance of the certificate by respondent No. 2, on the same day i.e. 13th September, 2008 at about 8.30 p.m., the writ petitioner Kalyan Singh filed an application/petition before the Returning Officer raising some disputes about the counting and requested the Returning Officer to recount the ballots. Same day, same evening at about 8.30 p.m., respondent No. 2 in his capacity as Returning Officer 'took immediate and quick action' and conducted a recounting of the ballots and 'found' that Kalyan Singh, writ petitioner had obtained more votes than respondent No. 1 and by cancelling the certificate earlier issued to respondent No. 1, declared the petitioner as winner in the said Election. It is the admitted case of the parties before me and it is also admitted case of respondent No. 2 in the counter affidavit filed by him that before ordering the recount of the ballots, the respondent No. 2 had not issued any notice to respondent No. 1, nor had afforded any opportunity of hearing to him, even though in Para (5) of his counter affidavit, respondent No. 2 has stated that 'he called respondent No. 1, but he did not turn up'. Para (5) of the said Counter Affidavit, being very relevant and material in so far as the conduct of respondent No. 2 is concerned, is reproduced herein, which reads thus:5. That on being received the said application/objection filed by the petitioner on the same day at 8:30 P.M. night the respondent No. 2 took immediate and quick action in this regard and called the respondent No. 1 Sri Diwan Singh but he did not turn up and thereafter the respondent No. 2 has directed the counting observer of table No. 7 namely; Sri C.L. Sachan, Lecturer G.I.C. Phakote for recounting the ballot papers of the said table and submit the report thereafter and on the directions so received the counting observer of table No. 7 has while recoutnting the ballot papers of the said table brought the fact in writing to the notice that Sri Kalyan Singh has got total votes 307 from polling booth No. 24 and Sri Diwan Singh has received total votes 96 from the said polling booth but due to some clerical mistake, 257 votes have been indicated in favour of Kalyan Singh and 146 votes have been shown in favour of Sri Diwan Singh.
3. Factually, therefore, what emerges in summing up is that respondent No. 2 first declared respondent No. 1 as the winning candidate, issued the requisite certificate to him and thereafter at the instance of the writ petitioner, without formally assuming any jurisdiction, without issuing any written/formal notice to respondent No. 1, without affording any opportunity of hearing to him, same evening, recounted the votes, cancelled the certificate of respondent No. 1 and instead declared the petitioner as a winning candidate and issued the requisite certificate to him.
4. Section 14 of U.P. Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961 reads thus:
14. Disputes as to membership or disqualification.- (1) If any dispute arises as to whether a person is a member of a Kshetra Panchyayat under clause (a) of Sub-section (1) of Section 6, the disputes shall be referred in the manner prescribed to the State Government and the decision of the State Government shall be final and binding.
(2) If any question arises as to whether a person has been lawfully chosen a member of a Kshetra Pancyayat or has ceased to remain eligible to be such member the question shall be referred in the manner prescribed to the Judge, whose decision shall be final and binding.
(3) If the Judge decides that the member was not lawfully chosen or has ceased to remain eligible to be a member of the Kshetra Panchayat, such member shall cease to be a member of the Kshetra Pancyayat from the date of such decision.
5. A combined reading of Sub-sections (2) and (3) of Section 14 leaves me in no manner of doubt that every question and issue relating to an election of a returned candidate has to be adjudicated upon, resolved and decided through the medium of an Election Petition. Irrespective of the fact whether in the present case respondent No. 2 had the jurisdiction to order or hold recount of votes or not, and irrespective of the fact that such jurisdiction exclusively vested in the Judge mentioned in Sub-section (2) of Section 14 (supra), the fact remains that throwing all norms of propriety to winds and with total disregard to the principles of natural justice, respondent No. 2 acted in a most irresponsible and brazen manner in ordering, holding and conducting the recount of ballots the same evening in the absence of respondent No. 1 without issuing notice to him and without affording any opportunity of hearing to him. It is the cardinal principle of natural justice and by now a settled and recognised principle of Election Law that no recount can take place, in any circumstance and in any situation by any Authority, in the absence of all the candidates who had contested the election, particularly the returned candidate.
6. It is in the aforesaid background that respondent No. 1 filed Election Petition No. 26 of 2008 before the learned District Judge, Tehri Garhwal, who vide impugned judgment dated 4th October, 2008, by allowing the Election Petition and setting aside the order dated 13th September, 2008 passed by respondent No. 2, re-declared respondent No. 1 as returned candidate. This judgment has been challenged by the petitioner in the present petition filed under Article 226 of the Constitution of India.
7. In the light of what has been observed in the earlier parts of this judgment, I have no hesitation whatsoever in holding that the action of respondent No. 2 was wholly unconstitutional, totally illegal and grossly improper. Actually, I go so far as to say that respondent No. 2 has conducted himself in a manner unbecoming of a public servant. By his aforesaid conduct, he has caused tremendous injury to respondent No. 1 and driven him to avoidable litigation and deprived him for a considerable period of time of the office, which he was legally entitled to hold by reason and fact of his having been legitimately elected to this Office.
8. In the result, the writ petition is dismissed. The impugned judgment dated 04.10.2008 is upheld in its entirety with all the consequences.
9. Because of what respondent No. 2 has done, I direct the Government of Uttarakhand through its Principal Secretary of the concerned department to hold an immediate Enquiry into the conduct of respondent No. 2 and in the light of the observations made hereinabove, to take suitable action against him by taking the Enquiry to its logical conclusion. The proceedings of the Enquiry shall be concluded within three months from today.
10. The writ petition is dismissed with costs assessed at Rs. 25,000/- (Rupees Twenty Five Thousand Only) to be paid by respondent No. 2 to respondent No. 1 within four weeks from today. If this is not done, the Government of Uttarakhand is directed to recover this amount from the salary of respondent No. 2.
11. Consequently, interim order dated 15th October, 2008 stands vacated.
12. At this stage, Mr. Sharad Sharma, learned Counsel for the petitioner, submits that the petitioner be permitted to avail of the remedy of filing an Election Petition against respondent No. 1, because according to Mr. Sharma, in fact and indeed, respondent No. 1 had obtained less votes than the petitioner and if in the Election Petition to be filed, a recounting is actually held under law, the petitioner would be found to have obtained more votes than respondent No. 1. Recording the aforesaid submission of Mr. Sharma, I permit the petitioner to avail of the alternative remedy of filing an Election Petition subject to all exceptions.