Summary
A defeated candidate for Gram Pradhan, who lost by 37 votes, alleged a discrepancy of 19 votes between the total orally stated by the presiding officer and the total in Form 46 for three booths. The Sub-Divisional Magistrate, in an election petition under Section 12-C of the U.P. Panchayat Raj Act, 1947, ordered a recount and the revision against it was dismissed, but the High Court under Article 226 quashed the recount for want of documentary evidence. The Supreme Court restored the recount: three of the four candidates had questioned the election on affidavit, the presiding officer's diary and ballot account could not be found despite an order under the RTI Act, and the unexplained absence of essential election records placed the declared result within the realm of questionability.
Issues
- Whether the Sub-Divisional Magistrate was justified in ordering a recount of the votes cast at the three polling booths, and whether the High Court was right in setting that order aside.
Provisions considered
- Section 12-C, U.P. Panchayat Raj Act, 1947The provision, set out in full, allows the election of a Pradhan to be questioned by an application to the prescribed authority on the grounds that the election was not free owing to bribery or undue influence or that its result was materially affected by improper acceptance or rejection of a nomination or gross failure to comply with the Act or rules, with a revision to the District Judge under sub-section (6). The appellant's election petition was filed under it, and the Court restored the prescribed authority's order of recount made in that petition. (¶¶ 5.1, 12, 19)
Held
- An order for inspection or recount of ballot papers is not made as a matter of course, because secrecy of the ballot is sacrosanct. The settled requirements are that the election petition contains an adequate statement of the material facts on which the allegations of irregularity in counting are founded and that the tribunal is prima facie satisfied, on the material, that a recount is imperatively necessary to decide the dispute and do complete justice; vague pleas or a desire to fish for evidence do not suffice. (¶¶ 13, 13.1, 13.2, 13.3, 13.4, 13.5, 13.6)
- The Court's concern is not who holds office but how office was obtained; the process must accord with constitutional principles. Each vote has its own value irrespective of its effect on the final outcome, and its sanctity must be protected even where the alleged discrepancy is smaller than the margin of victory. (¶¶ 14, 15)
- Candidates are entitled to keep an eye on the voting and to inspect the records of it. Where the presiding officer's records are missing and cannot be verified, the final conclusion falls within the realm of questionability; every document pertaining to an election is important and all efforts must be made to preserve it. (¶¶ 16, 17)
- On the facts a recount was justified: three of the four contesting candidates stated on affidavit that they doubted the propriety of the election and supported a recount, there was material of attempts to benefit the winner including use of the police to remove the appellant from the polling area, and the presiding officer's diary and ballot account could not be found despite concerted efforts and an order under the Right to Information Act, the absence being unexplained. (¶¶ 5.3, 15, 16, 18)
Result
Appeal allowed. The High Court's judgment dated 27 January 2023 set aside and the Sub-Divisional Magistrate's order dated 31 October 2022 directing a recount restored. The Registry to send the judgment to the Registrar General of the Allahabad High Court for transmission to the Magistrate, who is to fix a date for the recount after hearing the parties. Pending applications disposed of.