SAROJ Vs. IMARTA SAINI

JUDGEMENT

(1.) The order dated 13th July. 2000, passed by Sri K.K. Tyagi, Special Judge/Additional District and Sessions Judge, Mathura, directing the recounting of the votes on the application of, respondent No. 1 Smt. Imarta Saini in her Election Petition No. 66/95-96 has given rise to the present writ petition under Article 226 of the Constitution of India.

(2.) The wood-cut profile of the case is that the present writ petitioner Smt. Saroj was declared elected as Adhyaksh. Nagar Panchayat, Govardhan in district Mathura on 27th November. 1995. Smt. Imarta respondent No. 1 filed an election petition to challenge the election of the present petitioner primarily on the ground that the votes polled in favour of the election petitioner in respect of certain wards were illegally excluded from counting while the votes polled by certain other candidates were included for counting to declare the present petitioner Smt. Saroj as elected. It has been specifically pleaded in the election petition by Smt. Imarta that Smt. Saroj writ petitioner had secured only 1.546 votes but her tally of votes polled has been mentioned as 1,596 by adding 50 votes polled in favour of some other candidates. According to Smt. Imarta, she had, in fact, polled 2,302 votes, but 708 votes which bore the mark of wooden stamp from which the rubber seal was deliberately peeled off, were wrongly excluded from computation in her favour, with the result, she was shown to have secured only 1,594 votes and therefore, with the margin of two votes only she was declared defeated by Smt. Saroj. A reading of the election petition as well as the evidence of the election petitioner Smt. Imarta, P.W. 1 and her husband Roop Chand Saini. P.W. 2 indicates that in ward Nos. 1 2, 3, 4, 7 and 8 where she was supposed to fare exceedingly well, the rubber seal was removed from the wooden stamp and when this fact was brought to the notice of the authorities concerned. the polling remained held up. When the authorities could not arrange for another seal, they had assured that the wooden stamp marks put on the election symbol of the candidates will be treated to be valid and consequently, the polling went on. She further went on to state that at the time of counting, the ballot papers on which the marks put by the wooden seal on her election symbol 'Hathi' were declared as invalid. After the close of the oral evidence, an application was moved on behalf of the election petitioner Smt. Imarta that the fads may be verified by the counting of the votes. Accordingly, by the impugned well reasoned and detailed order, recounting of votes was allowed by the Special Judge/Additional District and Sessions Judge, Mathura.

(3.) In the present petition under Article 226 of the Constitution supported with a supplementary affidavit, two specific grounds have been taken to assail the impugned order dated 13lh July. 2000, for recounting, firstly, that the Special Judge/Additional District and Sessions Judge, Mathura, has no Jurisdiction to entertain and decide the election petition as it is the District Judge only who being the persona designata was entitled to take it up and secondly, the secrecy of the votes polled cannot be permitted to be defiled merely for the asking of the election petitioner and since there is no material evidence and compelling circumstances for recounting, the impugned order is wide off the mark and, therefore, not sustainable in law.