KANCHAN GUPTA ARANGA Vs. STATE OF UP

JUDGEMENT

(1.) Present writ petition has been filed by petitioner questioning the validity of the decision dated 09.03.2010 passed by Additional District Judge, (Court Room No. 1) Etah in Election Petition No. 5 of 2006 (Zahir Ahmad v. Kanchan Gupta Aranga and Ors.) Annexure-24 to the writ petition proceeding to set aside the re-polling held on 05.11.2006 in respect of 17 booths and further direction to District Election Officer to get counting done of the ballots of said 17 booths qua the polling which took place on 28.10.2006 and apprise result of the same to Election Tribunal so that final order could be passed.

(2.) Brief background of the case is that State Election Commission (Local Bodies U.P.) has issued notification of the Election of Nagar Palika Parishad Etah for the post of Chairman and 25 ward members and declared the election schedule wherein the dates fixed from 03.10.2006 to 06.10.2006 were for nomination, scrutiny and and withdrawal of the nomination and the date for polling was fixed for 28.10.2006 and the date of counting was fixed for 06.11.2006. In the said elections so declared petitioner and respondents No. 4 to 12 were all candidates for the post of Chairman Nagar Palika Parishad Etah. In the said election petitioner was candidate of Bhartiya Janta Party and her election symbol was 'Lotus' and respondent No. 4 was the candidate of Samajwadi Party and his election symbol was 'Cycle' and similarly different election symbol were allocated to respondent Nos. 5 to 13. Date of polling was 28.10.2006 and petitioner's contention has been that at the said point of time Samajwadi Party was in power and various polling booths were captured and the local administration was under pressure and on account of this fair polling was disturbed booth capturing was done and ballots were looted. Petitioner's contention is that though booth capturing in favour Zaheer Ahmad had taken place at various booths but several Presiding Officers did not make complaint due to undue influence of ruling party candidate, but some of them had the courage and reported to their superior authorities with recommendation of re poll, out of which the Presiding Officer of polling station No. 1 'Printis Girls Inter College' has given recommendation to the election officer, Etah on 28.10.2006 complaining of antisocial elements entering in his room, snatching the counter foils of the ballots namely 401 to 450 and tearing other paper which effected the polling. On the complaint made by petitioner, qua booth capturing, report was called for and diaries maintained were perused and therein except for Booth No. 3 of Printis Girls Inter College polling had been reported to be peaceful, in such a situation Returning Officer made recommendation for re polling at Booth No. 3, Room No. 3 of Printis Girls Inter College on 28.10.2006. The Sector Magistrate, Sector-3 Dr. Kuldep Dwivedi has submitted his report and recommended for repoll for two polling stations, Prinitis Boys Primary School, Room No. 1 Ward No. 10 and Prinits Girls College, Room No. 1. On said report being submitted, Returning Officer also made his recommendation. Petitioner has stated that recommendation and report sent on 28.10.2006 clearly mentioned that ballots have snacked out and secrecy of election has been effected. Petitioner submits that Presiding Officer also recommended for repoll of Booth No. 28 vide report dated 28.10.2006 mentioning therein that ballot had been snatched and torn up, which effected the election, as such re polling should take place. Petitioner stated that on complaint being made inquiry was got conducted by Sub-Divisional Magistrate Etah and Zonal Magistrate respectively and then based on the report submitted, recommendation was made in respect of Ward No. 1, Printis Girls Inter College, Etah Booth No. 3 and Poling Station No. 28, Printis Primary School for fresh poll by the District Election Officer and the letter/recommendation dated 28.10.2006 was accordingly sent to Observer of the State Election Commission. Petitioner's contention has been that on the said recommendation made for repoll, the State Election Commission has taken cognizance and called for the details of the interruption and obstructions of the election proceedings upon the polling Stations and made the query of such polling station on which the poll was more then 75%. District Election Officer submitted its report on 30.10.2006 through Fax to the State Election Commission and sent the list of poling station No. 3, 6, 17, 28, 29, 30, 38, 69 and 71 wherein voting percentage was more than 75%. State Election Commission thereafter on 31.10.2006 directed for conduct for re-polling in respect of polling Stations 3, 6, 17, 28, 29, 30, 38 69 and 71 of the Nagar Palika Parishad, Etah. State Election Commission again sent communication dated 01.11.2006 deciding fresh poll for polling Stations 19, 20, 32, 33, 51, 52 and 53 to achieve the goal of fair poll. After said order has been passed fresh elections were notified and held on 05.11.2006 and thereafter counting of votes started from 06.11.2006 and therein petitioner got 18,575 votes and was declared elected whereas Zaheer Ahmad got 16,185 votes and thus, margin of victory was 2390 votes. Election of petitioner was questioned by Zaheer Ahmad by preferring Election Petition No. 5 of 2006 (Zaheer Ahmad v. Kanchan Gupta 'Aranga') under Section 43(3)/19/20 of U.P. Municipalities Act, before the Court of District Judge, Etah. In the said election petition from the side of Zaheer Ahmad, election petitioner filed his own affidavit on 07.05.2007 and affidavits of Riyaj Mohammad, Afsar, Dilshad Nirale, Bhagbaan Singh, Sumit Kumar, Manoj Kumar, Charan Singh, Chand Miyan, Sabir, Balvir Singh, Akram Khan, Siraj Mohammad, Naseem Ahmad, Sharif, Sudhir Kumar, Jitendra Kumar, Mohammad Umar had also been filed thereafter. In support of the case of election petition following incumbents appeared namely Riyaj Mohammad, Afsar, Dilshad, Nirale, Bhagbaan Singh, Sumit Kumar, Manoj Kumar, Charan Singh, Chand Miyan, Sabir, Balvir Singh. From the side of petitioner written statement alongwith objection was filed and affidavit of following incumbents was been filed namely Sri Vimal Sharma s/o Late Satyabhan Sharma, Sudhir s/o Achal Singh, Pushpendra s/o Udai Vir Singh, Awdhesh Kumar s/o Gajraj Singh, Jinterndra Yadav s/o Rajvir Singh, Alok Mishra s/o Virendra Mishra, Rajeev Yadav s/o Ram Niwas Yadav. Petitioner had filed her own affidavit also. After evidence has been led from both the sides, thereafter Election Tribunal proceeded to decide the issues framed and issue No. 3 was to the effect, as to whether fresh polling which have been taken place on 05.11.2006 at 17 polling booths same was in contravention of provision as provided for under U.P. Urban Local Bodies Conduct of Election Orders, 2003 and if Yes, then what was its effect ? Election Tribunal thereafter has decided the said issue in the said election petition by directing that repolling held at 17 booths are illegal. District Election Officer has been further asked to get counting done of the ballots, in respect of 17 booths qua the polling which which took place on 28.10.2006 and apprise the result of same to Election Tribunal so that final order could be passed. At this juncture present writ petition in question has been filed.

(3.) Adversary parties to the present litigation are petitioner and Zaheer Ahmad. Both the parties to the dispute have agreed that on the basis of material which are available on record present writ petition be heard and finally decided, as such with the consent of the adversary parties present writ petition is being heard and finally decided.