RAJESH @ SAPNA Vs. STATE OF UTTARAKHAND & ORS.

JUDGEMENT

(1.) THE petitioner was elected as a member of Nagar Palika Parishad, Haridwar, in the election held in the year 2008 in respect of Ward No. 14, Sharda Nagar, Jwalapur. It transpires that a total of 3244 votes were polled, out of which, 2981 votes were found to be valid and 263 votes were rejected. The petitioner secured 844 votes, whereas the contesting respondent no. 3 Smt. Sunita Saini secured 806 votes, and consequently, the petitioner was declared elected by a margin of 38 votes. Respondent no. 3, being aggrieved by the declaration of the result, filed an election petition under Section 19 of the Municipalities Act. The election was challenged basically on the ground that 125 to 130 ballot papers out of 263 invalid ballot papers were wrongly rejected on the ground that they did not contain the signatures of the Presiding Officer, and that, most of these ballot papers were cast in favour of the respondent no. 3. This specific allegation has been made in paragraph 7 of the election petition. The petitioner disputed the averments made in the election petition. Paragraph 7 of the written statement denied the contents of paragraph 7 of the election petition, but, in the additional pleas, the petitioner has made a general statement that all the 263 ballot papers were rejected after the said ballot papers were shown to all the parties, and that, all the counting agents of the parties were satisfied with the rejection of the ballot papers. The petitioner contended in the additional pleas that under Instruction No. 18 of the Instructions Book, 2008 of the State Election Commission, State of Uttarakhand, it has been specifically stated that a ballot paper, which is not signed by the Presiding Officer, could be rejected. In the light of the said instructions, the petitioner contended that the ballot papers were rightly rejected.

(2.) IN support of the allegation made by the respondent no. 3, the said respondent filed an affidavit in evidence-in-chief, as contemplated under Order 18 Rule 4 of the Code of Civil Procedure. In this affidavit, the respondent reiterated her allegation that 125 to 130 votes were wrongly rejected on the ground that the Presiding Officer had not made his signatures on the said ballot papers. It is contended that the said respondent was not questioned on this allegation in her crossexamination. The District Judge, after considering the matter, allowed the election petition by an order dated 12th March, 2010 setting aside the election of the petitioner and directing the Election Officer to recount the votes and take into consideration the 125-130 ballot papers, which were rejected on the ground that they did not contain the signatures of the Presiding Officer. The petitioner, being aggrieved by the said order, has filed the present writ petition. 3 The District Judge while allowing the petition found that a prima facie case of wrongful rejection of ballot papers was made out by the respondent no. 3 and such rejection of the ballot papers was a clinching evidence for a direction to recount the votes. The District Judge accordingly allowed the petition and set aside the election of the petitioner and directed the Election Officer to recount the votes.

(3.) ON the other hand, the learned counsel for the respondents submitted that a specific allegation was made by the respondents with regard to the rejection of the ballot papers on the ground of nonsignature of the Presiding Officer. The learned counsel submitted that this specific allegation was not specifically denied by the petitioner, and further, the affidavit in relation to the evidence-inchief was also not specifically controverted or touched in the cross-examination, and consequently the said allegation remained unrebutted, and that, by itself, was a valid ground to order for the recounting of the votes. The learned counsel further submitted that Instruction No. 18 (t) of the Instructions issued by the State Election Commission was only directory in nature and was not mandatory, and that, in the absence of any allegation that the ballot papers were snatched from the Presiding Officer or in the absence of any allegation that more ballot papers were found in the box than issued by the Presiding Officer, the mistake committed by the Presiding Officer, if any, in not signing the ballot papers could not be a ground to reject the ballot papers, which had been cast by a bonafide voter.