ABRAR RAHAT Vs. STATE OF U P

JUDGEMENT

(1.) The dispute in the instant petition has its genesis in the election held for electing Gram Pradhan of Village Nanak Nangalli Tahsil Amroha District J.P. Nagar. Respondent no. 5 being close runner to the petitioner instituted election petition before the Election Tribunal presided over by the Addl. Sub Divisional Officer Amroha who in turn, passed the impugned order dated 24:9.2002 directing recounting of votes. This order led to filing of revision and the revisional Court upheld the impugned order terming it as interlocutory order and consequently dismissed the revision by means of order-dated 17.2.2004. It is in the above perspective that the instant petition has been preferred under Article 226 of the Const. Of India.

(2.) In the election, the petitioner and respondent No. 5 according to declaration made by the Returning officer polled 309 and 308 votes respectively and consequently, the petitioner was declared elected by one vote. The respondent No. 5 preferred the election petition before the Election Tribunal on various grounds and one of the ground was misfeasance in counting which turned the scale in favour of petitioner who was declared elected.

(3.) I have heard learned counsel for the parties and perused the papers on record. The learned counsel for the petitioner canvassed that the impugned order passed by the election Tribunal decided the election petition and consequently directed recounting of votes and therefore, revision under Section 12C(6) lay and revisional authority erred in law in dismissing the revision as not maintainable and consequently the same cannot be sustained in law. Assailing the order passed by the Election Tribun, the learned counsel further submitted that as a matter of fact, no valid ground was made . out for ordering recounting either in the pleading or on the basis of materials forthcoming on record and the learned Tribunal drew on presumption too much in order to arrive at conclusion for ordering recounting. He further canvassed that grounds for accounting must be proved beyond reasonable doubt and not on the basis of preponderance of probabilities. It was further canvassed that mere fact that the petitioner was declared elected by a slender margin of one vote does not constitute sufficient ground for order of recounting unless it is supported by cogent evidence to establish that there were various factors warranting recounting. Since there i$ no valid justification for recounting in the present case, proceeds the submission, the orders passed by the authorities are impaired and cannot be sustained in law. Per contra, Sri P.C. Srivastava, assisted by Sri K.A. Ansari, appearing for the respondents propped up the impugned orders urging that there were specific pleading and evidence that there was irregularity in the counting and recounting was rightly ordered which is supported by materials on record. They further submitted that there was margin of one vote between the petitioner and respondent No. 5 and in view of cumulative effect of various factors cited in vindication of his stand by the respondent No. 4, it leads to the irresistible conclusion that various irregularities were committed and things were so contrived that the petitioner was illegally declared elected.