SHAMA Vs. STATE OF U.P.

JUDGEMENT

(1.) The order of recount passed by the Prescribed Authority/ Up-Ziladhakari, Behat, Saharanpur in Election Petition No. 07/2015- 16/T20150960024651 are under challenge in the present petition. The first ground of challenge as pleaded by learned counsel for the petitioner are that the election petition itself was not maintainable in as much as no material irregularity in the election has been pointed out. The final relief sought in the election petition was to pass an order for recount and to declare the election petitioner as elected Gram Pradhan. For the said relief, the election petition could not be maintained. It is further stated that no irregularity during the counting process has been pointed out by the petitioner in the election petition nor any material evidence has been brought by the election petitioner. The prescribed authority without recording any finding of prima facie satisfaction to any irregularity pointed out by the petitioner had proceeded to pass an order of recount. It is contended that recount cannot be ordered as a matter of course as it affects the sanctity of the election. The findings on issue no.2, 3 & 5 and issue nos. 7, 8, 9, 11 & 12 have been read by the learned counsel for the petitioner to impress upon the Court that there was no prima facie satisfaction of the prescribed authority to order for recount.

(2.) Learned counsel for the petitioner relied upon the judgement of Full Bench in the case of Ram Adhar Singh v. District Judge, Ghazipur and others,1985 ALJ 615, Pinki v. Special Judge (SC/ST Act) Mainpuri and others, 2010 (5) ADJ 584, Kailash Tiwari v. State of U.P. and others, 2013 (9) ADJ 417, Sabarunnisha v. Tahira and others, 2013 9 ADJ 687, Smt. Champa Devi v. Prescribed Authority/Sub Divisional Magistrate Mirzapur and others, 2015 (1) ADJ 116 and Narendra Sharma v. Pawan Sharma and others, 2010 (5) ADJ 336 and Krishna Murari v. Prescribed Authority/S.D.M. Mirzapur and others, 2014 (123) RD 558.

(3.) On the other hand, in rebuttal, learned counsel for the respondent Sri Anil Kumar Aditya with reference to the findings on issue nos.4 and 6 and issue no.10 submits that the prescribed authority after recording the pleadings and the material brought on record by the election petitioner came to the conclusion that there has been difference of votes cast in the statement of account prepared by Matdan Adhikari and the statement of ballot papers prepared by the Returning officer. He found that there was a difference of seven votes and margin between the election petitioner and returned candidate was also of seven votes. The said discrepancy pointed out can only be verified by recounting of votes.