VIRENDRA Vs. ADDL DISTRICT JUDGE

JUDGEMENT

(1.) -The petitioner has challenged the order dated 30.8.2008 passed by the Additional District Judge, Court No. 2, Deoria in Election Petition No. 6 of 2006, whereby a preliminary issue has been decided and a direction has been issued to the District Magistrate for the recounting of the votes. The facts leading to the filing of the writ petition is, that the petitioner was declared elected as the President of Nagar Palika Parishad, Gaura Barhaj, Deoria by a margin of 188 votes in the election that was held on 31.10.2006. The petitioner secured 6,422 votes in contrast to his nearest rival Ajit Kumar Jaiswal, respondent No. 3, who secured 6,234 votes. The respondent No. 3, being aggrieved by the declaration of the result, filed an election petition under Section 20 of the U. P. Municipalities Act, 1916 challenging the election of the petitioner. The election was challenged on various grounds and one of the ground was, that there was an irregularity in the counting of votes on the basis of which, an issue was framed by the court below. It is alleged that the respondent No. 3 filed an amendment application incorporating certain other facts with regard to recounting of votes which was allowed, against which, the petitioner filed a writ petition which was dismissed by the High Court. It has also been stated that the respondent No. 3 filed an application for bringing on record, a compact disc which contained a videography of the counting of the votes, this application was allowed by an order dated 30.10.2007 directing that the compact disc be taken on record and that the admissibility of the compact disc would be subject to the evidence that would be led by the parties. It also transpires that the petitioner filed an application for summoning of the official videography recording of the counting of votes which application was rejected by an order dated 25.3.2008. Based on the evidence led by the parties, the election petition was heard and finally decided by an order dated 14.5.2008 allowing the election petition and declaring the election of the petitioner as the President of the Nagar Palika Parishad to be void and illegal and further directed the authorities to recount the votes. The petitioner, being aggrieved by the said order, filed Writ Petition No. 25082 of 2008 which was allowed by a judgment dated 22.5.2008 and the matter was remitted again to the Additional District Judge, Court No. 2, Deoria to decide the election petition afresh. The Court observed-

(2.) IT transpires that upon remand, the petitioner moved an application raising certain objections against the compact disc vis-a-vis the admissibility of the compact disc. This application was rejected by the court below by an order dated 14.7.2008, against which, Writ Petition No. 35971 of 2008 was filed which was dismissed by a judgment dated 29.7.2008. IT has also come on record that the petitioner also moved a transfer application under Section 24 of the Code of Civil Procedure which was also rejected.

(3.) THE court below has directed the recounting of the votes on the ground that the Returning Officer in his statement had mentioned that for the purpose of counting of the ballot papers he had divided the said ballot papers into lots of 50 and that equal number of ballot papers was distributed for the purpose of counting. the court below on the basis of the statement of the Returning Officer compared the election sheet issued by the Returning Officer and has drawn adverse inference holding that some bungling may have taken place in the counting of votes and, on that basis directed the recounting of the votes. THE court below also considered the compact disc which allegedly indicated the destruction of ballot papers being torn after the completion of the counting of the votes and drew an adverse inference directing recounting of the votes.