BRIJENDRA KUMAR Vs. ADDITIONAL DISTRICT JUDGE MAHOBA

JUDGEMENT

(1.) PETITIONER before this Court who is the elected Block Pramukh of Jaitpur, Tehsil Kulpahar, District Mahoba. An election petition was filed by the defeated candidate namely Bhuwan Prakash challenging the election of the writ petitioner. He also made an application for recount of the votes. The application has been allowed under the order impugned by the Election Tribunal. On behalf of the writ petitioner, Shri Shashi Nandan, Senior Advocate assisted by Shri Niraj Tripathi submitted that the order passed by the Election Tribunal directing recounting is based on the grounds on which were not pleaded in the election petition. He submits that unless there were specific pleading in respect of the grounds on which recounting is prayed, there cannot be any evidence and, therefore, no order can be passed. He clarified that no evidence can be lead beyond pleadings, nor the Election Tribunal can direct recount on facts not pleaded. With reference to the Election Petition filed by Shri Bhuwan Prakash it is pointed out that only ground relevant for the purposes of seeking recount as per the election petition were that 7 votes which were polled in favour of the writ petitioner by marking figure ''1' on the ballot paper and which are 7 in number were wrongly declared invalid. (Reference paragraph 6 and 8 of the Election Petition). He points out that in support of the aforesaid pleading the Election petitioner in his cross-examination specifically stated as follows : "Main Matgarna Ke Samay Swayam Upasthit Tha Jo Matpatra Garna Ke Samay Nirast Kite Gaye The, Unke number Maine Yachika Mein Nahi Likhe Aur Na Hi Maine Matgarna Ke Samay Lalanpur Se Aaye Paryavekshak Ko Punha Matgarna Ke Liye Kaha Aur Na Hi Prarthna Patra Diya Yah Kahna Galat Hai Ki Pratham Bar Matgarna Ke Uprant Maine Paryavekshak Ko Punha Matgarna Karne Ke Liye Koi Prathna Patra Diya Ho Aur Jis Par Punha Matgarna Karne Ke Liye Koi Prarthna Patra Diya Ho Aur Jis Par Punha Matgarna Hui Ho Aur Maine Yah Likhkar Diya Hai Ki Main Punha Ki Gayi Matgarna Se Santushta Hoon Matgarna Ke Samay Kul Teen Matpatra Nirastra Kiye Gaye The, Unke Kitne Mat Mere Paksh Mein Pare The Gyat Nahi Hai. Kuch Matpatra Adhiman Matdata Dwara Duhra Kiya Jane Ke Karan Nirast Kiye Gaye The Kul ... Karan Nirast Kiye Gaye The Yaad Nahi Hai. Yachika Mein Matpatron Ki Nirasti Ke Karan Nahi Likha Hai. Teen Matpatron Mein Atirikt Anya Matpatra Nirast Nahi Kiya Gaya Tha." He further points out that from the order of the Election Tribunal directing recounting it will be seen that the aforesaid pleading for directing recounting is not the basis for the order impugned. He submits that the Election Tribunal has proceeded to direct recount on the ground not pleaded, therefore, the order of recount is illegal. The contention so raised is opposed by Shri Arvind Srivastava, Advocate who has appeared on behalf of respondent no. 2, in reply submits that there were specific pleading in the election petition qua 7 votes being declared invalid because of marking of figure ''1' and that in Examination in Chief, the aforesaid pleading was specifically supported by oral testimony. With reference to the judgment of this Court in the case of Reeta Yadav vs. State of U.P. and others reported in 2007 (4) AWC, 3693, he submits that marking of figure 1 in the ballot paper qua the candidate concerned will not render the vote invalid. He, therefore, submits that recounting of the vote is legally justified in that facts of this case. I have heard learned counsel for the parties and have gone through the records of the present writ petition. The competence of an Election Tribunal to direct recount of votes has been settled by the Hon'ble Supreme Court in series of judgements time and again. The leading cases are being M. Chinnasamy vs. K.C. Palanisamy and others reported in 2004 (6) SCC, 341, Baldev Singh vs. Shinder Pal Singh and another reported in 2007 (1) SCC, 341 and Mahendra Pratap vs. Krishna Pal and others reported in 2003 (1) SCC, 390. The Hon'ble Supreme Court has specifically provided that before recounting of the votes can be directed by an Election Tribunal, following three issues have to be examined. (a) there is a specific pleading in support of the prayer for recount of votes. (b) necessary evidence is brought before the Election Tribunal in support of the said pleading. (c) prima facie the Election Tribunal is satisfied that it is case where recounting should be directed. The Hon'ble Supreme Court has further clarified that this prima facie satisfaction has to be something more than that required in case of grant of temporary injunction. In the facts of the present case the Election Tribunal has not applied its mind to the fact that the only plea raised in support of the prayer for recount of votes namely 7 votes have been wrongly declared invalid. The Tribunal has not examined the evidence in respect of the said pleadings and has proceeded to pass an order for recounting of the votes on the other ground which were not the basis for the prayer for recount in the election petition. In the opinion of the Court, The Election Tribunal is obliged under law to consider the application for recount on the pleas raised and not on any other ground. In these set of circumstances the order impugned in the present writ petition directing recounting cannot be legally sustained and is hereby quashed. Let the Election Tribunal reconsider the application for recount with reference to he pleadings and the evidence lead in that regard, preferably within a period of two months from the date a certified copy of this order is filed before the Election Tribunal. Writ petition stands allowed.