Afsari vs State Election Commission Uttarakhand, Dehradun & Others

Sudhanshu Dhulia, J.

The petitioner was a candidate for the post of Chairman, Nagar Palika Parishad Mahua Dabhra, Tehsil Jaspur, District Udham Singh Nagar. The petitioner has lost the elections and filed the present writ petition challenging the election of Chairman, Nagar Palika Parishad Mahua Dabhra, Tehsil Jaspur, District Udham Singh Nagar.

The case of the petitioner is that in the said election she has got 1428 votes, whereas the rival candidate has got 1427 votes. On a protest made by the rival candidate, recounting was done in which two votes of the petitioner and one vote of the rival candidate were declared invalid and they were in a situation of tie. The rules stipulated that the winner will be declared by draw of lots. The draw of lots was made in favour of the rival candidate i.e. respondent no.5 and she was declared successful by the Returning Officer. According to the learned counsel for the State Election Commission Uttarakhand, there is nothing on record to suggest that the petitioner was declared successful and instead of challenging the election by way of an election petition under Section 19 of the Uttar Pradesh Municipalities Act, 1916 petitioner has filed the present writ petition saying that she was earlier declared as successful candidate in the election.

In any case, the remedy available to the petitioner is to file a election petition in view of the law laid down by the Hon'ble Apex Court in the case of Mohinder Singh Gill V. Chief Election Commissioner, New Delhi reported in (1978) 1 SCC 405.

Consequently, the writ petition stands dismissed.

However, it is made clear that the dismissal of this writ petition shall not prejudice the case of the petitioner in an election petition, if it is so filed.