Kaushilya Sahu vs Saroj Yadav

K.K. Trivedi, J.—Pursuance to the order issued by this Court dated 13.7.2012, the record of the Election Tribunal is produced in the sealed cover, which is perused.

Though a return is filed by the respondent No. 1, but with the said return also nothing has been placed on record except the statements of witnesses recorded by the Election Tribunal. Not a single document is produced to show that at any point of time any complaint was made before the Polling Officer by the respondent No. 1 or her agent that the ballot papers were not containing the election symbol of the respondent No. 1.

It is contended by learned counsel for the petitioner that while appreciating the said evidence available on record, though the issues framed in respect of misuse of power and money by the petitioner through her husband and the issue that whether the polling was continued even after the fixed period, have been decided in favour of the petitioner herein. Only issue No. 2 is answered in favour of the respondent No. 1 and a direction is given for recounting of the votes. It is contended that such an order passed by the Election Tribunal is bad in law.

On a perusal of the entire record of the Election Tribunal, it is clear that evidence produced by the respondent No. 1 was in the cyclostyled manner as all the affidavits under Order 18 Rule 4 of the Code of Civil Procedure contain the similar facts. In some places the figures are different which have been written by hand. The petitioner has cross examined some of those witnesses and has specifically put the question whether any complaint was made in writing with respect to the ambiguity of not containing the symbol of the respondent No. 1 election petitioner in the ballot paper. Answer to the said question is given that only an oral complaint was made. This shows that at no point of time, such an important aspect was not complained even when was available to the respondent No. 1 as no complaint in writing to that effect was made by the respondent No. 1. The Rule prescribes that if the objections are required to be raised, the same are required to be raised in writing and not otherwise. In view of this, the Election Tribunal fell in an error in holding that there was sufficient ground to hold that the recount of the vote is necessary.

The Apex Court in the case of Sohan Lal Vs. Babu Gandhi and Others, and Chandrika Prasad Yadav Vs. State of Bihar and Others, has categorically held that unless a definite finding is recorded, a prayer for recount of vote is not to be granted by the Election Tribunal after the declaration of the result, specially in an Election Petition. From the evaluation of the evidence available on record, since there was no iota of evidence available to hold that the ballot papers used in the said election were not containing the symbol of the respondent No. 1, the findings given by the Election Tribunal cannot be sustained.

As a result, the writ petition is allowed. The order dated 29.11.2011 is hereby set aside. In view of the analysis made herein above, the Election Petition filed by the respondent No. 1 itself is deemed to be dismissed.

The writ petition is allowed and disposed of.

Certified copy as per rules.