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Judgment
Ritu Raj Awasthi, J.—Mr. Apoorva Tiwari, Advocate has put in appearance on behalf of contesting opposite party No. 2 and files vakalatnama, same is taken on record.
Opposite parties No. 3 to 6 are formal opposite parties as they have not contested before the Courts below.
Notice to opposite parties Nos. 1 and 3 to 6 is hereby dispensed.
Heard learned counsel for the petitioner as well as Mr. Apoorva Tiwari, learned counsel for opposite party No. 2.
The instant writ petition has been filed challenging the order dated 24.1.2017, as contained in Annexure-1 to the writ petition, whereby the revisional Court has allowed Application 12-C preferred by opposite party No. 2 for production of certain documents.
As per given facts, election for the post of Pradhan was held in the year 2015, in which the petitioner along with opposite parties Nos. 2 to 6 had contested the election. The result of election was declared on 13.12.2015 in which petitioner was declared elected on the post of Pradhan, Gram Panchayat Khamaura, Development Block Harpalpur, Tehsil Sawaijpur, District Hardoi. The opposite party No.2 feeling aggrieved had filed election petition under Section 12-C of U.P. Panchayat Raj Act which was dismissed by learned Tribunal vide order dated 3.8.2016. A revision was preferred under Section 12-C (6) of U.P. Panchayat Raj Act before learned District Judge, Hardoi. Learned District Judge, Hardoi vide order dated 31.8.2016 had passed an order directing the authorities for production of documents.
The revisionist/opposite party No. 2 had filed an application under Section 40 and 52 of U.P. Panchayat Raj Rules for production of documents and inspection of records. The application for recall of order dated 31.8.2016 was moved by the petitioner on the ground that the order for production of documents was passed without giving him opportunity of hearing. The application for recall was rejected by order dated 18.10.2016.
Thereafter the petitioner preferred Writ Petition No. 25863 (MS) of 2016 before this Court. This Court after hearing the parties had set aside order dated 18.10.2016 and had directed the learned District Judge to revisit the earlier order dated 31.8.2016 giving opportunity of hearing to the parties. The revision petition was in the meantime transferred to the Court of learned Additional District Judge, wherein by the impugned order dated 24.1.2017 the application preferred by opposite party No. 2/revisionist was decided and the revisional Court has directed the concerning authorities to produce the election papers as and when desired by the Court for inspection, as per rules. The revision has been listed for hearing.
Learned counsel for the petitioner submits that the revisional Court has no such power or authority to order for production of documents and inspection of such papers. It is submitted that the revisional Court is required to see the irregularity, if any, committed by learned prescribed authority in deciding the election petition and cannot on its own summon the documents and decide the case on merit afresh. In this regard learned counsel for the petitioner has relied on a Full Bench judgment of this Court in the case of Ram Adhar Singh v. The District Judge, Ghazipur and others (Civil Misc. Writ Petition No.11079 of 1983).
Learned counsel for the opposite party No. 2, on the other hand, has taken objection regarding maintainability of writ petition on the ground that the petitioner has not approached the Court with clean hands. He has not disclosed the correct facts before the Court. It is submitted that the application for summoning of documents under Rule 40 and 52 of U.P. Panchayat Raj Rules was subsequently amended and opposite party No. 2 had deleted the said provisions which were wrongly mentioned in the application. The revisional Court considering the amended application has ordered for summoning of certain documents from the election authorities. These relevant material facts have not been brought on record before this Court and, as such, writ petition deserves to be dismissed on material concealment by the petitioner.
It is also submitted that in fact two separate applications were moved by opposite party No. 2, one for the production of documents and the other for inspection of those documents. The revisional Court has, by the impugned order, allowed application No. 12-C which was for the production of documents and not permitting inspection of those documents by the opposite party No. 2. It is submitted that under Rule 112 of U.P. Panchayat Raj (Election of Members, Pradhans and Up-Pradhans) Rules 1994 there is specific provision permitting the Court to direct for production and inspection of election papers, as such, it cannot be said that the revisional Court has no power to order for production of documents etc.
I have considered the submissions made by parties'' counsel and gone through the records.
The first and foremost question involved in the writ petition is whether the revisional Court has the competence and power to summon certain documents from the election authorities and order for inspection of the said documents or not. Rule 112 of U.P. Panchayat Raj (Election of Members, Pradhans and Up-Pradhans) Rules 1994 is relevant in this regard which on reproduction reads as under:-
"Rule 112: Production and inspection of election papers - (1) While in the custody of the Assistant District Election Officer (Panchayat and Local Bodies) the packet of ballot papers, whether valid, rejected or tendered and the marked copy of the electoral roll shall not be opened and their contents shall not be inspected by, or produced before any person or authority, except under the order of a competent court or of an authority hearing an election petition."
The perusal of the said Rule clearly indicates that the packet of ballot papers, whether valid, rejected or tendered and the marked copy of the electoral roll which are in the custody of the Assistant Election Officer shall not be opened and their contents shall not be inspected by, or produced before any person or authority, except under the order of a competent court or of an authority hearing an election petition.
The import of this Rule would be that the authority hearing an election petition or any competent court can order for summoning of such documents which are in the custody of Assistant District Election Officer (Panchayat and Local Bodies). The revisional Court hearing revision filed against the order passed by prescribed authority in exercise of powers under Section 12-C of U.P. Panchayat Raj Act would be clearly a competent court to order for the production of such documents as mentioned above. As such, the contention of learned counsel for the petitioner has no force in this regard and rejected. The revisional Court hearing a revision against the order passed in the election petition has competence and power to order for production of documents.
So far as the judgment of Full Bench of this Court in the case of Ram Adhar Singh (supra) which has been relied by the petitioner''s counsel in support of his arguments is concerned, the said judgment is on the point whether it is permissible for the authorities dealing with application under Section 12-C of U.P. Panchayat Raj Act either to look into or to direct inspection of ballot papers merely on the ground that it feel that it would be in the interest of justice to look into or permit inspection of ballot papers. The Full Bench has come to conclusion that before an authority hearing the election petition under the said Act orders for production of documents or direct inspection of the ballot papers, he shall be satisfied that following two conditions are fulfilled; (1) that the petition for setting aside an election contains the grounds on which the election of the respondent is being questioned as also the summary of the circumstances alleged to justify the election being questioned on such grounds; and (2) the authority is, prima facie, satisfied on the basis of materials produced before it that there is ground for believing the existence of such grounds and that making of such an inspection is imperatively necessary for deciding the dispute and for doing complete justice between the parties. Paras 17 and 18 of the judgment in this regard are relevant which are reproduced herein below:-
"17. Learned counsel appearing for the Petitioner submitted that whereas Section 83 of the Representation of the Peoples Act requires that the election petition presented under that Act must give out a concise statement of material facts on which the Petitioner relies, the requirement under Rule 24 of the Rules framed under the U.P. Panchayat Raj Act, in this regard is that the election petition presented under Section 12-C of the Act is merely to contain the grounds together with the summary of circumstances alleged to justify the election being questioned on such grounds. He urged that there is a substantial difference between requiring a Petitioner to make a concise statement of material facts on which he seeks to rely and in requiring a person to specify in the petition the summary of circumstances providing a justification for questioning the election on a particular ground. Moreover, Section 12-C(5) of the U.P. Panchayat Raj Act countenances framing of a rule permitting summary hearing and disposal of an election petition under Section 12-C(1) of the Act, the State Government has, vide Clause (2) of proviso (1) to Rule 25(1) stipulated that it shall not be necessary for the Sub-Divisional Officer, (the authority competent to deal with an election petition under Section 12-C of the Act) to record the evidence in full and that he may maintain only a memorandum of evidence produced by the parties before him. This, according to the learned Counsel, indicates that the requirement in the U.P. Panchayat Raj Act with regard to contents of an election petition and the procedure for its trial is very much less formal and stringent than the corresponding provision concerning pleadings and procedure for trial of an election petition under the Representation of the Peoples Act, He, therefore, contends that it would, under the circumstances, not be apt to fetter the discretion of an authority hearing an election petition under the U.P. Panchayat Raj Act with regard to perusal and inspection of ballot papers by the same strict conditions for the purpose laid down by the Supreme Court in relation to cases arising under the Representation of the People Act.
We are unable to accept the submission made by the learned Counsel. As already explained the Supreme Court has, in cases arising under the Representation of the People Act, spelt out the condition that all the courts dealing with an election petition should not exercise its discretion to permit inspection of ballot papers unless the petition contains an adequate statement of material facts on which the Petitioner relies in support of his case (viz. that the petition meets the requirements of Section 83(1) of the Representation of the People Act regarding contents of an election petition) for the reason that under the Act, it is a matter of utmost importance to maintain the secrecy of ballot which is sacrosanct and which should not be lightly allowed to be violated on vague and indefinite allegations. This reason applies equally to an election held under the U.P. Panchayat Raj Act which too cherishes secrecy of ballot to the same extent. Viewed from this angle, it becomes evident that the amplitude and purpose of the requirement of Section 83(1)(a) of the Representation of the People Act that the election petition must contain a concise statements of material facts on which the Petitioner relies and that of Rule 24 of the Rules framed under the U.P. Panchayat Raj Act to the effect that an application under Section 12-C(1) of the Act must specify the grounds on which the election of the Respondent is being questioned as also a summary of circumstances alleged to justify the election being questioned on such grounds, is the same, viz. that the court or the authority dealing with an election petition under the respective enactments, should not countenance or proceed to investigate into any ground taken in the election petition unless the ground as well as the material in support of such ground have been adequately disclosed in the petition. Neither of the two enactments countenances the court or the authority to permit the election Petitioner to make or indulge into making of a roving enquiry with a view to fish out material for declaring an election void; and it is this weighty factor which impels the court or the authority not to look into or permit inspection of ballot papers unless the foundation for the purpose has been properly laid in the petition by specifying the ground and the material or the circumstances in support of such ground. Viewed in this light, the provisions contained in the U.P. Panchayat Raj Rules permitting the summary hearing of an application under Section 12-C(1) of the Act and authorising the Sub-Divisional Officer to, instead of recording evidence in full, merely maintain a memorandum thereof, has no bearing on the question regarding circumstances in which the ballot papers can either be looked into or permitted to be inspected in proceedings under Section 12-C of the U.P. Panchayat Raj Act."
In the present case, the revisional Court has recorded its reasons and satisfaction for summoning of the documents and considering the case of the parties in detail has directed the concerning authorities to produce the election papers as and when desired by that Court for inspection as per rules. Learned Court below has not ordered for permitting the opposite party No. 2/revisionist to make any inspection of such documents, as such, I am of the considered view that the judgment cited by learned counsel for the petitioner is of no assistance to him and rather supports the case of opposite party No. 2/revisionist.
In view of above, I do not find any infirmity or illegality in the order impugned. Writ petition being devoid of merit is dismissed, however, it is made clear that the revisional Court may consider and decide the revision on merit in accordance with law expeditiously, giving opportunity of hearing to the parties concerned.