Narendra Sharma vs Pawan Sharma and Others

Amreshwar Pratap Sahi, J.—This writ petition has been preferred by Sri Narendra Sharma, who was elected in the elections of Nagar Nigam, Aligarh as Corporator from Ward No. 15. His election was put to challenge by the respondent No. 1-Pawan Sharma and an application for recounting was also moved. The ground for recount, which was specifically taken in the election petition a copy whereof is Annexure-1 to the writ petition, is that a total number of 4676 votes has been polled whereas the counting has been calculated on the strength of 4660 votes, it was alleged that 16 votes have not been counted and since the election petitioner has lost the election only on a thin margin of votes a recount is must. The petitioner resisted the same and his statement was also recorded.

Learned Counsel for the respondent No. 1-Shri Anoop Trivedi contends that the aforesaid allegation in the election petition stood admitted by the petitioner himself in his statement, a copy whereof is Annexure-1 to the writ petition. Shri Anoop Trivedi contends that the petitioner himself has stated that he does not know as to what are the number of votes polled and he did not raise any objection because he had an apprehension that he might lose the election. On the strength of such statement made by the petitioner. Shri Trivedi contends that it amounts to an admission with regard to the number of votes polled, i.e., 4676.

The Tribunal proceeded to consider the said statement as well and passed the order of recounting on the ground that the statement of the petitioner itself indicates that more votes were polled than what has been recorded and, therefore, recounting is necessary. The Tribunal also went on to hold that in case 16 votes have not been polled then the result would be materially ellected as the election petitioner has lost elections by a thin margin of only four votes.

I have heard learned Counsel for the parties and perused the affidavits as also the learned standing counsel for the respondent No. 3.

The only question is as to whether the Tribunal was Justified in ordering recount on the strength of the aforesaid material as indicated herein above or not.

The election petition filed by the respondent No. 1 categorically stated that 4676 votes were polled, which would be evident from the charts that were prepared individually at each booth. It is, therefore, clear that the election petitioner came out with a clear assertion that the charts in relation to the individual booths clearly recorded the number of votes and, therefore, the results which have been declared on the strength of only 4660, votes materially affected the result of the election.

In my considered opinion, once the election petitioner had come out with a clear case of the existence of material to support the total number of votes polled as alleged by him, namely the individual chart, which are maintained in each booth, then it was incumbent upon the election petitioner to have obtained the copies of the said chart and file it along with his election petition in order to demonstrate conclusively that the total number of votes polled were 4676 and not 4660. The election petitioner, therefore, having failed to do so, he cannot be permitted to rely upon the statement of the petitioner herein, whose statement is vague and it is not conclusively indicated as to what was the total number of votes polled.

The law on this issue of recount is well-settled and reference may be had to the decision in the case of M. Chinnasamy Vs. K.C. Palanisamy and Others, and in the case of Baldev Singh v. Shinder Pal Singh and Anr. 2007 ACJ 430.

The Tribunal has misdirected itself in not addressing to the aforesaid issue and has proceeded to pass the order of recounting on the basis of the statement of the petitioner, which was nothing else but a surmise and conjecture on his part. The order of recounting could not have been passed on such flimsy assertions made by the petitioner himself and cannot be taken to be an admission on his part.

Accordingly the order impugned cannot be sustained. It is accordingly quashed. At this stage learned Counsel for the respondent No. 1-Shri Anoop Trivedi and Shri A.K. Gupta pray that a direction be issued to decide the election petition as expeditiously.

In view of this, the writ petition is allowed with liberty to the Tribunal to proceed and decide the election petition as expeditiously as possible preferably within a period of six months from the date of presentation of a certified copy of this order before him.