Dismissed¶21

Ramchandra v. Prescribed Authority and 3 Others

Allahabad HC18 Jan 2023A227/12283/2022

Case brief

AI extract

What is this about?

Article 227 revision; election petition under Section 12-C U.P. Panchayat Raj Act 1947; application under Order 7 Rule 11 CPC for rejection of plaint; voter named thrice in voter list; Sections 9(3) and 9(6); validity of ballots versus sacrosanct electoral roll; excess votes invalid; matter of evidence and trial; no legal bar at threshold; Election Tribunal order upheld, no manifest error; Smt. Mudi (2000) 3 UPLBEC 2544 distinguished; Smt. Shyam Dulari Devi AIR 2005 All 388 and Smt. Prem Sheela relied on; petition dismissed.

What did the court decide?

Where the entry of a voter's name is questioned for the purpose of determining whether the votes cast were valid, the Election Tribunal can always go into the question whether a particular voter exercised his franchise thrice in one particular election. ¶13

Ramchandra Vs Prescribed Authority and 3 Others — Writ and Judicial Review | Allahabad HC (2023)

What the court decided

AI extract

Outcome

Dismissed

¶21

Issue for consideration

Whether the plea in the election petition that a voter was named thrice in the voter list (with reference to Sections 9(3) and 9(6) of the U.P. Panchayat Raj Act, 1947) is an impermissible challenge to the sacrosanct electoral roll constituting a legal bar warranting rejection of the plaint under Order 7 Rule 11 CPC, or is tenable and a matter of trial. +1 more

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Court's answer

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Ratio / Principle

If a voter did exercise his franchise thrice in one election, there is no bar to holding the excess votes invalid; it is all a matter of evidence.

¶13

Key takeaways

Merely because a plea has been taken that the voter list was not correctly prepared is not by itself a ground to brush aside the election petition at the threshold on the plea of a legal bar.ratio¶13
Where there is no legal bar to entertaining a petition or suit, the question whether a ground raised in the suit is tenable or not becomes a matter of trial, not dismissal at the very threshold.ratio¶13

Detailed headnote1 paragraphs

High Court of Judicature at Allahabad (Hon'ble Ajit Kumar, J.), Matters Under Article 227 No. 12283 of 2022, Ramchandra v. Prescribed Authority And 3 Others, decided 18.1.2023. The Election Tribunal rightly rejected an application under Order 7 Rule 11 CPC seeking rejection of the plaint of an election petition under Section 12-C of the U.P. Panchayat Raj Act, 1947. While a voter list/electoral roll prepared for election is a sacrosanct document whose correctness cannot be gone into in an election petition or challenged under Article 226 (as per Smt. Mudi v. State Election Commission & Anr, (2000) 3 UPLBEC 2544, distinguished), a plea that a particular voter was named thrice in the voter list and hence cast invalid votes, with reference to Sections 9(3) and 9(6) of the Act, goes to the validity of ballots and not to the correctness of the list. The Tribunal can always inquire whether a voter exercised his franchise thrice in one election and hold excess votes invalid; it is all a matter of evidence, and absent a legal bar, tenability of the ground is a matter of trial, not threshold dismissal. The court stood supported by Smt. Shyam Dulari Devi v. State of U.P., AIR 2005 All 388 (para 11) and Smt. Prem Sheela v. Prescribed Authority/ SubDivisional Magitrate, Ghosi, Mau & Others (para 21). Finding no manifest error in the Tribunal's order, the petition was dismissed.

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Court No. - 37

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Case :- MATTERS UNDER ARTICLE 227 No. - 12283 of 2022

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Petitioner :- Ramchandra Respondent :- Prescribed Authority And 3 Others Counsel for Petitioner :- Bhola Nath Yadav,Abhishek Kumar Yadav Counsel for Respondent :- C.S.C.,Siddharth Nandan

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Hon'ble Ajit Kumar,J.

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Heard Sri Bhola Nath Yadav, learned counsel for the petitioner and Sri Siddharth Nandan, learned counsel for the contesting respondents.

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The petitioner is aggrieved against the order passed by Election Tribunal rejection his application under Order 7 Rule 11 of C.P.C. for rejecting the plaint on the ground that the voter list for the purposes of election in question is a sacrosanct document and its validity or otherwise veracity cannot be gone into in an election petition. He submits that considering the various pleadings raised therein in the election petition in pith and substance it is virtually a challenge to the electoral roll. He submits that the Tribunal has not correctly appreciated the arguments advanced before it and the pleadings raised in the application under Order 7 Rule 11 C.P.C. viz a viz the pleadings raised in the election petition. He submits that the court sitting in revision has manifestly erred in confirming the order of Election Tribunal.

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Learned counsel for the petitioner has relied upon a Division Bench judgment of this Court in the case of Smt. Mudi v. State Election Commission & Anr, (2000) 3 UPLBEC 2544 and he submits that this judgment still holds the field.

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4. Per contra it is argued by learned counsel appearing for the contesting respondents that the pleadings as have come to be questioned by means of an application under Order 7 Rule 11 of C.P.C. are not indicative of any intention of the election petitioner to challenge the electoral roll. However, he submits that serious discrepancy or anomaly if has occurred in the voter list where a voter has been named thrice in a voter list, then such votes do become invalid and if the votes are invalid those votes deserve not to be counted and if by their counting they effect materially the election, then such aspect can always be gone into in election petition.

¶9

Learned counsel for the contesting respondent has relied upon a judgment of concurrent bench of this Court in the case of Smt. Shyam Dulari Devi v. State of U.P., AIR 2005 All 388

¶10

and Smt. Prem Sheela v. Prescribed Authority/ SubDivisional Magitrate, Ghosi, Mau & Others .

¶11

Having heard learned counsel for the respective parties and their arguments raised across the bar and having gone carefully through the pleadings raised in the election petition, I find that the petitioner in the election petition has questioned the correctness of the name of particular voter thrice in voter list and which according to him accounts to an invalid votes because under the Rules and election laws, in the election a voter cannot be permitted to cast vote thrice. He has referred to Section 9(3) and 9(6) of the U.P. Panchayat Raj Act, 1947 and it is on this count alone the vote counting has been questioned and the election and its result is sought to be set aside.

¶12

The judgment that has been relied upon by the counsel appearing for the petitioner refers to a legal aspect that a voter list / electoral roll prepared for the purposes of election is a sacrosanct document and its correctness cannot be gone into and challenged in election petition filed under Section 12-C of the U.P. Panchayat Raj Act, 1947, nor such a voter list can be challenged in extraordinary jurisdiction of this Court vide Article 226 of the Constitution.

¶13

In the given facts and circumstances of the case, where the entry of the name of the voter has been questioned for the purposes of casting vote, so as to determine as to the votes cast were valid or not, in my considered view the election Tribunal can always go into the question as to whether a particular voter has exercised his franchise thrice in one particular election and if that be so then there is no bar for those excess votes to be held invalid, but it is all a matter of evidence. Merely because a plea has been taken that the voter list has not been correctly prepared, will by itself not become a ground to brush aside the election petition at the threshold on the plea of a legal bar. The bar to entertain a petition should be such that no election petition can be entertained it becomes imperative to allow an application under Order 7 Rule 11 of the C.P.C. If there is no legal bar to entertain a petition or suit for that matter, the question whether a ground raised in the suit is tenable or not will all become a matter of trial and not dismissing the petition or a suit at a very threshold.

¶14

In my above view with regard to the question of correctness of the election officer in counting votes and to determine whether the votes counted were valid or not, I stand supported with the observation made by a concurrent bench of this Court in the case of Smt. Shyam Dulari Devi (supra) vide para 11 which runs as under:

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"11. Here in pith and substance petitioner grievance is that under Subsection (6) of Section 9 of U.P. Panchayat Raj Act 1947 the said 10 persons were not entitled to be registered in the electoral roll of two separate Gram Panchayats , as such their participation in the election on subsequent occasion on 20.5.2005 on the basis of name being inserted in the electoral roll of Gram Panchayat Bhatgawan, District Kushinagar is bad. Thus, petitioner is complaining participation of all these persons in violation of provision as contained under sub-Section (6) of Section 9 of U.P. Panchayat Raj Act 1947. As violation of sub-Section (6) of Section 9 of U.P. Panchayat Raj Act 1947 is being complained of the same can be valid ground for questioning validity of election under Section 12-C of U.P. Panchayat Raj Act 1947 which clearly mentions that election can be questioned on the ground that result of the election has been materially affected by the improper acceptance or rejection of any nomination or by gross failure to comply with the provisions of this Act and Rules framed thereunder. Thus, the ground which has been sought to be raised in the present writ petition by pleading can be raised in the election petition, that election has been materially affected by gross failure to comply with the provisions of the Act. The prayer made in the writ petition, clearly reflects that same clearly falls within the category of questioning the elections of Panchayat, and the moment election is questioned, constitutional embargo placed upon Courts, comes into play, and courts authority under Article 226 is pushed out, on account of the express language used in Article 243O(b) which starts with non obstante clause. There being Constitutional prohibition imposed for entertaining proceedings except by way of election petition/this Court under Article 226 of the Constitution of India cannot usurp power of Election Tribunal constituted under Section 12-C of U.P. Panchayat Raj Act 1947."

¶16

The Court in the said case therefore, declined to entertain a petition under Article 226 of the Constitution holding that such an issue can be raised in a petition under Section 12-C of U.P. Panchayat Raj Act, 1947.

¶17

In a yet another judgment in the case of Smt. Prem Sheela (supra) the question was whether particular number of voters had cast vote for more than once and more so where the voters had cast their votes in two constituencies simultaneously. Thus, an issue arose regarding validity of ballets which became subject matter of controversy as to the election of returned candidate. Vide para 21 the Court has held thus:

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"21. It may be true that mere inclusion of names of 19 voters in Gram Panchayat Kalyanpur and existence of their names in two constituencies may not be material generally, however, if they have cast in both the constituencies, as per settled law, the same becomes material and the franchise so used becomes void. It is also not in dispute that hand-writing expert report was called for, however, the same was inconclusive as the impressions could not have been compared. It cannot be disputed that the power of the Court to compare the signatures itself is provided under Section 73 of the Indian Evidence Act and in the facts and circumstances of the present case, such exercise cannot be faulted with in view of the law settled by the Hon'ble Apex Court as noted above."

¶19

Thus, it is validity of ballet that that is in the germane and not the list. If ballet is held to be invalid for the reason that elector exercised it twice or at two different places simultaneously, that does not mean the Tribunal is attempting to set aside electoral roll altogether.

¶20

In view of the above, therefore, I do not find any manifest error in the order passed by the Election Tribunal.

¶21

Petition lacks merit and is accordingly dismissed .

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Order Date :- 18.1.2023 IrfanUddin

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Digitally signed by :- IRFAN UDDIN SIDDIKI High Court of Judicature at Allahabad

Ramchandra v. Prescribed Authority and 3 Others

Case brief

What is this about?

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Ramchandra v. Prescribed Authority and 3 Others

Case brief

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