ORDER
1. The petitioner has filed this revision under [SECTION] of the [ACT] for quashing the impugned order dated December 14, 1995, of the additional Senior Judge-cum-Election Tribunal, Safidon, district Jind, whereby recount of votes has been ordered.
2. Adumbrated facts of the case are that respondent No. 1 (Smt. [ENTITY]) filed an election petition on February 14, 1995. Petitioner filed her written statement on May 20, 1995. Respondent No. I without leading any evidence filed a petition Annexure P-l on August 26, 1995, alleging that she has relinquished her ground taken in para 2(ii) of the petitition and only claims recounting by re-examining ballot papers and also by calling missing ballot papers wrongly put in the other boxes at the time of simultaneous voting for the members of the Block Samiti and Zila Parishad. The petitioner filed reply Annexure P-2 wherein she objected that without recording evidence for recount cannot be passed. She also, denied that three ballot papers were wrongly put in the other boxes at the time of simultaneous voting for the members of Block Samiti and Zila Parishad. An objection was also raised that the election-petitioner has no right to summon the ballot boxes of the election of Zila Parishad and Block Samiti in this manner.
3. By the impugned order Election Tribunal allowed the respondent-election petitioner's petition Annexure P-l by holding that the petitioner has given up her other ground of challenge with regard to corrupt practices and is only making a prayer for recount, which falls within the ambit of [SECTION] of the [ACT] (in short, the Act), which does not require any enquiry. It also held that this provision has made it obligatory for the Court to make a scrutiny and computation of votes polled in favour of each candidate in all the cases where validity of an election is disputed between two or more candidates and where the challenge is not founded on any allegation of corrupt practice. Relying on Smt. [ENTITY] v. Smt. Rajesh Kumar, 1995 (2) CLJ (Civil Crl. and Revenue) 636, the Election Tribunal while allowing the respondent-election petitioner's petition ordered recount of the votes.
4. During arguments, petitioner's learned counsel, relying on [PRECEDENT] vehemently argued that recount of votes cannot be held without recording evidence. Parties before the Tribunal should lead their evidence on the question whether the case for recount is made out or not. After their evidence, the Election Tribunal should pass an appropriate order in accordance with law.
5. Respondent's learned counsel, relying on Smt. [ENTITY]'s case [PRECEDENT] (supra), argued that where in the election petition the challenge is not to the corrupt practice but only a prayer for recount is made, the Court should make a scrutiny and computation of votes polled in favour of each candidate.
6. In the aforementioned judgment it is held that the deliberate omission by the legislature of requirement of an enquiry as a condition.precedent to an order for scrutiny and computation of votes shows that the legislature intended that instead of finally depending on the counting of votes made by Returning Officer in the changed election scenario in the country, the Court should be vested with the power and a duty to scrutinise and compute the votes polled in an election held for panchayats and where the election is subject to challenge by way of petition under [SECTION] of the Act. The Court has been made a final arbiter on the question of number of votes polled by candidates in an election to the panchayat. It is further held that scrutiny and computation shows that it is for the Court to scrutinise each ballot paper and then compute the votes recorded in favour of each candidate and then declare result in favour of the person who secured the largest number of valid votes.
7. The moot question for decision is whether an order of recount has to be necessarily passed where the validity of the election is challenged on the ground other than orrupt practices, even though there are no pleadings for cogent evidence warranting the order of recount. To decide that question.
Haryana Panchayati Raj Election Rules 1944, dealing with the recount of votes. In [PRECEDENT] a Division Bench of this Court has held that these Rules are pari materia with [SECTION] framed under the [ACT], known as the [ACT], which also deal with recount of votes.
8. [SECTION] of the Act emphasises the maintenance of screcy of votes. The provisions in fhe [ACT], and the Rules framed thereunder regarding recount have come up for interpretation in a number of cases. The Apex Court has held that recount is not to be granted as a matter of course or right. Recount can only be granted where proper foundation of material facts has been laid in the pleadings of the parties duly supported by reliable evidence, which could satisfy the Court that in order to decide the dispute, the inspection of ballot is necessary.
9. In "[ENTITY] v. Hussain Kamil Kidwai, [PRECEDENT], the Apex Court has held :
"An order for inspection may not be granted as a matter of course; having regard to the insistence upon the secrecy of the ballot papers, the Court would be justified in granting an order for inspection provided two conditions are fulfilled :
(i) that the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support of his case; and
(ii) the Trubunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary."
10. In [PRECEDENT] their Lordships of the Supreme Court have held :
"The relief of recounting cannot be accepted merely on the possibility of there being an error. It is well settled that such allegations must not only be clearly made but also proved by cogent evidence. The fact that the margin of votes by which the successful candidate was declared elected was very narrow, though undoubtedly an important factor to be considered, would not by itself vitiate the counting of votes or justify recounting by the Court.
The Court would be justified in ordering a recount of the ballot-papers only where;
(i) the. election petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded;
(ii) On the basis of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting; and
(iii) The Court trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties."
11. In [PRECEDENT] the Apex Court has again reiterated the principles laid down for recount in [ENTITY]'s case ([PRECEDENT]) (supra).
12. In [PRECEDENT] again reiterating that secrecy of ballot is sacrosanct and cannot be permitted to be tinkered lightly and a recount can only be ordered on a prima facie case made out on the basis of material facts pleaded and duly supported by contemporaneous evidence justifying a recount, such an order should not be passed, their Lordships observed :
"Thus in the instant case only three line objection application was filed before the Returning Officer. No objection whatsoever was raised during the counting and no irregularity or illegality was brought to the notice of the Returning Officer. Even the material in the election petition, has been pleaded with the object of having a fishing enquiry and it did not inspire confidence. A cryptic application claiming recount made by that contestant before the Returning Officer. No details of any kind was moved by the petitioner. Not even a single instance showing any irregularity or illegality in the counting was brought to the notice of the Returning Officer. Held, when there was no contemporaneous evidence to show any irregularity or illegality in the counting, ordinarily it would not be proper to order recount on the basis of bare allegations in the election petition,"
13. In these judgments it is held that secrecy of ballot papers is paramount and recount of votes cannot be ordered as a matter of course and on the mere asking. The petitioner claiming recount is required to place material facts before the Tribunal to make out a prima facie case for recount. Some reliable evidence should also be adduced to prove those material facts. Unless that is done, the result of an election should not be tinkered with and such a petitioner should not be permitted to have a roving or finishing enquiry under the garb of recount of votes. No doubt, in [SECTION] of the Act the word 'enquiry' is not mentioned, but [SECTION] begins with the expression". If the validity of any election of a member of a Gram Panchayat is brought in question by any person contesting the election;" meaning thereby that the party assailing the result of the election has to show by dependable evidence that a bona fide dispute based on strong grounds exists for questioning the legality of counting. Order of recount cannot be made on the mere asking of a party. No doubt, by filing the petition Annexure P-l respondent No. 1 has prayed recount of votes. The Election Tribunal has fallen into an error that whenever such a petition is filed and the grounds tantamount-ing to corrupt practice are given up, Such a petition should be allowed instantaneously without considering whether material facts are enumerated therein or not to order a recount or whether these facts are proved by reliable and cogent evidence.
14. Thus, in my considered view, the Election Tribunal has misinterpreted the provisions [SECTION] of the Act by allowing the petition, where in no material fact is set out for passing such an order and no evidence is adduced to prove any tangible ground for recount. Consequently, this petition is allowed. The impugned order is quashed. The trial Court is directed to decide the election petition in accordance with law.
15. Petition allowed.