vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1976 OF 2009 WRIT PETITION NO.1976 OF 2009 WRIT PETITION NO.1976 OF 2009 Smt.Kamal Ganpati Shirtode ... Petitioner V/s. Sou. Nazmabi Abdulrazzak Mulla & Ors. ... Respondents Mr.T.S. Ingale for Petitioner Mr.A.M. Kulkarni for Respondent Nos.1 and 2 Mr.S.N. Patil, AGP, for Resp. No.3 CORAM: SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. DATED: APRIL 13, 2009 APRIL 13, 2009 APRIL 13, 2009 P.C.: P.C.: P.C.: . Rule. By consent of the parties, Rule made returnable forthwith and heard finally. 2. This petition has been filed against an order dated 19.1.2009 by which the Joint Civil Judge, Junior Division, Islampur has directed the recount of the votes of Ward No.3 of village Aitawade BK., Taluka Walwa in respect of the Election Petition filed by Respondent No.1 herein. According to the Petitioner, the learned Judge has directed a recount when there was no application filed by Respondent No.1 for a recount in accordance with the provisions of law. 3. An affidavit is filed by the election officer, Gram Panchayat Aitawade BK., Taluka Walwa in which he : 2 : supports the case of the petitioner, that no application had been filed by Respondent Nos.1 and 2, nor had they raised any objection about the counting of the votes after declaration of the election result. 4. An affidavit has been filed by Respondent No.1 in which she has stated that an application was submitted to the election officer for a recount. That application according to Respondent No.1 was not accepted by the election officer and therefore she was constrained to file the election petition. She has annexed a photocopy of a handwritten letter dated 10.10.2007 in which her election agent had sought a recount. 5. Admittedly, the elections were held on 9.10.2007. No application was filed on that date before the election officer either by respondent No.1 or her election agent. The only document on which the respondent No.1 relies is the one annexed to her affidavit. That document is dated 10.10.2007 i.e. a day after the election result was declared. Under Rule 35 of the Bombay Village Panchayat Rules, a recount of the votes is possible upto the time when the results of the election are declared under Rule 34. The candidate or in his absence his election agent can apply to the returning officer for a recount of all or any of the : 3 : ballot papers on any of the grounds on which he demands a recount. On such an application being made, the returning officer is expected to decide the matter and allow the application or reject it if it is found to be frivolous or unreasonable. Such a decision of the returning officer is to be in writing must and contain reasons therefor. The Rule further stipulates that in case the returning officer finds that the application should be allowed, then the ballot papers are to be counted again in accordance with the decision and the results are to be declared thereafter. 6. In the present case, there is no material on record to indicate that an application was made immediately after the declaration of the results under Rule 34 on 9.10.2007. The letter which the Respondent Nos.1 and 2 rely on is dated 10.10.2007 and therefore obviously the application has not been made for a recount immediately after the declaration of the result under Rule 34. 7. In the evidence led before the court also, it appears that there is no positive statement made by Respondent No.1 that in fact objections were raised by a written application before an election officer on that day or immediately after the election result was declared. It is sought to be argued by the learned : 4 : advocate for the respondents that since the petitioner had not led any evidence in rebuttal, the case made out by the respondents ought to be accepted. Reliance is placed on the judgment of the Supreme Court in the case of Vidhyadhar v/s. Manikrao & Anr., (1999) 3 SCC 573 (1999) 3 SCC 573 (1999) 3 SCC 573. The Supreme court in this case has held that a party who asserts a fact must prove the same by leading evidence in that behalf. 8. In the present case, it is Respondent No.1 who has filed the election petition. Therefore, it was for her to demonstrate before the Court that she had in fact filed the application on 9.10.2007, immediately after the declaration of the result under Rule 34, and that the application for recount was not accepted by the election officer. The Respondent No.1, in fact, has not produced the letter before the trial Court and therefore has not proved her assertions, prima facie. 9. In these circumstances, the petition is allowed. The impugned order is set aside. Rule made absolute accordingly with no order as to costs. 10. Since the election dispute is still pending, that should be decided by the Court on its own merits, : 5 : uninfluenced by the observations made therein.