CR No. 6640 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No. 6640 of 2008 Decided on : 03-12-2008 Smt. Renu Bala ....Petitioner VERSUS D.C.Fatehgarh Sahib/Election Tribunal and others ....Respondents CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr. Vikas Mehsempuri, Advocate for the petitioner. MAHESH GROVER, J This revision petition is directed against order dated 29.8.2008 by which the Election Tribunal during the course of the election petition preferred by the respondent-Nirmala Devi ordered re-count of the votes on the application having preferred by the said respondent. Learned counsel for the petitioner contended that there was no occasion to order the re-count of votes as no material particulars have been given in the petition and the application for re-count. Reliance was placed on 2001(2)RCR (civil) 647 titled as 'Preet Mohinder Singh versus Kirpal Singh', wherein the Apex Court has observed as follows:- “Para 5. A bare reading of the above averments shows that these paragraphs contain nothing but bald allegations. No facts, muchless material facts and particulars have been furnished. The averments to the effect that the Presiding Officer had illegally rejected 57 votes whereas in fact these were only 37 votes of such CR No. 6640 of 2008 2 nature, is a hopelessly vague and bald allegation. Leaving aside the question whether the figure as mentioned above is true or imaginary, the basis on which this figure had been carried at, has not been disclosed in the election petition. No particulars at all have been furnished of allegedly wrongfully rejected votes as mentioned in paragraphs 11 and 13. Same is the position with regard to the allegations contained in other paragraphs (supra). The pleadings on this aspect are hopelessly vague. Neither material facts nor material particulars have been furnished. In the absence of material facts and particulars which are sine qua non for letting an election petition proceed to trial, the Tribunal was not justified in ordering a recount in a rather mechanical manner. The Courts have always opined that mere allegations not supported by material fact do not give rise to a triable issue particularly where the allegations are made to seek recounting of votes. Secrecy of ballot cannot be lightly impinged upon. 6. In V.S.Achuthanandan v. P.J.Francis and another, 1993(3) SCC 737: 2001(1) RCR (Civil) 753 (SC), this Court reiterated the settled propositions of law in the matter of inspection and recount of ballot papers. Some of the guidelines and conditions reiterated in that judgment are: (1)That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations; (2)That before inspection is allowed, the allegations CR No. 6640 of 2008 3 made against the elected candidate must be clear and specific and must be supported by adequate statement of material facts; (3)The Court must be prima facie satisfied on the material produced before the Court regarding the truth of the allegations made for a recount; (4)That the court must come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties; (5)That the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving enquiry with a view to fish materials for declaring the election to be void; and (6)That on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a recount and not for the purpose of fishing out materials.” 7. On the touchstone of those guidelines, the pleadings in the present case being hopelessly deficient the Tribunal fell in error in ordering recount. There was no material before it on the basis of which it could arrive at a conclusion to order recount. The High Court was, under the circumstances, justified in setting aside the order of the Tribunal. We are not persuaded to take a view contrary to the one taken by the High Court either. This CR No. 6640 of 2008 4 appeal, therefore, fails and is dismissed but with no order as to costs.” The facts of the case are completely at variance with the facts of the present case. In the present case, the petitioner who is the elected candidate received 105 votes where as the respondent who is the election petitioner received 103 votes. There are allegations made in the petition and the application that one member of the polling staff was related to the petitioner and that the election petitioner and other candidates were not allowed to see the ballot papers at the time of the counting of the votes and that further that the counting had not been fair. There is indeed no doubt that the sanctity of the ballot papers has to be maintained but considering the fact where the margin of defeat of the election petitioner is just by two votes which can even be attributed to human error, the re-count of the votes as ordered by the Tribunal does not seem to be arbitrary or against the law. No ground to interfere. Dismissed. December 3 , 2008 (Mahesh Grover) rekha Judge