Udey Chand vs Surat Singh And Anr

2. The facts, giving rise to the present appeal, may be briefly summarised as follows:

3. Being dissatisfied with the election result, the election petitioner filed an election petition under Section 176 of the Haryana Panchayati Raj Act, 1994 (for short `the Act'). The election of the appellant was challenged on several grounds (all in 2 paragraph 3 of the petition in the narrative form) viz. (i) on completion of election and counting of votes, the election petitioner was found to have secured 877 votes as against 871 votes cast in favour of the appellant; (ii) the Returning Officer declared the election petitioner as elected to the post of Sarpanch; he got Form No.19 signed from him and after the election petitioner had left for his residence to celebrate his victory, the Returning Officer, in connivance with the appellant and under political pressure, wrongly recorded the number of votes secured by each of them and declared the appellant as elected for the said post; and (iii) on account of political pressure and ill-will, the Returning Officer wrongly cancelled a number of votes cast in favour of the election petitioner and, therefore, "re-counting" of votes was illegal. It was alleged that since the Returning Officer had violated the provisions of the Act and the Rules framed thereunder and had committed "certain" illegality, the election of the appellant was a nullity. It was prayed that the election of the appellant be set aside; re- counting of votes be ordered and the election petitioner may be declared as elected to the said post.

4. The election petition was contested by the appellant. It was pleaded that case for re-counting was not made out as the counting of votes was in the presence of the contesting candidates as well as their agents; the allegations in the election petition were frivolous and the election petition was an abuse of the process of law.

11. In P.K.K. Shamsudeen Vs. K.A.M. Mappillai Mohindeen & Ors.7, the petitioner contested the election for the post of the President of a Panchayat in Tamil Nadu. In the election, the 1st respondent was declared elected and the petitioner challenged the election on the ground that while counting, the Returning Officer had wrongly treated some valid votes cast in favour of the petitioner as invalid votes and certain invalid votes were treated as valid votes which were cast in favour of the 1st respondent and that the Returning Officer had not permitted the petitioner's agents to have scrutiny of the ballot papers at the time of counting. The Tribunal, after recording the evidence of all candidates and the Assistant Returning Officer, ordered re- count of votes. On re-counting of votes, it was found that there was no difference in the number of votes secured by the 7 (1989) 1 SCC 526 1 petitioner but insofar as the 1st respondent was concerned he had secured only 528 votes as against 649 votes he was originally held to have secured. 121 votes cast in his favour had been found to be invalid votes. Based on the figures of the re- count, the election petitioner was declared duly elected as he had secured 28 votes more than the 1st respondent on re- count. This order was challenged by the 1st respondent in a Civil Revision petition before the High Court. The learned Single Judge allowed the revision petition and held that the Tribunal had erred in ordering a re-count of the votes when the petitioner had not made out a prima facie case for an order of re-count of votes cast. This order was challenged before this Court. Upholding the view taken by the High Court, it was held as under: (SCC p. 531) "13. Thus the settled position of law is that the justification for an order for examination of ballot papers and re-count of votes is not to be derived from hindsight and by the result of the re-count of votes. On the contrary, the justification for an order of re-count of votes should be provided by the material placed by an election petitioner on the threshold before an order for re-count of votes is actually made. The reason for this salutary rule is that the preservation of the secrecy of the ballot is a sacrosanct principle which cannot be lightly or hastily broken unless there is prima facie genuine need for it. The right of a defeated candidate to assail the validity of an election result and seek re-counting of votes has to be subject to the basic principle that the secrecy of the ballot is sacrosanct in a democracy and hence unless the affected candidate is able to allege and substantiate in acceptable measure 1 by means of evidence that a prima facie case of a high degree of probability existed for the re-count of votes being ordered by the Election Tribunal in the interests of justice, a Tribunal or court should not order the recount of votes."

22. In view of the afore-going discussion, the appeal is allowed; the election petition, lacking material facts, is rejected and consequently, the order passed by the Election Tribunal directing re-count of the votes is set aside. The appellant shall be entitled to costs in this appeal.

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