http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

PETITIONER: SMT. RAM RATI

       Vs.

RESPONDENT: SAROJ DEVI & ORS.

DATE OF JUDGMENT:       25/04/1997

BENCH: K. RAMASWAMY, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:  O R D E R      Leave granted.      Wehave heard the counsel on both sides.      This appeal, by special leave, arises fromthe judgment of theHigh Court  of Madhya  Pradeshat  Jabalpur  bench, passed on October 30, 1996, in W.P.No. 632/95.      Elections to  the post  ofSarpanch  of Gram Panchayat, Laua Kothar  Block, Raipur  Distt. Rewawere held on May 30, 1994. 223 voteswere polled in favour of the appellant while the respondent was polled 207 votes. Inform No.26-B, Ex.P2, the Returning officer had declared thatthe elections to the officerof  Sarpanch ofthe Gram Panchayat wereheld and the appellant, Smt. Ram Rati,  R/oVillage Loua Kothar, Raipur Kurchulian, Rewa  Distt., M.P., was a candidate in thesaid election, was  duly elected.  The saidcertificate  of the Returning Officer  is dated  June 1,  1994. The respondent, feelingaggrieved  filed an  Election Petition. In thesaid petition, the  respondent stated  that the  election was not properly conducted;  anapplication  for recounting wasmade but itwas  not  dome; evidence  wasadduced in  support thereof. The  Tribunal directed recounting, which  hasbeen affirmed by  the High  Court. Thus  this appeal,  by special leave.      The   question is : whether the respondenthas made any application  for  recounting?  The  order  of  the  Tribunal indicates thus:      "Accordingto  theaforesaid, after      discussingthe election application      and analysing  the submissions  of      Applicant and  Respondent No.1, The      Vihit   Adhikariat   the   first      instance  is  satisfied  with  this      that to decide thedisputeproperly      itis  essential that recounting be      got  done.  Therefore,   Returning      Officer  (Panchayat),   Development      Division,  Raipur     Karchuliyan      Development    Division,  Raipur      Karchuliyan District Rewa is hereby      directed that  after obtaining  all

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

    the documents  connected with  Gram      PanchayatLaua   KotharSarpanch      Election 1994  from the strong room      inthe  police custody,  He  should      present himself inthe Court 1.3.95      at10.30 A.M."      The question,  therefore, is  ; whether  the respondent has made  any  application  tothe  ReturningOfficer and recounting wasproperly done? Rule 76 of the M.P. Panchayat Elections Rules,  1994 (for  short, the ‘Rules’) postulates thus:      "76. Recount  of Votes  - (1) After      the completion of the counting, the      ReturningOfficer (Panchayat)  or      such other officer  authorised  by      him  shall record in  the  result      sheet in  Forms mentionedin  Sub-      rule  (2)of  Rule  73  the  total      number  of votespolledby  each      candidate and announce thesame.      (2)  After such  announcement  has      been madea candidate  or, in  his      election agent mayapply in writing      to   the   Returning Officer      (Panchayat) or  such otherofficers      authorisedby him,for a recount of      all or  any of  the  ballot  papers      already counted stating the grounds      onwhich he demands such recount.      (3) On  such an  application  being      made    the    returning officer      (panchayat) or  such otherofficers      authorisedby  himshall decide the      matter   and    may    allow    the      application in  whole or in part or      may reject it if it appears to him      tobe frivolous orunreasonable.      (4) Every decisionof the returning      officer (Panchayat)  or such  other      officer (Panchayat ) or such other      officers authorised  by him,  under      the  Sub-rule   (3)  shall  be  in      writing  and   contain  the  reason      thereof."      Byapplication of sub-rule(1) of Section 76, after the completion  of the   counting,   the Returning   Officer (Panchayat) orsuch other  officer authorised by him, shall record in  the result  sheet. in Forms mentioned in sub-rule (2) of Rule 73 (Form 26-B), thetotal number ofvotes polled by each candidates and announce the  same. Under  sub-rule (2), after  such announcement  has beenmade, acandidate of in hisabsence, his election agent, may apply in writing to the Returning  Officer (Panchayat)  or such  other  officers authorised by  him, for a recount  of all  or any  of there ballot papers  already counted,statingthe grounds on which he  demands  such  recount.  Under  sub-rule  (3),  onsuch application being made,the Returning Officer (Panchayat) or such other  officers authorised by him,  shall decide the matter and  mayallow the application in whole or in part or may reject  it if  it appears  to him  to  be  frivolous  or unreasonable. Under  sub-rule  (4)  every  decision  of the Returning  Officer   (Panchayat)  or   such  other  officers authorised by  him, under  the sub-rule (3) ,shall be  in writingand contain thereason thereof.      Itis  difficult to  give acceptance  to the contention

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

that the  respondent made  an application  to the  Returning Officerand  the Returning officer had not recounted. In the light of  the mandatory anguage of Rule 76 of the Rules, it is incumbent  upon a candidate or an agent, if the candidate was not present, to make an application in writing andgive reasonsin  support thereof, while seeking recounting. If it is not done, then the Tribunal of the court is not empowered to direct  recounting even  after adduction  ofevidence and consideration of the alleged irregularities in the counting. The essential  condition-precedent is that an application in writingshouldbe made and the  Returning  Officer  should pass an order with  reasons in support thereof  either  to recall the order or otherwise, in writing. The fact that the officerhad  not passed any order in writing would indicate that the respondent hadnot made any application. Obviously, some subsequent had hot  made any  application.  Obviously, some subsequentmanipulation, as contended by the appellant, would have  taken place,  as aresult of whichthe election petition was  filed and the argumentswere  addressed for recounting. Itis settled  legal position  that secrecy  of ballot should  not be  breachedand  asfar as possible, the secrecyof ballot or the court is required to order recount, that too  on giving  satisfactory grounds for recounting. In view ofthe fact that the rule itself provides that, assoon as theresult of  the electionis announced, an application in writing  must be  made at the first instanceand thefact ***** no  such application  hasbeen  placed before  usdoes indicate that  no such application had been made on thedate of thedeclaration ofthe result.  The  allegation  of  an application having  been made, would bean afterthought. The Tribunal,  therefore,has  committed manifest  error  in directing recount.      The appealis accordingly allowed and the orders of the Tribunal and  the HighCourt stand setaside. No costs. We, however, make  it clear that we have proceededon the basis of  plea  of  the  respondent  for  recount  under  Rule  76 aforementioned which  has beennegatived and  we  have not examined the powers of the Tribunal to order recount and the circumstances under which it can be so ordered.