REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5462 OF 2008

UDEY CHAND — APPELLANT (S)

VERSUS

SURAT SINGH & ANR. — RESPONDENT (S)

J U D G E M E N T

D.K. JAIN, J.:

1. This appeal, by Special Leave, is directed against the judgment  

and order dated 19th October, 2007, rendered by the High Court  

of Punjab & Haryana at Chandigarh in Civil Revision No.5432  

of  2007.   By  the  impugned  judgment,  the  High  Court  has  

affirmed order  dated  12th October,  2007 passed  by  the  Civil  

Judge  (Jr.  Division),  Hansi  (hereinafter  referred  to  as  “The  

Election Tribunal”) in Civil Suit No.4C of 2006, directing the re-

counting of votes cast in the election for the post of Sarpanch,  

Gram  Panchayat,  Village  Bas  Badshahpur,  Tehsil  Hansi,  

District Hissar.

2. The  facts,  giving  rise  to  the  present  appeal,  may  be  briefly  

summarised as follows:   

Re-poll for the said post was held on 18th December, 2005.  In  

the result  declared the same evening,  the  appellant  was declared  

elected  by  a  margin  of  four  votes,  having  secured  881  votes  as  

against  877  votes  secured  by  his  nearest  rival,  respondent  No.1  

(hereinafter  referred  to  as  ‘the  election  petitioner’),  in  this  appeal.  

The result was compiled by the Returning Officer in Statutory Form  

No.19, prescribed under Rule 70(1) of the Haryana Panchayati Raj  

Election Rules, 1994 (for short ‘the Rules’). The Form was signed by  

the  appellant  as  well  as  the  election  petitioner.  The  result  was  

declared thereafter.

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  

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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.  

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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.

5. From the record it appears that neither issues were framed nor  

any affidavit by way of evidence was filed or oral evidence in  

support  of the respective pleas was adduced.  Upon hearing  

oral submissions and relying on a Full  Bench decision of the  

High  Court  in  the  case  of  Radha  Kishan  Vs.  Election  

Tribunal-Cum-Sub Judge1,  the Tribunal allowed the petition,  

observing thus:

“From the above discussed case law it can be said that the  recounts of votes can only be ordered on the basis of material facts  which  have  been  asserted  by the  petitioner  and  which  are  duly  supported by some evidence thus, making out prima facie case for  recounting and there must be some contemporaneous evidence in  support of the fact of any irregularity of illegality in the counting.

In  the  instant  case,  there  is  margin  of  only  four  votes  between  the  petitioner  and  the  respondent  No.1  whereby  the  respondent No.1 has been declared as elected candidate.  It is the  plea of the petitioner that earlier he was declared elected in the said  election, however,  the respondent No.2 by coming under political  pressure  etc.,  declared  the  respondent  No.1  to  be  an  elected  candidate.”

1 1999 (2) PLJ 8

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6. Being  aggrieved,  the  appellant  took  the  matter  to  the  High  

Court by preferring a Civil Revision petition. As stated above,  

the High Court has dismissed the revision petition, holding that  

in view of the decision of the Full Bench in  Radha Kishan’s  

case  (supra),  when  there  is  sufficient  evidence  available  on  

record  warranting  a  re-count,  no  documentary  evidence  was  

required  to  direct  the  re-counting  of  votes  under  Section  

176(4)(b)  of  the  Act.  Aggrieved  by  the  said  decision,  the  

appellant is before us.

7. Assailing  the  decisions  of  the  Tribunal  as  also  of  the  High  

Court, Mr. Mahabir Singh, learned senior counsel appearing on  

behalf  of the appellant strenuously urged that the High Court  

committed a serious illegality in upholding the order passed by  

the Tribunal, directing a re-count, inasmuch as it was passed  

mechanically without understanding and appreciating the ratio  

of  the  decision  in  Radha  Kishan’s  case  (supra).  It  was  

contended that before directing the re-count in terms of Section  

176(4)(b)  of  the  Act,  the  Tribunal  was  obliged  to  record  a  

finding,  on the basis of  the material  on record,  that  a  prima  

facie case for re-count had been made out. It was argued that  

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in the present case there is neither any documentary nor oral  

evidence on record  on the  basis  whereof  the  Tribunal  could  

have recorded such a finding. It was also submitted that having  

failed to apply for re-count in terms of Rule 69(2) of the Rules  

after the announcement of the result by the Returning Officer  

and having  signed the result  sheet  in  Form 19,  the  election  

petitioner was estopped from raising any objection in regard to  

the counting at a later stage.  Learned counsel also urged that  

the High Court did not notice insertion of clause (aa) in sub-

section (4) of Section 176 of the Act, which contemplates an  

enquiry into the allegation of non-compliance with or violation of  

the provisions of the Act etc.  In support of the proposition that  

an order of re-count should not be made unless a definite case  

for re-count with specific allegation is made out, reliance was  

placed on the decisions of this Court in Janak Singh Vs. Ram  

Das Rai & Ors.2,  Vadivelu  Vs.  Sundaram & Ors.3, and  V.S.  

Achuthanandan  Vs.  P.J.  Francis  &  Anr.4.   Reference  was  

also made to Chandrika Prasad Yadav Vs. State of Bihar &  

Ors.5 to contend that having failed to furnish any explanation as  

2 (2005) 2 SCC 1 3 (2000) 8 SCC 355 4 (2001) 3 SCC 81 5 (2004) 6 SCC 331

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to why application for re-count had not been made in terms of  

Rule 69(2)  at  the time of  counting,  the Tribunal  should have  

rejected the prayer for re-count.  

8. Ms. Indu Malhotra, learned senior counsel, appearing on behalf  

of  the  election  petitioner,  on  the  other  hand,  supported  the  

decision  of  the  lower  courts  and  submitted  that  sufficient  

material  was  available  on  record,  on  the  basis  whereof  the  

Tribunal had recorded its prima facie satisfaction that a case for  

re-count  had been made out.   Learned  counsel  argued  that  

since challenge to the election was laid under Section 176(4)(b)  

of the Act, a detailed enquiry as contemplated in clause (a) of  

the  said  section  was  not  required.   Learned  counsel  also  

pointed out  that  in  the re-count  carried out  in  furtherance of  

Tribunal’s  order dated 12th March, 2007, the election petitioner  

was  found to  have secured 878 votes  as  against  873 votes  

secured by the appellant herein and as a consequence thereof  

the  election  petitioner  has  been  declared  elected  as  the  

Sarpanch. It was, thus, asserted that order dated 12th October,  

2007  having  been  given  effect  to,  the  present  appeal  is  

rendered  infructuous  and  deserves  to  be  dismissed.  It  was,  

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however, conceded that the order of the Civil Judge declaring  

the  election  petitioner  as  having  been  elected  is  under  

challenge before the High Court and the operation of the said  

order has been stayed.

9. Before adverting to the merits of the issue raised by the parties  

with  reference  to  the  statutory  provisions,  it  would  be  

appropriate to bear in mind the salutary principle laid down in  

the election law that since an order for inspection and re-count  

of the ballot papers affects the secrecy of ballot, such an order  

cannot  be made as a matter  of  course.  Undoubtedly,  in  the  

entire election process, the secrecy of ballot is sacrosanct and  

inviolable  except  where  strong  prima  facie  circumstances  to  

suspect  the  purity,  propriety  and  legality  in  the  counting  are  

made out. The importance of maintenance of secrecy of ballot  

papers and the circumstances under which that secrecy can be  

breached, has been considered by this Court in several cases.  

It  would be trite to state that before an Election Tribunal can  

permit scrutiny of ballot papers and order re-count, two basic  

requirements viz. (i) the election petition seeking re-count of the  

ballot  papers  must  contain  an adequate statement  of  all  the  

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material facts on which the allegations of irregularity or illegality  

in  counting  are  founded,   and  (ii)  on  the  basis  of  evidence  

adduced  in  support  of  the  allegations,  the  Tribunal  must  be  

prima facie  satisfied that in order to decide the dispute and to  

do complete and effectual justice between the parties, making  

of such an order is imperatively necessary, are satisfied.   

10. In Suresh Prasad Yadav Vs. Jai Prakash Mishra and Ors.6,   

summarising the principles laid down by this Court from time to  

time in granting prayer for inspection of ballot papers and/or re-

counting,  a  three-Judge Bench of  this  Court  adumbrated the  

circumstances  in  which  such  a  prayer  could  be  considered.  

Speaking for the Bench, Sarkaria J. observed as follows: (SCC  

pages 824-825)

“…this  Court  has  repeatedly  said,  that  an  order  for  inspection and recount of the ballot papers cannot be made as a  matter of the course. The reason is two-fold. Firstly such an order  affects the secrecy of the ballot which under the law is not to be  lightly  disturbed.  Secondly,  the  Rules  provide  an  elaborate  procedure for counting of ballot papers. This procedure contains so  many statutory checks and effective safeguards against mistakes  and fraud in counting, that it can be called almost trickery foolproof.  Although no hard and fast  rule can be laid down,  yet  the broad  guidelines, as discernible from the decisions of this Court, may be  indicated thus.  The Court  would  be  justified  in  ordering  a  recount  of  the  ballot papers only where:

6  (1975) 4 SCC 822

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(1) the election-petition contains an adequate statement of all the  material facts on which the allegations of irregularity or illegality in  counting are founded; (2) 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 (3)  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  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  

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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  

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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.”

(Emphasis supplied by us)

12. In  Satyanarain Dudhani  Vs. Uday Kumar Singh and Ors.8,  

observing that  re-count  of  votes should not  be ordered as a  

matter of course, it was held as under:  

“A  cryptic  application  claiming  recount  was  made  by  the  petitioner-respondent  before  the  Returning  Officer.  No  details  of  any  kind  were  given  in  the  said  application.  Not  even  a  single  instance showing any irregularity or illegality in the counting was  brought to the notice of the Returning Officer. We are of the view  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. We have been taken through the pleadings in the  election  petition.  We are satisfied  that  the  grounds  urged in  the  election  petition  do  not  justify  for  ordering  recount  and  allowing  inspection of the ballot papers. It is settled proposition of law that  the secrecy of the ballot papers cannot be permitted to be tinkered  lightly. An order of recount cannot be granted as a matter of course.  The secrecy of  the ballot  papers has to be maintained and only  when  the  High  Court  is  satisfied  on  the  basis  of  material  facts  pleaded  in  the  petition  and  supported  by  the  contemporaneous  evidence that the recount can be ordered.”

13. Yet again in  Vadivelu’s case (supra), a case pertaining to an  

election for the post of the President of a village Panchayat in  

Tamil Nadu, the result was challenged on the ground of various  

irregularities  in  voting  and  counting.  The  difference  of  votes  

secured by the winning candidate and his nearest rival was only  8  (1993) Supp (2) SCC 82

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one  vote.  The  election  petition  by  the  losing  candidate  was  

allowed by the Election Tribunal and a re-count was ordered.  

As  a  result,  the  election  petitioner  got  1002  votes  and  the  

elected  candidate  got  only  975  votes.  Revision  petition  filed  

against the order of the Tribunal was allowed by the High Court  

and it was held that a re-count ought not to have been ordered,  

because the election petition  did not contain material facts  

and did not make out a  prima facie case for re-counting.  

The  election  petition  was,  thus,  dismissed.  Affirming  the  

decision  of  the  High  Court,  a  three-Judge  Bench,  speaking  

through  K.G.  Balakrishnan,  J.  (as  His  Lordship  then  was),  

exposited thus:  

“…Re-count  of  votes could  be ordered very rarely  and on  specific  allegation  in  the  pleadings  in  the  election  petition  that  illegality or irregularity was committed while counting. The petitioner  who  seeks  re-count  should  allege  and  prove  that  there  was  improper acceptance of invalid votes or improper rejection of valid  votes.  If  only  the  court  is  satisfied  about  the  truthfulness  of  the  above allegation, it can order re-count of votes.  Secrecy of ballot  has always been considered sacrosanct in a democratic process of  election and it  cannot  be disturbed lightly  by bare allegations of  illegality or irregularity in counting. But if it is proved that purity of  elections  has  been  tarnished  and  it  has  materially  affected  the  result of the election whereby the defeated candidate is seriously  prejudiced,  the court  can resort  to re-count  of  votes under  such  circumstances to do justice between the parties.”

(Emphasis added)

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14. In the backdrop of the afore-stated principles, enunciated while  

dealing with election petitions under the Representation of the  

People Act, 1951 and Conduct of Election Rules, 1961, as also  

under  some  of  the  State  Election  Laws,  the  moot  question  

arising for consideration is as to what is the scope of enquiry  

under clause (b) of sub-section (4) of Section 176 and whether  

the language of the said provision carves out an exception to  

the  afore-mentioned  general  principles  to  be  borne  in  mind  

while  dealing  with  an  election  petition  seeking  inspection  of  

ballots and re-counting?   

15. To appreciate the rival submissions in this behalf, it would be  

necessary to refer to Section 176 of  the Act.  Insofar  as it  is  

relevant for this appeal, it reads as follows:

“176. (1) Determination of validity of election enquiry by judge  and procedure.—If the validity of any election of a member of a  Gram Panchayat, Panchayat Samiti or Zila Parishad or Sarpanch of  Gram Panchayat, Chairman or Vice-Chairman, President or Vice- President  of  Panchayat  Samiti  or  Zila  Parishad  respectively  is  brought in question by any person contesting the election or by any  person  qualified  to  vote  at  the  election  to  which  such  question  relates, such person may at any time, within thirty days after the  date of the declaration of results of the election, present an election  petition to the Civil  Court  having ordinary jurisdiction in the area  within which the election has been or should have been held, for the  determination of such question.

(2) xxx xxx xxx

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(3) xxx xxx xxx  

(4) (a)  If on the holding of such enquiry the Civil Court finds that a  candidate  has,  for  the  purpose  of  election  committed  a  corrupt  practice within the meaning of sub-section (5), he shall set aside  the election and declare the candidate disqualified for the purpose  of election and fresh election may be held.

(aa)  If on holding such enquiry the Civil Court finds that –

(i) on the  date  of  his  election  a  returned candidate  was not  qualified to be elected;  

(ii) any nomination has been improperly rejected; or

(iii) the result of the election, in so far as it concerns a returned  candidate,  has  been  materially  affected  by  improper  acceptance  of  any  nomination  or  by  any  corrupt  practice  committed in the interest  of  the returned candidate by an  agent  other  than  his  election  agent  or  by  the  improper  reception, refusal or rejection of any vote or the reception of  any vote which is  void  or  by any non-compliance with or  Violation of the provisions of the Constitution of India or of  this Act, or any rules or orders made under this Act,

election of such retuned candidate shall  be set aside and  fresh election may be held.

(b) If, in any case to which clause (a) or clause (aa) does not  apply, the validity of an election is in dispute between two or more  candidates, the Court shall after a scrutiny and computation of the  votes recorded in favour of each candidate, declare the candidate  who is found to have the largest number of valid votes in his favour,  to have been duly elected:

Provided  that  after  such  computation,  if  any,  equality  of  votes is found to exist between any candidate and the addition of  one vote will entitle any of the candidates to be declared elected,  one additional vote shall be added to the total number of valid votes  found to have been received in the favour of  such candidate or  candidates,  as  the  case  may  be,  elected  by  lot  drawn  in  the  presence of the judge in such manner as he may determine.

(5) A  person  shall  be  deemed  to  have  committed  a  corrupt  practice

xxx xxx xxx”

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16. Sub-section (1) of Section 176 enables a contesting candidate  

or any person who is qualified to vote at the election to question  

before a civil court of competent jurisdiction the validity of any  

election of a member of Gram Panchayat, Panchayat Samiti or  

Zila Parishad etc. The petition so filed is to be adjudicated upon  

in accordance with the provisions of sub-section (4) of Section  

176, depending upon the averments made and the nature of  

the allegations. A perusal of the said provision would show that  

an election can be challenged only on two grounds viz., (i) that  

the returned candidate committed a corrupt practice within the  

meaning of sub-section (5), and (ii) that some irregularities were  

committed during the course of counting.   Sub-section (5) of  

Section 176 defines what a corrupt practice means and when a  

person shall  be deemed to have committed the same. In the  

present  case,  although a  question of  corrupt  practice,  falling  

within the ambit of sub-section (5) of Section 176 was sought to  

be raised in the election petition, but the same was not pressed  

before  the  Tribunal.  The  only  issue  canvassed  before  the  

Tribunal was regarding irregularity in counting and declaration  

of result by the Returning Officer and, therefore, as such, it is  

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unnecessary to delve on the scope of clause (a) of sub-section  

(4)  of  the  said  section.  However,  in  order  to  appreciate  the  

nature  and  scope  of  enquiry  by  the  Election  Tribunal  in  an  

election petition, questioning the validity of election on a ground  

other than corrupt practice, reference to both the clauses (a)  

and (b) of sub-section (4) of Section 176 would be necessary. It  

is manifest from the language of clause (a) that while trying a  

petition containing an allegation of corrupt practice in terms of  

clause (a) of sub-section (4), the Court is required to hold an  

enquiry to return a finding whether a candidate had indulged in  

corrupt practice as defined in sub-section (5) of Section 176 of  

the Act.  Significantly, unlike in clause (a), in clause (b) of sub-

section (4) of Section 176, the expression “on the holding of  

such  enquiry”  is  missing  and  instead  the  expression  used  

therein is “after scrutiny and computation of votes”. Thus, the  

question is whether in view of the absence of expression, “on  

the holding of such enquiry” in clause (b) an enquiry into the  

allegation  of  irregularity  or  illegality  in  the  counting  of  ballot  

papers, be it on account of acceptance or rejection of ballots or  

counting simplicitor is required to be conducted by the Tribunal  

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or  a  bare  allegation  of  some  irregularity  or  illegality  in  the  

counting of ballots is sufficient to order a re-count?  

17. It  is  no doubt  true that  the legislature in its  wisdom has not  

incorporated  in  clause  (b)  the  expression  “on  the  holding  of  

such inquiry”, as it appears in clause (a), but bearing in mind  

the importance and the sanctity of the secrecy of a ballot, in our  

considered opinion, it cannot be the intention of the legislature  

that  a  bald  allegation  of  irregularity  in  the  counting  process  

would  ipso facto warrant a re-count. Such an interpretation of  

the  provision,  in  our  view,  would  not  only  tantamount  to  

automatic conversion of a petition under Section 176(1) of the  

Act into an order for recounting, it would be destructive of the  

settled principle of secrecy of poll, as also violative of letter and  

spirit of Section 183 of the Act, which mandates every officer,  

agent etc.; who performs duty in connection with the recording  

or counting of votes, to maintain the secrecy of votes. In our  

judgment,  the  sole  object  of  the  Legislature  in  giving  wide  

powers  to  the  Election  Tribunal  is  to  decide  the  objections  

under clause (b) of sub-section (4) of Section 176 of the Act  

expeditiously without holding a full-fledged regular enquiry, as  

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postulated in clause (a) of the said provision, so that the actual  

mandate of the electorate is given effect to without any delay;  

the successful candidate is able to utilise his complete tenure  

for the purpose he has been elected and above all the purity of  

election process is safeguarded. Nonetheless,  the secrecy of  

the  ballot  being  sacrosanct,  it  cannot  be  permitted  to  be  

tinkered with lightly and an order of re-count cannot be granted  

just  for  the  asking.  We have  no  hesitation  in  holding  that  a  

petition  for  re-count  as  contemplated  under  clause  (b)  of  

Section 176(4) of the Act must contain adequate statement of  

material facts on which the election petitioner relies in support  

of  his  allegation(s)  and  it  must  also  be  supported  by  some  

contemporaneous evidence to show irregularity or illegality in  

the counting. On this basic material, which affords the basis for  

the allegations in the petition and the response of the opposite  

party thereon, the Tribunal is required to record its prima facie  

satisfaction  that  in  order  to  decide  the  issue  raised  in  the  

petition and in order to do complete justice between the parties  

the “scrutiny and computation of the votes” recorded in favour  

of each candidate is necessary.  The need to record reasons in  

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support  of  the  satisfaction  can  hardly  be  over-emphasised  

because  reasons  are  the  soul  of  the  orders/judgment.  

Therefore, we hold that though in an election petition seeking  

an  order  under  Section  176(4)(b)  of  the  Act,  it  may  not  be  

necessary for the Court to hold a regular enquiry as postulated  

under clause (a) of Section 176(4) of the Act but the Court is  

obliged to apply its mind to the material facts, disclosed in the  

petition, on which the allegations of irregularity or illegality are  

founded,  along with  some contemporaneous evidence,  which  

would depend on the facts and circumstances of each case.  

An order for  re-count  on the basis of  bare allegations in the  

election petition would not be a proper exercise of jurisdiction  

under the provision.  

18. Having  viewed  the  matter  in  the  light  of  the  principles  

enunciated above, we are constrained to note that the Tribunal  

as also the High Court lost sight of the parameters to be applied  

while considering the petition seeking re-counting of votes. We  

find that the allegations in the election petition were not only  

vague, even the basic material facts as could have made the  

Tribunal reach a prima facie satisfaction that re-count of ballots  

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was necessary were missing in the petition.  Affidavit in support  

of the allegations, summarised in paragraph 3, was neither filed  

nor called for, more so, in a case where serious allegations of  

misconduct were levelled against the Returning Officer. Having  

regard to the fact that concededly the result  sheet had been  

signed  by  the  election  petitioner,  perhaps,  it  was  a  fit  case  

where the examination of the Returning Officer was necessary  

to elicit  the correctness of the allegations in the petition. It  is  

manifest  from  the  observations  of  the  Tribunal,  extracted  in  

para 5 above, that the sole factor which had weighed with it to  

order  re-count  was  the  margin  of  only  4  votes  between the  

appellant and the election petitioner. In our opinion, a narrow  

margin of 4 votes does not  per se  give rise to a presumption  

that there had been an irregularity or illegality in the counting of  

votes.  Apart  from laying  the foundation in  the pleadings,  the  

onus to prove the allegation of irregularity or illegality on the  

part  of  the  Returning  Officer  was  on  the  election  petitioner,  

which  he  failed  to  discharge.  The  allegation  against  the  

Returning  Officer  of  obtaining  the  signatures  of  the  election  

petitioner on a blank result sheet and filling up the same after  

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the election petitioner had left the polling station, was a serious  

allegation involving dereliction of duty.  It could not be accepted  

at  its  face value and had to be proved with  cogent material,  

which  was  not  done.   We  are  convinced  that  in  order  to  

overcome his lapse in not availing of the statutory remedy for  

re-counting of votes as provided in Rule 69 as also the factum  

of his signing the result sheet in Form 19, the plea of incorrect  

recording  of  the  result  after  his  departure  from  the  polling  

station was raised by the election petitioner. Clearly, it was an  

afterthought.   In  this  regard,  the following observations by a  

three-Judge Bench of this Court in Chandrika Prasad Yadav’s  

case (supra)  are quite apposite: (SCC page 339):

 “Ordinarily,  thus,  it  is  expected that the statutory remedies  

provided for shall be availed of. If such an opportunity is not availed  of by the election petitioner; he has to state the reasons therefor. If  no sufficient explanation is furnished by the election petitioner as to  why such statutory remedy was not availed of, the Election Tribunal  may  consider  the  same  as  one  of  the  factors  for  accepting  or  rejecting  the  prayer  for  re-counting.  An  order  of  the  prescribed  authority passed in such application would render great assistance  to the Election Tribunal in arriving at a decision as to whether a  prima facie case for issuance of direction for re-counting has been  made out.”

19. In the light of the afore-stated factual scenario, we are of the  

opinion that in the present case there was no material on record  

on  the  basis  whereof  the  Tribunal  could  have  arrived  at  a  

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positive finding as to how a  prima facie case had been made  

out to order a re-count of the ballot papers. The order of re-

count  was  passed  by  the  Tribunal  mechanically  without  any  

application  of  mind  and,  therefore,  the  High  Court  erred  in  

upholding it.  

20. Before  parting  with  the  case,  we  may  also  deal  with  the  

contention urged on behalf of the election petitioner to the effect  

that re-counting having taken place in terms of the Tribunal’s  

order,  this  appeal  is  rendered  infructuous.  The  argument  is  

noted to be rejected.  An order of re-count of votes has to stand  

or  fall  on  the  nature  of  the  averments  made in  the  election  

petition and the material produced in support thereof before the  

order of re-count is made and not from the result  emanating  

from the re-count of votes.  A similar view was echoed by a  

three-Judge  Bench  of  this  Court  in  V.S.  Achuthanandan’s  

case  (supra). Speaking for the Bench, R.C. Lahoti, J. (as His  

Lordship then was) held thus:

“…if  the  validity  of  an  order  passed  by  the  High  Court  permitting  inspection of  ballot  papers  and directing a re-count  is  brought in issue before the Supreme Court, the facts revealed by  re-count cannot be relied upon by the election petitioner to support  the prayer and sustain the order for re-count if the pleadings and  

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material  available  on  record  anterior  to  actual  re-count  did  not  justify grant of the prayer for inspection and re-count.”  

21. A  similar  contention  was  rejected  by  another  three-Judge  

Bench of this Court in M. Chinnasamy Vs. K.C. Palanisamy &  

Ors.9, wherein it was held that even if on re-count it was found  

that the returned candidate had not secured majority of votes,  

the  result  could  not  have  been  disturbed  unless  prima facie  

case of high degree of probability existed for re-count of votes,  

which  is  not  the  case  here.   Accordingly,  we  reject  the  

contention.   

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.

.…………………………………J.                     (D.K. JAIN)

9 (2004) 6 SCC 341

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                              ..….…………………………….J.                     (AFTAB ALAM)

NEW DELHI; OCTOBER 9, 2009

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