JUDGMENT Sunil Ambwani, J.
1. Heard Sri T. P. Singh, learned counsel for petitioner and Sri Shashi Nandan, as well as learned standing counsel for respondents.
2. By the impugned order dated 4th July, 2002, the Prescribed Authority/Sub-Divisional Magistrate, Moth, Jhansi, had allowed an application for recounting ballot papers in Election Petition No. 1 of 1999-2000 under Section 12C of U. P. Panchayat Raj Act, 1947.
3. The facts, in brief, are as follows :
"Election of Pradhan, Gram Panchayat, Poonchh Block and Tehsil Moth, District Jhansi was held for which nominations were received between 30.5.2000 and 3.6.2000. Ballots were cast on 14.6.2000. In the counting, petitioner was found to have secured 1,319 votes and was declared elected as against 1,297 votes cast in favour of Bhuwan Singh respondent No. 4. An election petition was filed by respondent No. 4 alleging corrupt practice against petitioner. It was stated that there were 4687 voter for which seven polling booths were established. In all 3434 votes were polled. The counting was held in the midnight of 25.6.2000 instead of fixed time at 6.00 a.m. Instead of preparing bundles of 50 votes each, bundles of 40 votes each were prepared in case of Lakhan Singh. which were treated to have 50 votes each, in addition the votes cast in favour of Siromani Singh with election symbol 'BELL', were bundled in favour of respondent No. 4 Bhuwan Singh, Serious irregularities in respect of counting were made for counting of votes at table Nos. 7 and 8 in respect of polling booths 20, 21, 22 and 23. After counting, the Election Officer found respondent No. 4 Bhuwan Singh to be wining candidate but petitioner was wrongly declared to be elected with a lead of 42 votes for which written complaint was made to the Election Officer and the Observer. In Form 4K, 27 votes shown to be invalid. The total number of votes polled, were shown 3,645 whereas 3,657 were polled and in case invalid votes were counted, the total number of votes counted were 3,684 whereas 3,672 votes were shown to have polled.
4. After taking evidence and summoning the record, pertaining to the election, Prescribed Authority/ Sub-Divisional Magistrate found that total number of votes of all the five candidates were only 3657 and taking into account the invalid votes, the total number of votes was 3,684. It was found that Schedule 4K, giving final account of votes, was not prepared in accordance with Form 4K under Rules 104 and 107. The total number of invalid votes were 187 whereas in Schedule 4K they were shown only 27 and thus there was difference of 160 votes. Accordingly, he found that the only method to resolve the dispute is to recount the votes and that by impugned order dated 4th July, 2002, Prescribed Authority/Sub-Divisional Magistrate, Moth, Jhansi, respondent No. 1, directed for recounting.
5. Learned counsel for petitioner submits that there was no discrepancy in the number of votes. He adds that there was a mistake in Schedule 4K and that if that mistake is rectified, the total number of votes polled in favour of each candidate and the invalid votes, tally the final figure. It may be pointed out that whereas Schedule 4K in respect of polling-booth Nos. 20 and 25 was prepared together while entering the number of votes in final Schedule 4K, the combined number of votes in respect of above polling booth Nos. 20 and 25 have been shown in column No. 1 against polling booth No. 20. Further in case invalid votes in each of six schedules prepared in respect of polling-booths are counted, the total number of invalid votes are 187. On this basis, Sri T. P. Singh, learned counsel for petitioner, states that although there is an arithmetical mistake in Schedule 4K, if the mistake is rectified with the help of feeding Schedule 4 in respect of all the seven booths, the mistake can be rectified. According to him, no evidence was adduced in respect of preparation of incorrect bundles and no material particular was given or any other evidence was led in respect of proving the allegations of serious irregularities. A statement of account, on the basis of original documents summoned, has been prepared and annexed as Annexure-9 to the rejoinder-affidavit filed by Lakhan Singh petitioner. The statement of votes, as contained in Annexure-9, is quoted as below :
Statement of Account Booth No. 20 21 22 23 24 25 26 Total Udai Bhan Singh 1 0 4 3 1 0 3 12 Gulab Singh 3 1 14 59 14 2 3 96 Bhuwan Singh 188 208 193 147 115 156 104 1,111 Lakhan Singh 108 196 129 241 150 168 159 1,151 Siromani Singh 60 41 154 222 111 91 191 870 Total valid vote 360 446 494 672 391 417 460 3,240 Total Invalid votes 18 21 19 29 21 33 46 187 Total votes (Valid + Invalid) 378 467 513 701 412 450 506 3,427
6. Sri Shashi Nandan, on the other hand, states that once the mistakes were detected in preparing Schedules 4K a case for recounting was made out. According to him, only 27 invalid votes were entered In Schedule 4K whereas, in fact, there were 187 invalid votes and thus there was a difference 160 invalid votes which will materially affect the election. According to him, there is absolutely no ground to interfere with the order of recounting and that no prejudice will be caused to the petitioner in case recount is allowed to take place.
7. The Supreme Court has consistently taken the View that recount of votes could be ordered very rarely, and on specific allegations 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 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. In Suresh Prasad v. Jai Prakash, AIR 1975 SC 376 ; I. B. Kesha Sewa v. Hokishe Sewa, AIR 1996 SC 1842, the ground on which recount can be ordered, has been laid down by Supreme Court in specified manner. In Mahendra Pal v. Ram Dass Malanger, (2002) 3 SCC 457, the Supreme Court upheld the view of High Court refusing recount of votes on the discrepancy of eight ballot papers between total number of ballot papers shown to have been issued. It was held that no foundation or evidence is led by the appellant in suggesting that there was improper reception, refusal or rejection of any votes nor is there any submission made by him that any vote which was void was taken into consideration in favour of respondent nor any objection was raised at the time of counting of votes. In Vadivelu v. Sundaram and Ors., (2000) 8 SCC 355. the Supreme Court found that the details did not affect the number of votes required for recounting of votes. Except making some bald allegations, no other details were given.
8. In the present case, there is no allegation or evidence to support improper acceptance of invalid vote or improper rejection of valid votes. The allegations with regard to the preparation of schedules and other gross irregularity, were not substantiated or any material evidence was brought on record. The election petitioner was only succeeded in dealing with the discrepancy in Schedule 4K. In case of all six schedules 4's prepared in respect of polling booths, namely, combined schedule 4 in respect of polling booth Nos. 20 and 25 and Schedule 4 in respect of poolling booth Nos. 21, 22, 23, 24 and 26 are taken into consideration, and total number of valid and invalid votes are tallied, it Is found that there is no error in the calculation. All that was required in the present case was to correct the arithmetical error in Schedule 4K. Whereas in column No. 1, instead giving the details of polling booth No. 20, the combined details of polling booths 21 and 25 were given. If the arithmetical error made in calculating the number of votes is rectified the ballots in favour of five candidates, tally. Further there was an error in calculating the total number of invalid votes. If all invalid votes given in all six schedules 4 are taken into account, the number is found to be 187 and calculating all these votes together, the number tallies with the number of valid and invalid votes. The arithmetical error has been clearly explained.
9. In the circumstances and on the basis of settled principles of law, as discussed above, I find that an arithmetical error has been misinterpreted. Such an error calls for only a rectification and does not justify or meet the requirement in law for recounting of votes.
10. The writ petition is accordingly allowed, the order of recounting of votes passed by Prescribed Authority/Sub-Divisional Magistrate, Moth, Jhansi, dated 4.7.2002, is quashed. The Prescribed Authority/Sub-Divisional Magistrate concerned shall proceed to decide the election petition expedltiously in accordance with law.