JUDGMENT Sunil Ambwani, J.
1. Heard Sri P.S. Baghel for petitioner and Sri P.P. Srivastava, Senior Advocate, assisted by Sri Sharad Srivastava, for respondent No. 1 as well as learned Standing Counsel.
2. Petitioner was declared elected as member of Zila Panchayat, Kshetra No. 32, Bhatpar Rani Uttari, District Deoria, in elections held on 20.5.2000 and the result was declared on 27.6.2000 after the counting held from 24th to 27th June, 2000, with a margin of 27 votes, as compared to the votes secured by respondent No. 1 Smt. Vibha.
3. An election petition was filed by respondent No. 1 Smt. Vibha under Sections 27(2)(a) and (b) of U.P. Kshetrya Panchayat and Zila Panchayat Adhiniyam, 1961 read with Rules 4 and 6 of U.P. Zila Panchayats (Settlement of Disputes Relating to Membership) Rules 1994, (in short the Rules), on the ground of gross irregularities in the counting of votes, and preparation of false election result on the basis of which petitioner Raj Kumar Sahi was declared to be elected.
4. A preliminary objection was raised by petitioner regarding the maintainability of election petition. In first Writ Petition No. 46650 of 2000, filed by petitioner, a direction was issued by this Court on 23.11.2000 to the Election Tribunal to decide the preliminary issue. The Tribunal has decided the issue in favour of election petitioner. By the said order, it was also held that security deposited under Rule 7 of Rules, 1994, was in substantial compliance of the Rules. Aggrieved, petitioner filed Second Writ Petition No. 51483 of 2002 in which notices have been issued on 3.12.2002 by this Court.
5. By the impugned order dated 19.12.2002, the Additional District Judge, Court No. 4, Deoria, the Election Tribunal, has allowed the application filed by election petitioner for recount of votes. Petitioner has challenged the order on the ground that the Tribunal has failed to consider that election petition did not contain adequate statement of allegations of irregularities or illegality in counting. No evidence has been adduced to satisfy the Court, prima facie, to believe that there has been a mistake in counting. The Tribunal has not given any cogent reason for ordering the recount. The Returning Officer has not been examined.
6. Sri P.P. Srivastava, Senior Advocate, Assisted by Sri Sharad Srivastava, appearing for respondent No. 1 Smt. Vibha, in support of the impugned order, submits that the election petition contained material particulars with regard to gross illegalities committed at the time of counting. He submits that the election result was not prepared in accordance with Rules of 1994, as well as in compliance of directions issued to the State Election Commissioner, U.P., Schedule 8, relating to Khand Vikas Bankata contains over writing and cutting and that the total number of valid votes; total number of invalid votes and the details have not been given at the bottom of schedule. The Tribunal has considered the conditions, imperative for recount of votes as set out by Hon'ble Supreme Court in its decisions. Specific allegations, with regard to gross irregularities in counting, were prima facie established on record and that the Tribunal has rightly found that election petitioner had made out a case for recount to do substantial justice between the parties. The conditions, imperative for recount of votes, in an election petition, have been settled by the Supreme Court in catena of decisions.
7. In Beli Ram Bhalaik v. Jai Behari Lal Kachi, AIR 1975 SC 283, the Supreme Court cautioned that since an order for a recount touches upon the secrecy of ballot, it should not be made lightly or as a matter of course. Although, no cast iron rule of universal application can be or has been laid down, yet, from a bedroll of the decisions of this Court, two broad guidelines are discernible: that the Court would be justified in ordering a recount or permitting inspection of the ballot papers only where (i) all the material facts on which the allegations of irregularity, or illegality in counting are founded, are pleaded adequately in the election petition, and (ii) the Court/Tribunal 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.
8. In Bhabhi v. Sheo Govind, AIR 1975 SC 2117, the Supreme Court laid down the following principles for recount of votes :-
(1) That it is important to maintain the secrecy of the ballot which is acrosant and should not be allowed to be violated on frivolous, vague and indefinite allegations;
(2) That before inspection is allowed, the allegations made against the elected candidate must be supported by adequate statements of materiel facts;
(3) That the Court must be prima facie satisfied on the materials 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 inquiry with a view to fish materials for declaring the election to be void; and (6) That on the special facts of the 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.
9. In S. Raghubir Singh Gill v. S. Gurucharan Singh Tohra, 1980 Supp. SCC 53, it was held that recount cannot be ordered just for the asking. A petition for recount cannot be ordered after inspection of ballot papers must contain an adequate statement on material facts on which the petitioner relies in support of his case and secondly the Tribunal must be prima facie satisfied that in order to decide the dispute and to do complete justice between the parties, an inspection of the ballot papers is necessary. The discretion conferred in this behalf should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fishing out materials for declaring the election void.
10. In Vadivelu v. Sundaram, 2000 (8) SCC 355, same principles was reiterated with emphasis in Paragraph 16 quoted as below:-
"The result of the analysis of the above cases would show that this Court has consistently taken the view that 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 recount 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 recount 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 recount of votes under such circumstances to do justice between the parties."
11. In V.S. Achuthanandan v. P.J. Francics, (2001) 3 SCC 81, the Supreme Court went to the extent of holding that even if a recount is validly ordered, and the statistics revealed by the recount are available to be used for deciding election dispute, the facts revealed by recount cannot be relied upon by the election petitions to support the prayer and sustain the order for recount; if the Supreme Court found that pleadings and material available on record anterior to actual recount did not justify grant of the prayer for inspection and recount. In Mahendra Pal v. Shri Ram Dass Malanger and others, AIR 2002 SC 1291, the Supreme Court reiterated the aforesaid principles.
12. In the present case, it is stated in Paragraphs 14 and 15 of the election petition that m Bankata Vikas Khand, 1862 votes were cast in her favour whereas defendant No. 2, secured 1115 votes. The counting agents affirmed the aforesaid number of votes. However, the Returning Officer prepared a wholly incorrect and forged chart. In Paragraphs 16 and 17 of the election petition, it is stated that if the votes at Bhatpar Rani Vikas Khand and Bankata Vikas Khand are taken together, the election petitioner was found to have secured 6907 votes while the defendant No. 7 was found to have secured 6156 votes and thus, the election petitioner was ahead of defendant No. 7 by a margin of 751 votes. The election results were, however, with-held for about three days. In Paragraphs 19 to 22 of the election petition, it is stated that undue influence was exercised by the ruling party in the State at the behest of Kabina Minister Sri Surya Pratap Sahi; a forged chart containing incorrect figures of the votes secured by defendants 1 to 6 was prepared in which petitioner was shown to have secured 6179 votes whereas the defendant No. 7 was shown to have secured 6266 votes and was declared elected on 30.6.2000 inspite of protest with a margin of 87 votes. The substance of the allegations is that whereas the election petitioner was found to have secured 6907 votes as against defendant No. 7, who has secured 6156 votes; the result was wrongly prepared and that the election petitioner was declared de-feated. In Paragraphs 24, 25, 26 and 27 of the election petition, the election petitioner has detailed the circumstances leading to the preparation of false election result. According to the election-petitioner, the ballot boxes were not kept in strong rooms, seals were broken and that completely incorrect result was shown to have been prepared on 'Parshishtha 8'.
13. The Election Tribunal, after taking evidence, found that the allegations were, prima facie, established. The counting was over by the evening of 27.6.2000, whereas the result was declared after three days in the evening of 30.6.2000. The election result on (Parishistha 8) was found to have contained overwriting and cuttings. Whereas, in the result prepared for Bhatpar Rani, it was shown that out of 19531 polled, 18002 were found to be valid and 1529 votes were found to be invalid, the result, prepared on 'Parishistha 8' in respect of Bankata Vikas Khand does not give the number of votes polled as well as the number of valid and invalid votes. There are over-writing and cuttings in the total number of votes shown in the main column. The Election Tribunal has rightly found that the absence of detailed number of votes rejected and number of votes found valid, goes to show that the result sheet does not reflect the correct picture of account of votes. Rules 50 and 53 of Rules, 1994 provides for preparation of result by the Assistant Returning Officer and the Returning Officer.
14. In the aforesaid facts and circumstances, it cannot be said that the Election Tribunal has ignored the conditions, imperative for recounting of votes. There are specific allegations with regard to the irregularities in preparation of result which was delayed by about three days without any valid reason and that the result sheet prepared does not reflect the true accounts of votes secured by the election petitioner and defendant No. 7. The conclusion of the Election Tribunal that in order to find out the correct result of election and to do justice between the parties, it is necessary for recounting of votes, does not suffer from any error of settled principles of recount of votes.
15. The writ petition is, accordingly, dismissed.