TaxTMI 
TaxTMI 
2004 (4) TMI 531
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....of the appellant was that the returning officer had informed him that he had secured 900 votes out of which 150 had been declared invalid and, thus, he got 670 valid votes whereas the respondent Mahendra Rai had secured only 622 votes. However, when the result was finally declared on 21.5.2001, the 4th respondent herein was declared elected by securing allegedly 32 more votes than the appellant herein. The total votes polled by the appellant was shown as 670 and votes polled by the 4th respondent was shown as 702. The appellant allegedly moved an application for recounting of votesbefore the returning officer but the same was not entertained. The appellant thereafter filed an election petition questioning the election of the 4th respondent herein before the learned Munsif, Raxoul, East Champaran primarily on the ground of irregularities in counting of votes. Before the election tribunal, the parties adduced their respective evidences whereafter the learned Munsif by an order dated 20.10.2001 directed inspection and recounting of ballot papers; pursuant to or in furtherance whereof the Returning Officer, East Champaran was directed to produce the ballot papers. Aggrieved thereby ....
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.... by the appellant was on the basis that he had filed a proper application before the returning officer but he failed to prove the said fact nor brought on the records of the case a copy thereof. As regard the findings of the learned Munsif to the effect that the Ex. A/20 contained cutting and over-writing, the learned counsel would submit that no such case had been made out in the election petition. It was pointed out that in any event having regard to the fact that 100 valid votes had not been counted so far as the appellant is concerned; and in fact more than 400 votes polled by the 4th respondent herein were held to be not valid and, thus, the appellant herein was not prejudiced at all. Drawing our attention to the judgment of the learned Single Judge as also the Division Bench of the High Court, the learned counsel would urge that the High Court analysed the pleadings of the appellant made in his election petition and came to the conclusion that the same are absolutely vague and general in nature and no reliance thereupon could have been placed by the learned Munsif. Filing of an application before the returning officer for recounting of votes may not be mandatory but Mr. Dw....
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....he allegations made by him were quite vague and did not come up to the stringent standards laid down by the Supreme Court." The appellant has not produced before us a copy of the affidavit affirmed in support of the Election Petition to show as to how the averments made in the Election Petition were verified. Our attention has also been drawn to paragraphs 19 to 21 by Mr. Sharan which read as under: "19. That, in all 16 Booths were in the electoral area of Gram Panchayat Raj, Gamhariya Kala, vide Booth No. 106 to 121. 20. That, the dependent No. 1 has wrongly been declared elected, by a margin of 32 votes, as against the plaintiff. 21. That, as a matter of fact, the plaintiff has got, near about 200 excess valid votes than the defendant No. 1." The averments made in the said paragraphs do not improve the appellant's case inasmuch as therein also no material fact has been averred as to how and in what matter the so-called valid votes were kept out of consideration or invalid votes had been taken into consideration. The appellant in paragraph 11 of the election petition categorically stated that a request was made to the re....
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....pport vague pleas and not supported by material facts but failed to point out as to which averments made by the appellant could be accepted as disclosing material facts, on the basis whereof an order for recounting could be passed. The said order dated 20.10.2001 being not supported by any cogent or valid reasons could not have been sustained. It is well-settled that an order of recounting of votes can be passed when the following conditions are fulfilled: (i) A prima facie case; (ii) Pleading of material facts stating irregularities in counting of votes; (iii) A roving and fishing inquiry shall not be made while directing recounting of votes; and (iv) An objection to the said effect has been taken recourse to. The requirement of maintaining the secrecy of ballot papers must also be kept in view before a recounting can be directed. Narrow margin of votes between the returned candidate and the election petitioner by itself would not be sufficient for issuing a direction for recounting. In M. Chinnasamy Vs. K.C. Palanisamy & Ors. [2003 (10) SCALE 103] this Court upon noticing a large number of decisions held that it is obligatory on the part of the Election Tribunal....
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....nnounced in the prescribed form under Sub-rule (2) of Rule 79, the same itself is a pointer to the fact that even after announcement of result for recounting an application would be maintainable. It may be true that only because such an application had not been filed before the returning officer by itself may not preclude the Election Tribunal to go into the question of requirement of issuing a direction for recounting but there cannot be any doubt whatsoever that Rule 79 serves a salutary purpose. Counting of ballot papers in terms of the rules takes place in presence of the candidate or his counting agent. When an agent or a counting agent or the candidate himself notices improper acceptance or rejection of the ballot papers, he may bring the same to the notice of the prescribed authority. As noticed hereinbefore, in a given case, an application for recounting either before announcement of the result or thereafter, would be maintainable. Once an application is filed by an agent or a counting agent or the candidate himself pointing out the irregularities committed by the officers appointed for the counting the ballot papers, immediate redressal of grievances would be possible. As ....
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.... recounting of votes. There is no prohibition in the Act or under the rules prohibiting the Court or Tribunal to direct a recounting of the votes. Even otherwise a party may not know that the recounting is necessary till after result is declared. At this stage, it would not be possible for him to apply for recounting to the Returning Officer. His only remedy would be to file an Election Petition under Section 122. In such a case, the Court or the Tribunal is bound to consider the plea and where case is made out, it may direct recount depending upon the evidence led by the parties. In the present case, there was obvious error in declaring the result. We, therefore, hold that the ratio laid down in Ram Rati's case is not correct." In Vadivelu Vs. Sundaram and Others [AIR 2000 SC 3230] wherein this Court while considering a pari materia provision contained in T.N. Panchayats Act, 1994 as also upon noticing a large number of decisions observed: "The appellant-election petitioner could not make out a case for re-count of votes. He filed the application for re-count before the Returning Officer only after the declaration of result and that was rightly rejected by the Returning Offi....