Judgment:
A.P. Deshpande, J.
1. Heard Counsel for the parties.
2. The Counsel for the petitioner orally prays for deletion of respondent No. 3. Prayer granted, respondent No. 3 stands deleted.
3. Rule. Rule made returnable forthwith. Taken up for final hearing by consent of parties.
4. Mr. Rodge, Counsel appearing for the respondent Nos. 1 and 2, waives service for the said respondents, and Mrs. Akolkar, Assistant Government Pleader appearing for the respondent Nos. 4 and 5, waives service for the respondents.
5. The petitioner instituted an election petition under section 15 of the Bombay Village Panchayats Act, 1958, and prayed for a relief for setting aside the declaration of election in favour of the returned candidates viz. the respondent Nos. 1 and 2. In the election petition, multifold grounds are raised touching the corrupt practice allegedly committed by the respondent Nos. 1 and 2, in collusion with the Returning Officer. Neither issues are framed nor any evidence is led. At a very early stage, the petitioner moved an application for recount and the same has been granted as a matter of course. It is this order passed by the trial Court, which is challenged by filing the instant writ petition.
6. Mr. Gunale, learned Counsel appearing for the petitioner, contended that unless and until it is shown by the petitioner, that he had made an application for recount, before the Returning Officer, as is contemplated by Rule 35 of the Bombay Village Panchayat Rules, 1966, the Court has no jurisdiction to grant recount. The case of the petitioner is that he wanted to tender an application demanding a recount under Rule 35 but the said application was not accepted by the Returning Officer and no orders are passed thereon. Serious allegations are made against the Returning Officer, not only in regard to indulging in corrupt practice in collusion with the respondent Nos. 1 and 2, but also about alleged refusal to accept the application for recount. Unless and until the petitioner proves after leading evidence before the trial Court, that he had moved such an application for recount before the Returning Officer and the same was refused by the Returning Officer, then and then alone, the Court would assume jurisdiction to grant the relief of recount. It is settled law that recount of ballot papers cannot be, as a matter of course. The reason is twofold, firstly that such an order affects the secrecy of the ballot which under the law is not likely to be disturbed and secondly, the Rules provide an elaborate procedure and unless and until it is categorically established that the Returning Officer has colluded in the corrupt practice, recount cannot be directed.
7. The learned Counsel for the petitioner has placed reliance on the judgment of the Apex Court reported in : [1997]3SCR1050 , in the case of Smt. Ram Rati v. Saroj Devi and others. An identical question fell for consideration of the Apex Court. While answering the same, the Court held that unless and until an application for recount is made before the Returning Officer, the Court trying the election has no jurisdiction to order recount of the ballots. The said judgment was under Madhya Pradesh Panchayat Raj Adhiniyam and Madhya Pradesh Panchayat Elections Rules. Rule 76 of the said Rules is in pari materia with Rule 35 of the Bombay Village Panchayat Election Rules and the judgment of the Apex Court squarely applies to the present case. The Apex Court observed in para 6 of the judgment, thus :
'It is difficult to give acceptance to the contention that the respondent made an application to the Returning Officer and the Returning Officer had not recounted. In the light of the mandatory language 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 and give reasons in support thereof, while seeking recounting. If it is not done, then the Tribunal or the Court is not empowered to direct recounting even after adduction of evidence and consideration of the alleged irregularities in the counting. The essential condition precedent is that an application in writing should be 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 officer had not passed any order in writing would indicate that the respondent had not made any application. Obviously, some subsequent manipulation, as contended by the appellant, would have taken place, as a result of which the election petition was filed and the arguments were addressed for recounting. It is settled legal position that secrecy of ballot should not be breached and as far as possible, the secrecy of ballot should be maintained. In rare cases, the Tribunal or the Court is required to order recount, that too on giving satisfactory grounds for recounting. In view of the fact that the rule itself provides that, as soon as the result of the election is announced, an application in writing must be made at the first instance and the fact that no such application has been placed before us does indicate that no such application had been made on the date of the declaration of the result. The allegation of an application having been made, would be an afterthought. The Tribunal, therefore, has committed manifest error in directing recount.'
As the point is no longer res integra, applying the ratio laid down by the Apex Court, the impugned order passed by the trial Court need to be quashed and set aside.
8. The situation wherein recount could be ordered in an election petition, the guidelines are laid down by the Apex Court in the judgment reported in : [1975]3SCR21 , in the case of Suresh Prasad Yadav v. Jai Prakash Mishra and others. In para 5 of the judgment, the Apex Court observed thus :
'Before dealing with these contentions, we may recall, what this Court has repeatedly said, that an order for inspection and recount of the ballot papers cannot be made as a matter of course. The reason is twofold. 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 trickery, mistakes and fraud in counting, that it can be called almost fool-proof. 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:
'(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.'
Thus, the Apex Court has laid down that the Court would be justified in ordering a recount only when the election petition contains adequate statements of all material facts on which allegations of illegality or irregularity in counting are founded and 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 further, when the Court trying the petition is prima facie satisfied for making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties. In the present case, the trial Court has proceeded to order recount without there being any evidence led by the parties.
9. At this stage, the learned Counsel for the respondents/original petitioners submitted that as the trial Court was inclined and had actually granted recount, the respondents/original petitioners have filed a Pursish indicating that original petitioners do not propose to lead any evidence. He submits that as this Court has reversed the said order of granting recount passed by the trial Court, the respondents be permitted to withdraw the said Pursish and be permitted to lead evidence. Mr. Gunale, Counsel appearing for the petitioner, has no objection for permitting withdrawal of the Pursish with a view to enable the respondent to lead evidence.
10. In the result, writ petition is allowed. The order dated 18-2-2003, passed by the Civil Judge (Junior Division), Chakur, below Exhibit 14 in Election Petition No. 7/2002, is quashed and set aside. The respondents/original petitioners are permitted to withdraw the Pursish intimating the Court about not leading of any evidence and they are permitted to lead evidence in support of the petition.
11. Rule is made absolute in the above terms. In the circumstances of the case, there shall be no order as to costs.