Full Judgment
Arun Mishra, J.
1. Petitioner is challenging the legality of the order passed by the prescribed authority, SDO, allowing the election petition, Annexure P-6 passed on 5-10-2001 directing recount without recording any evidence.
2. Respondent No. 3 Pradip Kumar filed election petition before the SDO challenging the election of Sarpanch, Gram Panchayat, Padkhuri, Block Rampur, District Sidhi. Respondent No. 3 was another candidate. He complained of certain irregularities in the counting. It was alleged that the counting was started late in the night 1.00 a.m. The counting was completed in inadequate light and the votes were illegally counted in favour of the return candidate, Shri Ramdeen.
3. Allegations were refuted by the petitioner. It was contended that the counting was properly held. There was no illegality or irregularity whatsoever.
4. Respondent No. 3 filed 12 affidavits. An application was filed by the petitioner to call those deponents for cross-examination. The prescribed authority without recording the evidence, without calling the deponents forcross-examination outrightly allowed the election petition and directed recounting. Secrecy of ballots is important. Recounting has not to be ordered until unless case for recounting is established satisfactorily by adducing evidence. In P.K.K. Shamsudeen v. KA.M. Mappillai Mohindeen and Ors., AIR 1989 SC 640 in para 15 the Apex Court laid down as under :--
'An order of recount of votes must stand or fall on the nature of the averments made and the evidence adduced before the order of recount is made and not from the results emanating from the recount of votes.'
5. In Satyanamin Dudhani v. Uday Kumar Singh, AIR 1993 SC 367, the Apex Court clearly laid down that it is the settled preposition 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 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, Following observations were made in para 10 :--
' 10. Before examining the contentions of the parties we may set out the position in law as regards the need for the secrecy of the ballot being maintained and as to when the well established rule can be departed from. Since the principle of law has already been enunciated by this Court in several cases, we may refer to three of those decisions. In Dr. Jagjit Singh v. Giani Kartar Singh, (1967) 1 SCJ 762 : (AIR 1966 SC 773) the appellant had challenged the election of the first respondent to the Punjab Legislative Assembly. In the recount of votes ordered by the Tribunal it was found that the appellant had secured 22,491 votes and the first respondent had secured 22,412 votes. The Tribunal allowed the election petition and declared the appellant to have been duly elected. The High Court set aside the order of the Tribunal and the judgment of the High Court was confirmed by this Court. In doing so this Court observed as follows :-- 'Therefore, in a proper case, the Tribunal can order the inspection of the ballot boxes and may proceed to examine the objections raised by the parties in relation to the improper acceptance or rejection of the voting papers. But in exercising this power, the Tribunal has to bear in mind certain important considerations. Section 83(1)(a) of the Act requires that an election petition shall contain a concise statement of the material facts on which the petitioner relied; and in every case, where a prayer is made by a petitioner for the inspection of the ballot boxes, the Tribunal must enquire whether the application made by the petitioner in that behalf contains a concise statement of the material facts on which he relied. Vague or general allegations that valid votes were improperly rejected, or invalid votes were improperly accepted, would not serve the purpose which Section 83(1)(a) has in mind. An application made for the inspection of ballot boxes must give material facts which would enable the Tribunal to consider whether in the interests of justice, the ballot boxes should be inspected or not. In dealing with this question, the importance of the secrecy of the ballot papers cannot be ignored, and it is always to be borne in mind that the Statutory Rules framed under the Act are intended to provide adequate safeguard for the examination of the validity or invalidity of voles and for their proper counting. It may be that in some cases, the ends of justice would make it necessary for the Tribunal to allow a party to inspect the ballot boxes and consider his objections about the improper acceptance or improper rejection of votes tendered by voters at any given election; but in considering the requirements of justice, care must be taken to see that election petitioners do not get a chance to make a roving or fishing enquiry in the ballot boxes so as to justify their claim that the returned candidate's election is void.'
6. In Ram Rati v. Saroj Devi and Ors., (1997) 7 SCC 667, similar view was taken.
7. Learned Counsel for the respondent No. 3 submits that on certain other vital questions, issues have not been framed by the SDO. This question has to be raised first before the SDO by the respondent No. 3.
8. Fact is not disputed, that no evidence was recorded by the SDO. Thus, the impugned order Annexure P-6 cannot be allowed to stand. It is quashed. The matter is remitted to the SDO to record the evidence of both the parties as may be adduced and thereafter first to decide the question whether case for order of recount is made out on the averments and the evidence adduced by the parties. Parties are directed to appear before the SDO on March 20th, 2002. Let the election petition be decided expeditiously. Costs on parties.