Ram Anandi Sahni Son of Late Panchu Sahni Vs. the State of Bihar Through District Magistrate and ors. - Court Judgment

Excerpt:
- orderramesh kumar datta, j.1. the petitioner has come to this court for quashing of the order dated 25.8.2008 passed by munsif-i, vaishali at hajipur in election case no. 28/2006 by which he has directed the returning officer, vaishali to make proper arrangement for recounting of votes in the court within a period of one month of the order.2. the petitioner is mukhiya of paura madan singh gram panchayat on which post he was elected on 15.5.2006. the said election was challenged by filing the aforesaid election case no. 28/2006 by respondent no. 3. it was stated in the election petition that after the election on 15.5.2006 counting of the votes took place on 19.6.2006 which was carried on in two rooms of the school on 14 tables with respect to the post of mukhiya. it was alleged that the.....

Judgment:
ORDER

Ramesh Kumar Datta, J.

1. The petitioner has come to this Court for quashing of the order dated 25.8.2008 passed by Munsif-I, Vaishali at Hajipur in Election Case No. 28/2006 by which he has directed the Returning Officer, Vaishali to make proper arrangement for recounting of votes in the Court within a period of one month of the order.

2. The petitioner is Mukhiya of Paura Madan Singh Gram Panchayat on which post he was elected on 15.5.2006. The said election was challenged by filing the aforesaid Election Case No. 28/2006 by respondent No. 3. It was stated in the election petition that after the election on 15.5.2006 counting of the votes took place on 19.6.2006 which was carried on in two rooms of the school on 14 tables with respect to the post of Mukhiya. It was alleged that the counting officials made a lot of manipulations at the time of counting and counted as many as ten votes in favour of respondent No. 1-writ petitioner which had been polled in favour of the election petitioner and as many as 15 votes polled in his favour were rejected. It was alleged that the election petitioner complained regarding the aforesaid manipulation to the Election Observer, Lalganj, Vaishali in writing and on finding the same to be true he directed the Block Returning Officer to recount the votes. The Block Returning Officer recounted the votes of Ward No. 13 out of 14 wards involved in the election of Mukhiya and found that one ballot paper had wrongly been shown in favour of the petitioner which had, in fact, been polled in favour of the election-petitioner. It is alleged that thereafter the counting officials refused to make any further counting and on protest by the election-petitioner and his counting agent they were forcibly thrown out of the counting centre. It is claimed that thereafter the petitioner was declared elected on 19.6.2006 itself holding that he had received 411 votes as against 410 votes obtained by the election-petitioner. The election petitioner, respondent No. 3 submitted a written objection to the State Election Commission on 19.6.2006 and again to the District Election Officer on 20.6.2006 but no action was taken by them and again on 23.6.2006 he made a prayer for recounting which was also refused. Accordingly it was prayed that the respondent No. 3 should be declared elected after setting aside the election of the petitioner and for directing recounting of all the votes in all the 14 Wards of the Gram Panchayat.

3. The petitioner appeared in the election case and denied the allegations regarding manipulation at the time of counting. It was pointed out that no specific facts have been stated regarding manipulations made by the counting officials. It was also denied that any votes in favour of the election petitioner-respondent No. 3 were wrongly rejected. It was also asserted that the Election Observer had no legal right to take any decision regarding recounting which is the sole right of the Returning Officer and the decision to recount shows impartiality and transparency of the election process. It was further denied that on recount of the votes in ward No. 13, any vote was found wrongly counted in favour of the petitioner and the allegation in this regard was stated to be merely imaginary. After the trial and after hearing the arguments of the parties the learned Election Tribunal passed the impugned order dated 25.8.2008 by which he has directed that inspection and recounting of ballot papers are necessary giving certain reasons for the same; that it was admitted that recounting was done on the petition of the plaintiff and the only controversy was that although recounting was ordered for all booths but it was conducted only at booth No. 13. It was also stated that the petitioner had deposed on oath that he did not have any objection if recounting is ordered and that the difference of votes was only one between the petitioner and the election-petitioner- respondent No. 3.

4. Learned Counsel for the petitioner submits that none of the said reasons are germane for passing an order for inspection and recounting of votes. It is submitted that the law in respect of recounting has been laid down in a catena of decisions of the Supreme Court, namely, Ram Sewak Yadav v. Hussain Kamil Kidwai and Ors. : AIR 1964 SC 1249; Jitendra Bahadur Singh v. Krishna Behari and Ors. : AIR 1970 SC 276; Bhabhi v. Sheo Govind and Ors. : AIR 1975 SC 2117 and Satyanaraian Dudhani v. Uday Kumar Singh and Ors. : AIR 1993 SC 367. In Bhabhi's case (supra) after analyzing a large number of previous decisions on the point right from Ram Sewak case (supra) the law on the point of inspection and recount of votes was summarized by the Supreme Court in para-15 of the judgment, in the following terms:

Thus on a close and careful consideration of the various authorities of this Court from time to time it is manifest that the following conditions are imperative before a Court can grant inspection, or for that matter sample inspection, of the ballot papers:

(1) That it is important to maintain the secrecy of the ballot which is sacrosanct 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 clear and specific and must be supported by adequate statements of material facts;

(3) 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 a 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.

If all these circumstances enter into the mind of the Judge and he is satisfied that these conditions are fulfilled in a given case, the exercise of discretion would undoubtedly be proper.

5. In Satya Narayan case (supra) the Apex Court emphasized the importance of the Election Tribunal being satisfied by the material facts pleaded in the petition and supported by contemporaneous evidence that the recounting can be ordered and the necessity of the application claiming recount containing details of the irregularities or illegalities in the counting so that an order of recount does not turn into a mere fishing enquiry.

6. On the basis of the aforesaid decisions it was submitted by learned Counsel for the petitioner that no material facts for ordering recount are to be found in the election petition. Even apart from the complaint it is submitted that nothing has been brought on the record to prove or substantiate that a prima facie case exists for a recounting. It is further argued that exhibit 3 which is the document filed before the Election Observer is a mere one sentence application praying for recount without indicating any of the grounds in justification of the said request. There is a complete dearth of any detail in the said application. Even the said application, it is contended, has not been filed before the Returning Officer who alone is empowered under Rule 79 of the Bihar Panchayat Election Rules, 2006 to order for recount. It is further submitted that under Section 128 of the Bihar Panchayat Raj Act, 2006 no authority has been conferred upon the Observer to direct recount and the only power vested in him is to direct the Returning Officer to stop the counting of votes at any time before declaring the result or not to declare the result, if in the opinion of the Observer, booth capturing had taken place at a large number of polling stations or at places fixed for the poll or counting of votes or any ballot papers used at a polling station or at a place fixed for the poll are unlawfully taken out of the custody of the Returning Officer or are accidentally or intentionally destroyed or lost or are damaged or tampered with to such an extent that the result of the poll at that polling station or place cannot be ascertained. It is further pointed out that he can only give direction to the Returning Officer to stop counting of votes or not to declare the results but the Election Observer cannot himself take any further decision in the matter except to forthwith report the matter to the State Election Commission which alone is authorized to issue appropriate directions.

7. Learned Counsel also points out that in his deposition in Court the election petitioner has admitted in his cross-examination in para-39 that before any ballot paper was declared invalid it was shown to the persons present.

8. Learned Counsel for respondent No. 3, the election petitioner, on the other hand submits that the petitioner himself in his deposition in Court has admitted that he has no objection if recount is ordered by the Court and thus he cannot be permitted to resile from the same and challenge the order of recounting once it has been made by the learned Tribunal which has also given the same as one of the reasons for ordering recount.

9. Learned Counsel also points out that in view of the allegations made and considering the fact that originally the vote of the petitioner and that of respondent No. 3 being 412 and 409 respectively but on recounting of the votes of just one Ward No. 13 the margin was reduced to one vote only being 411 and 410, it is a fit case for recounting of votes in all the 14 wards of the Gram Panchayat.

10. Learned Counsel also refers to allegations made in para 11 of the election petition where it is alleged that several such ballot papers which had not been polled in favour of the petitioner had been counted in his favour. He also refers to the similar allegations made in paras 12 and 13 of the election petition regarding the rejection of votes cast in favour of the petitioner and states that sufficient material facts have been pleaded in election petition and proved during the course of trial. It is further asserted by learned Counsel that it is evident from the record that as many as 266 votes were rejected as invalid which is very high compared to the total number of 2923 votes polled and in view of the allegation made in election petition that his valid votes have been rejected at least a case of recounting of invalid votes is made out.

11. Learned Counsel also submits that it is laid down by the Supreme Court that the rigorous tests applied in Parliamentary or Assembly elections recount should not be applicable in Panchayat cases. It is pointed out that under Rule 52 of the Conduct of Election Rules, 1961 with respect to the Parliament and State Legislatures as many as 16 counting agents are permitted whereas under Rule 48 of the Bihar Panchayat Election Rules, 2006 only one counting agent is permissible. Further under Rule 74(1)(gha) except the candidate and his counting agent all the other persons are required to be removed from the counting hall. It is thus, urged by learned Counsel that since the counting was going on at as many as 14 tables the candidate had no effective machinery to keep watch over the counting process and, therefore, the order of recounting is proper specially in view of the margin of just one vote between the winning candidate-petitioner and respondent No. 3. In support of the said stand, learned Counsel relies upon a decision of the Supreme Court in the case of Chanda Singh v. Choudhary Shiv Ram Verma and Ors. : (1975) 4 SCC 393, in para-6 of which it has been held as follows:

Even so, since Shri Bhandare has taken us through several rulings of this Court we may refer to some to see if the law lends support to his position. A democracy runs smooth on the wheels of periodic and pure elections. The verdict at the polls announced by the Returning Officers lends to the formation of Governments. A certain amount of stability in the electoral process is essential. If the counting of the ballots are interfered with by too frequent and flippant recounts by courts a new threat to the certainty of the poll system is introduced through the judicial instrument. Moreover, the secrecy of the ballot which is sacrosanct becomes exposed to deleterious prying if recount of votes is made easy. The general reaction, if there is judicial relaxation on this issue, may well be a fresh pressure on luckless candidates, particularly when the winning margin is only of a few hundred votes as here, to ask for a recount Micawberishly looking for numerical good fortune or windfall of chance discovery of illegal rejection or reception of ballots. This may tend to a dangerous disorientation which invades the democratic order by injecting widespread scope for reopening of declared returns, unless the Court restricts recourse to recount to cases of genuine apprehension of miscount or illegality or other compulsions of justice necessitating such a drastic step. The best surmise, if it be nothing more than surmise, cannot and should not induce the judge to break open ballot boxes. If the lead is relatively little and/or other legal infirmities or factual flaws hover around, recount is proper, not otherwise. In short, where the difference is microscopic, the stage is set for a recount given some plus point of clear suspicion or legal lacuna militating against the regularity, accuracy, impartiality or objectivity bearing on the original counting. Of course, even if the difference be more than microscopic, if there is a serious flaw or travesty of the rules or gross interference, a liberal repeat or recount exercise, to check on possible mistakes is a fair exercise of power. It is significant to note, while it may not necessarily be proper to ape, that in the United Kingdom, seven recounts were allowed in the elections in a constituency in the 1966 elections, as the Handbook of Instructions to Returning Officers shows. The pronouncements of this Court have struck a cautious note throughout.

12. It is thus submitted by learned Counsel that where the margin of victory is microscopic and there is serious flaw or travesty of the rules then order of recount is clearly supported by the said decision of the Apex Court. Learned Counsel also relies in this respect on a decision of the Supreme Court in the case of Sadhu Singh v. Darshan Singh and Anr. : (2006) 6 SCC 255, in paras 8 and 9 of which it has been held as follows:

8. In the instant case, a finding of fact has been arrived at that the first respondent had raised an objection as regards the manner in which the ballot papers had been counted by the officers. The said finding of fact was arrived at after the parties adduced their respective evidence. The Tribunal has also, in view of the materials brought on record by the parties, directed re-counting of votes as the number of ballot papers stated to have been rejected was 147, which exceeded the margin of 11 votes by which margin the appellant was declared elected.

9. The first respondent was found to have made out a prima facie case for re-counting of votes by both the Tribunal and also the High Court on the premise that a large number of votes might have wrongly been rejected. The margin of votes polled by the appellant vis--vis the first respondent, although would not be of much relevance but the said fact alone was not the basis for passing the impugned judgment. The first respondent herein not only lodged protests in regard to the manner in which the Presiding Officer counted the votes, but had also urged him to re-count the votes. He had also given specific instances in respect thereof in his election petition. The election petitioner, furthermore, not only placed necessary facts in his election petition but also in his deposition before the Tribunal categorically stated that the Presiding Officer did not assign any reason for declaring a huge number of votes as invalid. We have noticed hereinbefore that before the Tribunal a contention had been raised by the first respondent that 25 votes polled in his favour were wrongly counted in favour of the appellant by intermingling them with the ballot papers.

13. It was also sought to be argued by learned Counsel for respondent No. 3 that while on the principle of secrecy of ballot papers it has been held that recounting should not be readily ordered, but the same is overridden by the higher principle of purity of elections as has been emphasized in several decisions of the Supreme Court, including in A. Neelalohithadasan Nadar v. George Mascrene and Ors. 1994 Supp. (2) Supreme Court Cases 619, in paras 10 and 11 of which it has been held as follows:

10. The existence of the principle of 'secrecy of ballot' cannot be denied. It undoubtedly is an indispensable adjunct of free and fair elections. The Act statutorily assures a voter that he would not be compelled by any authority to disclose as to for whom he has voted, so that he may vote without fear or favour and free from any apprehension of its disclosure against his will from his own lips. See in this connection Raghbir Singh Gill v. Gurcharan Singh Tohra : 1980 Supp. SCC 53 : (1980) 3 SCR 1302. But this right of the voter is not absolute. It must yield to the principle of 'purity of election' in larger public interest. The exercise of extrication of void votes under Section 62(4) of the Act would not in any manner impinge on the secrecy of ballot especially when void votes are those which have to be treated as no votes at all. 'Secrecy of ballot' principle presupposes a validly cast vote, the sanctity and sacrosanctity of which must in all events be preserved. When it is talked of ensuring free and fair elections it is meant elections held on the fundamental foundation of purity and the 'secrecy of ballot' as an allied vital principle. It was observed by this Court in Raghbir Singh case as follows:

Secrecy of ballot through undoubtedly a vital principle for ensuring free and fair elections, it was enshrined in law to subserve the larger public interest, namely, purity of election for ensuring free and fair election. The principle of secrecy of ballot cannot stand aloof or in isolation and in confrontation to the foundation of free and fair elections, viz., purity of election. They can coexist but as stated earlier, where one is used to destroy the other, the first one secrecy of ballot, a privilege of the voter, is not inviolable and may be waived by him as a responsible citizen of this country to ensure free and fair election and to unravel foul play.11. In view of the above it is the settled position that out of the two competing principles, the purity of election principle must have its way. Section 94 of the Act cannot be pressed into service to suppress a wrong coming to light and to protect a fraud on the election process.

14. He also relies upon the case of Kuldip Nayar and Ors. v. Union of India and Ors. : (2006) 7 SCC 1, in para-464 of which it was held as follows:

The secrecy of ballot is a vital principle for ensuring free and fair elections. The higher principle, however, is free and fair elections and purity of elections. If secrecy becomes a source for corruption then sunlight and transparency have the capacity to remove it. We can only say that legislation pursuant to a legislative policy that transparency will eliminate the evil that has crept in would hopefully serve the larger object of free and fair elections.

15. It is also pointed out by learned Counsel for respondent No. 3 that the Returning Officer did not come to witness box despite filing written statement and he was not even called for the petitioner also to disprove the stand taken by the election petitioner regarding the manipulations, etc. and the order of recounting by the Election Officer.

16. Learned Counsel for the petitioner in his reply states that a new issue regarding the rejection of 266 invalid votes has been raised by the respondent No. 3 which is not to be found either in his election petition or among the reasons assigned by the learned Tribunal for ordering recount and thus the same should not be permitted. He has further reiterated that since the election petitioner has admitted that all the invalid votes were being shown to the persons before the order of rejection hence no case can be made out on the basis of declaration of the votes as invalid as there was ample opportunity to the petitioner or his counting/election agent to note down the particulars of the invalid votes. In this regard, learned Counsel refers to a decision of the Apex Court in the case of Chandrika Prasad Yadav v. State of Bihar and Ors. 2004(3) PLJR (SC) 133, para-25 of which is quoted below:

Rule 79 as noticed hereinbefore enables a candidate to file an appropriate application for recounting of votes. Rule 79 unlike rules framed by other States does not say that such an application would not be maintainable after declarations of the votes polled by the parties or prior thereto. Such an application, therefore, can be filed at any point of time. The very fact that Sub-rule (3) of Rule 79 provides for amendment of the result relating to the votes polled by the respective candidates and as, such amended result is required to be announced 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 indicated hereinbefore, while filing such an application the basis for making a request for recounting of votes is required to be disclosed. The returning officer is statutorily enjoined with a duty to entertain such an application, make an inquiry and pass an appropriate order in terms of Sub-rule(2) of Rule 79 either accepting in whole or in part such requests or rejecting the same wherefor he is required to assign sufficient or cogent reasons. In the event, such an application is allowed either in whole or in part, he is statutorily empowered to amend the results also.

17. Learned Counsel also relies upon the case of Banwari Yadav v. The State of Bihar and Ors. 2007 (4) PLJR 169, in which a learned Single Judge of this Court, considering the similar situation of non-compliance with Rule 79 and absence of material particulars in the election petition disclosing a prima facie case to order recounting and on the basis of the consent of the parties to go for a recount, held that the order of recount was not justified, in para-22 of the judgment in the following words:

On the facts of the case and the law as discussed above, the Court arrives at the conclusion that there was no compliance with Rule 79 by the plaintiff/respondent No. 7 and therefore there never was an application by him for recount during counting on grounds of alleged irregularities. This finding is further fortified by the pleadings in the election petition which are completely at variance and do not support the availability of such grounds at the time of recount. The pleadings in the election petition were completely lacking in material particulars nor disclosing a prima facie case to order a recount. The order of the learned Munsif is more in the nature of a fishing enquiry to arrive at a conclusion for recount. Even while considering the salutary principles to order recount, the learned Munsif has still glossed over the legal necessity for the same and appears to have been swayed by his own conclusions of undue influence by the petitioner upon Government Officials and the willingness of the parties by consent to go for a recount. The order therefore is unsustainable.

18. Learned Counsel also cites in support of his case a decision of this Court in the case of Mahendra Rai v. State of Bihar and Ors. 2003 (1) BLJ 143, in para-22 of which the issue of difference of even one vote for the purpose of recounting was dealt with, relying upon a decision of the Supreme Court in the case of Vadivelu v. Sundaram and Ors. : AIR 2000 SC 3230 wherein it was held that the mere difference of one vote could be no ground for a recount in the absence of precise and definite pleadings regarding irregularities committed in counting. Paras 22 and 23 of the said decision are quoted below:

22. Even if Mr. Verma's submissions on Ram Rati are to be accepted, the Supreme Court has clearly laid down the powers of the Tribunal and the circumstances under which the Tribunal can issue a direction for recount of the votes in Vadivelu v. Sundaram and Ors. : AIR 2000 SC 3230. This case arose from a Panchayat election from Tamil Nadu where there is a similar provision for recount under Rule 66 of the Tamil Nadu Panchayat (Election) Rules, 1995. The facts in Vadivelu seem to cover the facts of the case in hand on all fours. In Vadivelu the defeated candidates, the election applicant had lost the election by one vote and had made similar allegation of irregularities in recount. He had also claimed that an application for recount was made before the Returning Officer under Rule 66. The Election Tribunal had directed for recount on the basis of which Vadivelue was found to have secured 27 votes more than the returned candidates and the Election Tribunal had, therefore, set aside the election of the returned candidate and had made a declaration that the election applicant Vadivelu was the duly elected candidate.

23. The High Court found and held that in the facts and circumstances of the case, the Election Tribunal committed an error in directing for a recount of votes. The matter went up to the Supreme Court where on a consideration of a number of decisions, under the R.P. Act, the decision of the High Court was up held. In paragraph 17 of the decision of the Supreme Court took note of the pleadings of the election applicant alleging irregularities in counting and it appears that the pleadings in Vadivelu were at least more precise and definite than in the present case. Even those pleadings were held not sufficiently substantive for a direction' of recount.

19. It is lastly submitted by learned Counsel for the petitioner in reply that the materials brought on the record during the trial when the pleadings were vague, general and uncertain cannot be acted upon. In support of the same he cites a decision of this Court in the case of Chandra Kant Singh v. The State of Bihar and Ors. 2008 (1) PLJR 638.

20. The principles for ordering recount have been culled on the basis of a catena of decisions by the Supreme Court in Bhabhi's case (supra) in which it has been held that the secrecy of ballot cannot be allowed to be violated by frivolous, vague and indefinite allegations and even where the allegations are clear and specific they must be supported by adequate statements of material facts. The said facts again must find support from the materials produced before the Court during the trial even then the Court must come to the conclusion that in order to do full justice between the parties it is necessary and imperative to grant the prayer for inspection and recount and not to exercise the power in a manner so as to enable the applicant to make a roving and fishing enquiry. It is also evident from the decision of the Supreme Court in Vadivelu's case (supra) that the mere difference of one vote between the winning candidate and the election petitioner is no ground for recount unless the principles laid down for a recount are satisfied.

21. In the present matter, the admitted position is that the petitioner in the election petition did not avail of the statutory remedy available to him under Rule 79 of the Bihar Panchayat Election Rules. The said Rules lay down that such an application for recount must be filed along with the grounds for the same before the Returning Officer and the Returning Officer can accept the application or reject the same only after recording his grounds. It is thus evident that right from the beginning even at the stage of the Returning Officer it is impermissible to pray for or to order a recount except on good and substantial grounds which must be given in writing and accepted or rejected with reasons for the same by the Returning Officer. The petitioner never filed such a statutory application under Rule 79. It is, however, admitted that he did file an application before the Block Election Observer. The said application, Exhibit 3 in the election case, clearly shows that a mere prayer for recount was made before the Election Observer without assigning any reason at all. It is admitted that recount of booth No. 13 was made at the behest of the Election Observer as a result of which the election petitioner, respondent No. 3 claims that one vote was found to be in his favour which had been wrongly shown in favour of the petitioner but the petitioner has been asserting from the very beginning that no such change has occurred even on recount of the votes of one of the Wards.

22. In view of the provisions of Section 128 of the Bihar Panchayat Raj Act, this Court accepts the submission of learned Counsel for the petitioner that the election Observer in any case had no authority to order for recount and if at all an application had been filed before him then he ought to have refused to pass an order on the same, asking the petitioner to resort to the statutory remedy available to him under Rule 79 before the Returning Officer. It is evident that if an application of the nature as was presented before the Election Observer had been presented before the Returning officer, then in terms of the statutory requirements he had no option but to reject the prayer of recount in view of the absence of any ground mentioned in the said application. Thus, in the view of this Court, even if the statement of the election petitioner, respondent No. 3 is accepted that the Observer had ordered for recount of the votes but the same was done with respect to one ward only, such an order of recount may not be statutorily binding upon the Returning Officer. From the provisions of Section 128 of the Act, it is evident that though the Election Observer can only direct counting to be stopped or the result not to be declared on the happening of certain contingency provided in Section 128 itself but he had no power to order a recount and, therefore, if any recount had been ordered by him, as claimed by the election petitioner, the same can have no bearing on the decision of the Tribunal. The learned Tribunal has wrongly relied upon the same for ordering a recount.

23. Similarly the deposition of the petitioner, that he has no objection if recount is ordered by the Court, does not give any authority to the Tribunal to order a recount as has been clearly held by this Court in Banwari Yadav's case (supra).

24. This Court also does not accept the submission of learned Counsel for respondent No. 3 that since only three persons including the candidate are permitted during the counting in the Panchayat elections, therefore, the same stringent tests as laid down for Parliamentary or Assembly elections should not be applied in the matter of Panchayat elections as the candidates have no effective machinery to watch over the counting. In Parliamentary election the total votes polled and to be counted run into several lacs and even in the Assembly elections they are in the range of a lac votes or more whereas the same is not true with respect to any election to the post of Mukhiya. Even in the present matter the total votes polled are merely 2923. Moreover, it is the admitted position that the counting of votes of Mukhiya was going on in only two rooms. Thus it cannot be said that three persons could not have managed to actively oversee the process of counting of such low number of votes in only two rooms.

25. It has been laid down in several decisions of the Supreme Court that any allegation regarding illegal rejection of votes or wrong counting must be supported by sufficient particulars with respect to the ballots in question and admittedly before rejecting the ballots were being shown to the candidates but no such particulars with respect to them is to be found even in the election petition whereas there is not a whisper about any specific ballot papers or booth number or even Ward No. in the application filed before the Election Observer or the subsequent letter sent to the Election Commission and the District Election Officer. In the said circumstances, it could not be said that the prime condition of clear and specific allegations supported by material particulars was satisfied by the petitioner in the present matter. On such vague allegations not supported by any material particulars no order of recount could have been made either by the Returning Officer under Section 79 before whom the application was filed or by the Election Tribunal.

26. This Court also finds that the issue regarding invalid rejection of 266 votes has not been raised in the election petition and thus the respondent No. 3 cannot be permitted to raise a plea with respect to the same in the present matter. As a matter of fact, the same is not even a ground for ordering recount by the learned Tribunal. In this context reliance by learned Counsel for respondent No. 3 on Sadhu Singh's case (supra) cannot support his stand as in that decision the Apex Court had clearly held that the election petitioner of that case had given specific instances regarding the wrong rejection of a large number of votes, which is not the case in the present matter.

27. So far as the issue of microscopic margin is concerned, it has been clearly held by this Court that even a difference of one vote cannot justify order of recount unless all principles of recount as laid down in a large number of decisions of the Apex Court are satisfied. Even in Chanda Singh's case the Supreme Court has held that mere microscopic margin by itself without the existence of factual flaws would not be a ground for ordering a recount.

28. The submission on behalf of the respondents that the principle of purity of elections overrides the principle of secrecy of ballot also does not help his case as in the decision relied upon the issues were entirely different. In A. Neelalohithadasan Nadar's case (supra) the allegation was regarding the same set of voters having their names wrongly included the electoral rolls of more than one polling station and having dishonestly voted in both the polling stations taking undue advantage of the double entry of their names, which fact with specific details was brought on the record by the election petitioner and, accordingly, the principle of purity of election in such circumstances was held to apply and as being higher than the principle of secrecy of ballot and the ballots were called for inspection so as to reject the same if the allegations were found to be true. The same is not at all the position in the present matter.

29. Similarly, in Kuldip Nayar's case (supra) the principle of purity of election standing on a higher footing than the principles of secrecy of ballot was held to apply in the context of the amendments made in the Representation of the People Act, 1951 making the elections to the member of the Rajya Sabha from the State Assembly not through secret ballot but through open ballot. Hence, the said case is also irrelevant so far as the present matter is concerned.

30. Thus, on a consideration of the entire matters, this Court is of the view that the impugned order dated 25.8.2008 has not been passed by the learned Munsif in accordance with the principles for inspection and recounting of ballots laid down by the Apex Court and this Court in various decisions. The reasons mentioned for a recount in the said order are not germane for the purpose of directing a recount.

31. The writ application is accordingly allowed and the impugned order dated 25.8.2008 passed by the Munsif-I, Vaishali at Hajipur in Election Case No. 28/2006 is quashed.