IMPORTANT POINT
In an election petition mere allegations not supported by material facts do not give rise to a triable issue particularly where allegations are made to seek recounting of votes.

ORDER

Elections to Gram Panchayat, Bhaike-Bhasaur, District Sangrur, Punjab took place on 21st of June, 1998. Appellant and respondent No. 1 contested the election to the office of Sarpanch. Respondent No. 1 was declared elected by a margin of 27 votes. Appellant filed an election petition before the Tribunal under Section 77 of the Punjab State Election Commission Act, 1994 (hereinafter referred to as the Act ). One of the main reliefs claimed in the election petition by the appellant was for recount of votes and that the appellant be declared elected to the post of Sarpanch. It was alleged that illegal votes had been counted in favour of the returned candidate while valid votes of the appellant had been left out from counting. After framing of issues and recording of evidence, the Tribunal vide order dated 6th of July, 1999 directed recount of votes. Respondent No. 3 - SDM, Moonak was directed to recount the votes on 19th July, 1999. The order of recount was challenged by the returned candidate in the High Court and on 24th August, 1999, the challenge succeeded and order of the Tribunal dated 19th July, 1999 was set aside. Hence, this appeal by special leave by the appellant - the defeated candidate (Election petitioner).

2. The High Court considered various submissions raised before it. It noticed that whereas respondent No.1 secured 970 votes the appellant had secured 943 votes and that there was a difference of 27 votes. The High Court noticed that the Tribunal had ordered recount of votes but was of the opinion that in doing so, the Tribunal had exceeded its jurisdiction. According to the High Court, the secrecy of ballot papers had been violated by ordering recount on the basis of insuffcient and vague allegations. In coming to this conclusion, the High Court noticed averments made in the election petition filed by the appellant.

3. Mr. G.S. Chadha, learned Counsel appearing for the appellant submitted before us that keeping in view the small margin by which respondent No.1 had been declared elected and the fact that during counting, Sohan Singh, a brother of the returned candidate and a colleague of the returning officer, was present in the counting hall, he had influenced the process of counting and therefore, the Tribunal was justified, in the peculiar facts and circumstances of the case, to order a recount. Learned Counsel also submitted that there have been various illegalities and irregularities committed during the counting process and those also justified an order of recount and that the High Court ought not to have interfered with the order of the Tribunal directing recount. Reliance was placed on various judgments in support of the proposition that where the Court is satisfied that there has been illegality and irregularity in the counting of votes, an order of recount can be made.

4. With a view to satisfy ourselves about the justification for the Tribunal to have ordered recount, we have gone through the election petition filed by the appellant (annexure P-2 in the paper book) with the assistance of Mr. Chadha. The averments in the election petition, on the basis of which the Tribunal had ordered recount, are admittedly contained only in paragraphs 10, 11, 12 and 13. Those paragraphs read thus :

"10. That after the close of election, the Presiding Officer of the Booth opened the ballot boxes. The Presiding Officer before opening the ballot boxes did not allow the checking of the seal, nor at the time of counting allowed the checking of the ballot papers by the petitioner and his agents. It is pertinent to mention that respondent No. 1 was sitting by the side of Presiding Officers while counting the votes. However, the request of the petitioner to the Presiding Officer to allow them to inspect the bundles of valid and invalid votes, was turned down and a deaf ear was turned to their request.

11. That the Presiding Officer illegally rejected 57 votes whereas infact, these were only 37 votes of such nature.

12. Tha