IMPORTANT POINT
An order for re-count cannot be passed on the basis of bare allegations in the election petition.
A narrow margin of 4 votes does not per se give rise to a presumption that there had been an irregularity or illegality in the counting of votes.

JUDGEMENT

D.K. Jain, J.—

1. This appeal, by Special Leave, is directed against the judgment and order dated 19th October, 2007, rendered by the High Court of Punjab & Haryana at Chandigarh in Civil Revision No.5432 of 2007. By the impugned judgment, the High Court has affirmed order dated 12th October, 2007 passed by the Civil Judge (Jr. Division), Hansi (hereinafter referred to as “The Election Tribunal”) in Civil Suit No.4C of 2006, directing the re-counting of votes cast in the election for the post of Sarpanch, Gram Panchayat, Village Bas Badshahpur, Tehsil Hansi, District Hissar.

2. The facts, giving rise to the present appeal, may be briefly summarised as follows: Re-poll for the said post was held on 18th December, 2005. In the result declared the same evening, the appellant was declared elected by a margin of four votes, having secured 881 votes as against 877 votes secured by his nearest rival, respondent No.1 (hereinafter referred to as ‘the election petitioner’), in this appeal. The result was compiled by the Returning Officer in Statutory Form No.19, prescribed under Rule 70(1) of the Haryana Panchayati Raj Election Rules, 1994 (for short ‘the Rules’). The Form was signed by the appellant as well as the election petitioner. The result was declared thereafter.

3. Being dissatisfied with the election result, the election petitioner filed an election petition under Section 176 of the Haryana Panchayati Raj Act, 1994 (for short ‘the Act’). The election of the appellant was challenged on several grounds (all in paragraph 3 of the petition in the narrative form) viz. (i) on completion of election and counting of votes, the election petitioner was found to have secured 877 votes as against 871 votes cast in favour of the appellant; (ii) the Returning Officer declared the election petitioner as elected to the post of Sarpanch; he got Form No.19 signed from him and after the election petitioner had left for his residence to celebrate his victory, the Returning Officer, in connivance with the appellant and under political pressure, wrongly recorded the number of votes secured by each of them and declared the appellant as elected for the said post; and (iii) on account of political pressure and ill-will, the Returning Officer wrongly cancelled a number of votes cast in favour of the election petitioner and, therefore, “re-counting” of votes was illegal. It was alleged that since the Returning Officer had violated the provisions of the Act and the Rules framed thereunder and had committed “certain” illegality, the election of the appellant was a nullity. It was prayed that the election of the appellant be set aside; re- counting of votes be ordered and the election petitioner may be declared as elected to the said post.

4. The election petition was contested by the appellant. It was pleaded that case for re-counting was not made out as the counting of votes was in the presence of the contesting candidates as well as their agents; the allegations in the election petition were frivolous and the election petition was an abuse of the process of law.

5. From the record it appears that neither issues were framed nor any affidavit by way of evidence was filed or oral evidence in support of the respective pleas was adduced. Upon hearing oral submissions and relying on a Full Bench decision of the High Court in the case of Radha Kishan Vs. Election Tribunal-Cum-Sub Judge,1 1999 (2) PLJ 8, the Tribunal allowed the petition, observing thus:

“From the above discussed case law it can be said that the recounts of votes can only be ordered on the basis of material facts which have been asserted by the petitioner and which are duly supported by some evidence thus, making out prima facie case for recounting and there must be some contemporaneous evidence in support of the fact of any irregularity of illegality in the counting. In the instant case, there is margin of only four votes between the petitioner and the respondent No.1 whereby the r