The central legal point established in the judgment is the requirement for pleading and proving the application for recount, and the criteria for ordering a recount in election petitions as per the legal provisions and interpretations discussed.

R.S.Garg, J.

1. Heard learned Counsel for the appellant.

2. Being aggrieved by the order dated 7-10-2002 passed by the learned Single Judge in C.W. J,C. No. 5004/2002 granting the writ application filed by Mahendra Rai setting aside the judgment and order dated 6-4-2002 passed by the Munsif, Raxaul at Motihari, East Champaran in Election Case No. 6/2000 allowing the election petition filed by the writ Respondent No. 4 setting aside the election of the present writ petitioner and declaring the writ Respondent No, 4/present appellant as the returned candidate, has filed this appeal under Clause 10 of the Letters Patent.

3. The appellant-election petitioner filed an election petition before the Munsif inter alia submitting that the corrupt practices were writ large and as his request for recount was unceremoniously rejected by the Election Officer, the Munsif must interfere in the matter, direct recount of the votes, set aside the election and declare him elected. It appears that evidence was led but from the side of the election petitioner/ appellant no evidence was led to prove the fact that he had made an application for recount and that was unceremoniously rejected. However, the learned Munsif ordered that the votes be recounted by his interim order. Learned Counsel for the appellant submits that the interim order dated 20-10-2001 was challenged before this Court but this Court refused to interfere at that stage. It appears that thereafter the votes were recounted and the learned tribunal interfered with the election, set aside the same and declared the present appellant as returned candidate. Being aggrieved by the said order, the Respondent No. 4 filed the writ application which after hearing learned Counsel for the parties was allowed.

4. The appellant submits that the learned Single Judge was not justified in not taking into consideration the true import of the judgment of the Supreme Court in the matter of Vadivelu V/s. Sundaram and Ors. (AIR 2000 SC 3230), Placing reliance upon the judgment of the Supreme Court in the matter of Ram Sewak Yadav v. Hussain Kamil Kidwai, (AIR 1964 SC 1249) and R. Narain V/s. S. Semmalai, (AIR 1980 SC 206), it is contended that if the election tribunal is satisfied that to do complete justice between the parties, the recount is a must then the Court must order, and if the Court after recording a finding orders for recount then such an order would be valid,

5. From the order of the learned Single Judge it appears that this very argument was raised before the learned Single Judge, who after taking into consideration the judgment of the Supreme Court in the matter of Ram Rati V/s. Saroj Devi and Ors., ((1997) 6 SCC 66) overruled the submission and allowed the petition mainly on the ground that not only it is to be pleaded that an application for recount was made but the fact is to be proved and after the fact is proved, the learned tribunal must record a finding that recount in view of the allegations and evidence brought on record is a must.

6. In the matter of Ram Rati (supra) the Supreme Court has observed that not only the fact that an application was made is to be pleaded but is also to be proved. The Supreme Court has observed that if the basic requirement is not proved then the Court would not be entitled to interfere with the secrecy of the ballots in directing recount of the ballots. In the present case undisputedly no evidence has been brought on record to show or suggest or to satisfy the judicial conscience of the Court that such an application was made immediately after declaration of the result of the election or such an application was rejected unceremoniously and illegally.

7. In the matter of Ram Sewak (supra) the supreme Court had observed that an order for inspection of the ballot papers cannot be granted to support vague pleas made in the petition supported by material facts or to fish out evidence to support such pleas. The Supreme Court further observed that the c