The main legal point established in the judgment is the duty of the Election Tribunal to recount the votes itself and not delegate this function to third parties.

R.S. Garg, Ag. C.J.

1. By this petition, filed under Article 227 of the Constitution of India, petitioner seeks to challenge the correctness, validity and propriety of the order dated 25-5-2000 passed in Case No. 2/A-89A (4)/99-2000 granting election petition of the respondent No. 5 and directing recount of the votes.

2. According to the learned counsel for the petitioner as an application for recount was not made to the returning officer immediately after declaration of the results, the Tribunal could not accept the plea and direct recount. It is further submitted that the Court/Tribunal has acted contrary to law by issuing a direction to the Returning Officer to recount the votes in the entirety. According to learned counsel for the petitioner, when the election petition is allowed by the Tribunal, then the Tribunal alone has the jurisdiction to direct recount and it is bound to recount the votes itself.

3. Learned counsel for the respondent No. 5, on the other hand, submits that the petitioner, immediately after counting of the votes, made a complaint to the Polling Officer that the counting slips were not issued to them and he also wanted to make a request for recount by the Polling/Counting Officer informed them that such an application is to be filed before the Returning Officer. Thereafter the respondent No. 5 met the Returning Officer and wanted to supply him the application for recount but his request was turned down and he was advised to file the election petition. According to the learned counsel for the respondent No. 5, even in the statements of the witnesses the facts have come that the counting slips were not issued and as none has said contrary to the statements of the respondent No. 5 that he went to make an application to the Returning Officer which the Returning Officer refused to accept, the Tribunal below was absolutely justified in granting the election petition in his favour. So far as the operative portion of the judgment of the lower Tribunal is concerned, he concedes to the argument submitted by learned counsel for the petitioner.

4. Shri Ranbir Singh, learned counsel for the State, however, submits that as the matter relates to election dispute, the State has nothing to say.

5. The respondent No. 5 examined himself as a witness. In his statement, he has clearly stated that he made an oral request to the Polling/Counting Officer for recount and also wanted to submit an application to him on which the Presiding/Counting Officer informed him that such an application was required to be filed before the Returning Officer. The respondent No. 5 also stated that immediately after the counting was over, the counting slips were not supplied to the petitioner. True it is that the petitioner as a witness, stated before the Tribunal that after finding that the respondent No. 5 lost the elections, he left the premises and thereafter the counting slips were supplied to all. A serious dent has been given to the statement of the petitioner by another candidate who was examined as D.W. 2/1. Said Prabhat Mandal clearly stated that at the time of the counting, no dispute was raised but the counting slips were not supplied to anybody. Similarly, the D.W. Vishnu also stated that the counting slips were not supplied to the parties. D.W. Sushant Bairagi also stated that the counting slips were not given to all the candidates but it was only given to the petitioner Asim Saha through his agent Kamal Sana. From these statements, it does not appear that the lower Tribunal was unjustified in recording a finding that the mandatory provisions relating to supply of the counting slips were not violated.

6. So far as the respondent No. 5's submission, that he tried to give an application to the Returning Officer but he refused to receive it, is concerned, it cannot be brushed aside simply on the ground that no application was submitted to him. What the law requires is that if somebody wants to raise a ground to challenge the election