The Tribunal has the jurisdiction to order a recount of the votes with the consent of the parties, and the burden of proof is on the petitioner to show that there had been improper reception or refusal of votes.

The Order of the Court was as follows :

The petitioner has filed this writ petition to quash the order of the Election Tribunal (Principal District Judge, Chengleput) in the Election Petition No. 226/96 wherein the petitioner's election as the President of Ramacherri village Panchayat had been set aside.

2. The petitioner as well as the second respondent contested for the post of the President of the Village Panchayat of Ramancherri Village, Tiruvellore Taluk, Chengleput District in the election held on 9-10-96. The counting of votes was done on 14-10-96. The petitioner was declared elected by a margin of 4 votes. The second respondent herein filed an election petition 226 of 1996 on the file of the Principal District Judge, Chengleput challenging the said election, alleging that the votes were tampered and counting was done erroneously and the fifth respondent who is the member of the Legislative Assembly ordered recounting. In the recounting the result of the election was declared in favour of the petitioner, even though earlier the second respondent was declared elected and the results were published. Before the Election Tribunal both the contesting parties filed a memo stating that recounting can be made and on the basis of the same the Election Tribunal has recounted the disputed votes alone and thereafter declared the second respondent elected and set aside the election of the petitioner. Hence the writ petition.

3. The second respondent filed counter in which she has stated that the Returning Officer, after the counting was over, declared that the second respondent was elected as the President of Ramancherri Village Panchayat and the same was subsequently published in the newspaper. Soon after the results were announced, the fifth respondent, the local ruling party M.L.A., commanded the Block Development Officer to recount the votes again. The Block Development Officer, the third respondent herein recounted the votes as per the direction of the said M.L.A. During the recounting, the ballot papers were allowed to be tampered and finally declared the petitioner to be elected with a margin of 4 votes difference. Hence the second respondent filed the election petition before the Tribunal. Both the parties had agreed for the recounting and in the recounting the undisputed votes had been counted. Apart from the undisputed votes, the invalid votes of 90 and the disputed votes of 37 were considered. The invalid votes had been totally rejected. So far as 37 disputed votes are concerned, the Tribunal verified the objections raised by the other side and ultimately found 10 votes were invalid, 5 votes are valid in favour of the petition herein and 22 votes are valid in favour of the second respondent and ultimately found that the petitioner got totally 762 votes and the second respondent got 766 votes. Finally the election of the petitioner was set aside and the second respondent was declared elected. Hence there is no merit in the writ petition.

4. The Legal Advisor of the sixth respondent has filed the counter-affidavit on behalf of the sixth respondent. No serious averments have been made by the sixth respondent in the counter; except to state that he is only a formal party and he will abide by the order of this Court.

5. Mr. Kanniah, the learned counsel for the petitioner contended that the Election Tribunal has totally erred in ordering recount for the mere asking of it. The Tribunal has totally failed to consider whether the averments made in the election petition with regard to the irregularities committed either in the counting or otherwise. Unless the second respondent is able to establish the irregularities in the process of the election or in the counting, the recounting cannot be ordered and hence the procedure adopted by the Tribunal is totally contrary to law and the principles laid down by the Supreme Court as well as this Court. By mere consent of the parties, recounting cannot be ordered. In the absence of t