ORDER :

[PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of India to call for the records relating to the order dated 28.10.2022 passed by the learned I Additional District Judge, Election Tribunal, Madurai, in Election O.P.No.40 of 2022 and set aside the same.]

1. The petitioner was a candidate and she contested for the post of Councilor of Ward No.26 of Madurai Corporation, but has failed. She has filed a petition in Election O.P.No.40 of 2012 under Rule 118 of the Tamil Nadu Town Panchayats, Third Grade Municipalities and Municipal and Corporation Councils (Elections) Rules, 2006, before the I Additional District Court, Election Tribunal, Madurai, for a declaration and for recounting of the votes. The trial Court, by order dated 28.10.2022, dismissed this application and aggrieved over the same, the petitioner has filed the present revision petition.

2. According to the petitioner, she contested for the post of Councilor of Ward No.26 of the Madurai Corporation and her grievance is that the sixth respondent herein, who was her rival candidate, had been wrongly declared as the successful contestant. The polling of votes was conducted on 19.02.2022 from 07.00 am to 06.00 pm and there were 11 booths starting from booth nos.314 to 323. The petitioner contends that the Presiding Officer has not given the actual number of votes secured and recorded in booth no.320, which eventually led to malpractice and favoritism in respect of the sixth respondent. The further case of the petitioner is that the fifth respondent, in a pre-judgmental manner, counted the votes polled in Ward No.26 and arbitrarily declared the sixth respondent as the successful candidate.

3. Heard the learned Counsel appearing for the respective parties and perused the materials placed on record.

4. The Hon'ble Supreme Court in Vadivelu v. Sundaram [(2000) 8 SCC 355], has held as follows:-

“16. The result of the analysis of the above cases would show that this Court has consistently taken the view that re-count of votes could be ordered very rarely and on specific allegation in the pleadings in the election petition that illegality or irregularity was committed while counting. The petitioner who seeks re-count should allege and prove that there was improper acceptance of invalid votes or improper rejection of valid votes. If only the court is satisfied about the truthfulness of the above allegation, it can order re-count of votes. Secrecy of ballot has always been considered sacrosanct in a democratic process of election and it cannot be disturbed lightly by bare allegations of illegality or irregularity in counting. But if it is proved that purity of elections has been tarnished and it has materially affected the result of the election whereby the defeated candidate is seriously prejudiced, the court can resort to re-count of votes under such circumstances to do justice between the parties.”

5. Therefore, the issue to be decided is whether there were any improper acceptance of invalid votes or improper rejection of valid votes by the fifth respondent. The petitioner should also prove that the contentions are not just bare allegations of illegality or irregularity in the counting of votes, but are legitimate concerns by evidence.

6. To elaborate further, the Hon'ble Supreme Court in Suresh Prasad Yadav v. Jai Prakash Mishra, [(1975) 4 SCC 822], has held as follows:-

“6. The Court would be justified in ordering a recount of the ballot papers only where:

(1) the election-petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded;

(2) on the basis of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting; and

(3) the court trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectu