The main legal point established in the judgment is that the Tribunal has the jurisdiction to order re-count of votes if the allegations of irregularity or illegality in counting are prima facie established and if making such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties.

Swatanter Kumar, J.

1. The settled canons relating to election jurisprudence, where attach definite sanctity to election process and secrecy of ballots, there it signifies the necessity of free and fair elections. Free and fair election is the essence of any democratic process and its infringement would normally result interference by the competent forum prescribed under the statute or by the Court. Every system despite its importance in a society ameliorate with the passage of time and as a result of it being subjected to judicial review. Thus an implied obligation is placed on the Tribunal or the Court, as the case may be, to discernly adjudicate whether the illegalities, irregularities and corrupt practices committed during the election process have materially affected the results the election. A provocative approach founded on pro-active analysis in contrast to the existing status of the events may not provide answer to such a problem. Without exceeding the limits of the prescribed jurisdiction the Court has to make a clear attempt to decipher the skullduggery attempt by a candidate to an election by undermining the concept of fair and free election. De-hors the acts of commission and omission of an elected candidate, which would render his election bad or be a ground for recount the Tribunal in the larger interests of the electorate as to ensure maintenance of sanctity of fair and free election during the entire election process.

2. The learned counsel appearing for the petitioner, while relying upon the case of N. Narayanan v. S. Semmalai, A.I.R. 1980 Supreme Court 206, contended that the learned Tribunal has transgressed the limit of its prescribed jurisdiction under sections 66 and 74 of the Punjab State Election Commission Act, 1994 in passing the impugned order directing re-count of votes and as such order suffers from palpable error calling for interference by this Court in exercise of its jurisdiction under Article 227 of the Constitution of India.

3. On the other hand, learned counsel for the respondents defended the order of the learned Tribunal primarily for the reason that the order of the Tribunal is in consonance and conformity with the provisions of sections 66 and 87 of the Act and Rule 33(c) of the Punjab Panchayat Election Rules, 1994. For this purpose, he relied upon the judgment of Honble Apex Court in the case of A. Neelalohithadassan Nadar v. George Mascrene, 1994 Supp(2) Supreme Court Cases 619.

4. In order to examine the merits of the reasoning given by the learned counsel for the parties in support of their afore-noticed submissions, references to the basic facts would be inevitable. Shri Gurtej Singh and Shri Darbara Singh contested the elections for the post of Sarpanch of village Nial, Tehsil Samana, District Patiala, which was held on 21st June, 1998. Darbara Singh was allotted election symbol "Charda Suraj" while Gurtej Singh was allotted election symbol "Cycle". It is stated that there are 1273 registered voters in village Nial, out of which 1183 voters polled their votes on that date. After counting of votes, Darbara Singh was declared winner by 16 votes, but later on Presiding Officer for the Election of the Gram Panchayat, in collusion with others, in a most illegal and improper manner declared Gurtej Singh as winner by 72 votes. The Election Officer declared the result and prepared the return in accordance with the provision of Rule 37 of the Punjab Panchayat Election Rules, 1994 (hereinafter referred as the Rules). In these circumstances, Darbara Singh filed an election petition before the Election Tribunal, Patiala under Section 74 of the Punjab State Election Act, 1994 (hereinafter referred as the Act) praying for acceptance of his election petition with costs and for setting aside the election of Gurtej Singh and further praying that he be declared elected.

5. The election petition was contested by Gurtej Singh. The learned Tribunal, vide his order dated 4.5.1999 directed re-c