An agreement between parties for a recount is valid and binding, and the court can order a recount based on such agreement.

1. This order of mine will dispose of Civil Miscellaneous Nos. 4-E and 35-E of 1992 and also the interim order Election Petition No. 4 of 1992.

2. Skeletal facts necessary to dispose of the aforesaid civil miscellaneous applications and interim order election petition are :-

In the election to 43 Rohat Constituency of Haryana Vidhan Sabha, 19796 valid votes were polled in favour of the petitioner while 19834 valid votes were polled in favour of respondent No. 1-the returned candidate. 14062 valid votes were polled in favour of other Respondent i.e. other candidates. Respondent No. 1-the returned candidate was declared elected by a margin of 38 votes. Application for recount by the petitioner was declined by Returning Officer inter alia on the ground that it was made after declaration of the result.

3 The election of the returned candidate was challenged through an election petition on various grounds including the grounds of improper reception of invalid votes in favour of the returned candidate improper rejection of valid votes of the petitioner as well as counting of the votes of the petitioner as those of the respondents. A recount of votes was sought with a prayer that on recount, the petitioner having received majority of valid votes, be declared elected.

4. The respondent No. 1-the returned candidate raised preliminary objection with respect to non-disclosure of any cause of action in the petition as well as the petition being vague. The returned candidate preferred an application wherein he claimed a recounting of votes almost on the same grounds and the pattern as the petitioner had. During the course of arguments on preliminary objections with respect to non-disclosure of cause of action and the numbered paragraphs being liable to be struck off being vague, the petitioner and respondent No. 1-the returned candidate entered into an agreement. It was agreed that a test check would be made in respect of booth Nos. 78, 78-A, 94 and 94-A as well as of the rejected votes of Ist round on tables Nos. 1 to 12. The petitioner has undertaken that after recount on test check, if a negligible error in counting is found i.e. to say one or two votes being wrongly rejected or wrongly counted, then the petition would be deemed to have been dismissed. However, if substantial number of votes are found to have been accepted or rejected, a recount of the entire Rohat Assembly Constituency would be ordered. It was further agreed that votes of the petitioner as well as the respondents would be recounted and the election petition as well as the recrimination petition would be disposed of in. terms of the result of recounting.

5. It would be expedient to reproduce the statements made by the parties in this regard, which run as under :-

Statement of Mahender Singh Petitioner :-

"The test check of the counting may be made in respect of booths No. 78, 78A, 94 and 94-A as well as of the rejected votes of first round on tables No. 1 to 12. The petitioner undertakes that either no error or a negligible error (i.e. one or two votes are found to have been wrongly rejected or wrongly counted) is made out after the test check then my petition may be dismissed. However, if substantial number of votes are found to have been. wrongly accepted or rejected recount of the entire constituency be ordered including votes of the respondent. Neither I will raise any objection nor have any objection in the counting of the votes of the respondent either at the time of test check or in the eventuality of the recounting being ordered. The votes of the petitioner as well as of the respondent may be counted at the time of recounting if recounting is ordered in view of my earlier statement, I would raise no objection with respect to recounting of the votes of the respondent also. Recrimination petition as well as election petition be decided on recounting in terms of my statement made above. The parties will be at liberty to raise objection with respect to count