The main legal point established in the judgment is that recounting of votes should not be directed on routine allegations without specific pleadings of irregularities in counting. Prima facie proof of errors in counting is necessary to justify a recount, and the secrecy of votes should be maintained.

Dipak Misra, J.

1. In this intra-court appeal preferred under section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005, the legal validity of the order dated 13-5-2009 passed by the learned Single Judge in W.P. No. 5290/08 is called in question.

2. The facts which are discernible from the material brought on record and the order of the learned Single Judge are that election was held for the post of Sarpanch of Village, Ghansa, District, Balaghat and in the said election the present appellant was declared elected on 27-1-2005. The respondent No. 2 challenged the said election under section 122 of the M. P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 [for brevity 'the 1993 Act'] alleging that the respondents No. 3 and 4 who were the Presiding Officers of the booth Nos. 196 and 195 respectively colluded with the elected candidate and under her influence, the Presiding Officer did not affix the format of the votes on the notice board. It was further alleged that the Prescribed Officer had not properly counted the votes and the decision with regard to acceptance and rejection of valid and invalid votes was perverse as a result of which the election petitioner lost the election by a small margin of 7 votes. It was put forth that at the time the result was announced, 19 votes were not found valid but on 27-1-2005, at the time of tabulation, it was declared that 17 votes were invalid. That itself showed that there had been manipulation in counting of votes.

3. As is evincible, the said election petition was dismissed by order dated 29-6-2005 and the said order of dismissal came to be assailed in W.P. No. 6987/05 which was allowed by this Court on 26-9-2006. This Court set aside the order of dismissal and directed the election tribunal to decide the petition afresh in accordance with law.

4. After the remit of the election petition, the election tribunal reheard the matter and passed an order on 22-4-2008, Annexure-P/6 to the writ petition. While dealing with the concept of recounting, the Prescribed Authority ascribed the reasons, which on being translated into English, are as follows:

Both the parties have been heard and statements of the witnesses and arguments advanced by the learned counsel for both the parties have been perused. This is evident that the petitioner made application seeking recounting of votes before the Returning Officer in Booth No. 196. Respondent witness has admitted this thing but he has stated that recounting was not made. Under such circumstances, there is clear direction for recounting to clear the doubts with all respect if application or demand is made to this effect. Presiding Officer of this polling booth has failed to follow that direction. Therefore, I arrive at the conclusion that the petitioner is entitled to clear his doubt. Objection of respondent No. 1 is rejected. The petition is allowed and demand for recount of votes at polling booth No. 196 is allowed. Order passed.

5. Questioning the soundness of the order passed by the election tribunal, was urged before the learned Single Judge that there was no cogent material to record a finding that there was manipulation in the counting and recounting of votes. In the absence of cogent evidence, the direction for recount of votes is totally unwarranted and unjustified. The learned Single Judge referred to the testimony of one witness, namely, Likhandra, but had deposed in support of recounting. The said testimony which is in Hindi, on being translated into English, reads as under:

In Gram Panchayat, Ghansa, Panchayat election was held on 14-1-2005. 1 was present at Booth No. 196 as the polling agent on behalf of Lalamras candidate for Sarpanch. Presiding Officer did not check invalid votes properly and at the time of recounting despite being requested valid and invalid ballot papers were not shown. There were 7 invalid votes at booth No. 196 and 12 at booth No. 195. 17 votes were alleged to be invalid and countin