Recounting of votes cannot be ordered solely based on a thin margin of difference between the winning and runner-up candidates. The Election Tribunal must analyze the evidence and find grounds for recounting before passing such an order.

JUDGMENT

1. Petitioner has filed this writ petition under Article 226 of Constitution of India challenging order dtd. 22/2/2023 contained in Annexure-P/11.

2. By impugned order, election petition filed under Sec. 122 of Madhya Pradesh Panchayat Raj Awam Gram Swaraj Adhiniyam, 1993 was allowed and direction was issued for recounting of votes on 16/3/2023 from 12 pm. Recounting is to be done in respect of polling Center No.211.

3. Counsel appearing for petitioner submitted that recounting was ordered only on ground that there is difference of two votes between winning candidate and runner up candidate. It is submitted that no finding has been given regarding any irregularity, misconduct, corrupt practices in it's order. Counsel for petitioner relied on judgment reported in 2007 3 JLJ 301 Sampat Devi (Smt.) Vs. Sub Divisional Officer-cum-Prescribed Authority Niwadi and others. In said case, it has been held that election tribunal is required to apply it's own mind to the pleadings and evidence brought on record to order recounting of votes. Thin margin of votes between two candidates cannot be sole ground for ordering recounting of votes.

4. Counsel appearing for respondents supported the order passed by prescribed authority. It is submitted that authority has considered the pleadings of the parties and has passed order for recounting of votes. It has been mentioned in order that pleadings and evidence of party was considered. Respondents had pleaded that counting was done at night. Counting also took place in absence of sufficient light. In these circumstances, no error can be found in order passed for recounting of votes.

5. Heard learned counsel for parties and perused order dtd. 22/2/2023 passed by Election Tribunal-cum-Sub Divisional Officer Tendukheda DistrictDamoh.

6. On perusal of the order, it is found that prescribed authority has recorded pleadings of both the parties and evidence available on record. However, no finding has been recorded by Election Tribunal analyzing evidence whether any ground exists for recounting of votes. Order has been passed only on ground that there is hairline difference of votes between returned and runner up candidate. Recounting of votes cannot be ordered only on the basis of fact that there is thin margin of difference of votes between winning and loosing candidates. Election Tribunal-cum-prescribed authority has to assign reasons on basis of evidence for ordering recounting of votes. No analysis of evidence and recording of finding was done by returning officer. Allegation was made that there was booth capturing, forged voting, counting was done at night and in absence of sufficient light etc. No finding has been given on pleadings and on said grounds raised by parties.

7. In view of same, impugned order dtd. 22/2/2023 passed by Sub Divisional Officer District-Damoh is set-aside. Matter is remanded back to Sub Divisional Officer for passing final order after analyzing pleadings and evidence adduced by parties and record it's finding and pass fresh orders on merits of case within period of 45 days from receipt of certified copy of the order passed today.

8. No rehearing of case is required, as parties have already been heard and exercise is to be carried out by Sub Divisional Officer.

9. With aforesaid direction, petition stands disposed off. Certified copy as per rules.