Gayatri Bai vs Alka Sharma - 1997 Supreme(MP) 1168

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Appellant : N.C. Jain.
For the Respondent: N.K. Shukla and Smt. S. Menon.

Headnote:Panchayat Raj Adhiniyam, 1993 (M.P.) – S. 122 – election petition – recount of votes – cannot be ordered without pleading issue and evidence – secrecy of ballot is a sacrosanct principle – such order cannot be passed even on consent.
        Short Note
       1. After having heard the counsel for the parties I am of the opinion that the prescribed authority has failed to decide the election petition in accordance with law and the directions contained in the two orders passed by this Court wherein it was observed that the prescribed authority before making an order of recount has to come to aprimafacie conclusion for making an order of recount. It is well settled that an order of recount of votes must stand or fall on the nature of the averment and the evidence before the order of recount made and not from the recount of votes. See – Shamsudeen P.K.K. v. K.A.M. Mappillqi Mohindeen (AIR 1989 SC 640).
       Held: Admittedly on the pleadings of the parties, in the election petition no issue of recount was raised by the prescribed authority nor the evidence in the case was recorded for arriving at a satisfaction of the prescribed authority for order of recount. It is merely on the basis of the statement that the respondents did not object for the recount, hence, the returned candidate cannot be allowed to raise the objection in relation to the recount whether it can be ordered or not.
       2. This is not a justifiable ground for ordering recount or examination of ballot papers. It is well settled that justification for an order of examination of ballot• papers and recount of votes should be directed by the material placed by an election petitioner on the threshold before an order of recount of votes is actually made. The reason for salutary rule is that the preservation of the secrecy of the ballot is a sacrosant principle which also not be lightly or hastily broken unless there is prima facie genuine need for it. An order of recount cannot be made in the interest of justice or even on consent. See the decisions of the Supreme Court in Shamsudeen P.K.K. (supra) and Shri Satyanarain Dudhani v. Uday Kumar Singh (AIR 1993 SC 367). Following the decision of the Supreme Court this Court has also taken the same view even in petition u/s 122 of the M.P. Panchayat Raj Adhiniyam, 1993, W.P. 3938/95 decided on 3.2.97 (Devki Bai v. Sub – Divisional Officer and others).
       In view of the above, the order of prescribed authority cannot be sustained and is hereby quashed.